EXTRACTS FROM AMERICAN AND FOREIGN WORKS ON INTERNATIONAL LAW CONCERNING THE ARMED NEUTRALITY OF 1780 AND 1800.

CALVO: Le Droit International Théorique et Pratique. Fifth edition, Paris, 1896.

Carlos Calvo. Argentinian publicist and diplomat; born in 1824; died in 1906; member of the Institute of International Law. M. Calvo entered, at an early date, the consular service of his country and later was Argentinian minister at Berlin and Paris. He therefore was familiar with the theory and practice of international law. Two of his most important works are:

1. International Law of Europe and America, Theoretical and Practical, 1868, 2 volumes. This work appeared in Spanish, was translated and expanded by the learned author into a comprehensive treatise on international law, the fifth edition of which appeared in 1896 in six volumes.

2. Dictionnaire de Droit International, 1885, 2 volumes. This work covers the field of international law, public and private, in the form of brief articles, arranged alphabetically under appropriate headings, and is especially valuable for the biographical notices of the various publicists who have treated international law.

M. Calvo is regarded as the leading Spanish writer on international law, and as a Latin-American by origin his various treatises have a peculiar value as a statement of the Latin-American theory and practice as well as the system of International law as understood and applied in Europe.

Volume IV, page 414, § 2498.-The rule established by the Consolato del Mare was not merely shaken at this time by the criticisms of publicists and by the contrary doctrine of the courts; it was also censured by most of the conventional engagements concluded between France and various nations, to such an extent that during the period between 1654 and 1780 it is found in only fifteen treaties, while thirtysix sanctioned the new principle: free ship, free merchandise, and enemy ship, enemy merchandise.1

1See especially the treaties concluded by France with Spain, November 7, 1659 [Dumont, vol. vi, part 2, p. 264; Savoie, vol. ii, p. 1; Léonard, vol. iv], with Denmark, February 14, 1663 [Dumont, vol. vi, part 2, p. 436; Léonard, vol. v], with Portugal, March 31, 1667 [Dumont, vol. vii, part 1, p. 17; Castro, vol. i, p. 338; Léonard, vol. iv], with Sweden, April 14, 1672 [Dumont, vol. vii, part 1, p. 166; Léonard, vol. v], with Great Britain and Holland, April 11, 1713 [Dumont, vol. viii, part 1, pp. 345, 377].

$ 2499.-The unshakable constancy of the English policy during this period deserves attention from more than one point of view.

On the basis of the maxims proclaimed by Consolato del Mare, England permitted the perpetration of the most odious attacks against the property of the neutrals, including among the articles of war contraband almost all articles of licit commerce and went as far as to confiscate articles of food and of clothing. She pretended in 1756 that by adoption, the Dutch vessels had been converted into French vessels, that is to say, into enemy vessels, and she condemned them to confiscation in order to prevent the French colonies to continue their traffic with neutrals and thus hope to mobilize the commerce of colonial produce. We know that the excesses of this engaging and covetous policy brought about in 1780 the belated, yet generous attempt known under the name of first armed neutrality.1

§ 2500. The most characteristic trait of the historic period which ends with the last half of the Eighteenth Century is the incertitude as to the real limitations to the rights of the neutrals, the logical and necessary consequence of the lack of uniformity in jurisprudence, of the absence of understanding between the secondary maritime Powers of the European Continent in order to protect themselves against the Prussians weighing on them, and of the persistency of England to cause her maritime supremacy to dominate.

§ 2501.-The secret tendencies and the righteous resentment of the principal courts of Europe were at last brought to the bursting point when England seized in the Mediterranean two Russian vessels loaded with wheat which were supposed to be intended for Gibraltar.

