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ORDERS IN COUNCIL AND THE LAW OF THE SEA

BY GORDON E. SHERMAN
Lately Assistant Professor of International Law, Yale University

II

With the victorious growth of Napoleon's military power subsequent to the disastrous rupture in May, 1803, of the peace concluded at Amiens on March 27, 1802, the emperor determined to revive and develop certain conceptions already illustrated in decrees of the Directory and Consulate which had looked to the subversion of England through limitation or annihilation of its sea-borne commerce. French tradition was familiar with such a purpose through the contests, in the preceding century, of Louis XIV with Spain, then the mistress of a vast maritime traffic. For Napoleon, Great Britain's trans-atlantic trade furnished a ready object of attack as well through cruiser warfare on the open ocean as by oppressive commercial regulation at home. Accordingly a decree of the Consulate on June 30, 1803, forbade all importation from England, and a month later French ports were closed to all ships coming from Great Britain or having even touched there; while on February 6, 1805, an imperial proclamation laid a heavy tax on colonial products, to be soon followed by yet more oppressive measures.

In March, 1806, the Electorate of Hanover was wrested from the British Crown and annexed to Prussia by order of Napoleon, and the British flag was promptly excluded from the electoral ports. To this the British Government, Fox being Secretary of State for Foreign Affairs, replied by announcing a blockade of Prussian harbors, together with an embargo of all Prussian ships found in Great Britain, and on May 14th an order in council directed the seizure of such vessels wherever found, and on May 16th a further order announced a blockade of the entire west coast of Europe under French control. This measure was intended to meet the views of the British mercantile class, now grown jealous of the extensive share which was being assumed by the United States in trans-atlantic commerce; but it was found, in view of American protests, expedient to so limit, on the following September 25th, the geographical aspects of Fox's blockade that it should be restricted to such ports along the English Channel and North Sea as could be effectively controlled by British cruisers, thus actually bringing the blockade in harmony with accepted views of international law.

Notwithstanding England's technically correct position as settled by this last blockade order, two months later, on November 21, 1806, Napoleon deemed himself sufficiently powerful, the old Germanic Empire having collapsed in the preceding August and the Prussians having been crushed at Jena in October, to launch a decree from the Prussian capital intended as a formal inauguration of what came to be termed the “Continental system." Briefly, the decree declared a general blockade of Great Britain and consequent prohibition of all traffic in British merchandise even though actually the property of neutrals; nor was any vessel proceeding from Great Britain or its possessions to be allowed entrance to a French port or one anywhere under imperial control. The text of the decree is as follows:

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IMPERIAL CAMP, Berlin,

November 21, 1806. Napoleon, Emperor of the French and King of Italy, considering:

1. That England does not admit the right of nations as universally acknowledged by all civilized people;

2. That she declares as an enemy every individual belonging to an enemy state, and, in consequence, makes prisoners of war, not only of the crews of armed vessels, but also of merchant vessels, and even the supercargoes of the same;

3. That she extends or applies to merchant vessels, to articles of commerce, and to the property of individuals, the right of conquest which can only be applied or extended to what belongs to an enemy state;

4. That she extends to ports not fortified, to harbors and mouths of rivers, the right of blockade, which, according to reason and the usage of civilized nations, is applicable only to strong or fortified ports;

5. That she declares blockaded, places before which she had not a single vessel of war, although a place ought not to be considered blockaded but when it is so invested as that no approach to it can be made without imminent hazard; that she declares even places blockaded which her united forces would be incapable of doing, such as entire coasts, and a whole empire;

6. That this unequalled abuse of the right of blockade has no other object than to interrupt the communications of different nations, and to extend the commerce and industry of England upon the ruin of those of the Continent;

7. That this being the evident design of England, whoever deals on the Continent in English merchandise favors that design and becomes an accomplice;

8. That this conduct in England (worthy only of the first ages of barbarism), has benefited her, to the detriment of other nations;

9. That it being right to oppose to an enemy the same arms she makes use of, to combat as she does, when all ideas of justice and every liberal sentiment (the result of civilization among men) are disregarded;

We have resolved to enforce against England the usages which she has consecrated in her maritime code.

