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although such things belong to an enemy of the other; and the same freedom shall be extended to persons who shall be on board a free vessel, although they should be enemies to the other party unless they be soldiers in actual service of such enemy.”
The treaty of Utretcht of 1713, between Great Britain and France, is to the same effect. It fully asserts the right of neutrals to free trade. By that treaty free ships make free goods.
The rights of neutrals honestly observing neutrality remain unaffected by belligerent rights, as they have been miscalled, and neutrals may of right trade freely with both belligerents, except in arms, ammunition and munitions of war, the only true contraband,
John Quincy Adams, Secretary of State of the United States, in giving President Monroe's instructions to Mr. Anderson, our minister to Colombia, under date of May 27th, 1823, gives the views of our republic upon the usage of seizing the goods of an enemy in the ships of a neutral, and which Great Britain then claimed as a settled rule of the law of nations. This eminent civilian and diplomatist, says: “ By the usage of nations, independent of treaty stipulations, the property of an enemy is liable to capture in the vessel of a friend. It is not possible to justify this rule upon any sound principle of the law of nature ; for, by that law,
the belligerent party has no right to pursue or attack his enemy without the jurisdiction of either of them. The high seas are a general jurisdiction common to all, qualified by a special jurisdiction of each nation over its own vessels. As the theatre of general and common jurisdiction, the vessels of one nation, and their commanders, have no right to exercise over those of another any act of authori. ty whatsoever. This is universally admitted in time of peace. War gives the belligerent a right to pursue his enemy within the jurisdiction common to both, but not into the special jurisdiction of the neutral party. If the belligerent has a right to take the property of his enemy on the seas, the neutral has a right to carry and protect the property of his friend on the same element. War gives the belligerent no natural right to take the property of his enemy from the vessel of his friend. But as the belligerent is armed, and the neutral as such, is defenceless, it has grown into a usage that the belligerent should take the property of his enemy, paying the neutral his freight and submitting the question of facts to the tribunals of the belligerent party. It is evident, however, that this usage has no foundation in natural right, but has arisen merely from force, used by the belligerent, and which the neutral in the origin did not resist be. cause he had not the power.
But it is a usage
harsh and cruel in its operation, and unjust in its nature; and it never fails in time of maritime war to produce irritation and animosity between the belligerent and the neutral. So universally has this been found to be its consequences, that all the maritime nations of modern Europe have shown their sense of it by stipulating the contrary principle, namely, that the property of an enemy shall be protected in the vessel of a friend.”
Again Mr. Adams, as President, caused ministers to be sent to the American Diplomatic Congress of Panama to sanction, among other improvements, as a principle of the code of public law, the rule that free ships make free goods. (See his Message to the Senate of December 26th, 1825.)
SECTION THIRTY-NINTH. OF NEUTRAL RIGHTS ADMITTED BY BRITAIN AND AFFIRMED BY OTHER NATIONS.
The right of neutrals to free trade with belligerents, and the principle of international law that free ships make free goods, except contraband, consisting of arms, ammunition and munitions of war, are clear, explicit doctrines of the treaty of navigation and commerce of Utretcht, of 1713, between France and Great Britain. The 17th, 18th, 19th and 20th Articles of this treaty declared not only that the vessels of either party might freely trade in all
merchandise except strict contraband of war, with enemies of both or either party, to and from such belligerent ports, and also from port to port of such enemy of both or either party; but that celebrated treaty also affirmed that the neutral flag should cover all persons on board, even enemies of the other party, except soldiers in the actual service of the enemy. According to this treaty the flag covers the ship, cargo and all on board except strict contraband of war, and soldiers in the service of the enemy. (See Chalmers' Treaties, 402, 403.)
In England the maritime treaty of Utretcht was considered as establishing great and permanent principles of international law, as is manifest from its ratification, and renewal by the treaty of Paris of 1763, made between Great Britain, France and Spain, to which Portugal acceded. By Article 2d the treaties of peace, navigation and commerce of Utretcht of 1713, were confirmed. (See Chalmers' Treaties, vol. 1st, p. 470.) Great Britain again, by the treaty of 1783 made with France, in Article 2d confirmed the treaties of peace and commerce of Utretcht and of that of Paris of 1763. (1 Chalmers' Treaties, p. 497.) The treaty of 1783 between Great Britain and Spain, in its 2d Article repeated the confirmation of the treaty of navigation and commerce of Utretcht and of that of Paris of 1763, and thus reaffirmed the old law of nations,
that free ships make free goods. (1 Chalmers' Treaties, p. 231.) The treaty of commerce made
p between Great Britain and France in 1786, by Articles 20th, 21st, 22d, and 23d, renewed and reaffirmed the liberal doctrines of the treaty of navigation and commerce of Utretcht in favor of neutral rights and free trade. (See Chalmers, vol. 1st, p. 532, 533.) In 1797, Lord Malmsbury in a diplomatic communication to the French negotiators at Lisle, proposed to insert in a treaty a provision confirming the treaty of Utretcht, Aix la Chapelle, &c., on the ground that those treaties had become the law of nations, and if they were omitted it might produce confusion.” (See Lord Malmsbury's Despatch to Lord Grenville, dated July 18th, 1797.) The British Government, in 1782, in a letter of the Secretary Fox to M. Semolin, the Russian Minister at London, dated May 4th, 1782, (2 Azuni's Maritime Law, p. 205,) declared the treaty of Great Britain with the Hollanders of 1674, "a treaty, by which the principles of the armed neutrality are established in their widest extent.' And he offered to agree to free navigation in favor of Holland according to the Russian declaration of armed neutrality of the 26th of February, 1680. The Articles 2d, 3d and 4th of the marine treaty between Great Britain and the States General of the United Netherlands,