power which has not incorporated it in some of its treaties; but Great Britain, which is the most considerable of them, has constantly refused to regard it as a rule of international law. Her admiralty courts have rejected it and ours have followed after them. When Great Britain and. France, at the commencement of the present war with Russia, agreed to act upon that principle for the time being, this Government believed that a fair occasion was presented for obtaining the general consent of commercial nations to recognize it as a principle of the law of nations." (Mr. Marcy, Sec. of State, to Mr. Buchanan, Aug. 7, 1854, MS. Inst. Great Britain, XVI. 308. See, to the same effect. Mr. Marcy, Sec. of State, to Mr. Mason, min. to France, Aug. 7, 1854, MS. Inst. France, XV. 206.)

"Long experience has shown that, in general, when the principal powers of Europe are engaged in war the rights of neutral nations are endangered. This consideration led, in the progress of the War of our Independence, to the formation of the celebrated confederacy of armed neutrality, a primary object of which was to assert the doctrine that free ships make free goods, except in the case of articles contraband of war-a doctrine which from the very commencement of our national being has been a cherished idea of the statesmen of this country. At one period or another every maritime power has by some solemn treaty stipulation recognized that principle, and it might have been hoped that it would come to be universally received and respected as a rule of international law. But the refusal of one power prevented this, and in the next great war which ensued--that of the French Revolution-it failed to be respected among the belligerent. states of Europe. Notwithstanding this, the principle is generally admitted to be a sound and salutary one, so much so that at the commencement of the existing war in Europe Great Britain and France announced their purpose to observe it for the present; not, however, as a recognized international right, but as a mere concession for the time being. The cooperation, however, of these two powerful maritime nations in the interest of neutral rights appeared to me to afford an occasion inviting and justifying on the part of the United States a renewed effort to make the doctrine in question a principle of international law, by means of special conventions between the several powers of Europe and America. Accordingly, a proposition embracing not only the rule that free ships make free goods, except contraband articles, but also the less contested one that neutral property other than contraband, though on board enemy's ships, shall be exempt from confiscation, has been submitted by this Government to those of Europe and America.

"Russia acted promptly in this matter, and a convention was concluded between that country and the United States providing for the observance of the principles announced, not only as between them

selves, but also as between them and all other nations which shall enter into like stipulations. None of the other powers have as yet taken final action on the subject. I am not aware, however, that any objection to the proposed stipulations has been made, but, on the contrary, they are acknowledged to be essential to the security of neutral commerce, and the only apparent obstacle to their general adoption is in the possibility that it may be encumbered by inadmissible conditions.

"The King of the Two Sicilies has expressed to our minister at Naples his readiness to concur in our proposition relative to neutral rights and to enter into a convention on that subject."

President Pierce, annual message, Dec. 4, 1854, Richardson's Messages, V. 275. See 144 Edinburgh Review (Oct. 1876), 352–369.

"With respect to the protection of the vessel and cargo by the flag which waves over them, the United States look upon that principle as established, and they maintain that belligerent property, on board a neutral ship, is not liable to capture; and from existing indications they hope to receive the general concurrence of all commercial powers in this position. It is not necessary that a neutral power should have announced its adherence to this declaration [of Paris of 1856] in order to entitle its vessels to the immunity promised. Because the privilege of being protected is guaranteed to belligerents coparties to that memorable act, and protects their property from capture wherever it is found on board a vessel belonging to a nation not engaged in hostilities, such an immunity withheld from this country would in fact operate as a premium, granted to other nations, and would be almost destructive of that important branch of our national industry, the carrying trade."

Mr. Cass, Sec. of State, to Mr. Mason, min. to France, No. 190, June 27, 1859, MS. Inst. France, XV. 455.

