thereof, is a matter of municipal legislation. The general rule of English law, as stated by an Order in Council of 4 January 1666, was that all ships and goods casually met at sea and seized by any vessel not commissioned do belong to the Lord High Admiral. Some four years later, in order to encourage masters to fight their ships more stoutly against pirates, a statute was passed [22 & 23 Car. II, cap. 9 (1)] modifying this rule and providing that "in case the company belonging unto any English merchant ship shall happen to take any ship, which ship shall first have assaulted them, the respective officers and mariners belonging to the same, shall after condemnation of such ship and goods have and receive to their own proper use such part and share thereof, as is usually practised in private men of war."

The rule of law laid down by the Order in Council of 1666 has been observed in England since that date; such goods and ships taken by uncommissioned ships belong to the Crown as Droits of Admiralty. The present law is contained in the Naval Prize Act, 1864, section 39: "Any ship or goods taken as prize by any of the officers and crew of a ship other than a ship of war of Her Majesty shall, on condemnation, belong to Her Majesty in Her office of Admiralty." The Naval Prize Bill introduced in 1911, and rejected by the House of Lords, contained a similar clause.

The law of France was formerly the same as that of England, but to-day the prize is given to the captor. A similar rule prevails in Holland.31

31 En France, sous l'ancien régime, les prises faites en se défendant étaient acquises à l'amiral "dont la générosité le portait, la plupart du temps, à en faire don au capteur, en récompense de sa bravoure," au témoignage de Valin et d'Emerigon. Aujourd'hui, aux termes de l'art. 34 de l'arrêté du 2 prairial an xi, la prise faite par un bâtiment attaqué qui parvient à s'emparer de l'aggresseur est acquise au capteur; l'art. 34 a été assez fréquemment appliqué par le Conseil des Prises dans les guerres de l'Empire. La même règle est admise, notamment en Hollande." C. De Boeck, Propriété privée, § 212. Prof. de Boeck adds the following footnote: “Quant à la prise qu'un navire non commissionné et armé pour sa défense aurait faite en attaquant, elle est bonne quant à l'ennemi, mais confisquée au profit de l'Etat; l'auteur pourra même être poursuivi et condamné comme pirate."

See also Abdy's edition of Kent's International Law, 246; E. Nys, Le Droit International (1906), III, 181.

V

THE POSITION OF NEUTRAL GOODS ON BOARD DEFENSIVELY ARMED MERCHANT SHIPS

The re-introduction of the armed merchant ship raises another question which is of importance to neutrals, viz., how far a neutral merchant has a right to lade his goods on board an armed enemy vessel, and what will be the consequence of resistance on the part of the enemy master. This question was discussed by the prize courts of Great Britain and the United States during the war of 1812-14. The cases dealing with this matter are the Fanny 32 in England and the Nereide 33 and the Atalanta 34 in the United States. In the Fanny neutral goods were laded on an armed merchant ship furnished with letters of marque, the neutral having knowledge of the facts. Sir W. Scott held that a ship furnished with a letter of marque was manifestly a ship of war, and could not be otherwise considered though she acted in a commercial capacity. The mercantile character being superadded did not predominate over or take away the other. A neutral subject was entitled to put his goods on a belligerent merchant vessel, subject to the right of the enemy, who might capture the vessel but who had no right, under the modern practice of civilized states, to condemn the neutral property. Neither would the goods of the neutral be subject to condemnation, although a rescue should be attempted by the crew of the captured vessel, for that was an event which the merchant could not have foreseen. But if he put his goods on board a ship of force, which he had every reason to presume would be defended against the enemy by that force, the case then became very different. It was clear, he held, that if a party acted in association with a hostile force, and relied upon that force for protection, he was pro hoc vice to be considered as an enemy. In the American case of the Nereide, which was subsequently affirmed in the Atalanta, the court was divided. Five judges sat, two (one of whom was Chief Justice Marshall) decided in favor of the neutral claimant; two (one of whom was Mr.

32 1 Dod. 448.

33 9 Cranch, 387.

343 Wheaton Rep. 400. See on this subject Wheaton, Elements, § 529 and Dana's note; R. Wildman, Institutes of International Law, II, 126.

