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tral and national vessels sailing under an enemy license or passport has been decreed in a number of cases.

(c) The Declaration of London87 provides that "forcible resistance to the legitimate exercise of the right of stoppage, search and capture” involves in all cases the condemnation of the vessel and of goods belonging to the master or owner. Similar provision was made in the United States naval instructions of 1898 and in Stockton's Naval war code.88 The courts have invariably held the captors exempt from liability for making seizures when any of these circumstances exist,89 and in a number of cases have condemned the vessel. In most of the early treaties of the United States, neutral vessels were required to carry passports or sea letters and other papers. In some of them it was also provided that a vessel not carrying such papers could be detained and might be “declared legal prize'' by a competent court unless the absence of the papers could be satisfactorily explained.91 The courts, however, have held that in such cases neutral vessels could not be condemned even in the absence of passports, if other evidence indicated a bona fide neutral character. 92

(d) Belligerents have at times condemned neutral vessels for engaging in a branch of enemy trade closed to them in time of peace," for trading between enemy ports or even for trading acceptance of belligerent convoy rendered the vessel liable, the liability did not inhere after voluntary seperation from it.

86 The Julia, 8 Cranch 181; The Aurora, 8 Cranch 203; The Hiram, 8 Cranch 444; The Hiram, 1 Wheat. 440; The Ariadne, 2 Wheat. 143; Patton vs. Nicholson, 3 Wheat. 204; The Langdon Cheves, 4 Wheat. 103. See Moore's Digest, 7;395-398.

87The Declaration of London, 1909, art. 63.

88Naval Instructions, June 20, 1898. For. Rel., 1898, p. 780; Stockton's Naval War Code, art. 33.

89Del Col vs. Arnold, 3 Dall. 333; The Marianna Flora, 11 Wheat. I, (1826).

90 The Bermuda, 3 Wall. 514.

91 Non-carriage of passports was declared to subject the vessel to condemnation in sixteen treaties with eleven countries, of which those with Bolivia (1858, art. 22, Malloy, p. 121) and Colombia (1846, art. 22, p. 309) are still in force. In six treaties with five countries, of which that with Prussia (1799-1810, revived 1828, art. 14, p. 1491) is still in force, the carriage of passports was required but failure to do so was specifically declared not to create a presumption against the vessel.

92The Pizarro, 2 Wheat. 227; The Venus, 27 Ct. Cl. 116. (1892).

93 See British Rule of 1756, Moore's Digest, 7;383, also similar rule of 1793, Order in Council, Nov. 6, 1793, Lawrence, op, cit. p. 717. Historical account of the growth of these rules, 1 Wheat. 530, App. ii.


with the enemy at all.94 In a large number of its treatiesos the United States has agreed as a belligerent to recognize the right of citizens of the other contracting party to free navigation between neutral and enemy ports and between two enemy ports; and in none of its wars has it condemned neutral vessels, even when not protected by treaty, on the basis of engaging in closed trade.98 The condemnation of vessels of American citizens trading with the enemy is based on an entirely different principle and is really not governed by international law at all.97 In insurance cases98

94 See Napoleon's Berlin, (Nov. 21, 1806) and Milan, (Nov. 23, 1807, Dec. 17, 1807) decrees and British Orders in Council, (Jan. 7, 1807, Nov. 11, 1807, Mch. 15, 1915). Texts of all but the last, Br. and For. St. Pap. 8; 401-513; DeMarten's Nouveau Recueil, 1;433-549; Am. St. Pap., For. Rel. 3;262.

95 The freedom of neutral trade has been guaranteed in twenty-five treaties with eighteen countries, of which the following are in force: Bolivia, 1858, art. 15, 18, Malloy, p. 119; Colombia, 1846, art. 15, 18, p. 206; Italy, 1871, art. 16, p. 974; Prussia, 1785-1796, revived, 1828, art. 12, p. 1481 ; Sweden, 1783-1798, revived, 1816, 1827, art. 7, p. 1727.

96 Dicta in some civil war cases seems to indicate that such trade creates an enemy character. See The Hart, 3 Wall. 560.