This extract is from a comprehensive instruction on neutral rights, which was communicated to the principal European powers, with the object of securing their concurrence in the views therein expressed as well as their influence and cooperation in bringing about their general adoption. See Mr. Cass, Sec. of State, to Mr. Dallas, min. to England, No. 185, June 29, 1859, MS. Inst. Great Britain, XVII. 205; Mr. Cass, Sec. of State, to Mr. Pickens, min. to Russia, Nos. 18 and 21, June 29 and Oct. 4, 1859, MS. Inst. Russia, XIV. 163, 165; Mr. Cass, Sec. of State, to Mr. Daniel, min. to Sardinia, No. 35, Nov. 1859, MS. Inst. Italy, I. 106; Mr. Cass, Sec. of State, to Mr. Preston, min. to Spain, No. 18, Oct. 6, 1859, MS. Inst. Spain, XV. 228; Mr. Cass, Sec. of State, to Mr. Morgan, min. to Portugal, No. 13, Nov. 16, 1859, MS. Inst. Portugal, XIV. 201.

The liability of property, the product of an enemy country, and coming from it during war, to capture, being irrespective of the

status domicilii, guilt or innocence, of the owner, such property is as much liable to capture, when belonging to a loyal citizen of the country of the captors, as if owned by a citizen or subject of the hostile country or by the hostile government itself. The only qualification of this rule is that, where, upon the breaking out of hostilities or as soon after as possible, the owner escapes with such property as he can take with him, or in good faith thus early removes his property, with the view of putting it beyond the dominion of the hostile power, the property in such cases is exempt from the liability which would otherwise attend it.

The Gray Jacket, 5 Wallace, 342.

"As will be seen by a survey of the above cases, the right to seize enemy's goods sailing under neutral flag has been sustained in The Julia, 8 Cranch, 181; The Nereide, 9 Cranch, 388; The Ariadne, 2 Wheat. 143. See The Caledonian, 4 Wheat. 100; The Hart, 3 Wall. 559; S. C., Bl. Pr. Ca. 379. That shipping goods in an enemy's ship gives presumption that goods belong to enemy, see The London Packet, 1 Mason, 14; The Amy Warwick, 2 Blatch. 635. On the other hand, the executive department of the Government, to use Mr. Marcy's language (Mr. Marcy to Mr. Mason, Aug. 7, 1850), 'has strenuously contended that free ships made free goods, articles contraband of war excepted,' and that this was then regarded by the Executive as the generally accepted rule is evidenced by Mr. Marcy's statement in the next sentence, that 'Great Britain is believed to be almost the only maritime power which has constantly refused to regard this as a rule of international law.' Even in the strain of the late civil war, Mr. Seward, when proposing to accede to the declaration of Paris on this point, did so on the ground that the declaration did not make a new rule, but established an old one, which the United States has maintained as a part of international law. This difference of opinion between the judicial and executive departments of the Government may be attributed, in the main, to the distinct political training of the two departments. The executive, from the time of the administration of Mr. Jefferson, inclined to the liberal view of international law which became then prevalent among political economists; and though Mr. Jefferson, when Secretary of State, at first thought the weight of authority was the other way, he changed his mind as to this, and took the lead, as President, in recommending as the best rule, that free ships should make free goods. The same doctrine was vindicated with great elaboration by Mr. Madison, and has been accepted, more or less conspicuously, whenever occasion arose, by succeeding Presidents. While, however, the executive department continued to accept these distinctive views

of international law, of which Mr. Jefferson and Mr. Madison were the exponents, it was otherwise with the judiciary. In part this may be attributed to the strong antagonism of Chief Justice Marshall to Mr. Jefferson, and to the scheme of public law of which Mr. Jefferson was the leading exponent. But aside from this, and aside from the strong bias towards English law and English precedent, which arose from the prior political bias of that great judge, and of his earlier associates, it is impossible not to forget the effect produced, even on professional minds entirely impartial, by the reverence and affection all American lawyers must feel for English judicial literature. If this be the case now-if such literature charm us now, often influencing our judgment, amid the great mass which we possess of legal literature of our own-how much greater must have been the influence when the sole text book at hand was Blackstone, and when Sir William Scott's attractive and lucid judgments were the only sources from which prize law could be studied in the English tongue."

