1 “Les États-Unis et la hoi de 1935 sur la Contrebande,” Revue de Droit International et de legislation Comparée, Vol. 20 (1939), No. 2, pp. 217–255.

2 (1906) 14 Scots Law Times 227.

3 And the same retrogressive tendency is apparent in the comments of Professors P. M. Brown and C. G. Fenwick in this Journal, Vol. 34 (January, 1940), pp. 112, 116.

4 This Journal, Vol. 22 (1928), No. 3, p. 503.

5 Fur Seals Arbitration, British Oral Argument, p. 384.

6 The Oxford professor who wrote “British Neutrality in the American Civil War” (in a separate pamphlet, “Notes on Some Questions Suggested by the Case of the Trent,” pp. 14–20).

7 Das Trent-fall. According to Dana, Marquardsen says that not even military persons were so captured on the high seas.

8 Henrison v. Ludquharn, cited in Scottish Prize Decisions, 27 Yale Law Journal 454.

9 Wheaton, Histoire des Progrès du Droit des Gens, I, 77.

10 There are, indeed, some instances of treaties in which (especially in connection with certification systems) prohibitions are found against the taking, removal or sale of goods before condemnation; but there are nowhere any provisions against such a thing as summarily taking them without condemnation!

11 “Early Development of the Law of Contraband,” 48 Pol. Sci. Quarterly (March, 1933), pp. 62, 65, 70, 73.

12 Law and Custom of the Sea (Navy Records Soc, Vols. 49, 50).

13 Ibid., 452, 453.

14 25 Eng. Hist. Review 243, 252.

15 In this treaty (France and the Hansa, 1769) the principle of Free Ships, Free Goods was not secured, but only the abandonment by France of the rule, Enemy Goods, Enemy Ships. But the prohibition against seizure of individuals simply forms part of a code of prize procedure, and plainly contemplates that the ship is duly before a court of prize. (See Arts. 14–31, cited infra.)

16 In the treaty of 1769 it follows on the exemption of goods laden on enemy vessels before the outbreak of war, or shortly afterwards. (Arts. 25–28.)

17 Jessup, and Deák, , “The Early Development of the Law of Contraband of War,” 47 Pol. Sci. Quarterly (1932), pp. 526, 533 CrossRefGoogle Scholar.

18 In the Zamora (Law Reports, [1916] App. Caes. 77) it was contended by the captors, and not contradicted by the courts, that such a right existed.

19 Dumont, Corps Universel Diplomatique du Droit des Gens, VI, i, 360.

20 Walker seems mistaken (perhaps misled by Chalmers), in thinking that this treaty specifically adopted the principle of Free Ships, Free Goods. Arts. 21 and 22 seem merely to reserve the general right of one party to trade with the enemies of the other.

21 Science of International Law, p. 293 (note 3), citing Jenkinson, Discourse, 23, 24, and Gregoras Nicep., IX, also Grotius, De Jure Belli ac Pads, III, vi, 6 n.

22 Dumont, op. (At., VII, i, p. 357.

23 Art. 23 makes this reciprocal for the “Sujets et Habitans” of the Dutch Provinces.

24 Dumont, Corps Universel Diplomatique du Droit des Gens, VII, i, 359–360.

25 Page 234, supra.

26 Wenck, I, 414.

27 De Martens, Recueil, I, 84.

28 Walker (Science of International Law, 297, note), shows that France made a precisely similar treaty with Mecklenburg (not cited by Calvo), 1779 (De Martens, op. cit., p. 177).

29 This may interest those who imagine that “the small ships of former days” had the cargo examined at sea. “Search” meant search for papers.

30 Supra, p. 234.

31 Another treaty which Calvo does not mention is that concluded in 1800 between Prance and the United States (De Martens, op. cit., II, 210). Art. 14 is limited precisely to the enunciation of the principle of Free Ships, Free Goods, and to the extension of this liberty to persons. (Cf. T. A. Walker, Science of International Law, loc. cit.)

32 E.g., Anglo-Dutch Treaty of 1/10 Dec. 1674, Art. V. Dumont, op. cit., VII, i, 283. This is by no means singular.

33 Dumont, op. cit., V, ii, 39 (Art. 12). Such a provision might well have been expected in this treaty, which deals with many cases in which persons were seized and made slaves at sea for various causes, lawful and unlawful.

34 Ibid., VI, i, 342. This celebrated treaty, by which the Dutch thought they had secured the adoption of the principle, Free Ships, Free Goods, whilst the French maintained that they only meant to give up the harsh rule, Enemy Goods, Enemy Ships, is patient of both interpretations. It gives up that harsh rule, “en telle sorte” that Dutch ships and all their cargoes shall be free, even though there may be enemy goods on board (which used to be made by France a reason for confiscating everything concerned). The Dutch said that “all their cargoes” included the objectionable enemy cargo; the French said that such was obviously not the intention, and that “all their cargoes” meant “all the rest of their cargoes”. If the preamble to the clause is carefully read, it seems obvious that the French were right, although the literal words may have been against them.

35 Dumont, op. cit, VI, i, 570.

36 Ibid., pt. ii, 82.

37 Adams to Canning, June 24,1823 (transl.). Wheaton’s Histoire des Progrès du Droit des Gens, II, 304 (see also p. 320 et seq.).

38 We do not mention this case as an authority in favor of the immunity of the neutral flag. The Cagliari was entitled to no such immunity, as she constituted (like the Virginius) an armed hostile expedition against Naples. It is cited merely for the definite assimilation of ships to territory by Cavour.

39 Vol. II, p. 600.

40 Neutrality of Great Britain in the American Civil War, Ch. IV; see also Woolsey, International Law, § 199, and Holland, Manual of Naval Prize Law, pp. 25, 26.

41 See the Declaration of London, § 47.

42 British Pari. Papers (1909), Cd. 4554, pp. 97, 98.

43 Ibid., p. 106.

44 Gen. Davis’ note says: “Mr. Laurens and his secretary were forcibly removed . . . conveyed as prisoners to S. John’s, Newfoundland . . . and sent to the Tower of London.” Why they should have arrived in England on board the ship from which they had been “forcibly removed” at sea (“three days out” Gen. Davis says) is not apparent.

45 Is it possible that he may have gone from Charleston to Martinique in a Dutch vessel?

46 See the case of the Federico (C. C. Hyde, International Law, § 819, Vol. II, p. 640; Bellot’s Pitt Cobbett’s Leading Cases in International Law, II, 602 — in this case, however, the ship was duly tried and condemned); and of the U. S. vessels Windber and China (Oppenheim, International Law, infra).

47 International Law (4th ed.), II, 602 (note 1), § 413 A.

48 See Seward to Adams, July 15, 1864 (Dipl. Corr. of the U. S. A., 1864, II, 216, 219).