97The condemnation of property of citizens engaged in trade with the enemy should be regarded as a matter of domestic policy, rather than of international law. Such trade has always been branded as illegal and creating a constructive enemy character by the United States, see The Rapid, 8 Cranch 155, (1814); Rush, Att. Gen., I op. 175, (1814); The Alexander, 8 Cranch 169, (1814); The Sally, 8 Cranch 382, (1814); The St. Lawrence, 8 Cranch 434, (1814); The Thomas Gibbons, 8 Cranch 421, (1814); The Rugen, I Wheat. 63, (1816); Jecker vs. Montgomery, 13 How. 498, 18 How. 110. See President Lincoln's proclamation Aug. 16, 1861, prohibiting all trade with the southern states, (12 stat. 1262). See Moore's Digest, 7;391-395. The United States courts have applied the doctrine of continuous voyage to such trade, The Joseph, 8 Cranch 451, 454, (1814); The Grotius, 8 Cranch 456, (1814). See Moore's Digest, 7; 388-391. In the Mary, 9 Cranch, 126, 148, (1815), the doctrine of continuous voyage acted to the advantage of a vessel which left England for the United States after the repeal of the British Orders in Council and before the news of the outbreak of the war of 1812, and consequently would have been exempt from capture under the president's instructions of Aug. 28, 1812, had she come home directly. Although she left an Irish port in which she had been forced to take shelter long after she had knowledge of the war, the court held her voyage was continuous from the innocent start in England so she could not be condemned for trading with the enemy. See Moore's Digest, 7;393.

98Vasse vs. Ball, 2 Dall, 270, (Pa.), See Moore's Digest, 7;387.


the United States courts have denied the legitimacy of condemnations of vessels for engaging in closed trade, or the Rule of 1756,99 as it was called. The greater extensions of the claims to limit neutral trade put forth in the Napoleonic wars with increasing severity against neutrals were scarcely admitted even by the belligerent nations as warranted by international law, were justified if at all as measures of retaliation against enemies. To these restrictions by means of paper blockades the United States was an incessant protestant. The charge that its own practice during the civil war was of similar character has already been mentioned in considering blockade.100. However, the usual practice of prize courts in the United States is to refuse to condemn neutral vessels for engaging in any trade, unless principles of blockade or contraband can be invoked, a practice which naval forces were required to observe by Stockton's Naval War Code 101

(e) When no question of blockade, contraband or unneutral service is involved, the general principle has been recognized from early times that neutral vessels carrying neutral cargo are exempt from seizure and condemnation. When enemy goods are loaded in a neutral vessel, three principles have at different times been acted on: (1) both goods and neutral vessel are liable, (2) the enemy goods alone are liable, (3) neither goods nor vessel may be condemned. The first principle by which a constructive enemy character is given to the neutral vessel carrying goods, is known as the doctrine of infection. It was sometimes applied in the early eighteenth century, but in recent times it has been universally repudiated and has never been applied in the United States. The second principle was the one generally applied by the United States courts, except where treaties directed otherwise, up to the time of the Spanish war. In spite of the renunciation of the principle by the Declaration of Paris in 1856, and

99The Rule of 1756 was inaugurated by Great Britain during a time when practically all colonial trade was closed in time of peace, and it was to this practice that the doctrine of continuous voyage was first applied. In the wars following the French Revolution, United States merchants entered the French West Indian trade which was opened to them, and in order to escape the operation of the rule of 1756, now known as the rule of 1793, transshipped at a port of the United States before going to Europe. Lord Stowell held the voyage continuous and condemned vessels bound for Europe whose cargo had originally come from the French West Indies. See Moore's Digest, 7;383, 1 Wheat. 530, App. ii.

100 Supra, p. 153.
101 Stockton's Naval War Code, 1900-1904. art. 19.

the consistent stand of the political department of the government in favor of free ships, free goods” since the foundation of the republic, the courts continued to announce the condemnation of enemy property on neutral vessels as law during the civil war,102 although all condemnations were supported by resort to principles of contraband or blockade as well. With this doctrine neutral vessels carrying enemy goods were liable to the inconvenience of seizure and detention until the enemy goods could be removed. As a partial compensation the neutral was usually allowed freight on the enemy goods condemned.103 The third principle is known as the doctrine of “free ships, free goods." Although it acts immediately for the benefit of enemy private persons, its adoption has been brought about by the pressure of neutral powers, and it is rather as a concession to the neutral's interest in not having his vessels detained, than for the benefit of belligerent powers, that the doctrine has at length become incorporated into international law.10 In naval instructions of the Rev. olutionary War the principle was provided for, and the courts at that time applied it in accord with these instructions.105 In early treaties beginning with the first treaty concluded by the United States, that with France in 1778,"free ships, free goods" found a place,106 sometimes though not always coupled with a stipulation for “enemy ships, enemy goods."'107 The political department of the government has supported this principle as a rule of international law since the establishment of the government,108 but it was not applied by the courts after the Revolutionary War until the War of 1898. The principle was adopted by most of the powers through the Declaration of Paris of 1856, but this was never acceded to by the United States and during the civil war the courts continued to voice the earlier principle.109 In proclamations and naval instructions of the Spanish war the principle was adopted, and it was also incorporated into Stockton’s Naval War Code.110 It is now undoubtedly law in the United States as well as a principle of international law.

