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In the negotiations with regard to the treaty of 1785, as the claimants aptly point out, Prussia actually desired that instead of the sentence “enemy ships, enemy goods,” suggested in the American draft, the opposite view, “enemy ships, free goods," be adopted. But the United States would not agree to this, and therefore nothing at all was settled upon this point. Thus the law as laid down by the treaty corresponded to the rules of the Armed Neutrality of 1780. Only the rule "free ships, free goods” is expressed in the treaty, while nothing is said about neutral goods on enemy ships. This has often been taken to mean that the confiscation of neutral goods on enemy ships would not be resisted. By long practice it had become the custom to consider the confiscation of neutral goods on board enemy ships as a concession to the belligerents, in return for which the inviolability of enemy goods on neutral ships is acknowledged."
This is precisely the standpoint which the authorities of the United States of North America took at the time of the celebration of the treaty of 1785 with regard to its interpretation. No less a person than the Secretary of State Jefferson, who was himself interested in the conclusion of the treaty of 1785, expressed himself in this sense when, in 1793, France, then at war with England, complained to the United States that England had captured French goods in American ships and that America had allowed it. In Jefferson's note of July 24, 1793, rejecting these complaints as unfounded because according to international law (Consolato del Mare) enemy goods in neutral ships are subject to confiscation, which is only modified if the principle, "free ships, free goods" is provided by the treaty, it is stated:
We have adopted this modification in our treaties with France, The Netherlands and Prussia, and therefore as to them, our vessels cover the goods of their enemies, and we lose our goods, when in the vessels of their enemies." Although in the treaty with Prussia the principle “Free ships, free goods” only is agreed upon, the Secretary of State, Jefferson, immediately presumes that, in consequence, the principle "enemy ships, enemy goods" also applies in the relations with Prussia.
The claimants, therefore, do not refer to Article XII, but to Article XIII of the treaty of 1785 and 1799. They do not deny that if the French text be used, nothing can be gained for their point of view from this article. But they want to hold to the English text, in which a discrepancy occurs, from which they seek to infer that under all circum
* Cauchy, Le droit maritime international, II,
stances when the goods belonging to citizens of the United States of America are in question, even if the cargo be on board an enemy ship, compensation must be paid.
It is unnecessary to consider which of the two texts is competent, or how, if both are competent, a contradiction between them is to be solved, for even the English text leads to no favorable result for the claimants. In the first place, their reading is directly contradicted by the interpretation of the treaty adopted by the United States, as mentioned above, in the year 1793. But purely from a grammatical point of view, the reading of the English text adopted by the claimants is not admissible. Whilst the French text speaks of goods shipped "à bord des vaisseaux des sujets ou citoyens de l'une des parties," the English text does not read, as it should in a literal translation, “carried in the vessels of the subjects or citizens of either party," but reads "carried in the vessels, or by the subjects or citizens of either party." Accordingly, the claimants think that not only goods shipped on American or Prussian vessels, but goods shipped by American or Prussian citizens as well, regardless of what kind of vessels are employed, or even if they be shipped in enemy vessels, should be presumed to be synonymous with goods which belong to such citizens.
Of the latter goods, however, no mention is made in the treaty. The "carried by” does not refer to the property relationship but to the person who undertakes the shipment, who, however, is the ship-owner and not the shipper or consignee. The whole difference between the English and French texts amounts to the extension, that, in addition to the ships of the citizens of both states, special stress is laid in the English text on the vessels of the parties to the contract, the vessels of the states,-"the vessels of either party"; for the words “of either party" must refer to "in the vessels” if the latter expression is not to be totally unintelligible. It is characteristic, that the text in Martens, Recueil des Traites, Supplement, II, p. 226, also contains the edition of the treaty furnished by the Interior Department and an independent translation from the English which was undoubtedly made soon after the conclusion of the treaty of 1799, in which the translator reproduces the wording exactly in this sense. The “elles même" in the turning on “d'elles
" même” can for grammatical reasons apply only to the “Parties contractantes” in whose own vessels goods are shipped.
Moreover, a different interpretation is impossible for positive reasons. Article XIII treats of contraband. In order to avoid disputes, which are
apt to arise over the question whether goods are contraband of war or not, it was agreed that contraband likewise should not be subject to seizure. It is true that in case of necessity contraband goods may be requisitioned upon payment of their value; they may also, should the necessities of war demand it, be detained for the time being, the owners to be paid for the losses but only against payment of the damage sustained by the detention. These stipulations of Article XIII are mostly closely connected with the provisions of Article XII. While contraband is always excepted from the general principle "free ships make free goods," after that principle is laid down in Article XII for enemy goods in Prussian or American vessels, Article XIII enters into the exceptional case of goods shipped in such vessels which are contraband of war or suspected of being contraband. The provision concerning the treatment of the ships in question, according to which the master of a vessel stopped for carrying contraband to the enemy is to have the choice of delivering up the contraband articles and then proceeding unmolested upon his voyage, applies without doubt only to the ships of the parties to the treaty. It appears absolutely out of the question that the agreement was also meant to apply to an enemy ship carrying munitions, etc., to its own belligerent country. It cannot have been considered that the belligerent who succeeded in capturing a ship with weapons and munitions should be obliged to pay compensation when it happened to be a citizen of the other state party to the treaty who undertook to send them to the enemy, or that the enemy vessel after it had given up the contraband should be allowed to continue its voyage unmolested.
