Page images
PDF
EPUB

harsh and cruel in its operation, and unjust in its nature; and it never fails in time of maritime war to produce irritation and animosity between the belligerent and the neutral. So universally has this been found to be its consequences, that all the maritime nations of modern Europe have shown their sense of it by stipulating the contrary principle, namely, that the property of an enemy shall be protected in the vessel of a friend."

Again Mr. Adams, as President, caused ministers to be sent to the American Diplomatic Congress of Panama to sanction, among other improvements, as a principle of the code of public law, the rule that free ships make free goods. (See his Message to the Senate of December 26th, 1825.)

SECTION THIRTY-NINTH. OF NEUTRAL RIGHTS ADMITTED BY BRITAIN AND AFFIRMED BY OTHER NATIONS.

The right of neutrals to free trade with belligerents, and the principle of international law that free ships make free goods, except contraband, consisting of arms, ammunition and munitions of war, are clear, explicit doctrines of the treaty of navigation and commerce of Utretcht, of 1713, between France and Great Britain. The 17th, 18th, 19th and 20th Articles of this treaty declared not only that the vessels of either party might freely trade in all

merchandise except strict contraband of war, with enemies of both or either party, to and from such belligerent ports, and also from port to Port of such enemy of both or either party; but that celebrated treaty also affirmed that the neutral flag should cover all persons on board, even enemies of the other party, except soldiers in the actual service of the enemy. According to this treaty the flag covers the ship, cargo and all on board except strict contraband of war, and soldiers in the service of the enemy. (See Chalmers' Treaties, 402, 403.)

In England the maritime treaty of Utretcht was considered as establishing great and permanent principles of international law, as is manifest from its ratification, and renewal by the treaty of Paris of 1763, made between Great Britain, France and Spain, to which Portugal acceded. By Article 2d the treaties of peace, navigation and commerce of Utretcht of 1713, were confirmed. (See Chalmers' Treaties, vol. 1st, p. 470.) Great Britain again, by the treaty of 1783 made with France, in Article 2d confirmed the treaties of peace and commerce of Utretcht and of that of Paris of 1763. (1 Chalmers' Treaties, p. 497.) The treaty of 1783 between Great Britain and Spain, in its 2d Article repeated the confirmation of the treaty of navigation and commerce of Utretcht and of that of Paris of 1763, and thus reaffirmed the old law of nations,

that free ships make free goods. (1 Chalmers' Treaties, p. 231.) The treaty of commerce made between Great Britain and France in 1786, by Articles 20th, 21st, 22d, and 23d, renewed and reaffirmed the liberal doctrines of the treaty of navigation and commerce of Utretcht in favor of neutral rights and free trade. (See Chalmers, vol. 1st, p. 532, 533.) In 1797, Lord Malmsbury in a diplomatic communication to the French negotiators at Lisle, proposed to insert in a treaty a provision confirming the treaty of Utretcht, Aix la Chapelle, &c., on the ground that those treaties had become " the law of nations, and if they were omitted it might produce confusion.” (See Lord Malmsbury's Despatch to Lord Grenville, dated July 18th, 1797.) The British Government, in 1782, in a letter of the Secretary Fox to M. Semolin, the Russian Minister at London, dated May 4th, 1782, (2 Azuni's Maritime Law, p. 205,) declared the treaty of Great Britain with the Hollanders of 1674, "a treaty, by which the principles of the armed neutrality are established in their widest extent." And he offered to agree to free navigation in favor of Holland according to the Russian declaration of armed neutrality of the 26th of February, 1680. The Articles 2d, 3d and 4th of the marine treaty between Great Britain and the States General of the United Netherlands,

of 1674, contain the same provisions, in effect, in favor of neutrals as the treaty of Utretcht. Here is a clear admission of our doctrine by the celebrated Secretary Fox. President Jefferson, in his Message to Congress of January 17th, 1806, affirmed that Great Britain had admitted this rule of international law in reference to our republic. (See American State Papers, vol. 5, p. 211, 212.) The same principles of neutrality and freedom, comprehended in the maxim, “free ships make free goods,” admitted so often by Great Britain from 1674 down to 1797, were solemnly proclaimed in 1780 by Russia as part of the code of international law. This declaration was concurred in by Sweden, Denmark, France, Spain, Prussia, The United Provinces, Austria, Portugal and Naples. France and Spain by several treaties assented to the principle that free ships make free goods. Napoleon, wielding the power of France and her allies, reaffirmed the liberal doctrines of the treaty of Utretcht in favor of neutral trade, and he justly claimed for all private property and persons immunity from war on sea as well as on land. The United States in numerous treaties, in the 24th Article of our treaty of 1778 with France and the 7th, 8th, 9th and 10th Articles of our treaty of 1783 with Sweden, and other public acts, have shown their assent to these sound rules of public

[graphic]

law. If our republic and the continental nations of Europe have by treaties seemingly assented to British invasion of neutral rights, it has been the effect of force.

The efforts of Great Britain to overturn by force the admitted principle of the code of public law, " that free ships make free goods,” and to establish a municipal jurisdiction on the high seas, destructive of neutral rights and neutral trade, cannot be admitted as of any authority. Force and all acts resulting from it must be rejected in inquiries as to the true principles of the moral law of nations. The decisions of the British Admiralty so far as they support invasions of neutral rights, so long and so generally established, ought to be rejected as of no authority.

It must be admitted that our treaty of 1794 with Britain, by the 17th and 18th Articles, stipulated to suspend for a very short period the rule that free ships make free goods, and the definition of contraband as laid down by the treaty of Utretcht of 1713, in consideration of a grant to American vessels of 70 tons burthen of a right to trade with the British West Indies for the term of the limited arrangement. The latter grant by the 12th Article was a concession to our republic, but it has ceased and with it fell the 17th and 18th Articles, as the 28th Article of the treaty

« PreviousContinue »