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other party, they shall pass free and unmolested, and no attempts shall be made to take or detain them.

Treaty of Peace and Amity concluded between the United States and

Tripoli, June 4, 1805, Article Il'. And if any goods belonging to any nation, with whom either of the parties shall be at war, shall be loaded on vessels belonging to the other party, they shall pass free and unmolested, without any attempt being made to take or detain them.

Treaty of Peace and Friendship, concluded between the United States and

Morocco, September 16, 1836, Article III. It shall be lawful for the citizens of the United States of America and of the Republic of New Granada to sail with their ships with all manner of liberty and security, no distinction being made who are the proprietors of the merchandise laden thereon, from any port to the places of those who now are or hereafter shall be at enmity with either of the contracting parties. It shall likewise be lawful for the citizens aforesaid to sail with the ships and merchandise before mentioned, and to trade with the same liberty and security from the places, ports and havens of those who are enemies of both or either party, without any opposition or disturbance whatsoever, not only directly from the places of the enemy before mentioned to neutral places, but also from one place belonging to an enemy to :bother place belonging to an enemy, whether they be under the jurisdiction of one power or under several. And it is hereby stipulated that free ships shall also give freedom to goods, and that everything which shall be found on board the ships belonging to the citizens of either of the contracting parties shall be deemed to be free and exempt, although the whole lading or any part thereof should appertain to the enemies of either, (contraband goods being always excepted).

Treaty of Peace, Amity, Navigation, and Commerce concluded between the

United States and New Granada (Colombia), December 12, 1846. Ar

ticle XV. The two High Contracting Parties recognize as permanent and immutable the following principles, to wit:

1st. That free ships make free goods that is to say, that the effects or goods belonging to subjects or citizens of a Power or State at war are free from capture and confiscation when found on board of neultral vessels, with the exception of articles contraband of war.

They engage to apply these principles to the commerce and navigation of all such Powers and States as shall consent to adopt them on their part as permanent and immutable.

Convention as to Rights of Neutrals at Sea, concluded between the t'nited

States and Russia, July 22, 1854, Article 1. The two high contracting parties recognize as permanent and immutable the following principles:

1st. That free ships make free goods; that is to say, that the effects or merchandise belonging to a Power or nation at war, or to its citizens or subjects, are free from capture and confiscation when found on board of neutral vessels, with the exception of articles contraband of war.

2d. *

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The two high contracting parties engage to apply these principles to the commerce and navigation of all Powers and States as shall consent to adopt them as permanent and immutable.

Convention Declaring the Principles of the Rights of Neutrals at Sea,

concluded between the United States and Peru, July 22, 1856, Article 1. The two high contracting parties recognize as permanent and immutable the following principles, to wit:

1st. That free ships make free goods; that is to say, that the effects or goods belonging to subjects or citizens of a power or State at war are free from capture or confiscation when found on board of neutral vessels, with the exception of articles contraband of war.

*

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The contracting parties engage to apply these principles to the commerce and navigation of all such powers and States as shall consent to adopt them as permanent and immutable.

Treaty of Peace, Friendship, Commerce, and Navigation concluded between

the United States and Bolivia, May 13, 1858, Article XVI. It shall be lawful for the citizens of the United States, and for the subjects of the Kingdom of Italy, to sail with their ships with all manner of liberty and security, no distinction being made who are the proprietors of the merchandise laden thereon, from any port to the places of those who now are, or hereafter shall be, at enmity with either of the contracting parties. It shall likewise be lawful for the citizens aforesaid to sail with the ships and merchandise before mentioned, and to trade with the same liberty and security from the places, ports, and havens of those who are enemies of both or either party without any opposition or disturbance whatever, not only directly from the places of the enemy before mentioned to neutral places, but also from one place belonging to an enemy to another place belonging to an enemy, whether they be under the jurisdiction of one power or under several; and it is hereby stipulated that free ships shall also give freedom to goods, and that everything shall be deemed to be free and exempt from capture which shall be found on board the ships belonging to the citizens of either of the contracting parties, although the whole lading or any part thereof should appertain to the enemies of the other, contraband goods being always excepted.

Provided, however, and it is hereby agreed, that the stipulations in this article contained, declaring that the flag shall corer the property, shall be understood as applying to those powers only who recognize this principle, but if either of the two contracting parties shall be at war with a third, and the other neutral, the flag of the neutral shall cover the property of enemies whose governments acknowledge this principle, and not of others.

