upon the stipulations of 1778, by which this Power, as far as her own predilections and private wishes were concerned, was at all times ready to abide. In her Treaty with England of 1795, (b) these predilections and wishes, which had found their legitimate issue in particular conventions, were abandoned, and their place was taken by the ancient general law. By the seventeenth article of this Treaty, the United States agreed that enemies' property on board her vessels should be confiscated, the ship and the remainder of the cargo being allowed to depart without hindrance; but that, on just suspicion, the vessels themselves might be detained and carried into the nearest port for the purpose of examining and adjudicating upon them. CXCVIII. It was of course perfectly competent to this Power to make these two different Treaties with different States, and, to her enduring honour, she adhered to both under circumstances of some difficulty. In 1798, France promulgated(c) a new doctrine to the United States, viz., that as this Power was bound to treat France as the most favoured nation, it was also bound not to allow French property on board American ships to be seized by British cruisers, while they prevented the seizure of *British property in the same situation by the French. This demand was refused, and France threatened war in conse[*288] quence. It is most truly said by Mr. Ward, (d) that the answers of the United States to France were models of dignified and convincing argu ment. "Before the Treaty with Great Britain" (it is represented in one of these notes,) "the Treaty with France existed. It follows, then, that the rights of England being neither diminished nor increased by compact, remained perfectly in their natural state, which is to seize enemies' property wherever found; and this is the received and allowed practice of all nations, where no Treaty has intervened." A new Law of Nations, it is pretended, was introduced by the Armed Neutrality; but who were the parties, and what was their object? "The compact was in its own nature confined, with respect to object and duration. It did not purport to change, nor could it change permanently and universally the rights of nations not becoming parties to it. The desire of establishing universally the principle, that neutral bottoms shall make neutral goods, is perhaps felt by no nation on earth more strongly than by the United States. Perhaps no nation is more deeply interested in its establishment; but the wish to establish a principle is essentially different from a determination that it is already established. The interests of the United States could not fail to produce the wish; their duty forbids them to indulge it, when decided on a mere right."(e). "The complaints of the French," said another note of the American Minister to his President,(f)" had reference, amongst other things, to the abandonment by the Americans of their neutral rights, in not main (b) De Martens, v. 672. (c) Ward, 167. (e) Ib., 168, citing Collection of Acts, 198, &c. (d) Ward, 167. taining the pretended principles of the modern Law of Nations, that free ships make *free goods; and that timber and naval stores are not contraband of war. [*284] "The necessity, however, for the strong and express stipulations of the Armed Neutrality itself by all the various Powers which joined it, showed" (as the note went on to state) "that those maxims were not in themselves law, but merely the stipulations of compact; that, by the real law, belligerents had a right to seize the property of enemies on board the ships of friends; that Treaties alone could oblige them to renounce it; and that America, therefore, could not be accused of partiality to Great Britain, because she did not compel her to renounce it.”(9) CXCIX. In the year 1795, the United States made a Treaty with Spain, including a stipulation the reverse of that contained in their Treaty with England in the same year. In the Spanish Treaty it is stipulated, that cargoes in neutral ships shall be free, no distinction being made as to who are the proprietors of the merchandises.(h) In 1799, the United States entered into a Treaty with Prussia, by the 12th article of which they declared, that as experience showed that the maxim, free ships make free goods, had not been respected in any of the wars since 1785, Prussia and the United States should, in a future time of peace, either separately between themselves, or jointly with other Powers, concert measures for the future condition of neutral commerce in time of war; meanwhile, these two Powers agree that their ships shall conduct themselves as favourably towards the merchant vessels of the Neutrals as the cause of the war then existing might permit, observing the general rules of International Law.(i) But in the next year, 1800, the old French doctrine of free ships free goods, enemy's ships enemy's goods, was *incorporated into a Treaty between France and the United States.(k) [*285] During the war which commenced between the United States and Great Britain in 1812, the Prize Court of the former uniformly enforced the generally acknowledged rule of International Law, that enemies' goods in neutral vessels are liable to capture and confiscation, except as to such Powers with whom the American Government had stipulated, by subsisting Treaties, the contrary rule, that free ships should make free goods.