belligerent, the adoption of the latter principle, in its fullest extent, would be, in the main, advantageous to her interests. She would gain more, as a neutral, by the adoption of the rule of free ships, free goods, than she would lose, as a belligerent, by the adoption of the rule of enemy ships, enemy goods. For this reason, in some of her treaties both of these principles were connected, and the liability of merchandise to capture on the high seas was determined by the nationality of the vessel, rather than by the ownership of the cargo.'

The principle of free ships, free goods, was accepted by many of the less important commercial states of Europe. It was generally accepted by the Baltic powers, by France, in the Treaty of Ryswick, in 1657, and even by England, in a few treaties negotiated between the years 1658 and 1756. From the year 1715 onward, the maritime importance of Holland steadily declined; and as that state was no longer directly interested in the maintenance of the new rule, the treaties upon which it had been based were not renewed, or were suffered to lapse, and it appeared less frequently in the new treaties which were negotiated, from time to time, upon the subject of maritime capture. From the Peace of Paris, in 1763, until the outbreak of the Crimean War, in 1853, the maritime preponderance of England was sufficient to prevent the general adoption of any principle of capture more liberal or less severe than that contained in the rule of the" Consolato del Mare," the justice of which the British Government had always maintained.

At the outbreak of the Crimean War the British Government announced that for the period of that war it would "waive the right of seizing enemy's property laden on board a neutral vessel unless it be contraband of war." A similar waiver was made by the French Government. In both cases the concession was declared to be due to a desire to render the war "as little onerous as possible to the powers with which they remained at peace."

1 For lists of these treaties see III Phillimore, pp. 324 et seq.

2

1854, made by England and France. See, also, Marcy to Crampton, Or

Joint Declaration of March 28, tolan, liv. ii. pp. 464–466.

The Declaration of Paris. The Treaty of Paris, which terminated the Crimean War, was signed on March 30, 1856. The representatives of the powers that had been parties to the treaty, at the suggestion of Count Walewski, the French plenipotentiary, assembled in conference for the purpose of discussing the rules of maritime capture, and, on the 16th of April following, adopted a body of rules modifying the existing rules of capture, which has since been known as the Declaration of Paris. The rules adopted were four in number:

(a.) Privateering is, and remains, abolished.

(b.) The neutral flag covers enemy's goods, with the exception of contraband of war.

(c.) Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag.

(d.) Blockades, to be binding, must be effective-that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.

The Declaration was signed by plenipotentiaries representing Great Britain, France, Russia, Austria, Sardinia, Prussia, and Turkey; and the signatory powers further agreed to bring the Declaration to the knowledge of the states which had not taken part in the Congress of Paris, and to invite them to accede to it. Between the years 1856 and 1861 the principles of the Declaration had been accepted by all the European powers except Spain, and by all those on the western continent except Mexico and the United States. The three powers which refused to adopt the proposed rules agreed in rejecting the rule abandoning the practice of privateering, and, as the Declaration had to be accepted as an entirety, these states were thus prevented from formally accepting the three rules to which they entertained no objection.1

III Dig. Int. Law, § 342, p. 273. Spain and Mexico announced their adhesion to the Declaration during the sessions of the Second Peace Conference at

The Hague in 1907. The United States is now the only first-class power which has refused to accept the terms of the Declaration.

When the Declaration of Paris was submitted to the government of the United States for adoption, it was replied, in behalf of that power, that, in their proposed form, the rules could not be accepted as a whole. The policy of the United States had always been to maintain a small naval establishment, and its important commercial interests would not permit it to resign the right of increasing its power at sea, at the outbreak of war, by the acceptance into its naval service of a force of privateers. It was observed, however, that if a rule were added to the Declaration exempting all private property from capture at sea, in time of war, the necessity for the employment of such an additional force would disappear, and the United States would gladly accede to the proposed rules.' At the outbreak of the War of the Rebellion an attempt was made by the United States to become a party to the Declaration of Paris, but, as it was understood that its acceptance was to include the Confederate States as well, the attempt was not persisted in.2

Binding Force of the Declaration. The rules of the Declaration of Paris upon the subject of maritime capture, although binding upon the signatory powers alone, have been generally accepted as the rule of international law upon the subjects of which they treat, and it is highly improbable that a severer rule will be adopted at any time in the future. The adoption of a milder rule is as little probable. Upon several occasions it has been suggested to amend them, in the direction of greater liberality, by the adoption of a rule exempting all private property from capture at These suggestions have not been favorably received by the great maritime powers, however, and there is no indication, at present, that the rules of the Declaration will be relaxed in such a way as to give to private property at

sea.

