86

90

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.

93

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

but

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

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.

(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