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Published online by Cambridge University Press: 04 May 2017
The United States, fighting a war for independence from the greatest of maritime Powers at a time when the belligerent and neutral worlds were united against England because of her maintenance of the ancient rules of maritime warfare, naturally incorporated into its first treaty, the commercial agreement of 1778 with France, the "twin maxims" of Utrecht: free ships, free goods, enemy ships, enemy goods. The greater freedom which the first of these principles expressed agreed with the interests and the temper of the new republic, since in but one of its subsequent treaties has it included the opposing regulations upheld by the mother country. Treaties of 1782 with the United Provinces, 1783 with Sweden, and 1800 with France stipulated that free ships should make free goods and enemy ships, enemy goods.
1 Martens, Recueil de Traités, II, pp. 594, 597.
2 England, since the early part of the seventeenth century, had upheld the principles of the Consolato del Mare, which exempted neutral goods from capture on enemy ships, but permitted the capture of enemy goods wherever found. These principles were incorporated into the Jay Treaty.
3 Martens, Rec., III, p. 439.
4 Ibid., pp. 568, 572.
5 Ibid., VII, p. 103.
6 Ibid., IV, p. 247.
7 Ibid., VI, p. 143.
8 Ibid., p. 298.
9 Ibid., p. 406.
10 The Law of Nations, p. 335.
11 Martens, Rec., IV, p. 42.
12 Malloy, Treaties between the United States and other Powers (Washington, 1910), II, p. 1788.
13 Martens, Nouveau Recueil, V, Supplement, p. 6.
14 Ibid., VII, 2, p. 615.
15 Ibid., XIII, p. 685; see J. B. Moore, Digest of International Law (Washington, 1906), 7, p. 435.
16 Malloy, II, p. 1845.
17 Martens, Rec., IV, p. 42.
18 War and Private Property (London, 1907), p. 85.
19 Martens, Rec., IV, p. 47. (Italics by the writer.)
20 Ibid., VI, pp. 676-8. This latter section appears to permit of action under the "English rules" or even of the extreme practice to which the appUcation of the rule of hostile infection (enemy ships, enemy goods; enemy goods, enemy ships) led.
21 Ibid., pp. 686-8. This fact Oppenheim overlooks when he corrects Perels and declares that Article XII of the treaty of 1828 expressly adopts the immunity of private property by renewing the twenty-third article of the treaty of 1799. See his International Law, II, p. 221, note 2. Westlake has a similar misstatement, — International Law, II, p. 129.
22 Martens, N. R., VII, 2, pp. 619-620. For a convenient source, containing the three treaties in English, see Malloy, Treaties, etc., II, pp. 1477-1501; also Niemeyer, Urkundenbuch zum Seekriegsrecht (Berlin, 1913), I, pp. 22-34.
23 Martens, Rec., V, p. 672.
24 Malloy, I, p. 601, note A.
25 For list of United States treaties containing the so-called Dutch principles, see Moore, Digest, VII, p. 436; also in Hall, International Law, 6th ed., p. 693, note. Hall is in error in including our treaty of 1854 with Russia; see Malloy, II, p. 1520.
26 Martens, Rec., Supp., IX, Pt. 1, p. 343; Malloy, II, p. 1656. Professor Moore states that a similar stipulation existed in the treaty with France of 1778. Digest, VII, p. 436. The writer is unable to discover such a stipulation in the treaty. Article XXIII provided: “It shall be lawful for all and singular the subjects of the Most Christian King, and the citizens, people, and inhabitants of the said United States, to sail with their ships with all manner of liberty and security, no distinction being made who are the proprietors of the merchandizes laden thereon, from any port to the places of those who now are or hereafter shall be at enmity with the Most Christian King or the United States. … And it is hereby stipulated that free ships shall also give a freedom to goods, and that everything shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading or any part thereof should appertain to the enemies of either, contraband goods being always excepted.” See Martens, Rec., II, p. 597.
27 Martens, N. R., Supp., X, 2, p. 994.
28 Ibid., p. 832.
29 Ibid., Nouveau Recueil Général, I, p. 57.
30 Ibid., XXII, p. 63.
31 Ibid., XVI, 1, p. 572.
32 Ibid., p. 570.
33 Ibid., XVII, 1, p. 191.
34 Malloy, I, p. 114.
35 Ibid., p. 926.
36 Ibid., p. 408.
37 MS. Inst. U. S. Ministers, VI, p. 322; Moore, Digest, VII, p. 440. It may be doubted whether Madison could have named a single state whose practice over a considerable period of time justified its maintenance of the principle as a rule of law.
38 E.g., James Kent, Commentaries on American Law, 8th ed. (New York, 1854) I, p. 126: “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.” See also Marshall’s opinion, The Nereide, 9 Cranch, 388; Scott, Cases, p. 885.
