must be very inconvenient to permit the privateers of contending nations to assemble, together with their prizes, in a neutral port. The edict of the States General of 1656 forbade foreign cruisers to sell their prizes in their neutral ports, or cause them to be unladen; and the French Ordinance of the Marine of 1681 contained the same prohibition, and that such vessels should not continue in port longer than twenty-four hours, unless detained by stress of weather. (b) The admission into neutral ports of the public ships of the belligerent parties, without prizes, and under due regulations, is considered to be a favor, required on the principle of hospitality among friendly powers, and it has been uniformly conceded on the part of the United States. (c) 1 1 *125 3. Enemy's Property in Neutral Vessels. But neutral ships do not afford protection to enemy's property, and it may be seized if found on board of a neutral vessel, beyond the limits of the neutral jurisdiction. This is a clear and well-settled principle of the law of nations. (d)2 It was formerly a question, whether the neutral *ship, conveying enemy's property, was not liable to confiscation for that cause. This was the old law of France, (a) in cases in which the master of the vessel knowingly took on board enemy's property; but Bynkershoek truly observes, that the master's knowledge is immaterial in this case, and that the rule in the Roman law, making the vessel liable for Mr. Pinckney, January 16th, 1797. It is deemed proper and safe for a neutral power to permit a prize brought into port in distress, to be repaired, for the purpose of further navigation. Opinions of the Attorneys-General, i. 603. (b) Valin, Comm. ii. 272. (c) Mr. Jefferson's Letter to Mr. Hammond, September 9th, 1793; Instructions to the American Commissioners to France, July 15th, 1797; Cours de Droit Public, par M. Pinheiro-Ferreira, ii. 47. Such public vessels are exempt from the jurisdic tion of the local authorities, but this exemption does not extend to private vessels Vide infra, 156, note. (d) Grotius, 1. 3, c. 6, sec. 6; Heinec. de Nav. ob Vect. c. 2, sec. 9; Bynk. Q. J. Pub. c. 14; Loccenius, de Jure Mar. et Nav. b. 2, c. 4, sec. 2; Molloy, de Jure Mari timo, b. 1, c. 1, sec. 18; Lampredi, du Commerce des Neutres, sec. 10, 11; Vattel, b. 3, c. 7, sec. 115; Answer, in 1753, to the Prussian Memorial; Consulat de la Mer, par Boucher, ii. c. 273, 276, sec. 1004. (a) Ord. de la Marine, liv. 3, tit. 9, des Prises, art. 7. 1 Mr. Cushing's opinion in the case of the Sitka, 7 Op. Att.-Gen. 122, contains much learning on this subject, and confirms the text and note (c). The twenty-four hours rule seems to have become part of international law. Pistoye & Duverdy, i. 108; M. Bernard, 2 Post, 128, n. 1. $ the fraudulent act of the master, was a mere fiscal regulation, and did not apply; and for the neutral to carry enemy's goods is not unlawful, like smuggling, and does not affect the neutral ship. (b) If there be nothing unfair in the conduct of the neutral master, he will even be entitled to his reasonable demurrage, and his freight for the carriage of the goods, though he has not carried them to the place of destination. They are said to be seized and condemned, not ex delicto, but only ex re. The capture of them by the enemy is a delivery to the person who, by the rights of war, was substituted for the owner. (c) Bynkershoek (d) thinks the master is not entitled to freight, because the goods were not carried to the port of destination, though he admits that the Dutch lawyers, and the Consolato, give freight. But the allowance of freight in that case has been the uniform practice of the English admiralty for near two centuries past, except when there was some circumstance of mala fides, or a departure from a strictly proper neutral conduct. (e) The freight is paid, not pro rata, but in toto, because capture is considered as delivery, and the captor pays the whole freight, because he represents his *126 enemy, by possessing himself of the enemy's goods *jure belli, and he interrupts the actual delivery to the consignee. (a) The right to take enemy's property on board a neutral ship has been much contested by particular nations, whose interests it strongly opposed. This was the case with Prussia in the case of the Silesia loan, and with the Dutch in the war of 1756; and Mr. Jenkinson (afterwards Earl of Liverpool) published, in 1757, a discourse, very full and satisfactory, on the ground of authority and usage, in favor of the legality of the right, when no treaty intervened to control it. The rule has been steadily maintained by Great Britain. In France it has been fluctuating. The ordinance of the marine of 1681 asserted the ancient and severe rule, that the neutral ship, having on board enemy's property, was subject to confiscation. The same rule was enforced by the arrets of 1692 and 1704, and relaxed by those of 1744 and 1778. (5) In (b) Bynk. Q. J. Pub. lib. 1, c. 14. (c) Vattel, b. 3, c. 7, sec. 115. (d) B. 1, c. 14. (e) Jenkinson's Discourse in 1757, p. 13; The Atlas, 3 C. Rob. 304, note; Answer to the Prussian Memorial, 1753. (a) The Copenhagen, 1 C. Rob. 289. (b) Valin, Comm. 1. 