tion of belligerent pretensions may be fairly coupled with a correspondent concession by the neutral, that enemy ships should make enemy goods. These two maxims have been, in fact, commonly thus coupled in the various treaties on this subject, with a view to simplify the judicial inquiries into the proprietary interest of the ship and cargo, by resolving them into the mere question of the national character of the ship.

§ two max

goods and

rily con

The two maxims are not, however, inseparable. The 22. The primitive law, independently of international compact, ims, of free rests on the simple principle, that war gives a right to ships free capture the goods of an enemy, but gives no right to enemy ships enemy goods, capture the goods of a friend. The right to capture an not necessaenemy's property has no limit but of the place where the nected. goods are found, which, if neutral, will protect them from capture. We have already seen that a neutral vessel on the high seas is not such a place. The exemption of neutral property from capture has no other exceptions than those arising from the carrying of contraband, breach of blockade, and other analogous cases, where the conduct of the neutral gives to the belligerent a right to treat his property as enemy's property. The neutral flag constitutes no protection to an enemy's property, and the belligerent flag communicates no hostile character to neutral property. States have changed this simple and natural principle of the law of nations,, by mutual compact, in whole or in part, according as they believed it to be for their interest; but the one maxim, that free ships make free goods, does not necessarily imply the converse proposition, that enemy ships make enemy goods. The stipulation, that neutral bottoms shall make neutral goods, is a concession made by the belligerent to the neutral, and gives to the neutral flag a capacity not given to it by the primitive law of nations, On the other hand, the stipulation subjecting neutral property, found in the vessel of an enemy, to confiscation as prize of. war, is a concession made by the neutral to the belligerent, and takes from the neutral a privilege he possessed under the preëxisting law of nations; but neither reason nor usage renders the two concessions so indissoluble, that the one cannot exist without the other.

It was upon these grounds that the Supreme Court of the United States determined that the Treaty of 1795, between them

and Spain, which stipulated that free ships should make free goods, did not necessarily imply the converse proposition, that enemy ships should make enemy goods, the treaty being silent as to the latter; and that, consequently, the goods of a Spanish subject, found on board the vessel of an enemy of the United States, were not liable to confiscation as prize of war. And although it was alleged, that the prize law of Spain would subject the property of American citizens to condemnation, when found on board the vessels of her enemy, the court refused to condemn Spanish property, found on board a vessel of their enemy, upon the principle of reciprocity; because the American government had not manifested its will to retaliate upon Spain; and until this will was manifested by some legislative act, the court was bound by the general law of nations constituting a part of the law of the land.1 (a)

§ 23. Conventional law as to

free ships

The conventional law, in respect to the rule now in question, has fluctuated at different periods, according free goods. 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 as prize of war. The capitulation granted by the Ottoman Porte to Henry IV. of France, in 1604, has commonly been supposed to form the earliest example of a relaxation of the primitive rule of the maritime law of nations, as recognized by the Consolato del Mare, by which the goods of an enemy, found

Cranch's Rep. vol. ix. p. 388. The Nereide.

(a) [A late French writer thus distinguishes, in the two cases, the effect of the nationality of the ship on that of the cargo: "Dans le premier cas, le pavillon ami protège la propriété ennemie, parcequ'il inter dit aux croiseurs l'entrée et par conséquent la visite du bâtiment; dans le second cas, parceque le pavillon n'en dénature point la propriété." Garden, Traité de Diplomatie, tom. ii. p. 365.]

on board the ships of a friend, were liable to capture and confiscation as prize of war. But a more careful examination of this instrument will show, that it was not a reciprocal compact between France and Turkey, intended to establish the more liberal maxim of free ships free goods; but was a gratuitous concession, on the part of the Sultan, of a special privilege, by which the goods of French subjects laden on board the vessels of his enemies, and the goods of his enemies laden on board French vessels, were both exempted from capture by Turkish cruisers. The capitulation expressly declares, art. 10:—" Parceque des sujets de la France naviguent sur vaisseaux appartenans à nos ennemis, et les chargent de leurs marchandises, et étant rencontrés, ils sont faits le plus souvent esclaves, et leurs marchandises prises; pour cette cause, nous commandons et voulons qu'à l'avenir, ils ne puissent être pris sous ce prétexte, ni leurs facultés confisquées, à moins qu'ils ne soient trouvés sur vaisseaux en course," etc. Art. 12:-"Que les marchandises qui séront chargées sur vaisseaux Français appartenantes aux ennemis de notre Porte, ne puissent être prises sous couleur qu'ils sont de nos dits ennemis, puisque ainsi est nôtre vouloir." 1

It became, at an early period, an object of interest with Holland, a great commercial and navigating country, whose permanent policy was essentially pacific, to obtain a relaxation of the severe rules which had been previously observed in maritime warfare. The States-General of the United Provinces having

