each of the chief contestants possessed rich colonies beyond the Atlantic and whose colonial products were of the first importance to Europe generally, although, in so far as France was concerned the physiocratic idealists claimed to find in the agricultural resources of their own country supplies adequate to every requirement and whose sufficiency justified a scornful view of British commercialism. To strike, consequently, at Britain's sea-borne traffic became at every period of the struggle a fixed aim of the French Republic and Empire, and as an inevitable sequence of such a determination there soon appeared disputes of great bitterness, not alone with the English Government, but with neutral Powers as well, touching the violation or maintenance of acknowledged canons of international law as between belligerents and again between belligerents and neutrals.2

In these fields, somewhat vaguely defined, the differences were grouped about conceptions of blockade, contraband, convoy, the colonial carrying trade and the coasting trade regarded as state monopolies normally closed to all but nationals, together with the closely-related British conception of entrepôt (deposit) as applied specially to colonial commerce and navigation. Briefly stated, questions concerning blockade centred upon attempts to merely declare or proclaim a blockade of a coast line frequently of such great extent that it was quite beyond the power of the declaring belligerent to actually guard all approaches to the invested places, which were thus sought to be closed by mere empty "proclamation" as the term ran. In the matter of contraband, there evidently existed a wide margin for interpretation of what merchandise with enemy destination should be held confiscable as essentially appropriate to warlike use; in many treaties an effort had been made to standardize this vexed subject through agreed contraband lists, though always, and of necessity, without permanent result. Again, the colonial and coasting trades opened practically illimitable fields instinct with elements of hostile action and debate, nor were the vast and mysterious stretches of the Atlantic itself more pregnant with storm and disaster than the now asserted rules of the law of nations governing transoceanic carriage of merchandise, especially between European colonies in the West Indies and their parent countries. The vital issues here turned upon transport of enemy property by neutrals eager to assume the advantages of trade from which a belligerent might be for the time excluded through its adversary's superior prowess at sea. But, it was asked, should a neutral be permitted thus to interpose its shield between enemies with manifest profit to itself and to the weaker belligerent as well? Again, should a neutral be permitted to conduct the coasting trade of this same weaker belligerent, regard being had to the undoubted fact that only the pressure of warfare on the part of a stronger enemy had induced the said belligerent to open his coasts along which theretofore, and in time of peace, traffic had been held inviolable as a state monopoly? Did not the neutral in such cases practically See Appendix, paragraph 2, page 411.

identify itself with enemy interests and hence convict itself of unneutral service?

Around these and allied problems there gathered those forces of opinion which resulted in the orders and arrêts which we are now to briefly examine and whose significance, it is hoped, will be more clearly exhibited in the texts themselves. In a perusal of these texts it will readily be noted that the opposing belligerents freely impute to each other wilful violations of all principles of international law and maintain that their standards can no longer be expected to conform in letter or spirit with an international code flagrantly disregarded. The essential intendment, however, of every decree and order will be plain enough if we but bear in mind the practically identical aims, though along different channels, of England and France, these aims contemplating the destruction or appropriation of each opponent's sea-borne commerce. On the one hand, the French standpoint demanded at whatever cost to France the isolation of England from every market. As an indispensable feature of such a purpose it was sought, in the first place, to effect a closing of the transatlantic colonial carrying trade between America and England. From the British point of view, not the closing, but rather the complete control of European coasting trade and transatlantic traffic was striven for, England to become the entrepôt or point of deposit through which all ocean commerce must pass or originate on its way to supply continental needs; foreign ports were to be open to commerce which had in this manner paid a British duty, while these same ports would otherwise be closed by either actual or proclaimed blockade. Of this entrepôt feature we shall have occasion to speak later at more length. Despite the economic fallacy here quite apparent, British commercial interests, it was confidently reasoned, might well be thought safeguarded since England would constitute a dutiable halting-place for world sea-traffic. There was evidently in this design small room for the interests or rights of American, Dutch, or Baltic Sea neutral shipping, nor need we be surprised at the early development of a singular naval warfare between the United States and France in 1798-1800, or at the large indemnities subsequently admitted as due to our merchants through illegal captures and condemnations.

