principle. The rule, thus modified, was applied to their treaties with Columbia in 1824, with Brazil in 1828, with Chili in 1832, with Mexico in 1831, etc., etc. In no case have they concluded any treaty sustaining a different principle, except that of 1794, with England. They have invariably opposed the rule that enemy ships make enemy goods, and their supreme court, as has already been stated, refused to admit it, even against a neutral whose law of prize would subject the property of American citizens to condemnation, when found on board the vessels of her enemy. (Wheaton, Elern. Int. Law, pt. 4, ch. 3, § 22; The Nereide, 9 Cranch Rep., p. 388; U. S. Statutes at Large, vol. 8, pp. 262, 312, 393, 437, 472, 490; Bello, Derecho Internacional, pt. 2, cap. 8, § 2; Heffter, Droit International, § 164; De Cussy, Droit Maritime, liv. 1, tit. 3, § 10.)

§ 10. Prior to the war between the Allies and Russia, 1854, and the congress of Paris, 1856, the conventional law with respect to these two maxims has varied at different periods, according to the fluctuating policy and interests of the different maritime powers of Europe. It has been much more flexible than the consuetudinary law, but there has been a decided preponderance of modern treaties in favor of the maxim of free ships free goods, sometimes connected with that of enemy ships enemy goods, although the constant tendency has been to exclude the latter. France is almost the only government which has maintained that the goods of a friend laden on board of the ships of an enemy are good and lawful prize. This principle was incorporated into the French ordinances of 1538, 1543 and 1584. The contrary was provided in the declaration of 1650, but the former rule was reëstablished in 1681. In the numerous French ordinances and treaties after that period, France generally contended for the same principle, sometimes with, and sometimes without, the converse maxim of free ships free goods. In her earlier treaties, England adopted this last maxim, although she has since most strenuously opposed it, and her tribunals have uniformly condemned all enemy goods in neutral vessels, while neutral goods in enemy vessels have, as a general rule, been exempted from confiscation. While the other nations of Europe have adopted the same principle as the rule of

international law, they have generally, both in their ordinances and treaties, shown a willingness to adopt the maxim of free ships free goods. (Manning, Law of Nations, pp. 240, et seq.; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 23; Flassan, de la Diplomatie, tome 2, pt. 226; tome 3, p. 451; tome 7, pp. 183, 273; De Cussy, Droit Maritime, liv. 1, tit. 3, § 10; Dumont, Corps Diplomatique, tome 6, pt. 1, p. 342; Schoell, Hist. de Traités de Paz, tome 2, pp. 108, 121, etc.; Hautefeuille, Des Nations Neutres, tome 3, p. 270; Martens, Recuil de Traités, tome 5, p. 530; Ortolan, Dip. de la Mer, tome 2, ch. 5; The Citade de Lisboa, 6 Rob. Rep., p. 358; The Erstern, 2 Dallas Rep., p. 34; The Mariana, 5 Rob. Rep., p. 28; Heffter, Droit International, §§ 163, 164.)

§ 11. At the beginning of the recent war between the Allies and Russia, the different constructions put upon the law of nations by England and France, with respect to the maxims of free ships free goods, and enemy ships enemy goods, threatened to aggravate the difficulties to which war always subjects neutral commerce. Neutral property, which England would not condem for being found in an enemy's vessel, would be good prize to the French cruiser; while the neutral ship, whose flag would protect, against France, enemy's property on board, might be sent by an English cruiser into an English port, her voyage broken up, and her cargo condemned, with no allowance for freight or damages. A compromise of principles was therefore necessary to the coöperation of their navies. A declaration was accordingly agreed upon by the two powers, in April, 1854, "waiving the right of seizing enemy's property laden on board a neutral vessel, unless it be contraband of war," and of "confiscating neutral property, not being contraband of war, found on board enemy's ships." The obnoxious pretentions of England were thus abandoned, as a consideration for obtaining from France additional concessions on her part. Nevertheless, the arrangement was, upon its face, only for the war, and was declared to be a temporary waiving of belligerent rights recognised by the law of nations. Either party might, at the close of that war, have resumed the pretentions thus abandoned, and have claimed in any future war, the belligerent rights, the exercise of which, was thus merely "waived." (Wheaton, Elem. Int.

Law, pt. 4, ch. 3, § 24, note; Cong. Doc., 33 Con., 1st. Sess. H. R. Ex. Doc. No. 103; Ortolan, Diplomatie de la Mer, tome 2 ch. 5; Heffter, Droit International,§ 162–165; De Cussy, Droit Maritime, lib. 1, tit. 3, § 20.)