3, tit. 9, des Prises, art. 7. 1780 the Empress of Russia proclaimed the principles of the Baltic code of neutrality, and declared she would maintain them by force of arms. One of the articles of that code was, that "all effects belonging to the subjects of belligerent powers should be looked upon as free on board of neutral ships, except only such goods as were contraband." The principal powers of Europe, as Sweden, Denmark, Prussia, Germany, Holland, France, Spain, Portugal, and Naples, and also these United States, acceded to the Russian principles of neutrality. (c) But the want of the consent of a power of such decided maritime superiority as that of Great Britain was an insuperable obstacle to the success of the Baltic conventional law of neutrality; and it was abandoned in 1793 by the naval powers of Europe, as not sanctioned by the existing law of nations, in every case in which the doctrines of that code * did not rest upon positive compact. During the whole *127 course of the wars growing out of the French revolution, the government of the United States admitted the English rule to be valid, as the true and settled doctrine of international law; and that enemy's property was liable to seizure on board of neutral ships, and to be confiscated as prize of war. (a) It has, however, been very usual, in commercial treaties, to stipulate that free ships should make free goods, contraband of war always excepted; but such stipulations are to be considered as resting on conventional law merely, and as exceptions to the operation of the general rule, which every nation not a party to the stipulation is at perfect liberty to exact or surrender. The Ottoman Porte was the first power to abandon the ancient rule, and she stipulated, in her treaty with France, in 1604, that free ships should make free goods, and she afterwards consented to the same provision in her treaty with Holland, in 1612; and according to Azuni, (b) Turkey has, at all times, on international questions, given an example of moderation to the more civilized powers of Europe. (c) New Ann. Reg. 1780, tit. Public Papers, 113-120; Martens, Summary, 327, ed. Phil. Journals of Congress, vii. 68, 185. (a) Mr. Jefferson's Letter to M. Genet, July 24th, 1793; Mr. Pickering's Letter to Mr. Pinckney, January 16th, 1797; Letter of Messrs. Pinckney, Marshall, and Gerry to the French government, January 27th, 1798. (b) Maritime Law of Europe, ii. 163. Flasson, in his Histoire de la Diplomatie Française, ii. 226, says, that it was not the object of the Ottoman Porte, in the instance mentioned in the text, to abandon the ancient rule, and that it was not a The effort made by the Baltic powers, in 1801, to recall and enforce the doctrines of the armed neutrality, in 1780, was met, and promptly overpowered, and the confederacy dissolved by the naval power of England. Russia gave up the point, and by her convention with England of the 17th June, 1801, expressly agreed that enemy's property was not to be protected on board of neutral ships. The rule has since been very generally acquiesced in; and it was expressly recognized in the Austrian ordinance of neutrality, published at Vienna, the 7th of *128 August, 1803. Its reasons * and authority have been ably vindicated by English statesmen and jurists, and particularly by Mr. Ward, in his treatise of the relative rights and duties of belligerent and neutral powers in maritime affairs, published in 1801, and which exhausted all the law and learning applicable to the question. (a) 1 treaty, but a concession to France of privileges and exemption, from pure liberality. (a) Mr. Manning, in his Commentaries on the Law of Nations, 203-244, has discussed the question whether "free ships make free goods," quite at large, and with great strength of reasoning. He vindicates the belligerent right against the doctrine of the Baltic powers, upon solid principles, and upon the authority of the Consolato del Mare, and of the most eminent European jurists who have written on the