« PreviousContinue »
2. That the merchandise belonging to the subjects of Powers at war shall be held free on neutral ships, except contraband of war.
3. That in order to determine just what constituted a blockade of a port, it is agreed that a blockade is only valid when maintained by cruisers of the war strength proportioned to the strength of the place besieged and which cruisers thereof stand sufficiently near to render an attempt to enter dangerous.
4. Neutral vessels may only be stopped for just cause; questions at issue shall be tried without delay; legal procedure in such cases shall be uniform, prompt and in accordance with law and, where the vessel is found to be without fault, complete satisfaction shall be accorded for any insult offered to its flag. When one or more vessels are under convoy by a warship, a declaration of said warship's commanding officer that the ships convoyed by him have on board no contraband shall suf
fice to dispense with visit or search of the ships under such convoy. During the years immediately following 1793, the Convention, and, in succession, the Directory and Consulate issued a series of decrees growing more severe and dealing chiefly with questions of enemy goods carried on neutral ships and cognate matters. Specially reprehensible in the view of Revolutionary France was the Anglo-American (Jay) Convention of November 19, 1794. Mr. Jay's mission to England had been concerned, among other things, with the contraband and colonial trade as carried by American vessels. The colonial and all coasting traffic were at this period national monopolies comprising trade both to and from colonial ports, dealings in colonial products, and the furnishing of colonials with articles of commerce in general. The colonies were regarded throughout Europe as commercial property to be exploited for the parent country's exclusive benefit, such exploitation to be strictly confined, moreover, to carriage by the national parent's shipping. Hence the practical exclusion of all foreign navigation from colonial waterways was aimed at in the rule of 1756. Of allied import was the later development of the theory of continuous voyage destined to a momentous rôle in maritime jurisprudence. Despite, however, the original strictness of this colonial monopoly, British prize courts and executive rulings greatly relaxed the tension, so that while, in November, 1793, English cruisers were, by order in council, directed to seize ships carrying on French colonial trade, yet this order was modified on January 8, 1794, to apply only to direct colonial trade with Europe, thus leaving a free hand to trade between West Indian colonies and the United States. A further order of January, 1798, allowed neutrals to carry French and Dutch colonial goods to England directly but not to France or Holland.
On November 18, 1794, the Committee of Public Safety at Paris announced the confiscation of enemy goods on neutral ships as a rule of action valid until the enemies of the Republic should adopt the milder principle of free ships, free goods. Later, this was modified (decree of January 3, 1795; decree of July 2, 1796), although on March 2, 17975 the oppressive requirement for neutrals of crew lists, etc. (rôles d'équipage) if confiscation was to be avoided, paved the way to a decree on January 18, 1798, putting in force a harsh rule dating from Francis the First that the carriage of enemy property by a neutral ship works confiscation not merely of the property but of the ship as well -robe d'ennemi confisque robe d'ami. Following is the decree of 1798:
5 See decree printed in Appendix, paragraph 4, page 415
Law which determines the character of vessels from their cargo, especially those loaded with English merchandise.
29th Nivose, 6th year (18th January, 1798) After having heard the report of a special commission on the message of the Executive Directory of the 15th Nivose, relative to English merchandise, considering that the interest of the Republic requires the most prompt measures against all vessels which shall be loaded with it:
Art. 1. The character of vessels in what concerns their quality as neutral or enemy, shall be decided by their cargoes; in consequence every vessel found at sea laden in whole or in part with merchandise coming (provenant) from England or her possessions, shall be declared good prize, whoever may be the proprietors of these productions or merchandise.
Art. 2. Every foreign vessel which shall, during her voyage, have entered a port of England, shall not be admitted into a port of the French Republic, save only when there is a necessity for her entering (de relâche, i.e., in distress) in which case she shall be bound to leave said port so soon as the cause of her entering it (de sa relâche) shall have ceased.