Justice Story), against him, and the majority was obtained by the course of Mr. Justice Johnson, who decided for the neutral on special grounds, though in the Atalanta he gave his adherence to the general principle laid down by Marshall, C. J. The dissenting opinion of Story emphasized a fact on which the majority laid no stress, viz., that the vessel was sailing under enemy convoy, and that the claimant, being the charterer of the whole vessel, had bound her to sail under this convoy; that the vessel was captured with the claimant on board, while accidentally separated from the convoy and endeavoring to rejoin it. The case of the Nereide differs in an important point from the Fanny, in that it appears to have been an uncommissioned armed merchant vessel belonging to a belligerent which resisted capture; whereas the Fanny was a commissioned ship of war. The Nereide, however, was under enemy convoy, and it is submitted that the dissenting judgment of Story is on the facts of the case more in accord with the principle of unneutral conduct.

Since these cases were decided, the parties to the Declaration of Paris have agreed that neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag (Article 3) and that privateering is and remains abolished (Article 1).

It does not appear that there is a definite decision on the question as to the fate of neutral goods laden on a defensively armed and uncommissioned enemy merchant ship either in Great Britain or the United States. Sir W. Scott in the Catherina Elizabeth stated that in case of rescue by the capturing ship, neutral goods would be free. Between such an attempt made after capture, and a resistance to capture involving an attempt to take the assailing vessel previous to capture "there does not seem to be a total dissimilitude." 35 It is submitted that in such a case the opinion of the American court in the Nereide will probably be that which will be adopted, namely, that neutral goods placed on an uncommissioned armed merchant vessel belonging to a belligerent, and resisting capture, are not subject to condemnation, if the armament be entirely and exclusively the act of the belligerent owner, and the resistance in no degree imputable to the neutral. The Declaration of Paris by abolishing privateering left the status of the merchant ship untouched. The right of an enemy merchant ship to defend herself was unquestioned, as was 35 The Nereide, 9 Cr. 388.

also her liability to capture. The granting of the right to neutrals to send their goods on belligerent vessels does not deprive the belligerent of his right to resist visit and capture, so long as his ship remains an uncommissioned ship of war, "a ship of force" to use Lord Stowell's expression; but belligerents, by according neutrals the right, have at the same time deprived themselves of the advantage they might once have had of saying that the neutral is in fault and his goods are liable to condemnation, because the cruiser being armed can the better effectuate his right to defeat search or capture. The enemy ship and cargo may still be captured as an act of war, but if the neutral shipper has done no more than send his goods in an enemy vessel, his cargo or its value should be restored. 36

The majority of the court in the Nereide appears to have gone too far in asserting that as all merchant vessels during war are generally more or less armed, it is impossible for a prize court to distinguish between different degrees of armament. There is a great distinction between commissioned and uncommissioned armed merchant vessels; the former may, the latter may not, act on the offensive, and the arguments of Sir W. Scott and Mr. Justice Story in regard to the treatment of goods placed on board vessels of the former class may well be accepted, but rejected in the case of the latter, which were not in question. It is submitted therefore that neutral cargoes placed on board merchant vessels converted into war ships under the terms of the Hague Convention of 1907 should be liable to be condemned on the principle laid down by these two distinguished judges, while those placed on armed but uncommissioned merchant ships should, under the Declaration of Paris, be released.

A. PEARCE HIGGINS.

36 See Dana's note in Wheaton's Elements, § 529.

RESTRICTIVE CLAUSES IN INTERNATIONAL ARBITRATION

TREATIES

The above is the title of a very instructive article in this Journal for April, 1913,1 by Dr. Hans Wehberg, who points out and analyzes the special grounds for the different reservations contained in several arbitration treaties concluded up to the present time, with the suggestion that such reservations might henceforth be restricted merely to two, that is to say, the exceptions of "vital interests" and "national honor."

The more widespread the notice of treaties of this kind, the easier it will be to form a definite opinion as to their practical value considering the restrictive stipulations contained in them. It is this thought which leads me to write this article, the main object of which is to make known the nature and extent of the arbitration treaties existing between Brazil and other states, European and American.

Up to the present time Brazil has entered into arbitration treaties with thirty-one states, nearly all of which have been ratified by the respective governments. Twelve of these treaties were made for a period of ten years, and nineteen for a period of five years. The first arbitration treaty was signed with Chile in 1899; the second with Argentina in 1905; and the remaining twenty-nine with different nations from 1909 to 1911.

Glancing at their stipulations containing reservations or exceptions, we find that such stipulations deal with the legal nature of controversies, constitutional precepts, vital interests, independence or sovereignty, national honor, territorial integrity, of the contracting parties, and, finally, the rights of third parties. To these I do not add the restriction excluding "controversies which may not have been settled by diplomacy, direct negotiations or any other conciliatory agencies," because such a stipulation must be considered superfluous, it being presumed that such questions as might have been settled through other friendly ways would lack any ground to be referred to arbitral decision.

1 Vol. 7, page 301.