law of nations within the last two centuries. The principal authorities have been already 1 On the breaking out of the war with Russia in 1854, as the combined effect of the English principle that enemy's goods on neutral vessels are good prize, and the French doctrine that neutral goods on enemy's vessels are so, would have been to almost put an end to neutral commerce, the English and French governments declared that although they could not forego the right of seizing articles contraband of war, and of preventing neutrals from bearing the enemy's despatches, or from breaking effective blockades, they would "waive the right of seizing enemy's property laden on board a neutral vessel, unless it be contraband of war." Neither was it intended "to claim the confiscation of neutral property, not being contraband of war, found on board enemy's ships." Spinks, Ec. & Ad. R. app. i. No. 1, and Order in Council of April 15, 1854, ib. ix. No. 8; Ann. Reg. 1854, p. 210; Wheat. Law rence's note 228; Wheat. Dana's note 223; 1 Pistoye & Duverdy, 316 et seq. (tit. vi. ch. 1); Edinburgh Review, July, 1854. By the declaration of principles of the Congress of Paris, April 16, 1856, "The neutral flag covers enemy's goods, with the exception of contraband of war. Neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag." Ann. Reg. 1856, p. 221; Pistoye & Duverdy, ii. 507; ib. i. 337 (tit. vi. ch. 2); Wheat. Lawrence's note 192. See Treaty of United States with Russia, July 22, 1854, 10 St. at L. 215; and the treaties 11 St. at L. 607; 695; 12id. 1003; 1012; 15 id. 473; 481, &c. These principles were applied as embodying the traditional policy of the United States during the war of the rebellion. Dip. Corr. 1861, pp. 143, 251, 191, 44. 4. Neutral Property in an Enemy's Vessel. -It is also a principle of the law of nations relative to neutral rights, that the effects of neutrals, found on board of enemy's vessels, shall be free; and it is a right as fully and firmly settled as the other, though, like that, it is often changed by positive agreement. (b) The principle is to be met with in the Consolato del Mare, and the property of the neutral is to be restored without any compensation for detention, and the other necessary inconveniences incident to the capture. The former ordinances of France, of 1543, 1585, and 1681, declared such goods to be lawful prize; and Valin (c) justifies the ordinances, on the ground that the neutral, by putting his property on board of an enemy's vessel, favors. the enemy's commerce, and agrees to abide the fate of the vessel. But it is fully and satisfactorily shown, by the whole current of modern authority, that the neutral has a perfect right to avail himself of the vessel of his friend, to transport his property; and Bynkershoek has devoted an entire chapter to the vindication of the justice and equity of the right. (d) The two distinct propositions, that enemy's goods found on board a neutral ship may lawfully be seized as prize of war, and that the goods of a neutral found on board of an * enemy's vessel were to be restored, have been explicitly *129 incorporated into the jurisprudence of the United States, and declared by the Supreme Court (a) to be founded in the law of nations. The rule, as it was observed by the court, rested on the simple and intelligible principle, that war gave a full right to capture the goods of an enemy, but gave no right to capture the goods of a friend. The neutral flag constituted no protection to referred to, at pages 124, 125, n. [et seq]. Mr. Manning also examines the question, on the authority of the customary and conventional law of nations, by a review of a succession of treaties between European powers, from the year 1351 to the present times. The result is, that there is nothing like system or consistency of principle in the conventional law of Europe. The belligerent rule has been alternately adopted and rejected, and qualified with infinite vicissitude, and so as to leave the rule, as a general and settled principle of international law, when not disturbed by positive stipulations, in full force. Comm. 244-280. (b) Grotius, b. 3, c. 6 and 16; Bynk. c. 13; Vattel, b. 3, c. 7, sec. 116; Answer to the Prussian Memorial, 1753; Mr. Jefferson's Letter to M. Genet, July 24th, 1793; Mr. Pickering's Letter to Mr. Pinckney, January 10th, 1797. (c) Comm. b. 3, tit. 9, des Prises, art. 7. (d) Consulat de la Mer, par Boucher, ii. c. 276, sec. 1012, 1013; Heineccius, de Nav. ob. Vect. c. 2, sec. 9; Opera, ii. pt. 1, 349-355; Vattel, b. 3, c. 7, sec. 116; Bynk. c. 13. (a) The Nereide, 9 Cranch, 388. |