(1) CC. In the Treaty of Commerce of 1797, between Russia and England, the article which relates to neutral commerce(m) is silent on the question, and therefore the old law remained unchanged. In the next year (1798,) Russia entered into a Treaty with Portugal, in which it was stipulated, that free ships shall make free goods, but also that neutral goods in an enemy's ship should be confiscated.(n) CCI. The first Armed Neutrality(0) took its rise, as we have seen, in the ignoble rivalship of contending courtiers, and the vanity of a disso (g) State Papers, 5, 281, 286. (h) Art. XV. De Martens, vi. 154. (k) De Martens, vii. 103.-Arts. XIV., XV. (i) Ib., vi. 676. (n) Art. XXIV., Ib., 550. (0) Manning, p. 274. (2) Wheaton's Elem., p. 580.-Ed. Lawrence, 1855. (m) Art. X., Ib., 362. lute empress of Russia. The second Armed Neutrality had not a more distinguished origin; it was the offspring of a mad emperor of the same kingdom. The question of Convoy is connected with the Right of Search, and the discussion of it belongs to a subsequent chapter; but it should be mentioned here, as having excited some irritation in the Danish and Swedish Courts against England; this, however, had been allayed by the mission of Lord Whitworth, the English Ambassador to Copenhagen. At this juncture the Russian Emperor Paul claimed, without [*286] *a shadow of reason,(p) the island of Malta, which had been recently ceded to the English. He had become Grand Master of the once celebrated order of the knights in that island, and his attachment to this imaginary distinction was supposed to be one of the subjects on which his continually increasing insanity manifested itself. The refusal of England to surrender this island exasperated Paul, and, with an open contempt of the stipulations of an existing Treaty,(q) he laid an embargo on all British property within his dominions, and with a semi-Asiatic notion of justice, ordered one British vessel to be burned because another had escaped from harm.(r) The next step of Russia was characteristic; it was to renew the abandoned Armed Neutrality, as if for the purpose of demonstrating how little the League had ever been concerned with general international justice, and how obviously it had always been intended to injure one particular State. Sweden,(s) Denmark,(t) and Prussia(u) joined the revived confederacy, which contained the old stipulations, with this important addition : "That the declaration of the officers who shall command the ship of war, or ships of war, of the King or Emperor, which shall be convoying one or more merchant ships, that the convoy has no contraband goods on board, shall be sufficient; and that no search of his ship, or the other ships of the convoy, shall be permitted. And the better to insure respect to those principles, and the stipulations founded upon them, which their disinterested wishes to preserve the imprescriptible rights of neutral nations have suggested, *the high contracting parties, to prove their sincerity and justice, will give the strictest orders [287] to their captains, as well of their ships of war as of their merchant ships, to load no part of their ships, or secretly to have on board any articles, which, by virtue of the present convention, may be considered as contraband; and, for the more completely carrying into execution this command, they will respectively take care to give directions to their Courts of Admiralty to publish it, whenever they shall think it necessary; and to this end, the regulation which shall contain this prohibition, under the several penalties, shall be printed at the end of the present Act, that no one may plead ignorance."" (p) He alleged the Treaty of 1798, which was a Treaty of subsidy, in which no clause affords a pretext for the demand.-De Martens, vi. 557. (4) The 12th Article provided, that, in the event of the breaking out of war, the goods and persons of neither country should be detained or confiscated. (r) De Martens, vii. 155. (8) Ibid. (t) Ib., 181. (u) Ib., 188. This attempt, happily, like the rest of the treaty, abortive, to introduce a new positive law upon contraband, does not require further discussion in this place.(x) By other articles of the treaty, mutual assistance is promised in case of attack.(y) CCII. The second Russian League was destined to enjoy even a shorter existence than the first. Great Britain began her war upon this new confederacy against her by an attack upon Denmark. Nelson's immortal victory at Copenhagen was followed by another event of great importance at the time, and which demonstrated in what personal feeling the new League had originated. There is no despotism so unlimited, none so absolute and unquestionable, according to the positive law or usage of the country over which it is set, as not to find some check in the necessities and feelings of mankind. The tyranny of Tiberius and Robespierre(z) became at last unendurable to the poor as well as the rich, and then ensued, by violent means, their death. The ferocious acts of the *Emperor Paul, and the well [*288] founded belief that they sprang, in a great