On May 9, 1793, the National Convention at Paris issued the first of a series of memorable decrees declaratory of principles intended to be recognized by it in naval warfare. England replied by various orders in council, and soon neutrals were drawn within the circle of general disaster. This decree of May 9th announced the sequestration of provisions by way of retaliation for a similar course already taken by England:

The National Convention, after having heard the report of their Marine Committee; considering that the flag of the neutral Powers is not respected by the enemies of France, that two cargoes of flour arrived at Falmouth in Anglo-American vessels, and purchased before the war for the service of the Marine of France, have been detained in England

by the Government, who would not pay for them, except at a price below that at which flour had been sold:

That a vessel from Papenburg, called the Therisia, commanded by Captain Hendrick Kob, laden with divers effects belonging to Frenchmen, has been conducted to Dover, the 2d of March last, by an English cutter:

That a privateer of the same nation has carried into the same port of Dover, the 18th of the same month, the Danish ship Mercury, Christianlund, Captain Freuchen, expedited from Dunkirk on the 17th with a cargo of wheat for Bordeaux:

That the ship John, Captain Shikleley, laden with near six thousand quintals of American wheat, bound from Falmouth to St. Malo, has been taken by an English frigate, and conducted to Guernsey, where the agents of the Government have simply promised to pay the value of the cargo because it was not on account of the French:

That one hundred and one French passengers of different professions, embarked at Cadiz, by order of the Spanish minister, in a Genoese ship called the Providence, Captain Ambrose Briasco, bound to Bayonne, have been shamefully pillaged by the crew of an English privateer:

That the divers reports which are successively made by the marine cities of the Republic announce that these same acts of inhumanity and injustice are daily multiplied and repeated with impunity throughout the seas:

That, under such circumstances, all the rights of nations being violated, the French people are no longer permitted to fulfill, towards the neutral Powers in general, the vows which they have so often manifested, and which they will constantly make for the full and entire liberty of commerce and navigation, decrees as follows:

Art. 1. The French ships of war and privateers may arrest and bring into the ports of the Republic the neutral vessels which shall be laden wholly, or in part, either with articles of provision belonging to neutral nations, and destined for an enemy's port, or with merchandise belonging to an enemy.

Art. 2. The merchandise belonging to an enemy shall be declared good prize, and confiscated to the profit of the captors; the articles of provisions belonging to neutral nations, and laden for an enemy's port, shall be paid for according to their value in the place to which they were destined.

Art. 3. In all cases the neutral vessels shall be released as soon as the unloading of the articles of provision arrested, or of the merchandise seized, shall have been effected. The freight thereof shall be paid at the rate which shall have been stipulated by the persons who shipped them. A just indemnification shall be allowed, in proportion to their detention, by the tribunals who are to have cognizance of the validity of the prizes. Art. 4. These tribunals shall be bound to transmit, three days after their decision, a copy of the inventory of the said articles of provision or merchandise, to the Minister of Marine, and another to the Minister for Foreign Affairs.

Art. 5. The present law, applicable to all prizes which have been made since the declaration of war, shall cease to have effect as soon as the enemy Powers shall have declared free and not seizable, although destined for the ports of the Republic, the articles of provision belonging to neutral nations, and the merchandise laden in neutral vessels, and belonging to the Government or citizens of France.

The decree, it will be noted, affirmed the liability to capture as contraband of neutral owned provisions. But as specially applied in the case of such merchandise carried in ships of the United States, this was in plain contravention of the Franco-American treaty of amity and commerce concluded February 6, 1778, the 23d article of which declares:

It shall be lawful for all and singular the subjects of the Most Christian King, and the citizens, people and inhabitants of the said United States, to sail with their ships with all manner of liberty from any port to the places of those who now are or hereafter shall be at enmity with the Most Christian King or the United States. Also from one place belonging to an enemy to another place belonging to an enemy, and it is hereby stipulated that free ships shall also give a freedom to goods, and that everything shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates contraband goods being always excepted.

