by the vessel on board of which he has taken passage if he personally is in no fault. United States v. Guillem, 11 How. 47. See this case considered in dispatch from Mr. Hoffman, Apr. 14, 1879, For. Rel. 1879, 913; Wharton, Com. Am. Law, § 219. The question how far a temporary residence of a neutral merchant in an enemy's country imposes on such merchant the enemy's liability to capture at sea is discussed at large by Mr. Pinkney, as commissioner, under the treaty of 1794, Wheaton's Life of Pinkney, 245 et seq. 6. CORPORATIONS. § 1194. There is no legal difference, as to a plea of alien enemy, between a corporation and an individual. Society, etc., v. Wheeler, 2 Gall. 105. See, also, The Danckebaar Africaan, 1 Rob. 107; Martine . Int. Life Ins. See Nigel Gold Mining Co., Lim., v. Hoade (1901), 17 T. L. R. 711, and the IX. EXEMPTIONS FROM CAPTURE. 1. GOODS ON NEUTRAL VESSELS. § 1195. By international law up to the present time the ships of an enemy are lawful prize, but their cargoes may or may not be subject to condemnation. On the other hand, ships of a neutral are not in themselves good prize, but may become so as the result of unneutral conduct such as the attempt to break a blockade; and their cargoes, like those of enemy ships, may or may not be subject to confiscation, according to circumstances. As to the treatment of cargo, the following rules have been acted upon: 1. The goods of an enemy may be seized and confiscated whether found in an enemy or in a neutral ship. 2. Goods of an enemy, contraband of war excepted, are exempt. from seizure and confiscation when on board of a neutral ship. This is known as the rule of "free ships, free goods." 3. The goods partake of the character of the ship: If the ship is neutral, they are free; if the ship belongs to an enemy, they are condemned. This is known as the rule of" free ships, free goods; enemy ship, enemy goods." The last rule is enforced only under special treaty stipulations. The great contest has been waged between the first and second rules. The first, that the fate of the goods is determined by the belligerent or neutral character of the owner, without regard to whether the ship is enemy or neutral, was at one time the common law of Europe. It was laid down in the Consolato del Mare and was universally accepted. But about the middle of the seventeenth century a new rule began to be introduced, and it was stipulated in various treaties that the goods of an enemy should be free when on board a neutral ship. This rule was in time embodied in the marine ordinances of France. It was strenuously advocated by the Dutch. It was embraced in the declaration of the Empress of Russia of 1780, which formed the basis of the first armed neutrality. Great Britain generally adhered to the old rule, and in the maritime wars of the eighteenth century the new rule was little observed. Eventually, however, Great Britain came to accept the new rule. When the Crimean war broke out she joined France in proclaiming that enemy property on board a neutral ship would be respected. Then, at the close of the war, came the famous Declaration of Paris of April 16, 1856, the second and third rules of which, as we have seen, read as follows: "2. The neutral flag covers an enemy's goods, with the exception of contraband of war. "3. Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag." a The position of the United States with reference to these rules has often been misapprehended. The rule that neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag, has always been acted upon by the United States, save in case of special treaty stipulations to the contrary; but, with the rule that free ships make free goods, the case is different. Mr. Seward, referring to this rule, as embodied in the Declaration of Paris, once said: “We have always practiced on the principles of the declaration." Similar expressions may be found in the works of publicists, but they are inaccurate. Although American statesmen had advocated the adoption of the rule, the American courts, except where a treaty prescribed a different rule, had uniformly confiscated enemy property, even when it was seized under a neutral flag. And what is to be said as to our treaties? In only ten of them, made with seven powers-Algiers, 1816; Morocco, 1787 and 1836; Prussia, 1785 and 1828; Spain, 1795; Tripoli, 1796 and 1805; Tunis, 1797; and Venezuela, 1860-had the rule of "free ships, free goods" been stipulated for unconditionally, contraband always excepted. In six treaties-Russia, 1854; Two Sicilies, 1855; Peru, 1856; Bolivia, 1858; Hayti, 1864; and the Dominican Republic, 1867-the principle of "free ships, free goods" was recognized as 66 permanent and im @ Instruction to Mr. Dayton, min. to France, Sept. 10, 1861, Diplomatic Correspondence 1861, 233-235. mutable,” but the contracting parties engaged to apply it only to the commerce and navigation of such powers as should consent to adopt" it as "permanent and immutable." Of these treaties, those with the Dominican Republic and the Two Sicilies have ceased to be in force, and that with Peru had been superseded. In our treaty with Spain of 1819 the principle of "free ships, free goods" was acknowledged, but only in regard to the property of enemies whose governments recognized it. Similar stipulations may be found in our treaties with Italy of 1871 and Peru of 1887, and indeed in the first treaty ever concluded by the United States-the treaty of amity and commerce with France of February 6, 1778. But in the treaty with France they were coupled with yet another stipulation restrictive of neutral commerce, namely, that the goods of the citizens of the contracting parties should be confiscated, if laden on the ship of an enemy, unless they were shipped before the declaration of war, or within a certain time afterwards in ignorance of the declaration. These associated stipulations are found more generally than any others in our treaties relating to neutral rights, as may be seen by the following list: Brazil, 1828; Central America, 1825; Chile, 1832; Colombia, 1824 and 1846; Ecuador, 1839; France, 1800; Guatemala, 1849; Mexico, 1831; the Netherlands, 1782; Peru, 1851; Peru-Bolivia, 1836; Salvador, 1850 and 1870; Sweden, 1783; Sweden and Norway, 1816 and 1827; and Venezuela, 1836. But at the outbreak of the war with Spain all these treaties, except those with Colombia (1846), Salvador (1870), and Sweden and Norway (1827), had ceased to be in force. With Great Britain we had had no engagement on the subject except that embodied in the treaty of 1794, which acknowledged the rule of the common law. "I believe it can not be doubted, but 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. Upon this principle, I presume, the British armed vessels have taken the property of French citizens found in our vessels, in the cases above mentioned, and I confess I should be at a loss on what principle to reclaim it. It is true, that sundry nations, desirous of avoiding the inconveniences of having their vessels stopped at sea, ransacked, carried into port, and detained, under pretence of having enemy goods on board, have, in many instances, introduced, by their special treaties, another principle between them, that enemy bottoms shall make enemy goods and friendly bottoms friendly goods-a principle much less embarrassing to commerce, and equal to all parties in point of gain and loss; but this is 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.” Mr. Jefferson, Sec. of State, to Mr. Genet, July 24, 1793, 1 Am. State To same effect see Mr. Jefferson to Mr. Morris, min to France, Aug. 16, (6 See Mr. Jefferson to Mr. Everett, Feb. 24, 1823, 7 Jefferson's Works, 271. As to the early adherence of the United States to the rule of the common For a survey of the development of the rule of free ships, free goods, see Hall Int. Law, 5th ed. 684–690. The maxim"free ships make free goods" is not an accepted principle of the law of nations, but was introduced as an exception thereto in the 23d section of the first French-American commercial treaty. "This stipulation was intended to operate (indeed it was its sole object, and otherwise could have no operation at all) when one of the parties should be at war with a nation or nations with whom the other should be at peace." The maxim, however, was set aside by France during her war with England in 1796-97. Mr. Pickering, Sec. of State, to Mr. J. Q. Adams, July 17, 1797, 2 Am. State "It is possible that, in the pending negotiations for peace [July, 1797, between Great Britain and France] this principle of free ships making free goods may be adopted by all the great maritime powers; in which case, the United States will be among the first of the other powers to accede to it, and to observe it as a universal rule." Mr. Pickering, Sec. of State, to Mr. J. Q. Adams, July 17, 1797, 2 Am. State "The principle of making free ships protect enemy's property has always been cherished by the maritime powers who have not had large navies, though stipulations to that effect have been in all wars more or less violated. In the present war, indeed, they have been less respected than usual, because Great Britain has held more uncontrolled the command of the sea, and has been less disposed than ever to concede the principle; and because France has disclaimed most of the received and established ideas upon the laws of nations, and considered herself as liberated from all the obligations towards other states which interfered with her present objects, or the interests of the moment." Mr. J. Q. Adams, min. at Berlin, to the Sec. of State, Oct. 31, 1797, 2 Am. "This day Mr. Van Polanen, minister resident from the United Netherlands, called at my office and verbally informed me that he was instructed by his Government to state to the Government of the United States of America the dissatisfaction with the treaty of amity, commerce and navigation betwen the said United States and Great Britain, in respect to the stipulations relating to enemies goods in neutral ships, and to articles contraband of war because the former were admitted to be subject to capture, and the list of the latter increased by the addition of ship timber and naval stores and articles for the equipment of ships. "Early in the past winter, or about the close of the last autumn, Mr. Van Polanen formally made a similar verbal representation. In both cases I immediately communicated the same to the President of the United States." Mr. Pickering Sec. of State, memorandum, May 15, 1797, 10 MS. Dom. This referred to the Jay treaty. As to the dissatisfaction of France, see "It is a general rule, that war gives to a belligerent power a right to seize and confiscate the goods of his enemy. However humanity may deplore the application of this principle, there is, perhaps, no one -to which man has more universally assented, or to which jurists have more uniformly agreed. Its theory and its practice have unhappily been maintained in all ages. This right, then, may be exercised on the goods of an enemy wherever found, unless opposed by some superior right. It yields by common consent to the superior right of a neutral nation to protect, by virtue of its sovereignty, the goods of either of the belligerent powers, found within its jurisdiction. But can this right of protection, admitted to be possessed by every Government within its mere limits, in virtue of its absolute sovereignty, be communicated to a vessel navigating the high seas? "It is supposed that it can not be so communicated; because the ocean being common to all nations, no absolute sovereignty can be acquired in it. The rights of all are equal, and must necessarily check, limit, and restrain each other. The superior right, therefore, of absolute sovereignty, to protect all property within its own territory, ceases to be superior when the property is no longer within its own territory, and may be encountered by the opposing acknowledged right of a belligerent power to seize and confiscate the goods of his |