Treaty of Commerce and Navigation concluded between the United States

and Italy, February 26, 1871, Article XVI. The principle of the inviolability of enemy private property sailing under a neutral flag should be considered henceforth as fixed in the domain of the positive law of nations.

Institute, 1875, p. 14.

They neutrals are free to carry into belligerent ports all goods not comprised in the list of articles considered contraband of war.

Institute, 1898, p. 156.

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Contra.

But neutral ships do not afford protection to enemy's property, and it may be seized if found on board of a neutral vessel, bevond the limits of the neutral jurisdiction. This is a clear and well-settled principle of the law of nations. *

The right to take enemy's property on board a neutral ship has been much contested by particular nations, whose interests it strongly opposed. This was the case with Prussia in the case of the Silesia loan, and with the Dutch in the war of 1756; and Mr. Jenkinson (afterwards Earl of Liverpool) published, in 1757, a discourse, very full and satisfactory, on the ground of authority and usage, in favor of the legality of the right, when no treaty intervened to control it. The rule has been steadily maintained by Great Britain. In France it has been fluctuating. The ordinance of the marine of 1681 asserted the ancient and severe rule, that the neutral ship, having on board enemy's property, was subject to confiscation. The same rule was enforced by the arrets of 1692 and 1704, and relaxed by those of 1714 and 1778. In 1780 the Empress of Russia proclaimed the principles of the Baltic code of neutrality, and declared she would maintain them by force of arms. One of the articles of that code was, that “all effects belonging to the subjects of belligerent powers should be looked upon as free on board of neutral ships, except only such goods as were contraband." The principal powers of Europe, as Sweden, Denmark, Prussia, Germany, Holland, France, Spain, Portugal, and Naples, and also these United States, acceded to the Russian principles of neutrality. But the want of the consent of a power of such decided maritime superiority as that of Great Britain was an insuperable obstacle to the success of the Baltic conventional law of neutrality; and it was abandoned in 1793 by the naval powers of Europe, is not sanctioned by the existing law of nations, in every case in which the doctrines of that code did not rest upon positive compact. During ihe whole course of the wars growing out of the French Revolution, the Government of the United States admitted the English rule to be valid, as the true and settled doctrine of international law; and that enemy's property was liable to seizure on board of neutral ships, and to be confiscated as prize of war. It has, however, been very usual, in commercial treaties, to stipulate that free ships should make free goods, contraband of war always excepted; but such stipulations are to be considered as resting on conventional law merely, and as exceptions to the operation of the general rule, which every nation not a party to the stipulation is at perfect liberty to exact or surrender. The Ottoman Porte was the first power to abandon the ancient rule, and she stipulated, in her treaty with France, in 1604, that free ships should make free goods, and she afterwards consented to the same provision in her treaty with Holland, in 1612; and according to Azuni, Turkey has, at all times, on international questions, given an example of moderation to the more civilized powers of Europe.

Kent, vol. 1, pp. 133, 134; Valin, Comm. 1, 3, title 9. Des Prises, art. 7;

Ver Ann., Reg. 1780, title Public Papers, 113–120; Martens, Summary, 327, enl. Phil.; Journals of Congress, vii, 68, 185 ; Mr. Pickering's Letter to Mr. Pinckney, Jan. 16. 1797 ; Letter of Messrs. Pinckney, Marshall, and Gerry to the French Government, Jan. 27, 1798; Maritime Law of Europe, ii, 163.

Contra.