39 American State Papers, For. Rel., I, pp. 166-167.
40 Monroe to Adams, May 21, 1816, MS. Inst. U. S. Ministers, VIII, p. 61; Moore, Digest, VII, p. 441.
41 9 Cranch, 388 ff., Scott, Cases, p. 887. Marshall in the same case holds that neutral property otherwise immune from capture is not rendered confiscable by the fact that the merchant vessel transporting it is armed: “It would be strange if a rule laid down, with a view to war, in such broad terms as to have universal application, should be so construed as to exclude from its operation almost every case for^rhich it purports to provide, and yet that not a dictum should be found in the books pointing to such construction.” He based his opinion upon the right of a neutral to transport his goods in the ship of a friend and refused to admit that the “differences in the degree of capacity” of the carrier to avoid capture and to prevent search could be regarded as restricting the complete right of the neutral. His opinion received confirmation in the case of the Atalanta (1818), 3 Wheat., 409. It disagreed with that in the English case of the Fanny, 1 Dodson, 443.
42 C. H. Butler, “Immunity of Private Property,” Report of 18th Conference of the International Law Association (London, 1900).
43 Richardson, Messages, V, p. 275.
44 Ibid., p. 276.
45 British and Foreign State Papers, 55, pp. 589-599.
46 MS. Inst. Prussia, XIV, p. 239; Moore, Digest, VII, p. 566.
47 MS. Inst. Portugal, XIV, p. 185; Moore, Digest, VII, p. 567. For replies to Marcy’s proposal and general discussion of the effect it produced in foreign countries, see Niemeyer, Urkundenbuch, I, pp. 69-121.
48 MS. Inst. Great Britain, XVII, p. 71; Moore, Digest, VII, p. 567.
49 Malloy, I, p. 114.
50 MS. Inst. France, XV, 455; Moore, Digest, VII, p. 450.
51 Moore, Digest, VII, pp. 570-573.
52 For the negotiations of the United States concerning the Declaration of Paris, see Moore, Digest, VII, pp. 561-583. Mr. Seward interpreted the proposed qualifying declaration to mean that the Powers "should be at liberty to recognize the United States rebels as a maritime Power equal under the Treaty of Paris to the United States themselves." MS. notes to Italy, VI, p. 344, 1867; Moore, Digest, VII, p. 467.
53 MS. Inst. Prussia, XIV, p. 504; Moore, Digest, VII, p. 467.
54 Moore, Digest, pp. 570-574.
55 Wallace, III, pp. 514-559.
56 Ibid., pp. 559-560.
57 Ibid., V, pp. 1-28.
58 Ibid., pp. 28-62.
59 Ibid., V, p. 28.
60 Wallace, V, p. 26.
61 Ibid., p. 54.
62 Ibid.
63 Robinson, IV, p. 65.
64 Ibid., III, p. 297.
65 Ibid., IV, p. 79.
66 Wallace, V, p. 56.
67 Wallace, V, p. 57.
68 Ibid., p. 59.
69 Martens, N. R. G., I, p. 57.
70 Ibid., p. 97.
71 C. H. Butler, "Freedom from Capture of Private Property at Sea," North American Review, 168, 1899, p. 57.
72 Two considerations hindered such action: (1) the comparative weakness of the Spanish navy was not realized; and (2) no preliminary arrangement had been effected regarding prize money.
73 Foreign Relations of the United States, 1898, p. 772.
74 Ibid., p. 774.
75 Spain and Mexico-definitively adhered to the Declaration of Paris in 1908 and 1909 respectively; see Holland, Letters on War and Neutrality, p. 65.
76 E. J. Benton, International Law and Diplomacy of the Spanish-American War (Baltimore, 1908), p. 178, notes that three Spanish merchantmen were destroyed by a cruiser of the United States, but that the destruction was justified by the authorities on the grounds that the ships were transports.
77 177 U. S. 655; Scott, Cases, p. 637.
78 Moore, Digest, VII, p. 470.
79 The American proclamation did not provide for the loading of such vessels nor for immunity for Spanish vessels which were proceeding toward neutral ports, having begun their voyages prior to April 21, 1898. See the case of the Buena Ventura, 175 U. S. 384.
80 Senate Journal, 55th Congress, 3d Session, p. 4 ff.
81 Butler, “Freedom from Capture,” etc., N. A. R., 168, 1899, p. 55.
82 U. S. Statutes at Large, 55th Congress, 30, c. 413, p. 1007.
83 Foreign Relation, 1899, pp. 511-520; J. B. Scott, Hague Peace Conferences (Baltimore, 1909), I, pp. 65, 699-700; II, pp. 9, 24, 71, 79; La Conférnce Internationale de la Paix (The Hague, 1899), pt. I, pp. 31-33.
84 Congressional Record, 58th Cong., 2d Sess., Apr. 28, 1904, p. 58.
85 Scott, H. P. C, II, pp. 192-194.
86 Ibid., pp. 176-177.
87 La Deuxième Conférence Internationale de la Paix (The Hague, 1907), Actes et Documents, III, pp. 776-779.
88 La Deuxième Conférence Internationale de la Paix (The Hague, 1907), Actes et Documents, I, pp. 245-250.