III Dig. Int. Law, § 342, P. 274

III Dig. Int. Law, § 342, PP. 273-304. The United States announced at the outbreak of the re

bellion, in 1861, that it would observe the rules of the Declaration during the continuance of hostilities."-Hall, § 256; Dana's Wheaton, § 475, note 223.

sea any greater immunity from capture than it now enjoys.1

At different times the justice of the rules of the Declaration of Paris has been discussed, especially in England, and the opinion has been advanced that that power had unwisely surrendered a valuable right, without receiving in return any corresponding advantage. It is difficult to see how this ground can be maintained. The loss of private property at sea, however great in amount, rarely affects, to any material extent, the military resources of a powerful belligerent, and so rarely contributes to bring to an end an existing war. It would be impossible to invent a more effective method of not only crippling but absolutely destroying the merchant marine of a state than was resorted to, with the most complete success, by the government of the Confederate States during the War of the Rebellion. But the destruction wrought by the Confederate cruisers in no material way impaired the military strength of the United States, or changed the result of the war in the slightest degree. If it were intended, by the destruction of vast amounts of private property, to affect the course of the Federal Government, that intention signally failed of execution.

The position of England in this matter is still more difficult to understand. The English navy, efficient and powerful as it may be, is not omnipotent, and, as the experience of the United States has shown, the enormous commercial marine of England would, in the event of war, be liable to capture and destruction, as a result of the depredations of a relatively small number of fast-steaming cruisers, whose operations are more difficult to check than is generally supposed. The power of a state to efficiently police the sea and to protect its merchant marine, by preventing or punishing depredations against it, is largely overestimated. At no time in history has the supremacy of England at sea been more unquestioned than during the period of the

1 See page 359 ante.

Hall, 147; II Ferguson, pp. 308-326; Lawrence, §§ 216, 217.

Napoleonic wars, at the beginning of this century; and yet, on two conspicuous occasions, when the fullest warning of the enemy's purposes and intentions had been given, a hostile fleet was able, without particular or exceptional difficulty, to evade the whole maritime power of England.' The efforts put forth by the United States with a view to secure an immunity from capture to all non-contraband private property at sea have already been discussed.

Claims to Exclusive Dominion, their Effect upon the Development of the Neutral Theory. If we examine the history of those cities and states which, at different times, haye attained great maritime or commercial supremacy, it will be seen that they have always claimed exclusive commercial dominion over the seas and coasts with which they were the first to develop commercial intercourse. When the Greeks first began to interest themselves in foreign commerce they found the Phoenicians in possession of the most favorable coasts of the Mediterranean. They were, therefore, obliged to confine their commercial undertakings to new seas, or to parts of the Mediterranean which their rivals had not already appropriated. Neither of these people aspired to territorial, as distinguished from commercial, dominion. The possession of the sea-coast sufficed to secure the latter; with the former they had no concern. With the Romans the case was entirely different. They deemed mere commercial supremacy as of but slight importance, and claimed, and ultimately acquired, universal dominion. With the downfall of the Western Empire commerce greatly declined, and at times almost disappeared. With the revival of civilization, however, commercial intercourse was re-established, and was fostered and controlled by those cities of Italy and Spain which were the first to engage in maritime pursuits towards the close of the Dark Ages.

1 "One of these occurred in 1796, when General Hoche succeeded in entering Bantry Bay, on the Irish coast; the other in 1798, when a formidable French fleet succeeded,

during a period of more than six weeks, in evading a no less skilful naval commander than Lord Nelson."-Thiers, French Revolution, vol. iv. pp. 67, 260 et seq.