The severity of these decrees, nevertheless, was soon lessened as milder counsels prevailed at Paris, while English orders in council of January 8, 1794, and January 25, 1798, finally allowed not merely neutral trade directly between an English West Indian colony and points in the United States, but from a French, Spanish or Dutch colony "to any port in Europe being a port of this Kingdom or a port of that country to which such ships, being neutral ships, shall belong." Thus the rule of 1756 became less rigorous as a basis of capture, while the assertion by the United States of its undoubted rights in the anomalous naval war with France during the years 1798–1801 prevented the wholesale suppression of American commerce aimed at in the decrees we have noticed. It is, however, to be carefully remarked that these decrees in both spirit and letter constituted the starting point for more celebrated announcements by Napoleon, together with the British orders in council of 1806, 1807 and 1809, and which we must next consider.
(To be concluded in the next number.)
(1) The considerations affecting liability to capture of private property upon the open ocean or in belligerent territorial waters have been clearly outlined by Alison in his History of Europe, Vol. 2, Chap. XXXIII:
There arises, from the very nature of the elements on which they are respectively exercised, an essential difference between the laws of war at sea and at land. Territorial conquests are attended by immediate and important advantages to the victorious power; it gains possession of a fruitful country, of opulent cities, of spacious harbours, and costly fortresses; it steps at once into the authority of the ruling government over the subject state, and all its resources, in money, provisions, men, and implements of war, are at its command. But the victor at sea finds himself in a very different situation. The most decisive seafights draw after them no acquisition of inhabitants, wealth, or resources; the ocean is unproductive alike of taxes or tribute, and among the solitary recesses of the deep you will search in vain for the populous cities or fertile fields which reward the valour of terrestrial ambition. The more a power extends itself at land, the more formidable does it become, because it unites to its own the forces of the vanquished state; the more it extends itself at sea, the more is it weakened, because the surface which it must protect is augmented, without any proportional addition to the means by which its empire is to be maintained.
In the infancy of mankind the usages of war are the same on both elements. Alike at sea as on shore, the persons and property of the vanquished are at the disposal of the conquerors; and from the sack of cities and the sale of captives, the vast sums are obtained which constitute the object and the reward of such inhuman hostility. The liberty for which the Greeks and Romans contended was not mere national independence or civil privileges, but liberation from domestic or predial servitude, from the degradation of helots or the lash of patricians. Such is to this day the custom in all the uncivilized portions of the globe, in Asia, Africa, and among the savages of America, and such, till comparatively recent times, was the practice even among the Christian monarchies and chivalrous nobility of modern Europe. But with the growth of opulence and the extension of more humane ideas, these rigid usages have been universally softened among the European nations. As agriculture and commerce improved, it was found to be as impossible as it was inhuman to carry off all the property of the vanquished
people, the growth, perhaps, of centuries of industry. The revenue and public possessions of the state furnished an ample fund to reward the conquering power, while the regular pay and fixed maintenance at the public expense of the soldiers took away the pretext for private pillage as a measure of necessity. All nations, subject in their turn to the vicissitudes of fortune, found it for their interest to adopt this lenient system, which so materially diminished the horrors of war; and hence the practice became general, excepting in the storming of towns and other extreme cases, where the vehemence of passions bid defiance to the restraints of discipline, to respect private property in the course of hostilities, and look for a remuneration only to the public revenue or property of the state. It is the disgrace of the leaders of the French Revolution, amid all their declamation in favour of humanity, to have departed from these beneficent usages, and, under the specious names of contributions, and of making war support war, to have restored at the opening of the 19th the rapacious oppression of the 9th century.
Humanity would have just reason to rejoice if it were practicable to establish a similar system of restrained hostility at sea; if the principle of confining the right of capture to public property could be introduced on the one element as well as the other, and the private merchants were in safety to navigate the deep amid hostile fleets, in the same manner as the carrier on land securely traverses opposing armies. But it has never been found practicable to introduce such a limitation, nor has it ever been attempted, even by the most civilized nations, as a restraint upon their own hostilities, however loudly they may sometimes have demanded it as a bridle upon those of their enemies. And when the utter sterility of the ocean, except as forming a highway for the intercourse of mankind, is considered, it does not appear probable that, until the human heart is essentially changed, such an alteration, how desirable soever by the weaker states, ever will be adopted.
