neutral waters. There are, however, certain exceptions, some of which rest upon usage so constant and so conformable to the more humane character of modern warfare that we may almost venture to say that they are embodied in the international code, while others have not progressed beyond the stage of comity, and could be ignored by a belligerent state without bringing down upon itself the charge of lawlessness. The exemption of fishing-boats from capture is a somewhat debatable point. Deep-sea fishing-vessels are treated like other enemy ships, but a practice of allowing the inshore fishermen of both belligerents to pursue their avocations without molestation has become very general. France holds that it is obligatory. The British doctrine that it is a rule of comity only was laid down by Lord Stowell in the case of the Young Jacob and Joanna.1 The United States, under the influence of Franklin, pledged themselves to exemption in their treaty with Prussia of 1785, and the stipulation to that effect was renewed in 1799 and again in 1828.2 The difference between the English and the French view is more apparent than real, for no civilized belligerent would now capture the boats of fishermen plying their avocation peaceably in the territorial waters of their own state, and no jurist would seriously argue that their immunity must be respected if they were used for warlike purposes, as were the smacks belonging to the northern ports of France when Great Britain gave the order to capture them in 1800.

In the eighteenth century states frequently commenced hostilities at a time when their ports were full of the enemy's merchantmen, which they seized as the first step in the active operations of warfare. The famous resignation of the elder Pitt in 1761 was caused by his inability to convince his colleagues that Spain contemplated war with England and their refusal to authorize the capture of Spanish vessels found 1 Robinson, Admiralty Reports, I., 20.

2 Treaties of the United States, pp. 905, 914, 919.

in British waters. But commercial interests and considerations of justice have now become so powerful that belligerents not only refrain from seizure in the circumstances we have just indicated, but reverse their former policy and give time for merchant vessels of enemy nationality to leave their ports after the outbreak of hostilities. At the beginning of the Crimean War in 1854 a period of six weeks was granted by both sides, and in the case of the Russian White Sea ports the days of grace were made to date from the opening of the navigation at the break-up of the ice, and not from the commencement of hostile operations. Moreover, trading-vessels on their way to enemy ports when the war began were allowed to enter and depart unmolested within the specified time. Concessions of a like kind were made to each other by France and Prussia in 1870, and by Russia and Turkey in 1877. It is hardly likely that a privilege of such importance to merchants will be allowed to drop out of existence in these days of rapidly increasing trade, and we may look forward with confidence to the general adoption of the new practice. Moreover, it is exceedingly probable that private vessels engaged in works of discovery or humanity would not now be molested in a war between civilized powers. The Additional Articles of the Geneva Convention provide for the exemption from ordinary capture of hospital ships belonging to the recognized Aid Societies, and even merchantmen charged exclusively with the removal of the sick and wounded. But a certain amount of belligerent authority may be exercised over them, for those who receive attention on board are required not to serve again during the continuance of the war, and the cargoes of the merchant vessels may be confiscated if they are good prize by the law of nations.3 The absence of ratification, however, makes it very doubtful whether these Additional Articles will be observed in every

1 Hertslet, Treaties, X., 503; Wheaton, Int. Law (Dana's ed.), p. 389, note. 2 The United States, at the commencement of their war with Spain in 1898, granted a calendar month for Spanish merchantmen to clear unmolested from American ports, and allowed them to enter freely, if they had commenced their voyage before the war began.

8 Treaties of the United States, pp. 1155, 1156; see also Appendix, § V,

detail, even by powers who are willing to grant immunity of some kind. Humanity and chivalry rather than legal obligation will for some time to come decide the position of the vessels referred to in them, and also that of private vessels driven into an enemy's port by stress of weather or accident of the sea.

§ 207.

Having dealt with enemy vessels, we will now proceed to deal with the

Sea-borne goods of the Enemy.

