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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. I, p. 1813. The two principles of the Declaration of Paris were incorporated in a treaty with Tripoli of 1805, art. 5, p. 1789.

114 The London Packet, i 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.

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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 taken'17 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.

(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, 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

115Treaties 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.

119Treaties 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.

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

cessity, and then compensation shall be given, to be arranged beforehand if possible.

Recognition of the right of requisitioning neutral property in case of necessity is given in the Declaration of London, the Hague Conventions, Lieber's instructions of 1863, the naval instructions of 1898 and Stockton's naval war code of 1900 to 1904.121 In all of these cases, however, full payment for such requisitions is stated as an obligation.


Having considered the claims which the captor state will offer as a basis for the condemnation of neutral prizes, the claims of the neutral owner involved may be considered. These claims may be grouped under the heads, (1) restitution, (2) compensation, (3) damages, (4) restoration.

(1) Restitution of the actual property has been recognized by the United States courts as the proper course in all cases where the government does not make good its claim to condem, nation. It is the logical corollary of the principle that title to property does not change until after the decision rendered by the prize court. If the court does not support the government's claim for condemnation, the original owner's title has never been lost and he can claim the goods.

(2) Restitution, however, may be impossible. The cargo may have been requisitioned or destroyed. If enemy goods on board are condemned, a practice now repudiated, the shipper can not get freight from the consignee. In such cases the courts have held compensation to be due the innocent neutral,122 but this is subject to important limitations. The seizure may have been justifiable because of suspicious circumstances, although there is no condemnation. Here losses caused by delay must be borne by the owner. Part of the cargo may have been destroyed through accident or the lawful exercise of belligerent rights by the captor. Here again the neutral suffers the loss of freight and goods.123

121 Declaration of London, art. 29, 49-54; Hague Conventions, 1907, iv, annex, art. 52, v, art. 19; Instructions for the government of the Armies of the United States in the field, by Francis Lieber, Apr. 24, 1863, Gen. Ord., War Dept., No. 100, printed, Naval War College, International Law Discussions, 1903, art. 14, 38; Naval Instructions, June 20, 1898, For. Rel., 1898, p. 780; Stockton's Naval War Code, art. 3, 6, 14, 50.

122 Declaration of London, 1909, art. 64; Hague Conventions, 1907, v, art. 19; Stockton's Naval War Code, art. 6, 14. The Nuestra Senora de Regla, 108, U. S. 92, (1882).


(3) However, restitution and compensation for actual goods seized may by no means cover the loss of the neutral. Even if the ship and cargo are intact the delay may have caused serious loss through fall of markets or breach of contract. The right of the neutral to damages in such cases has been recognized in the United States courts. Damages cannot lie against the government for more than the value of the prize under adjudication,125 but they may be had from a naval officer if the seizure was made without probable cause.126 The burden of proof, however, is always upon the neutral claimant.1

127 Except in a very clear case recovery is impossible.

(4) The claim for restoration differs from those just considered in that it is not brought by the party from whom the vessel was immediately seized, but from a former owner. It arises in cases of recapture from the enemy of a vessel or goods originally belonging to a neutral or national individual.128 The validity of the claim depends on whether or not title had passed to the enemy captor before recapture. If it had, the vessel is enemy property, if it had not it is neutral or national property, and must be restored. The different views which have been held on

123The Antonia Johanna, 1 Wheat. 159, (1816).

124 The Siren, 7 Wall. 152, (1868); The Nuestra Senora de Regla, 108, U. S. 92; Slocum vs. Mayberry, 2 Wheat. 1; The Appollon, 9 Wheat. 377; The Lively, i Gall. 315.

125 In The Siren, 7 Wall. 152, (1868), a neutral vessel was run into and sunk by a captured prize. The court held the owner of the sunken vessel could recover to the value of the prize if subject to condemnation, but no more.

126 Del Col vs. Arnold, 3 Dall. 333, (1796); Little vs. Barreme, 2 Cranch 170, (1804); The Eleanor, 7 Wheat. 345; Jecker vs. Montgomery, 13 How. 498; The Thompson, 3 Wall. 155; The Dashing Wave, 5 Wall. 170; The Anna Maria, 2 Wheat. 327; The Amiable Nancy, 3 Wheat. 546. See Moore's Digest, 7;583-597.

127The Marianna Flora, 11 Wheat. I, (1826); Murray vs. The Charming Betsey, 2 Cranch 64; The Buena Ventura vs. U. S. 175 U. S. 384; The Thompson, 3 Wall. 185; The Dashing Wave, 5 Wall. 170. See Moore's Digest, 7;598.

128The right of restoration has been derived from the Roman Jus Postliminii, although that applied to the rule whereby slaves and property on land returned to their former status after reconquest. See Hershey, op. cit., p. 439.


this subject assert that title to captured property vests, (1) immediately on seizure, (2) after twenty-four hours quiet possession, (3) after bringing “infra praesidia”, (4) after condemnation by a prize court. All of these rules have been at different times acted on by courts and embodied in executive orders,129 but the one at present established appears to be the last. The original owner's claim is good until the vessel has been condemned in an enemy prize court.130 A statute of 1800,131 continued by subsequent acts, required restoration to United States citizens where the property had not been condemned by competent authority, and to neutral subjects on a basis of reciprocity.132 The neutral can make good his claim only where the law of his country would allow restoration to a citizen of the United States. In any case a deduction of military salvage for the recaptors is allowed before restoration.

The measures taken to enforce the duty of the United States as a belligerent to abstain from illegally interfering with neutral commerce are found in the rules laid down for the courts in treaties, statutes, and executive orders and instructions, but pri

129Vesting of title immediately on seizure was held to be the rule of international law during the Revolutionary War, (see the Resolution, Fed. Ct. of App. 1781, 2 Dall. I, 4; McDonough vs. Dannery and the Ship Mary Ford, 3 Dall. 188, 1796) thus the right of restoration was denied altogether except by way of comity or express ordinance. An ordinance of congress, (Nov. 25, 1775, Journ. Cong., Ford. ed., 3;373) granted restoration of recaptures made before twenty-four hours possession, but the court held this could not apply where the enemy had sold the prize to a neutral, and in any case it applied only to United States citizens (The Resolution, Fed. Court of Appeals, 1781, 2 Dall. 1, 4). The twenty-four hour rule was also recognized in several early treaties as to neutrals, where the captor was a privateer, although restoration was permitted even after twenty-four hours possession and before condemnation when the captor was a public vessel. (See treaties with Netherlands, 1782-1795; Malloy, p. 1243; Sweden, 1783-1798, revived 1827, p. 1730; Prussia, 17851796; 1799-1810, arts. 17, 21, pp. 1482, 1492).

130 Talbot vs. Seamans, 1 Cranch I, (1801); Murray vs. The Charming Betsey, 2 Cranch 64, 121, (1804); The Star, 3 Wheat. 78, 86, (1818). Restoration even after condemnation has been allowed where the condemnation by the enemy prize court was clearly illegal. See The Resolution, 2 Dall. I, (1781).

131 Act. Mch. 3, 1800, 2 stat. 16, June 26, 1812, 2 stat. 760; June 27, 1813, 2 stat. 793; June 30, 1864, 13 stat. 306, 314; rev. stat. sec. 4652.

132 The Schooner Adeline, 9 Cranch 244, see Moore's Digest, 7;521

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