Flassan, Histoire de la Diplomatie Française, tom. ii. p. 226. M. Flassan observes: - "C'est a tort qu'on a donné à ces Capitulations le nom de traité, lequel suppose deux parties contractantes, stipulans sur leurs intérêts; ici on ne trouve que des concessions de privelèges, et des exemptions de pure libéralité faites par la Porte à la France." In the first English edition of this work, and also in another more recently published, under the title of "History of the Law of Nations," the author has been misled, by following the authority of Azuni and other compilers, into the erroneous conclusion, that the above capitulation was intended to change the primitive law, as observed among the maritime States of the Mediterranean from the earliest times, and to substitute a more liberal rule for that of the Consolato del Mare, of which the Turks must necessarily be supposed to have been ignorant, and which the French king did not stipulate to relax in their favor, where the goods of his enemies should be found on board Turkish vessels.

complained of the provisions in the French ordinance of Henry II., 1538, a treaty of commerce was concluded between France and the Republic, in 1646, by which the operation of the ordinance, so far as respected the capture and confiscation of neutral vessels for carrying enemy's property, was suspended; but it was found impossible to obtain any relaxation as to the liability to capture of enemy's property in neutral vessels. The Dutch negotiator in Paris, in his correspondence with the grand pensionary De Witt, states that he had obtained the "repeal of the pretended French law, que robe d'ennemi confisque celle d'ami; so that if, for the future, there should be found in a free Dutch vessel effects belonging to the enemies of France, these effects alone will be confiscable, and the ship with the other goods will be restored; for it is impossible to obtain the twenty-fourth article of my Instructions, where it is said that the freedom of the ship ought to free the cargo, even if belonging to an enemy." This latter concession the United Provinces obtained from Spain by the treaty of 1650; from France by the treaty of alliance of 1662; and by the commercial treaty signed at the same time with the peace at Nimiguen in 1678, confirmed by the treaty of Ryswick in 1697. The same stipulation was continued in the treaty of the Pyrénées between France and Spain, in 1659. The rule of free ships free goods was coupled, in these treaties, with its correlative maxim, enemy ships enemy goods. The same concession was obtained by Holland from England, in 1668 and 1674, as the price of an alliance between the two countries against the ambitious designs of Louis XIV. These treaties gave rise, in the war which commenced in 1756 between France and Great Britain to a very remarkable controversy between the British and Dutch governments, in which it was contended, on the one side, that Great Britain had violated the rights of neutral commerce, and on the other, that the States-General had not fulfilled the guarantee which constituted the equivalent for the concession made to the neutral flag, in derogation of the preëxisting law of nations.'

1 Dumont, Corps Diplomatique, tom. vi. pt. i. p. 342. Flassan, Histoire de la Diplomatie Française, tom. iii. p. 451. A pamphlet was published on the occasion of this controversy between the British and Dutch governments, by the elder

A treaty of commerce and navigation was concluded between the Republic of England and the King of Portugal in 1654, by which the principle of free ships free goods, coupled with the correlative maxim of enemy ships enemy goods, was adopted between the contracting parties. This stipulation continued to form the conventional law between the two nations, also closely connected by political alliance, until the revision of this treaty in 1810, when the stipulation in question was omitted, and has never since been renewed.

The principle that the character of the vessel should determine that of the cargo, was adopted by the treaties of Utrecht of 1713, subsequently confirmed by those of 1721 and 1739, between Great Britain and Spain, by the treaty of Aix-la-Chapelle, in 1748, and of Paris in 1763, between Great Britain, France, and Spain.1

of 1780.

Such was the state of the consuetudinary and con- Armed ventional law prevailing among the principal maritime neutrality powers of Europe, when the declaration of independence by the British North American colonies, now constituting the United States, gave rise to a maritime war between France and Great Britain. With a view to conciliate those powers which remained neutral in this war, the cabinet of Versailles issued, on the 26th of July, 1778, an ordinance or instruction to the French cruisers, prohibiting the capture of neutral vessels, even when bound to or from enemy ports, unless laden in whole or in part with contraband articles destined for the enemy's use; reserving the right to revoke this concession, unless the enemy should adopt a reciprocal measure within six months. The British government, far from adopting any such measure, issued in March, 1780, an order in council suspending the special stipulations respecting neutral commerce and navigation contained in the treaty of alliance of 1674, between Great Britain and the United Provinces upon the alleged ground that the States

Lord Liverpool, (then Mr. Jenkinson,) entitled, "A Discourse on the Conduct of Great Britain in respect to Neutral Nations during the present War," which contains a very full and instructive discussion of the question of neutral navigation, both as resting on the primitive law of nations and on treaties. London, 8vo. 1757. 2d ed. 1794; 3d ed. 1801.

' Wheaton's Hist. Law of Nations, pp. 120-125.