and though the neutral may have yielded at one time to Chap. III. the practice, it did not follow that the right to vindicate by force the security of the neutral flag at another was thereby permanently sacrificed. But the neutral claim to cover enemy's property was conceded to be subject to this qualification; that a belligerent may justly refuse to neutrals the benefit of this principle, unless admitted also by their enemy for the protection of the same neutral flag. It is accordingly stipulated, in the treaty between the United States and the Republic of Columbia, that the rule of free ships free goods should be understood "as applying to those powers only who recognize this principle; but if either of the two contracting parties shall be at war with a third, and the other neutral, the flag of the neutral shall cover the property of enemies whose governments acknowledge the same principle, and not of others." The same restriction of the rule had been previously incorporated into the treaty of 1819, between the United States and Spain, and has been subsequently inserted in their different treaties with the other South American Republics (e). It has been decided in the Prize Courts, both of the United States and of Great Britain, that the privilege of the neutral flag of protecting enemy's property, whether stipulated by treaty or established by municipal ordinances, however comprehensive may be the terms in which it may be expressed, cannot be interpreted to extend to the fraudulent use of that flag to cover enemy's property in the ship, as well as the cargo (f). Thus during the war of the Revolution, the United States, recognizing the principles of the armed neutrality of 1780, exempted by an ordinance of Congress all neutral vessels from capture, except such as were employed in carrying contraband goods, or soldiers, to the enemy; it (e) Mr. Secretary Adams's Letter to Mr. Anderson, American minister to the Republic of Columbia, 27th of May, 1823. For the practice of the Prize Court, as to the allowance or refusal of freight on enemies' goods taken on board neutral ships, and on neutral (f) The Citade de Lisboa, 6 C. Rob. § 473. Covering enemies' goods in neufalse papers. tral ships by Part IV. § 474. Rule of enemy ships was held by the continental Court of Appeals in prize causes, that this exemption did not extend to a vessel which had forfeited her privilege by grossly unneutral conduct in taking a decided part with the enemy, by combining with his subjects to wrest out of the hands of the United States, and of France, their ally, the advantages they had acquired over Great Britain by the rights of war in the conquest of Dominica. By the capitulation of that island, all commercial intercourse with Great Britain had been prohibited. In the case in question, the vessel had been purchased in London, by neutrals, who supplied her with false and colourable papers, and assumed on themselves the ownership of the cargo for a Voyage from London to Dominica. Had she been employed in a fair commerce, such as was consistent with the rights of neutrality, her cargo, though the property of an enemy, could not be seized as prize of war; because Congress had said, by their ordinance, that the rights of neutrality should extend protection to such effects and goods of an enemy. But if the neutrality were violated, Congress had not said that such a violated neutrality shall give such protection. Nor could they have said so, without confounding all the distinctions of right and wrong; and Congress did not mean, in their ordinance, to ascertain in what cases the rights of neutrality should be forfeited, to the exclusion of all other cases; for the instances not mentioned were as flagrant as the cases particularised (g). By the treaty of 1654, between England and Portugal, it was stipulated (art. 23), "That all goods and merchandise of the said Republic or King, or of their people or subjects, found on board the ships of the enemies of either, shall be made prize, together with the ships, and confiscated. But all the goods and merchandise of the enemies of either on board the ships of either, or of their people or subjects, shall remain free and untouched." Under this stipulation, thus coupling the two opposite (g) The Erstern, 2 Dallas, 34. shipped maxims of free ships free goods, and enemy ships enemy Chap. III. goods, it was determined by the British prize courts, that enemy goods the former provision of this article, which subjects to when the not applicable condemnation the goods of either nation found on board goods are the ships of the enemy of the other contracting party, before war. could not be fairly applied to the case of property shipped before the contemplation of war. Sir W. Scott (Lord Stowell) observed, in delivering his judgment in this case, that it did not follow, that because Spanish property put on board a Portuguese ship would be protected in the event of the interruption of war, therefore Portuguese property on board a Spanish ship should become instantly confiscable on the breaking out of hostilities with Spain; that, in one case, the conduct of the parties would not have been different, if the event of hostilities had been known. The cargo was entitled to the protec tion of the ship, generally, by this stipulation of the treaty, even if shipped in open war; and à fortiori, if shipped under circumstances still more favourable to the neutrality of the transaction. In the other In the other case, there might be reason