The government of the United States, in their negotiations with the republics in South America, have pressed very earnestly for the introduction and establishment of the principle of the Baltic code of 1780. that the friendly flag should cover the cargo; and this principle was incorporated into the treaty between the United States and Ĉolombia, in 1825, and into the treaty of navigation and commerce between the United States and the Republic of Chile, in 1832. The introduction of those new republics into the great community of civilized nations has justly been deemed a very favorable opportunity to inculcate and establish, under their sanction, more enlarged and liberal doctrines on the subject of national rights. It has been the desire of our government to obtain the recognition of the fundamental principles, consecrated by the treaty with Prussia, in 1785, relative to the perfect equality and reciprocity of commercial rights between nations; the abolition of private war upon the ocean; and the enlargement of the privileges of neutral commerce. The rule of public law, that the property of an enemy is liable to capture in the vessel of a friend, is now declared, on the part of our government, to have no foundation in natural right; and that the usage rests entirely on force. Though the high seas are a general jurisdiction, common to all, vet each nation has a special jurisdiction over its own vessels; and all the maritime nations of modern Europe have, at times, acceded to the principle, that the property of an enemy should be protected in the vessel of a friend. No neutral nation, it is said, is bound to submit to the usage; and the neutral may have yielded at one time to the usage, without sacrificing the right to vindicate, by force, the security of the neutral flag at another. The neutral right to cover enemy's property is conceded to be subject to this qualification: that a belligerent nation may justly refuse to neutrals the benefit of this principle, unless it be conceded also by the enemy of the belligerent to the same neutral flag.

But whatever may be the utility or reasonableness of the neutral claim, under such a qualification, I should apprehend the belligerent right to be no longer an open question; and that the authority and Usage on which the right rests in Europe, and the long, explicit, and authoritative admission of it by this country, have concluded us from making it a subject of controversy; and that we are bound, in truth and justice, to submit to its regular exercise, in every case and with every belligerent power who does not freely renounce it.

Kent, Vol. 1, pp. 138-140; Letter of Mr. Allams, Secretary of State, to Mr.

Anderson, May 27, 1923; President's Message to the Senate, December 26, 182.), and to the House of Representatives, March 15, 1826.

Contra.

Whatever may be the true original abstract principle of natural law on this subject, it is undeniable that the constant usage and practice of belligerent nations, from the earliest times, have subjected enemy's goods in nentral vessels to capture and condemnation, as prize of war. This constant and universal usage has only been interrupted by treaty stipulations, forming a temporary conventional law between the parties to such stipulations.

Dana's Wheaton, pp. 551-552.

The conventional law, in respect to the rule now in question, has fluctuated at different periods, according to the fluctuating policy and interests of the different maritime States of Europe. It has been much more flexible than the consuetudinary law; but there is a great preponderance of modern treaties in favor of the maxim, free ships free goods, sometimes, but not always, connected with the correlative maxim enemy ships enemy goods, so that it may be said that, for two centuries past, there has been a constant tendency to establish, by compact, the principle, that the neutrality of the ship should exempt the cargo, even if enemy's property, from capture and confiscation is prize of war.

Dana's Wheaton, pp. 381, 382. Contra.

During the war which commenced between the United States and Great Britain in 1812, the prize courts of the former uniformly enforced the generally acknowledged rule of international law, that enemy's goods in neutral vessels are liable to capture and confiscation, except as to such powers with whom the American Government had stipulated by subsisting treaties the contrary rule, that free ships should make free goods.

Dana's Wheaton, p. 603. In their earliest negotiations with the newly established Republies of South America, the United States proposed the establishunent of the principle of free ships free goods, as between all the powers of the North and South American Continents. It was declared that the rule of public law—that the property of an enemy is liable to capture in the vessels of a friend, has no foundation in natural right, and, though it be the established usage of nations, rests entirely on the abuse of force. No neutral nation, it was said, was bound to submit to the usage; and though the neutral may have vielded at one time to the practice, it did not follow that the right to vindicate by force the security of the neutral flag at another, was thereby permanently sacrifice. But the neutral claim to cover enemy's property was conceded to be subject to this qualification: That à belligerent may justly refuse to neutrals the benefit of this principle, unless admitted also by their enemy for the protection of the same neutral flag.

Dana's Wheaton, p. 603.
Relations of the United States to the Declaration of Paris.

when asked to give in our adhesion to the four articles I of the Declaration of Paris], the reply was that we were not willing to debar ourselves from the right to use privateers in any possible exigency of war, as our policy was to have a small. navy, and we always had a large and very much exposed commerce; but that we roull agree to the articles, if all private property at sea should be held exempt from capture. This known as the "American Amendment," or "Marcy Amendment," was well received by the other parties to the Articles of Paris, but was prevented from being adopted by the opposition of England. Subsequently, the United States withdrew its proposal; seemingly unwilling to renounce the right to use privateers, even on the terms of exemption of all private property. At the outset of our civil war, the United States proposed conventions adopting the Articles of Paris as they stood,

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