102Early cases. The Julia, 8 Cranch 181; The Nereide, 9 Cranch 388; The Antonia Johanna, 1 Wheat. 159, (1816); The Ariadne, 2 Wheat. 143 ; The Caledonian, 4 Wheat. 100. For Judicial opinion during the Civil War, see the Hiawatha, Fed. Cas., 6451; The Hart, 3 Wall. 559, affirming the Stephen Hart, Blatch, 387.

103The Antonia Johanna, 1 Wheat. 159, Hoover vs. U. S., 22 Ct. Cl. 408, 460, (1887); The Ann Green, i Gall. 274.

104 The doctrine was first authoritatively advocated by the Armed Neutrality of 1780, sponsored by Russia, see Moore's Digest, 7;558-561.

105Naval Instructions, Apr. 3, 1776; Apr. 7, 1781, Jour. Cong., Ford, ed., 4;253, 19;361, Allen, op. cit.., 2;695. See also, Darby vs. the Brig Erstern, 2 Dall. 34, ordinance Dec. 4, 1781, Jour. Cong., 7;185, Ford, ed., 21;1158.

108“Free Ships, Free Goods” has been provided for in thirty treaties with twenty-seven countries, of which the following are now in force: Bolivia, 1858, art. 16, Malloy, p. 1195; Colombia, 1846, art. 15, p. 306; Italy, 1871, art. 16, p. 974; Peru, 1856, art. 1, p. 1402; Prussia, 1785-1796, revived 1828, art. 12, p. 1481 ; Sweden, 1783-1798, revived 1816, 1827, art. 7, p. 1727; Russia, 1854, art. 1, p. 1520.

1070f the above treaties in force those with Sweden and Colombia contain the stipulation of “enemy ships, enemy goods." See infra, note Ill. 108 See Moore's Digest, 7;434-453, especially letter of instructions by Secretary of State Cass to United States Minister in France, June 27, 1859, which says, “with respect to the protection of the vessel and the cargo by the flag which waves over them, the United States look upon the principle as established and they maintain that belligerent property on board neutral ships is not liable to capture," p. 450. In spite of this the courts affirmed the opposite view a few years later during the civil war. See The Hiawatha Fed. Cas., 6451, The Hart, 3 Wall. 559.

(f) Neutral goods on enemy vessels have also been subjected to varying treatment. The three possible principles are (1) both enemy vessel and neutral goods are liable, (2) the vessel alone is liable, (3) neither the vessel nor the goods may be condemned. The first principle, known as “enemy ships, enemy goods," was frequently applied in the early eighteenth century along with the doctrine of infection at a time when neutrals were so few and lacking in force that their voice commanded no attention, but in recent times it has not been applied as a rule of international law, and was repudiated by the Declaration of Paris of 1856. It has however been frequently stipulated in treaties, as an offset to the concession of “free ships, free goods." The United States has embodied this principle in a number of treaties, 111 two of which are still in force but probably obsolete in

109The Hiawatha, Fed. Cas., 6451, The Hart, 3 Wall. 559.

110Telegraphic Instructions, Apr. 22, 1898, (Moore's Digest, 7:453); Proclamation, Apr. 26, 1898, (30 stat. 1770); Stockton's Naval War Code, 1900-1904, art. 19.

111“Enemy ships, enemy goods” has been provided for in eighteen treaties with thirteen powers, always in combination with the stipulation of "free ships, free goods," and generally with the proviso that goods of the neutral laden on an enemy vessel in a specified time, varying from two to eight months after the outbreak of the war, shall be exempt. Only two of these treaties, those with Peru, 1870-1886, (art. 19, p. 1420) and Salvador, 1870-1893, (art. 16, p. 1556) were concluded after the Declara

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