measure at least, from a disordered brain, brought about at this critical period a similar result; not, however, from the combination of the humble and great, but from the aristocracy alone. Paul suddenly disappeared from the stage on which he was acting so terrible a part. He was assassinated, and, as it is generally, and certainly not without good warrant, believed, in accordance with the deliberate resolution of the notables of his Court. The act has indeed been defended as a necessary measure of self-defence, no other remedy being supplied for such an emergency by the constitution of Russia. We are only concerned in this work with the result, which was very remarkable. Alexander, the successor to Paul, immediately concluded a treaty with England, which adjusted the dispute. By this treaty, in June, 1801, certain concessions were made by England respecting Convoy, and it was stipulated that goods embarked in neutral ships should be free, except contraband and the property of enemies. Thus was the old rule re-established between Russia and England, and to this treaty both Sweden and Denmark acceded.(a) CCIII. Among the most remarkable works upon International Jurisprudence which the crisis of the second Armed Neutrality produced, were the Letters of Sulpicius, by Lord Grenville, and a Speech, afterwards published by the same distinguished statesman upon the treaty between England and Russia in 1801. In the Letters, Lord Grenville-who had but recently resigned the office of Foreign Secretaryship, which he had filled for many years (x) Vide post. (z) (y) De Martens, vii. 172. "Sed periit postquam cerdonibus esse timendus (a) De Martens, vii. 260-281, contains the three Treaties. Russia had only a few days before made a Treaty with Sweden, embodyiug the articles of the Armed Neutrality, March, 1801 (De Martens, vii. 329,) so that, in one and the same week, Russia embodied the two opposite principles in her Treaties with the same nation; and it has been gravely argued that the Treaties constitute the International Law on this subject!-Manning, 278. maintained, with perfect knowledge of the subject, much erudition, great vigour of logic, and manly *eloquence, the ancient doctrines of International Law against those of the Armed Neutrality. [*289] In the Speech, (b) he declared that dangerous concessions with respect to the coasting and colonial trade, to contraband of war and blockade, had been made by Great Britain. These subjects remain to be considered. With respect, however, to enemy's goods on board neutral ships, Lord Grenville admitted that it was fully recognized by the second section of the third article of the Convention, which implied an abandonment of the opposite principle of free ships free goods, on the part of the Northern Powers.(c) CCIV. The period between the breaking up of the second Armed Neutrality and the breaking out of the present war (1801-1854), need not occupy us long. Russia, after the peace of Tilsit, readopted for the moment, and avowedly in order to please Napoleon, the principles of the Armed Neutrality. But in August, 1809, with a whimsical novelty of inconsistency, the Czar issued an ukase, (d) declaring "That ships laden in part with goods of the manufacture or produce of hostile countries shall be stopped, and such merchandize confiscated, and sold by auction for the profit of the Crown. And if the merchandize aforesaid comprise more than half the cargo, not only the cargo, but also the ship shall be confiscated."(e) And in 1812, when he made peace with *England, it was stipulated that the political and commercial relations of the two Powers [*290] should be the subject of a future arrangement.(f) CCV. The last observation brings us to what may be called the argument from the silence of subsequent treaties, and especially of that which closed the long war of the French Revolution. At the Treaty of Amiens, in 1802, neither was the subject of this discussion, the claim of free ships free goods, mentioned, nor were former Treaties relating to it renewed. The same may be predicated of the Treaties of Paris and Vienna, 1814-1815. It may not be difficult to maintain that the territorial arrangements which have formed the subject of great cardinal Treaties, (g) such as those of Westphalia, Utrecht, Paris, Versailles, and Vienna, remain (b) The argument was sound; but as subsequent Treaties upon the same subject have been contracted between England and Russia, the concessions have no present operation or effect. (c) Vide ante, vol. i. p. 45, where this remarkable speech is referred to upon the important question of permanent alterations of general International Law being introduced into a Treaty. Mr. Wheaton (Hist., pp. 408-420,) gives very copious extracts from this speech, and remarks with truth upon "the very lame and inconclusive replies made by the other speakers," in the debate in the House of Lords.-Parliamentary History of England, vol. xxxvi. pp. 200-255. (d) Art. XI. De Martens, Suppl., v. 485. Manning, 279. (e) In 1810, 31st December, another ukase relaxed the rigour of the Continental System, and greatly irritated Napoleon. (f) De Martens, N. R., t. iii. p. 226. (9) Vide ante, vol. i. p. 47. Wheaton's Elem. (ed. Lawrence, 1855,) p. 513. |