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, but 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

99 The 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, I 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.104 In naval instructions of the Revolutionary 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

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.

103 The Antonia Johanna, 1 Wheat. 159, Hoover vs. U. S., 22 Ct. C1. 408, 460, (1887); The Ann Green, 1 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.

105 Naval 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.

106"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.

107Of the above treaties in force those with Sweden and Colombia contain the stipulation of "enemy ships, enemy goods." See infra, note III.

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

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.

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

110 Telegraphic 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

113

this respect. The second principle, that which condemns the enemy vessel and saves the neutral goods, coupled with the principle that enemy goods in neutral vessels are liable, was laid down in the Consolato del Mare,112 a body of sea law of the thirteenth century, and has formed the recognized rule of international law since that time. The principle was adopted in the Declaration of Paris in combination with the principle of "free ships, free goods." Although the United States did not accede to this declaration, in six individual treaties113 of about that time it was agreed to recognize the two principles as "permanent and inviolable" rules of international law, applicable to all powers who so conceived them. The courts have consistently applied this rule. in cases not covered by treaty provisions with a different requirement, but with the presumption that goods in an enemy vessel are enemy.114 The final principle, that which contemplates the exemption of both the enemy vessel and its neutral cargo, when coupled with the existing principle of "free ships, free goods," would logically lead to the total immunity of enemy private property from seizure during war. This is a principle historically advocated by the United States, but is not at present a tion of Paris. In these two cases existing treaties were merely revised and the clause was probably retained through lack of attention and an automatic copying of old forms; in fact in the Peruvian treaty of 1856, the principles of the Declaration of Paris had been adhered to as permanent and inviolable. At the revision of the Peruvian treaty of 1870 in 1887 the clause was omitted. Two of these treaties, those with Sweden, (17831798, revived 1827, art. 14, p. 1730); and Colombia, then called New Granada, (1846, art. 16, p. 307) are still in force. A convention of 1909, with Colombia, (art. 7, Charles, treaties, p. 237), provided that negotiations for the revision of the latter with a view to removing obsolete provisions should be entered into.

112Text of the Prize Chapters of the Consolato del Mare may be found in Wheaton, History of the Law of Nations, N. Y., 1845, p. 63; Travers Twiss, The Black Book of the Admiralty, Rolls Series, No. 55, 3:539. In his introduction to this work, Twiss gives a very full account of the origin and force of the Consolato.

113 Treaties with Bolivia, 1858, art. 16, Malloy, p. 119; Dominican Republic, 1867-1898, art. 15, p. 408; Hayti, 1864-1905, art. 19, p. 926; Peru, 1856, art. 1, p. 1402; Russia, 1854, art. 1, p. 1520; Two Sicilies, 1855-1861, art. 1, p. 1813. The two principles of the Declaration of Paris were incorporated in a treaty with Tripoli of 1805, art. 5, p. 1789.

114The London Packet, 1 Mason, 14, The Amy Warwick, 2 Sprague, 150; The Carlos F. Roses, 177 U. S. 655, (1899), Scott, 637; The Lynchburg, Blatch. 57. See also Declaration of London, 1909, art. 59.

rule of international law. In its treaties with Prussia of 1785 and with Italy of 1871,115 the latter of which is still in force, the principle was adopted as between the signatories. As the United States has never been at war with a country with which such a treaty existed, the principle has never been applied by the courts. In the two Hague conferences, the United States delegation urged the adoption of this principle. In the first conference a "voeu❞ was formally expressed that the question be discussed at a succeeding conference.116 At the second conference in 1907, the matter was discussed at length and a vote was taken117 in which twenty-one powers including Germany, Austria, Italy and the United States voted for; eleven including Great Britain, France, Russia, and Japan voted against it, while one abstained from voting.

117

(5) Necessity. The final rule under which condemnation of neutral property has been claimed is by the rights of preemption and angary.118 It is asserted that in case of necessity the belligerent may seize and use any neutral property provided it is paid for. In a number of treaties preemption rather than confiscation has been provided as the treatment of contraband,119 but the present case relates to the seizure of goods not contraband or condemnable under any excuse other than necessity. Several treaties, among them the Spanish treaty of 1902,120 provide that vessels and property of subjects of the contracting parties when neutral shall be exempt from seizure except in case of ne

115 Treaties with Prussia, 1785-1796, art. 23, p. 1484; Italy, 1871, art. 12, p. 973. In a treaty with Bolivia of 1858 the contracting parties agreed to give asylum to privateers until they should relinquish that practice, "in consideration of the general relinquishment of the right to capture private property on the high seas," (art. 9, p. 117).

116 See Moore's Digest, 7;471.

117 Deuxieme Conference internationale de la paix, Actes et Documents, 3 vols., The Hague, 1907, 3;832.

118 The term "angary” applied to forced service of neutral vessels and is now obsolete. See G. G. Wilson, Handbook of International Law, St. Paul, 1910, p. 416. Preemption refers to the forced sale of property. See Wilson, op. cit., p. 437.

119 Treaties with Great Britain 1794-1807, art. 18, p. 601; Prussia 17851796, art. 13, p. 1481; 1799-1810, revived, 1828, art. 13, p. 1491. For interpretation of the Prussian treaty see U. S. vs. Diekelman, 92 U. S. 526. It has also been made the basis of compensation in the recent case (1915) of the United States vessel William P. Frye.

120 Treaty with Spain, 1902, art. 5, Malloy, p. 1703.