to suppose, that the treaty referred only to goods shipped on board an enemy's vessel, in an avowed hostile character; and that the neutral merchant would have acted differently, if he had been apprised of the character of the vessel at the time when the goods were put on board (h). The same principle has been frequently incorporated into treaties between various nations, by which the principle of free ships free goods is associated with that of enemy ships enemy goods. The treaties of Utrecht expressly recognize it, and it has been also incorporated into the different treaties between the United States and the South American Republics, with this qualification, "that it shall always be understood, that the neutral property found on board such enemy's vessels shall be held and considered as enemy's property, and as such shall be liable to detention and confiscation, except such (h) The Mariana, 5 C. Rob. 28. § 475. The two later treaties. maxims in Part IV. property as was put on board such vessel before the declaration of war, or even afterwards, if it were done without the knowledge of it; but the contracting parties agree that two months having elapsed after the declaration, their citizens shall not plead ignorance thereof” (¿). $ 475a. The Declara tion of Paris. § 476. Contraband of war. This controversy has now been brought to a close as regards all maritime countries but the United States and Spain. The Declaration of Paris, 1856, to which all the powers with the above exceptions have now acceded, provides as follows: Art. 2. The neutral flag covers enemy's goods, with the exception of contraband of war. Art. 3. Neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag (k). This Declaration is a great step in favour of neutrals, and curtails the rights of belligerents. But it does not entirely free neutral commerce from the effects of war. The belligerent right of search may still be exercised, both for the purpose of ascertaining the true character of a ship sailing under a neutral flag, and to discover whether she carries any contraband. It has been already said that neither Spain nor the United States are a party to this Declaration, and are therefore not bound by it. Nevertheless during the American civil war, these two rules were observed by North and South alike, and on the breaking out of the Spanish-American war of 1898 both parties expressed their intention of observing the second and third articles of the Declaration of Paris. The general freedom of neutral commerce with the respective belligerent powers is subject to certain exceptions. Among these is the trade with the enemy in certain articles called contraband of war. The almost unanimous authority of elementary writers, of prize ordinances, and of treaties, agrees to enumerate among these all warlike instruments, or materials by their own nature fit to be used in war. Beyond these, there is some difficulty in reconciling the conflicting authorities derived from the opinions of public jurists, the fluctuating usage among nations, and the text of various con (i) Treaty of 1828, between the United States and Columbia, art. 13. By the Treaty of 1831, between the United States and Mexico; by that of 1834, with Chili, art. 13, the term of four months is established for the same purpose; and by that of 1842, with Equador, art. 16, the term of six months. (k) See Appendix F. ventions designed to give that usage the fixed form of Chap. III. positive law. $ 477. of goods as by Grotius. Grotius, in considering this subject, makes a distinc- Classification tion between those things which are useful only for the contraband purposes of war, those which are not so, and those which are susceptible of indiscriminate use in war and in peace. The first he agrees with all other text writers in prohibiting neutrals from carrying to the enemy, as well as in permitting the second to be so carried; the third class, such as money, provisions, ships, and naval stores, he sometimes prohibits, and at others permits, according to the existing circumstances of the war (1). Vattel makes somewhat of a similar distinction, though he includes timber and naval stores among those articles which are particularly useful for the purposes of war, and are always liable to capture as contraband; and considers provisions as such only under certain circumstances, "when there are hopes of reducing the enemy by famine " (m). § 478. Position of Vattel. shoek. § 479. Bynkershoek strenuously contends against admitting of Bynkerinto the list of contraband articles those things which are of promiscuous use in peace and in war. He considers the limitation assigned by Grotius to the right of intercepting them, confining it to the case of necessity, and under the obligation of restitution or indemnification, as insufficient to justify the exercise of the right itself. He concludes that the materials out of which contraband articles may be formed are not themselves contraband; because if all the materials may be prohibited, out of which something may be fabricated that is fit for war, the catalogue of contraband goods will be almost interminable, since there is hardly any kind of material out of which something, at least, fit for war may not be fabricated. The interdiction of so many articles would amount to a total interdiction of commerce, and might as well be so expressed. He qualifies (1) Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 1, § v. 1, 2, 3. (m) Vattel, Droit des Gens, liv. iii. ch. 7, § 112. |