The present decree shall be considered as the fundamental law of the empire, until England has acknowledged that the rights of war are the same on land as at sea; that it cannot be extended to any private property whatever, nor to persons who are not military, and until the right of blockade be restrained to fortified places, actually invested by competent forces;

IMPERIAL DECREE OF THE 21st NOVEMBER, 1806.
Art. 1. The British islands are declared in a state of blockade.

Art. 2. All commerce and correspondence with the British islands are prohibited. In consequence, letters or packets addressed either to England, to an Englishman, or in the English language, shall not pass through the post office, and shall be seized.

Art. 3. Every subject of England, of what rank and condition soever, who shall be found in the countries occupied by our troops, or by those of our allies, shall be made a prisoner of war.

Art. 4. All magazines, merchandise, or property whatsoever belonging to a subject of England, shall be declared lawful prize. Art. 5. The trade in English merchandise is forbidden.

forbidden. All merchandise belonging to England, or coming from its manufactories and colonies, is declared lawful prize.

Art. 6. One half of the proceeds of the confiscation of the merchandise and property declared good prize by the preceding articles, shall be applied to indemnify the merchants for the losses which they have suffered by the capture of merchant vessels by English cruisers.

Art. 7. No vessel coming directly from England, or from the English colonies, or having been there since the publication of the present decree, shall be received in any port.

Art. 8. Every vessel contravening the above clause, by means of a false declaration, shall be seized, and the vessel and cargo confiscated as if they were English property.

Art. 9. Our Tribunal of Prizes at Paris is charged with the definitive adjudication of all controversies which may arise within our empire, or in the countries occupied by the French army, relative to the execution of the present decree. Our Tribunal of Prizes at Milan shall be charged with the definitive adjudication of the said controversies which may arise within the extent of our kingdom of Italy.

Art. 10. The present decree shall be communicated by our Minister of Exterior Relations to the Kings of Spain, of Naples, of Holland, of Etruria, and to our allies, whose subjects, like ours, are the victims of the injustice and the barbarism of the English maritime laws.

Our Ministers of Exterior Relations, of War, of Marine, of Finance, of Police, and our Postmaster General, are charged each in what concerns him with the execution of the present decree.

The preamble arraigns Great Britain for various violations of international law, and then proceeds to lay down a series of proposed rules of action designed to meet such transgressions by a complete commercial isolation of England, to whose traffic the Continent as a unit would thus be opposed. While the catalogue of British violations of principles declared to be funda

· The British orders in council, together with English translations of those French decrees with which the present article is specially concerned, are found in the series entitled American State Papers, Foreign Relations, and are in the first three volumes, chiefly in Vol. III. The British orders are also preserved in the serial volumes of the Annual Register, as well as in the appropriate volumes of the great treaty series edited by de Martens and others. The original French texts are to be found in the Bulletin des lois de l'empire français, series 4, Vol. VII, published in Paris, 1808.

mental in the law of nations was palpably intended to influence those who knew little or nothing of international jurisprudence, it is not to be supposed that Napoleon himself labored under ignorance of his subject. Already as First Consul he had assumed much more than a nominal participation in the elaboration of the French Civil Code proclaimed to be law on March 21, 1804, and though lacking any extended legal training or study, he had brought to the deliberations of the Code Committee over which he presided as chairman an astonishing capacity for grasping juristic conceptions, thus lending to the work as it progressed a character destined to form not the least of the Code's merits. We need not, therefore, be surprised at the selfassurance with which the emperor, in 1806, proclaimed international rules in harmony with his personal ideals but by no means part of the accepted law of nations.