Panin, the Chancellor of the Russian Empire, made himself the mouthpiece of the general indignation and persuaded Empress Catherine II to make it publicly and solemnly known that she would not longer put up with the obstacles placed in the way of free neutral commerce. As a result, the Russian Government published on February 28, 1780, the famous declaration containing the following five

bases:

1Gessner, pp. 30, et seq.; Flassan, Hist., vol. i, chapter iii, p. 194; Valin, Com., book iii, title 9; Wheaton, Hist., vol. i, p. 62; Wheaton, Elem., part 4, chapter iii, & 23; Life of Sir L. Jenkinson, vol. ii, p. 720; Heffter, § 152; Marshall, on Insurance, vol. i, p. 425; Ortolan, vol. ii, p. 100; Vergé. Précis de Martens, vol. ii, p. 348; Gessner, pp 36, et seq.; Wheaton, Elem., vol. ii, pp. 149, et seq.; Heffter, § 158; Madison Examination, pp. 51, et seq.; Ortolan, vol. ii, pp. 109, et seq.; Reddie, Researches, vol. i, pp. 92, et seq.: Bergbohm, Die bewaffnete Neutralität, 1880-1883.

Martens, first edit., vol. ii, p. 74; second edit., vol. iii, p. 158.

1. Neutral vessels are permitted to sail from port to port and along the coasts belonging to the belligerent States, without being detained. 2. Enemy merchandise is free under neutral flag, excepting war contraband.

3. To determine that which is to be regarded as war contraband, Russia holds to Articles 10 and 11 of her treaty with England, dated June 20, 1766,1 to which it grants obligatory force with regard to all belligerents.

4. No port shall be regarded as blockaded unless there be real and effective danger to entering it, that is to say, it must be surrounded by the enemy.

5. These principles shall serve as a rule in the procedures and decisions of maritime prize courts.

The same Government furthermore forbids the commission of hostile acts in the Baltic Sea, to which Sea it attributed the character of a closed or internal sea, mare clausum.

This declaration had hardly been formulated when Denmark, July 9, 1780, Sweden, August 1, 1780,3 Holland, January 3, 1781, Prussia, May 8, 1781, Austria, October 9, 1781, Portugal, July 13, 1782,7 the two Sicilies, February 10, 1783, France and Spain, as well as the United States which was at this time at war with Great Britain, gave their adhesion to it; all of these Powers obligated themselves to maintain and to respect the new principles though, to uphold them, they should be forced to the recourse of arms.

One understands that principles such as Europe, stipulated by the initiative of Russia sought to cause to prevail in practice and which in evident fashion mark a new era in modern maritime law, could not receive the approval of England. The St. James' ministry refused therefore to join the league of the neutrals declaring that it would continue to hold to the stipulations, following therein a precise and reasonable

1Martens, first edit., vol. i, p. 141; second edit., vol. i, p. 390; Wenck, vol. iii, p. 572. 2Martens, first edit., vol. ii, p. 103; vol. iv, p. 357; second edit., vol. iv, p. 189. Martens, first edit., vol. ii, p. 110; second edit., vol. iii, p. 198. Martens, first edit., vol. ii, p. 117; vol. iv, p. 375; second edit., vol. iii, p. 215. 5 Martens, first edit., vol. ii, p. 130; second edit., vol. iii, p. 245. "Martens, first edit.. vol. ii, p. 171: second edit., vol. iii, p. 257.

"Martens, first edit., vol. ii, p. 208; second edit., vol. iii, p. 263; Castro, vol. iii, p. 310.

8 Martens, first edit., vol. iii, p. 274; second edit., vol. iii, p. 267.

course, contained in England's treaties of commerce and of navigation. But once started, the movement was not to stop in the face of this selfish resistance, and England was soon compelled to abandon the violent road within which it pretended to persist in disregard of the sacred rights of neutrality; she permitted the importation under any flag of merchandise coming from the East and from the Antilles, and directed her privateers to be more moderate in their conduct.1

§ 2502.-After the conclusion of the Versailles peace of 1783,2 which closed the War of Independence of the United States, England, France and Spain again put into force the stipulations of the Utrecht Treaties3 with regard to commerce and navigation of the neutrals. Three years later, the treaty signed on September 26, 1786, between France and the United States sanctioned the general principles of armed neutrality in such a formal manner that the English Government became the object in Parliament of vehement attacks for having accepted and recognized them."