§ 12. All fears of such a result, however, were removed by the declaration of the congress of Paris, April 16th, 1856, by the plenipotentiaries of Great Britain, France, Russia, Austria, Prussia, Sardinia and Turkey. The second and third articles of this declaration are as follows: "2d. The neutral flag covers enemy's goods, with the exception of contraband of war." "3d. Neutral goods, with the exception of contraband of war, are not liable to capture under an enemy's flag.' It was also provided in the final paragraph that, "the present declaration is not, and shall not be binding, except between those powers who have acceded or shall accede to it." More than a year prior to this declaration, the President of the United States had submitted, not only to the powers represented in the congress of Paris, but to all other maritime nations, two propositions which were substantially the same as those adopted, viz: "1. That free ships make free goods, that is to say, that the effects or goods belonging to subjects or citizens of a power or state at war are free from capture and confiscation when found on board of neutral vessels, with the exception of articles contraband of war." "2. That the property of neutrals on board an enemy's vessel is not subject to confiscation, unless the same be contraband of war." The second and third articles of the declaration of the congress of Paris have been formally approved by the President of the United States, and, it is believed, also by most of the other maritime nations of Europe. Nevertheless, as the principle must be regarded as established by a conventional agreement, rather than by the general law of nations, it is binding only upon those who have acceded or may accede to it. There is very little probability, however, that any nation will hereafter attempt to enfore rules of maritime capture in conflict with the principle thus established by the great powers of Europe and America. (Phillimore, On Int. Law, vol. 3, appendix, p. 850; Ortolan, Diplomatie de la Mer, tome 2, ch. 5; Pistoye et Duverdy, Traité des Prises, appendix; Heffter, Droit International, appen., no. 3; De Cussy,

Droit Maritime, tome 1, p. 553; De Cussy, Precis Historique, ch. 12.)

§ 13. It is an established rule of the law of prize, that all goods found in an enemy's ship is presumed to be enemy's property-res in hostium navibus, praesumuntur esse hostium donec probetur. The evidence required to repel this presumption, depends upon the particular character of the case. If the character of the ship is certainly hostile, the neutral character of the goods must be shown by documents on board at the time of capture. If these are insufficient, further proof is never allowed, and the penalty of forfeiture attaches as a matter of course. "It has been truly observed," says Mr. Duer, "that any other course would subject the prize tribunals to endless impositions and frauds, and enable the enemy, thus obtaining the benefit of other proof, to evade, by supplying the documentary evidence, the just rights of the captor." Although it is the duty, in all cases, of a neutral claimant to establish his claim by positive evidence, it is only when the character of the ship is certainly hostile that the presumption of the hostility of the goods cannot be refuted by evidence additional to the documents found on the ship. In other cases, a reasonable time is allowed for the production of further proof, and it is only upon the failure to produce such proof, or its unsatisfactory nature when produced, that the court proceeds to a condemnation. (Duer, On Insurance, vol. 1, pp. 534, 535; Loccenius, De Jure Maritimo, lib. 2, cap. 4, § 11; The Flying Fish, 2 Gallis. Rep., pp. 374, 375; The London Packet, 1 Mason Rep., p. 14; Pistoye et Duverdy, Des Prises, tit. 6, ch. 2, § 4.)

§ 14. Another violation of neutral duty is the use of the flag and pass of the enemy. A neutral vessel is bound by the character which she has thus assumed, and the owner is not allowed to contradict his own acts, and to redeem his vessel from condemnation, by a disclaimer of the hostile character which, with a view to his own interests, or those of the enemy, he has elected she should bear. "If a neutral vessel," says Kent, "enjoys the privileges of a foreign character, she must expect, at the same time, to be subject to the inconveniences attaching to that character." But, as already stated, the foreign character thus assumed, is conclusive only

as against the owner, and not in his favor, for the real character of the vessel may always be pleaded against her, where the knowledge of that fact would justify a condemnation. The first branch of the rule is intended as a penalty for violation of neutral duty. (Kent, Com. on Am. Law, vol. 1, p. 85; Duer, On Insurance, vol. 1, pp. 535, 536; Phillimore, On Int. Law, vol. 3, § 485; The Marianna, 6 Rob. Rep., p. 24; The Francis, 8 Cranch. Rep., p. 418; The Vigilantia, 1 Rob. Rep., p. 1, 19, 26; The Vrouw Anna Catharina, 5 Rob. Rep., p. 161; The Success, 1 Dod. Rep., p. 131; The Fortuna, 1 Dod. Rep., p. 87.)

§ 15. But while the belligerent flag and pass are, in all cases, decisive, as to the owners, of the character of the ship, a distinction is made by the English courts in favor of the cargo of such ships, if the shipment were made in time of peace and plainly not in contemplation of war. Even where the goods themselves, for purposes having no relation to a future war, are clothed with a foreign character, now become hostile, the owner is not concluded, but is permitted to disprove the colorable title, and, upon due proof of his neutral character and actual ownership, his property is restored. On this subject we copy the remarks of Chancellor Kent. "Some countries have gone so far as to make the flag and pass of the ship conclusive on the cargo also; but the English courts have never carried the principle to that extent, as to cargoes laden before the war. The English rule is, to hold the ship bound by the character imposed upon it by the authority of the government from which all the documents issue. But goods which have no such dependence upon the authority of the state, may be differently considered; and if the cargo be laden in time of peace, though documented as foreign property in the same manner as the ship, the sailing under a foreign flag and pass has not been held conclusive as to the cargo. The doctrine of the federal courts in this country, has been very strict on this point, and it has been frequently decided, that sailing under the license and passport of protection of the enemy, in furtherence of his views and interests, was, without regard to the object of the voyage, or the port of destination, such an act of illegality as subjected both ship and cargo to confiscation as prize of war." The American deci