(2) Alison (History of Europe, Chap. XXXIII) has sketched a useful outline of principles applicable in sea warfare:
But it is not merely with the subjects of nations in a state of hostility that belligerents are brought in contact during modern warfare; they find themselves continually in collision also with Neutral Vessels trading with their enemies, and endeavouring, from the prospect of high profits, to furnish them with those articles which they are prevented from receiving directly from the trade of their own subjects. Here new and important interests arise, and some limitation of the rigour of maritime usage evidently becomes indispensable. If the superior power at sea can at pleasure declare any enemy's territory in a state of blockade, and make prize of all neutral vessels navigating to any of its harbours, it will not only speedily find itself involved in hostilities with all maritime states, but engaged in a species of warfare from which itself, at some future period, may derive essential injury. On the other hand, it is equally impossible to maintain that the vessels of other states are to be entirely exempted from restraint in such cases, or that a belligerent power, whose warlike operations are dependent, perhaps, upon intercepting the supplies in progress towards its antagonist, is patiently to see all its enterprises defeated merely because they are conveyed under the cover of a neutral flag instead of its enemy's bottoms. Such a pretension would render maritime success of no avail, and wars interminable, by enabling the weaker power, under fictitious cover, securely to repair all its losses. These considerations are so obvious, and are brought so frequently into collision in maritime warfare, that they early introduced a system of international law, which for centuries has been recognised in all the states of Europe, and is summed up in the following propositions by the greatest masters of that important branch of jurisprudence that ever appeared in this or any other country.
i. That it is not lawful for neutral nations to carry on, in time of war, for the advantage or on behalf of one of the belligerent powers, those branches of their commerce from which they are excluded in time of peace.
2. That every belligerent power may capture the property of its enemies wherever it shall meet with it in the high seas, and may for that purpose detain and bring into port neutral vessels laden wholly or in part with any such property.
3. That under the description of contraband of war, which neutrals are prohibited from carrying to the belligerent powers, the law of nations, if not restrained by special treaty, includes all naval as well as military stores, and generally all articles serving principally to afford to one belligerent power the instrument and means of annoyance to be used against the other.
4. That it is lawful for naval powers, when engaged in war, to blockade the ports of their enemies by cruising squadrons bona fide allotted to that service, and duly competent to its execution. That such blockade is valid and legitimate, although there be no design to attack or reduce by force the port, fort, or arsenal to which it is applied; and that the fact of the blockade, with due notice given thereof to neutral powers, shall affect not only vessels actually intercepted in the attempt to enter the blockaded port, but those also which shall be elsewhere met with, and shall be found to have been destined to such port, under the circumstances of the fact and notice of the blockade.
5. That the right of visiting and searching neutral vessels is a necessary consequence of these principles; and that, by the law of nations (when unrestrained by particular treaty), this right is not in any manner affected by the presence of a neutral ship of war, having under its convoy merchant ships, either of its own nation or of any other country.
In these propositions are contained the general principles of the maritime code of the whole European nations, as it has been exercised by all states towards each other, and laid down by all authorities on the subject from the dawn of civilization. The special application of these principles to the question immediately at issue between the contending Powers in 1801 is contained in the following propositions, laid down as incontestable law by that great master of maritime and international law, Sir William Scott:
1. “That the right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestable right of the lawfully commissioned cruisers of a belligerent nation.
2. “That the authority of the sovereign of the neutral country being interposed in any matter of mere force cannot legally vary the rights of a legally commissioned belligerent cruiser, or deprive him of his rights to search at common law.
3. “That the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search.
4. "That nothing farther is necessary to constitute blockade than that there should be a force stationed to prevent communication, and a due notice or prohibition given to the party.
5. "That articles tending probably to aid the hostilities of one of the belligerents, as arms, ammunition, stores, and, in some cases, provisions, are contraband of war, and, as such, liable to seizure by the vessels of the other party, with the vessel in which they are conveyed."