Note of Dr. Wharton, Wharton's Int. Law Digest, III. 309, § 342.

During the war with Chile the Peruvian Government issued a circular in which it was stated that, as Chile had seized the nitrates. on the Peruvian coast, which Peru claimed as her own, and was exporting their products in neutral vessels, the Peruvian cruisers would not respect a neutral flag detected in that business. The American minister at Lima was instructed to remind the Peruvian Government of Article XVIII. of the treaty with the United States of 1870, which stipulated that free ships should make free goods, and to say that if a Peruvian cruiser should capture an American vessel whose cargo, in whole or in part, should consist of the nitrates. referred to, the treaty would be violated and the Peruvian Government would certainly be held accountable for such violation.

Mr. Evarts, Sec. of State, to Mr. Christiancy, min. to Peru, March 1, 1880,
For. Rel. 1880, 836.

In a subsequent instruction, Mr. Evarts remarked that Peru's title to the
nitrate in question was annulled, or at least suspended, by the
armed occupation by Chile of the region whence the article was taken.
The attempt of Peru, therefore, to avenge upon neutrals her want of
good fortune in the contest will not, it is to be feared, add to her
reputation for magnanimity or regard to public law, and certainly
will not be acquiesced in by the governments of neutrals, whose inter
ests may thereby be affected." (Same to same, March 2, 1880, For.

Rel. 1880, 837.)

On the outbreak of the war with Spain, a step was taken which legally fixed the position of the United States as an adherent of the rule of free ships free goods. By a telegraphic instruction to the diplomatic representatives of the United States, on April 22, 1898,

the Department of State declared that, in the event of hostilities, the Government would act upon the second, third, and fourth rules of the Declaration of Paris as "recognized rules of international law."

This position was confirmed by a proclamation issued by the President on April 26, 1898, by which certain rules were promulgated for the observance of officers of the United States during the conflict. Of these, the first two were as follows:

"1. The neutral flag covers enemy's goods, with the exception of contraband of war.

"2. Neutral goods, not contraband of war, are not liable to confiscation under the enemy's flag."

For the proclamation of April 26, 1898, see Proclamations and Decrees issued during the War with Spain, 77.

2. VESSELS IN OR SAILING FOR PORT AT OUTBREAK OF WAR.

§ 1196.

It was formerly the practice not only to seize enemy vessels in port at the outbreak of war, but also to lay an embargo upon them in expectation of war, so that, if war should come, they might be confiscated. A rule of precisely the opposite effect has been enforced in recent wars.

"On the declaration of a war beween the Ottoman Porte and Russia, in October, 1853, a notice was issued by the latter Government to the effect that, as the Porte had not imposed an embargo on Russian vessels in its ports, &c., the Russian Government, on its part, granted liberty to Turkish vessels in its ports to return to their destination, till the 10th (22nd) of November. After the declaration of hostilities by France and England against Russia, similar declarations were made by these powers. That of France, dated March 27, 1854, declares: 'Art. 1. Six weeks from the present date are granted to Russian ships of commerce to quit the ports of France. Those Russian ships which are not actually in our ports, or which may have left the ports of Russia previously to the declaration of war, may enter into French ports, and remain there for the completion of their cargoes, until the 9th of May, inclusive.' The declaration of England, to the same effect, was dated March 29, 1854. Still further indulgences were afterward declared to Russian vessels, which had sailed prior to May 15, 1854, for English and French ports. Russia allowed English and French vessels six weeks from April 25, 1854, to take on board their cargoes and sail from Russian ports in the Black Sea, the Sea of Azof, and the Baltic, and six weeks from the opening of navigation to leave the ports of the White Sea."

Halleck, Int. Law (3d ed., by Baker), I. 532–533, note.