If Article XIII of the treaty of 1799 does not refer to contraband on enemy ships, it is self-evident that nothing concerning the treatment of innocent goods on such vessels is laid down. The principle “enemy ships, free goods” applies also to the United States. Its validity, however, is not derived from any special treaty, but from common international law as laid down in the Declaration respecting Maritime Law adopted at Paris in 1856, which, according to the German Prize Law Regulations, applies also to countries, like the United States, which did not agree to that Declaration. Likewise, in regard to the question whether in such cases as the one under consideration the owners of neutral goods are to receive compensation, the same principles must be applied towards the citizens of the United States as towards the subjects of other neutral countries. These principles are laid down in the Glitra case.
De vaebnede Neutralitets-Forbund: Et avsnit av Folkerettens historie
[The Armed Leagues of Neutrality. A Chapter of the History of International Law). By Thorvald Boye. Christiania, Copenhagen,
Stockholm: Grondahl & Son, 1912. pp. vi, 360. Nordens, sarlig Danmarks, Neutralitet under Krimkrigen. (The Neu
trality of the Scandinavian Kingdoms and especially of Denmark during the Crimean War). By Fredrik Bajer. Copenhagen: 1914.
The one great contribution of the Scandinavian nations to the evolution of modern international law is their persevering efforts to obtain recognition from belligerent Powers of a body of rules on the rights of neutral states during war, especially in relation to navigation and maritime commerce. In course of time this has developed into a keen interest, on the part of the Scandinavian kingdoms, for a more secure status of neutral states in general, and they have elaborated for diplomatic discussion a body of rules with relation to declarations of permanent neutrality. Very likely the present war may give a rude blow to the whole conception of neutrality and the rules pertaining to this status. It seems as if out of the present chaos there may rise a new ideal which will strip neutrality of its negative aspect and give it a constructive sense which will confer on “neutral” states duties to uphold, as far as possible, international peace and public right. In the meantime, the neutrality conception has served a useful purpose as far as it goes, and it is natural and fitting that Scandinavian authors should be particularly interested in proving the part their countries have played in the evolution of neutrality law and custom.
Dr. Thorvald Boye, of the Norwegian Ministry for Social Questions, presents us with the result of year-long painstaking studies in the Record Office in London, in the archives of the Foreign Offices in Copenhagen and in Stockholm, relating to the successive Armed Leagues of Neutrality. After a brief sketch of the evolution of neutrality rules, especially with regard to navigation in war time, up to 1642, he furnishes us with an interesting survey of Scandinavian foreign relations in the seventeenth century. There were then only two Scandinavian kingdoms, Sweden and Denmark-Norway, continually at war with each other, after the power of the Hansa had been finally broken. During a short spell of military ascendancy, Sweden climbed the dizzy heights of great power, but the Great Northern War (1700-1721) made for all time an end of this state of things. Russia became the Great Power of the North. The result was a sort of equilibrium between the two Scandinavian kingdoms, and in this were found the necessary conditions for coöperation between them, in their common interest. At four different times during the eighteenth century we see Denmark-Norway and Sweden conclude Neutrality Leagues. It is just to say that the initiative invariably lies with the Danes. Sometimes they succeeded in obtaining the adhesion and active support of other Powers: Russia, Prussia on one occasion, Austria, Portugal and the two Sicilies, and we know that Holland was ready in 1780 to join the League. England, however, preferred to have Holland as an enemy rather than as a neutral, and declared war on her.
Dr. Boye traces with great care the history of this interesting development. He first mentions the precedents of 1691 and 1693, during the war between France and the coalition led by William the Third. He then gives a detailed account of the Leagues of 1756 (Seven Years' War), 1780 (American Independence), 1794 (Revolutionary War) and of 1800 (Napoleon). The great mass of material, to which several new records are added, is skillfully handled in a sober and trustworthy way. Perhaps it might have been desirable if greater attention had been given to the philosophy of the subject. We are now somewhat subdued by the mass of detailed information..
It is very interesting to note that it is not only through their politicians that these northern countries have contributed towards the development of this part of international law. In a special paragraph Dr. Boye gives an account of the action and the writings of the remarkable Martin Hübner who, more than any other author, has anticipated in his books the theories of neutrality which were to prevail in the nineteenth century. It should not be forgotten that the Paris rules of 1856 essentially embody the rules for which the northern Powers had been contending. Hübner, even, in one of his books, anticipates the principle of an impartial prize jurisdiction, though not so elaborate as the plan of 1907, which unfortunately has not yet been put into action.
While, thus, the principles for which these small kingdoms had been contending were to be vindicated by posterity, the experiment of an