§ 2503.-The abnormal conditions of the war in the train of the French Revolution unhappily brought about a return to all the violence and abuse which universal reprobation seemed to have forever put an end to. Thus, the allied governments, in disregard of the imprescriptible rights of the neutrals, arbitrarily extending the list of so-called articles of war contraband, opposed importation into France of food and merchandise of foreign origin. On the other hand, the National Convention, in a sense of legitimate defense, promulgated May 9, 1793, a decree inhibiting neutral vessels, under the penalty of confiscation, from furnishing grains and food to the enemy, and edicted the abrogation of the principle that the flag protects merchandise. The Britannic Government, secretly availing itself of this pretext to return

'Gessner, pp. 39, et seq.; Wheaton, Hist., vol. i, p. 221; Goertz, memoirs Galiana, Dei doveri; Lampredi, Commercio; Wheaton, Elem., part 4, chapter iii, § 23; Klüber, Droit, §§ 303-305; Ortolan, vol. ii, pp. 137, et seq.; Martens, Précis. § 325; Vergé, Précis de Martens, vol. ii, p. 351; Bergbohm, Die bewaffnete Neutralität, pp. 210, et seq.

2De Clercq, vol. i, p. 142;- Calvo, vol. iv, p. 296; Cantillo, p. 586; Martens, first edit., vol. ii, pp. 462, 484; second edit., vol. iii, pp. 519, 541; State papers, vol i,

p. 424.

De Clercq, vol. i. p. 10; Dumont, vol. viii, part 1, pp. 345, 351.

De Clercq, vol. i, p. 146: Martens, first edit., vol. ii, p. 680; second edit., vol. iv, p. 155; State papers, vol. iii, p. 342.

Gessner, pp. 43, 44; Wheaton, Elem., part 4, chapter iii, § 23; Wheaton, Hist., vol. i, p. 230; Ortolan, vol. ii, pp. 142, 143; Vergé, Précis de Martens, vol. ii, p. 354; Parliamentary History of England, vol. xxxvi, p. 563.

to its traditional doctrines of 1756 published on June 8, 1793,1 an ordinance directing its privateers and warships to capture any vessel attempting to force the blockade of the French coasts, excepting therefrom Swedish and Danish vessels, which were only to be seized in case they failed to observe the notification of the blockade stated in their ships' papers.2

§ 2504.-England's allies endeavored in vain to justify these measures as being of only an exceptional and transitory nature; Russia refused to abide by them, separated herself from England, from Austria, and resolutely laid down the bases of maritime neutrality which the States bathed by the Baltic Sea proclaimed in 1800, These bases may be summarized as follows:

3

1. A neutral vessel shall not be considered as violating the blockade and shall not be subject to capture unless, after having been warned by the war-ship or the privateer of the State which enforces the blockade, it attempts to run the blockade by force or by ruse.

Merchant vessels sailing in convoy under the escort of a war-ship are exempt from search, and the statement of the convoying officer suffices to prove that they are not carrying war contraband.

Even before this new coalition had had time to gain strength and come to an understanding, England declared war against Denmark for having joined the alliance and proceeded to bombard Copenhagen; the subsequent tragic death of Emperor Paul I of Russia on March 23, 1801, finished the dissolution of an alliance from which the secondary states had had right to expect great advantages for the security of their commerce.

§ 2505.-Profiting by the successes of her marine against Denmark, England resumed the negotiations which she had conducted with Russia for some years, thus expecting the St. Petersburg ministry not only to dissolve the armed neutrality, but also of adhering to the doctrines proposed by the Britannic Admiralty. In these hopes she was particularly disappointed: as the price for some commerce ad

1Martens, first edit., vol. v, p. 264; second edit., vol. v, p. 596.

2Ortolan, vol. ii, pp. 144, et seq.; Gessner, pp. 44, 45; Wheaton, Elem., pt. 4, chapter iii, § 23.

3See the conventions of Russia with Denniark of December 16, 1800 [Martens, first edit., Supplément, vol. ii, p. 399; second edit., vol. vii, p. 181; State papers, vol. i, p. 327], with Sweden of the same date [Martens, first edit., vol. vii, p. 516; first edit., Supplément, vol. ii, p. 389; second edit., vol. vii, p. 172] with Prussia of December 18, 1800 [Martens, first edit., Supplément, vol. ii, p. 406; second edit., vol. vii, p. 188].