The ancient rule was to capture them not only on board the ship of an enemy, but also on board the ship of a neutral. In the former case the ship and cargo were good The extent to prize, in the latter the cargo only, the ship being which goods at sea released by the Prize Court and its owner hav

are liable to capture.

ing freight granted to him from the sale of the condemned goods. Neutral vessels were in some cases condemned, for instance if they were endeavoring to run a blockade; but when they were engaged in ordinary commerce, and the only circumstance that led to their detention was the fact that

they carried merchandise belonging to enemy owners, they not only escaped condemnation but even received freight. This was the rule of the Consolato del Mare, and according to most English and American authorities it remains the rule of the common law of nations. But on this point, as on many others, a change is going on. The old order is decaying before our eyes, and for those who hold that the usage of nations when fixed and uniform is an unerring index to their law, it has become a serious question whether the statements that held good half a century ago should not be altered in consequence of the changed practice of modern times. For the movement in favor of the freedom from capture of enemy goods under a neutral flag, which began 1 Pardessus, Us et Coutumes de la Mer, II., 292.

in the seventeenth century, gained a decisive victory in 1856, when the plenipotentiaries assembled at the Conference of Paris embodied the principle of "Free Ships, Free Goods" in the Declaration on Maritime Law with which they concluded their proceedings. Since that time the Declaration has been accepted by nearly all civilized powers, and though the United States has held aloof, along with a few countries of no great importance in naval affairs, both sides in its great Civil War adopted and acted upon the doctrine that a neutral flag covers enemy goods except contraband of war. We have then an agreement acceded to in set terms nearly forty years ago by the vast majority of the members of the family of nations, and, in addition, the subsequent practice of all powers in strict conformity with it, whether their signatures to the great international instrument in which it was embodied have been given or withheld. In the face of facte like these it is difficult to argue that International Law is unchanged, and that nothing more has happened than mutual promises on the part of several states that they will, in certain contingencies, substitute something else for one of its rules. On the other hand, there seems equal difficulty in asserting that a great power like the United States is bound before all the world to act in future maritime conflicts upon a clause in a diplomatic document to which she expressly refused her signature.1 In truth we are passing through a transitional stage. The final goal is clear, but it is impossible to say at any given moment exactly how far we have advanced in our journey towards it. The Declaration of Paris was drawn up in the interests of neutrals rather than belligerents, and a full discussion of it belongs properly to that portion of our subject which treats of the Law of Neutrality. It will be found there under its proper heads.2 Meanwhile we may venture upon the assertion that for all practical purposes the old rule no longer applies, and that in ordinary cases, uncomplicated by questions of blockade, contraband 1 She did so act in the war with Spain of 1898. 2 See §§ 265-267.

or unneutral service, a naval belligerent cannot capture the sea-borne goods of an enemy unless they are carried in an enemy vessel.

We have already discussed the circumstances under which the enemy character is acquired by property, and the extent to which, under such circumstances, the enemy taint extends.1 We have now to state the exceptions to the rule that enemy goods on enemy vessels are lawful prize of war. They are very few and by no means free from doubt. In 1812 the British Vice-Admiralty Court of Halifax, Nova Scotia, restored to the Academy of Arts in Philadelphia a cargo of paintings and prints captured in their voyage from Italy to the United States, on the ground that the arts and sciences were the property of mankind at large, and that the practice of all civilized countries was in favor of their exemption from the operations of warfare. Both the history and the theory of this judgment are open to criticism, but the decision at which it arrives has been approved by many authorities, and would probably be followed by a Prize Court to-day. It is quite possible to hold that articles which give pleasure and instruction to innocent people, and can have no possible effect upon the fortunes of war, should be allowed to pass freely into an enemy's country, without assenting to debatable propositions about communism in art or abstinence from spoliation in warfare. Hospital stores are another kind of goods which we may expect to see exempted in some measure, if not entirely, from capture in future maritime struggles. In all probability they will not be confiscated by a belligerent unless he is in need of such supplies himself, and has no other means of obtaining them.

§ 208.

Sometimes when a vessel is captured the master gives to the captors a document called a Ransom Bill, by which he 2 Stewart, Vice-Admiralty Reports, p. 482.

1 See §§ 179-183.