The Berlin decree complains in the first place that Great Britain treats the crews of captured merchant vessels and even the supercargoes as prisoners of war. To this it may be replied that the progress of a century has indeed acknowledged the underlying justice of such a criticism, although it was not until much later that changes were formally admitted in the rules upon this important subject. Napoleon's statement, in 1806, however, was based not on a fact but rather expressed a hope. In any event, whatever may be considered in our day to be the rightful treatment of enemy merchant crews, there can be no contest as to what was the rule of the law of nations in 1806 and in preceding times, France itself having ever advocated the strictest rules of warfare. The French royal ordinance of 1543 expressly directed captors to bring in merchant crews along with their prizes, and the jurisprudence of the Revolution contained a similar regulation, as did the official French instructions for the Crimean War of 1854, the Austro-Italian War of 1859, and the Franco-Prussian War of 1870.2 A similar principle was affirmed by both Prussia and Denmark in their Prize Rules of 1864, and was permitted by our own excellent Naval Code of 1900. It had, moreover, ever been the accepted British rule until the Second Peace Conference at The Hague in Convention XI (Restrictions on Capture in Maritime War) announced a more humane principle. Of this new departure, Professor Higgins in his Hague Peace Conferences at page 405 says: “Chapter III marks an important alteration in the law of maritime warfare. It is, apart from this convention, a well-recognized rule of international law that the officers and crews of captured enemy merchantmen are prisoners of war. The practice was justified on the ground that it deprived the enemy of men who might render service on board ships which might be used as transports or for purposes of supply, or in the fighting navy. The rule was generally applied without regard to the nationality of the persons captured."

In the second place, Napoleon declared that England wrongfully extends : Cf. J. A. Hall's Law of Naval Warfare (London 1921, p. 122 seq.): Fauchille, Traité de Droit International Public (Paris 1921, Vol. II. p. 518 seq.)

the right of capture at sea to private property,' whereas only what belongs to the state should be liable to be thus taken. It is undeniable that while this imperial complaint runs counter to a principle of maritime law familiar to everyone, it is nevertheless expressive of a deep-seated and genuine conviction on Napoleon's part, since in after years at St. Helena he records in his memoirs: "Il est a désirer qu'un temps vienne ou les mêmes idées libérales s'étendent sur la guerre de mer et que les armees navales de deux puissances puissent se battre sans donner lieu à la confiscation des navires marchands, et sans faire constituer prisonniers de guerre de simples matelots de commerce."

Thirdly, the English are accused of blockading unfortified localities whereas the right of blockade extends only “to strong or fortified ports." This complaint, nevertheless, quite loses sight, as has indeed been done in the recent great war, of what we may term the final cause of blockade which is by no means identical with the conception which evidently governed Napoleon's thought of siege. By the term siege we are to understand not merely the investment of a locality, but also a procedure involving attack with the object of forcing surrender as at Sebastopol, Plevna, or Port Arthur. But the primary end of blockade is the isolation of an enemy position, and such a course may have reference either to the ultimate reduction of the place or to a mere deprivation of its sources of supply thus contributing to the embarassment of interior points. While, accordingly, there exists a patent analogy between siege and blockade, they are by no means always the same in purpose, and, consequently, while siege need manifestly be undertaken only where a belligerent is confronted by fortified works, blockade may be applied and carried out in a properly effective manner not only against an unfortified enemy seaport, but also against the entrance to an enemy river or to a long stretch of hostile coast.

Again, the preamble charges that England has announced a blockade where not even a solitary cruiser is stationed, that is to say, the blockade is by proclamation only, no attempt being made to render it actually effective in the sense of the rule which demands a permanent presence of one or more warships where entrance or exit is to be made dangerous or impossible.

While no candid mind will undertake a defense of blockade by proclamation only, it is not to be forgotten that such a practice, while essentially modern, by no means originated with Great Britain or even in the Napoleonic

It dates, indeed, from a comparatively recent period, and its first appearance may perhaps be assigned to the war between Spain and the Low Countries, when in 1584 the Dutch proclaimed a blockade of the Flemish coast of a wholly fictitious character. This was renewed in 1586, 1622, 1624 and 1630. Again in 1652 and 1656 the Dutch proclaimed a blockade of the coast of Great Britain, and in 1672 and 1673 a similar measure was launched against France, notwithstanding that ten years earlier the United Provinces

3 Cf. Hall, loc. cit., p. 88.
• Fauchille, loc. cit., p. 939 seq.

wars.

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