was to be recognised. During the wars of the French revolution, the United States being neutral, admitted that the immunity of their flag did not extend to cover enemy's property, as a principle founded in the customary law and established usage of nations, though they sought every opportunity of substituting for it the opposite maxim of free ships freè goods, by conventional arrangements with such nations as were disposed to adopt that amendment of the law. In the course of the correspondence which took place between the minister of the French republic and the government of the United States, the latter affirmed that it could not be doubted that, by the general law of nations, the goods of a friend found in the vessel of an enemy are free, and the goods of an enemy found in the vessel of a friend are lawful prize. It was true, that several nations, desirous of avoiding the inconvenience of having their vessels stopped at sea, over-hauled, carried into port, and detained, under pretence of having enemy's goods on board, had, in many instances, introduced by special treaties, the principle, that enemy ships should make enemy goods, and friendly ships friendly goods; a principle much less embarrassing to commerce, and equal to all parties in point of gain and loss: but this was altogether the effect of particular treaty, controlling in special cases the general principle of the law of nations, and therefore taking effect between such nations only as have so agreed to control it. England had generally determined to adhere to the rigorous principle, having in no instance, so far as was recollected, agreed to the modification of letting the property of the goods follow that of the vessel, except in the single one of her treaties with France. The United states had adopted this modification in their treaties with France, with the United Netherlands, and with Prussia; and, therefore, as to those powers, American vessels covered the goods of their enemies, and the United States lost their goods when in the vessels of the enemies of those powers. With Great Britain, Spain, Portugal, and Austria, the United States had then no treaties; and therefore had nothing to oppose them in acting

according to the general law of nations, that enemy goods are lawful prize though found in the ships of a friend. Nor was it perceived that France could, on the whole, suffer, for though she lost her goods in American vessels, when found therein by England, Spain, Portugal, or Austria; yet she gained American goods when found in the vessels of England, Spain, Portugal, Austria, the United Netherlands, or Prussia: and as the Americans had more goods afloat in the vessels of those six nations, than France had afloat in their vessels, France was the gainer, and they the losers, by the principle of the treaty between the two countries. Indeed the United States were losers in every direction of that principle; for when it worked in their favour, it was to save the goods of their friends; when it worked against them, it was to lose their own, and they would continue to lose whilst it was only partially established. When they should have established it with all nations, they would be in a condition neither to gain nor lose, but would be less exposed to vexatious searches at sea. To this condition the United States were endeavouring to advance; but as it depended on the will of other nations, they could only obtain it when others should be ready to concur.31

By the treaty of 1794 between the United States and Great Britain, article 17, it was stipulated that vessels, captured on suspicion of having on board enemy's property or contraband of war, should be carried to the nearest port for adjudication, and that part of the cargo only which consisted of enemy's property, or contraband for the enemy's use made prize, and the vessels be at liberty to proceed with the remainder of her cargo. In the treaty of 1778, between France and the United States, the rule of free ships free goods had been stipulated; and, as we have already seen, France complained that her goods were taken out of American vessels

31 Mr. Jefferson's Letter to M. Genet, July 24, 1793. Waite's State Pa pers, vol. i. p. 134. See also President Jefferson's Letter to Mr. R. R. Livingston, American Minister at Paris, Sep. 9, 1801. vol. iii. p. 489.

Jefferson's Memoirs,

without resistance by the United States, who, it was alleged, had abandoned, by their treaty with Great Britain, their antecedent engagements to France, recognising the principles of the armed neutrality.

To these complaints, it was answered by the American government that when the treaty of 1778 was concluded, the armed neutrality had not been formed, and consequently the state of things on which that treaty operated was regulated by the pre-existing law of nations, independently of the prin ciples of the armed neutrality. By that law, free ships did not make free goods, nor enemy ships enemy goods. The stipulation therefore in the treaty of 1778 formed an exception to a general rule which retained its obligation in all cases where not changed by compact. Had the treaty of 1794 be→ tween the United States and Great Britain not been formed, or had it entirely omitted any stipulation on this subject, the belligerent right would still have existed. The treaty did not concede a new right, but only mitigated the practical exercise of a right already acknowledged to exist. The desire of establishing universally the principle, that neutral ships should make neutral goods, was felt by no nation more strongly than by the United States. It was an object which they kept in view, and would pursue by such means as their judgment might dictate. But the wish to establish a principle was essentially different from an assumption that it is already established. However solicitous America might be to pursue all proper means tending to obtain the concession of this principle by any or all of the maritime powers of Europe, she had never conceived the idea of obtaining that consent by force. The United States would only arm to defend their own rights: neither their policy nor their interests permitted them to arm in order to compel a surrender of the rights of others. 32

32 Letter of the American Envoys at Paris, Messrs. Marshall, Pinkney, and Geary, to M. de Talleyrand, Jan. 17, 1798. Waite's State Papers, vol. iv. pp. 38-47.

The principle of free ships free goods, had been stipulated by the treaty of 1785, between the United States and Prussia. On the expiration of this convention in 1799, a new treaty was negotiated, which contains the following article:"Experience having proved that the principle adopted in the 12th article of the treaty of 1785, according to which free ships make free goods, has not been sufficiently respected during the two last wars, and especially in that which still continues, the two contracting parties propose, after the return of a general peace, to agree, either separately between themselves, or jointly with other powers alike interested, to concert with the great maritime powers of Europe such arrangements and such permanent principles as may serve to consolidate the liberty and safety of neutral navigation and commerce in future wars. And if in the interval either of the contracting parties should be engaged in a war, to which the other should remain neutral, the ships of war and privateers of the belligerent power shall conduct themselves towards the vessels of the neutral power, as favourably as the course of the war then existing may permit, observing the principles and rules of the law of nations as generally acknowledged."

During the war which commenced between the United States and Great Britain in 1812, the prize courts of the former uniformly enforced the generally acknowledged rule of international law, that enemy's goods in neutral vessels are liable to capture and confiscation, except as to such powers with whom the American government had stipulated by subsisting treaties the contrary rule, that free ships should make free goods.

In their recent negotiations with the newly established republics of South America, the United States proposed the establishment of the principle of free ships free goods, as between all the powers of the North and South American continents. It was declared that the rule of public law,that the property of an enemy is liable to capture in the vessels of a friend, has no foundation in natural right, and,

though it be the established usage of nations, rests entirely on the abuse of force. No neutral nation, it was said, was bound to submit to the usage; and though the neutral may have yielded at one time to 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 recognise 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.33

§ 21.

Contra

The general freedom of neutral commerce with the respective belligerent powers is subject to certain exceptions. band of Among these is the trade with the enemy in certain articles war. 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 publicists, the fluctuating usage among nations, and the text of various conventions designed to give to that usage the fixed form of positive

33 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 goods found on board an enemy's ship, >see Wheaton's Rep. vol. ii. Appendix, Note I. pp. 54-56.