Article 24 contains a contraband list.

In a frank recognition of this undeniable treaty obligation, and being urged by Gouverneur Morris, then in Paris, the National Convention soon announced that American vessels would not be subject to seizure under the arrêt of May 9th, though in the end less peaceable counsels prevailed and the way became thus opened to the "spoliations" which were destined to maintain so disastrous a rôle in our commercial history, and whose injuries, in part at least, have not been redressed by our own Congress even at the present day.3

The French decrees of special importance to us are nineteen in number, and extend in date from 1793 to 1810, closing with the celebrated arrêt issued on March 23rd of that year from the imperial and historic château at Rambouillet in the department of Seine-et-Oise twenty-nine miles southwest of Paris. Of similar British orders in council, there are some fourteen, closing with the resolution of May 24, 1809. The treatment of contraband, blockade, and enemy goods seized upon the vessels of neutrals, as well as the fate of such vessels themselves and of their crews, constitute the chief topics covered by these utterances.

Among causes of forfeiture under the French decrees we note the carriage of English goods or touching at or sailing from English ports, while in the later stages of the war, Napoleon, then emperor and dictator of Europe, did not scruple to allege a friendly enforcement on his part of the American embargo a purely municipal and local measure-as a reason for the confiscation by France of United States merchantmen reaching French ports. Indeed, to effect the complete closure of British over-sea commerce became in

See the leading case of Gray, Adm'r v. U. S. in vol. 21, Court of Claims Reports, page 340 seq. for a complete account; also, articles in this JOURNAL by G. A. King, Vol. VI, pp. 359, 629 and 830.

ever-increasing degree Napoleon's aim, and this necessarily drew with it the annulment of colonial traffic, thus practically penalized, though for differing reasons, by both France and England. It was attempted also, on Napoleon's part, to compel the recognition by international law of certain principles formerly pressed, as we shall shortly see, by the armed neutrality leagues of 1780 and 1800 and embodied in a number of treaties. No such action could, however, incorporate a new doctrine into the system, in its essence universal and imprescriptible, of the jus gentium. Nor did any candid mind of that troubled era imagine for a moment that such a process was possible. Considerations of this nature, nevertheless, opposed no sufficient barrier to the theories at issue as causes of grave disturbance in the maritime world, and in our own day, as then, the same or kindred conceptions continue to produce problems well-nigh insoluble.

To the French Convention's announcement of May 9, 1793, the English Government at once replied by order in council:

Additional instructions to the commanders of his Majesty's ships of war, and privateers that have or may have letters of marque against France. Given at our court at St. James's, the eighth day of June, 1793, and in the 33d year of our reign. George R. (L. S.)

1st. That it shall be lawful to stop and detain all vessels loaded wholly or in part with corn, flour or meal, bound to any port in France, or any port occupied by the armies of France, and to send them to such ports as shall be most convenient, in order that such corn, meal, or flour may be purchased on behalf of his Majesty's government, and the ships be released after such purchase, and after a due allowance for freight, or that the masters of such ships, on giving due security, to be approved of by the court of admiralty, be permitted to proceed to dispose of their cargoes of corn, meal, or flour in the ports of any country in amity with his Majesty.

2d. That it shall be lawful for the commanders of his Majesty's ships of war, and privateers that have, or may have, letters of marque against France, to seize all ships, whatever be their cargoes, that shall be found attempting to enter any blockaded port, and to send the same for condemnation, together with their cargoes, except the ships of Denmark and Sweden, which shall only be prevented from entering on the first attempt, but on the second shall be sent in for condemnation likewise.

3d. That in case his Majesty shall declare any port to be blockaded, the commanders of his Majesty's ships of war, and privateers that have, or may have, letters of marque against France, are hereby enjoined, if they meet with ships at sea, which appear, from their papers, to be destined to such blockaded port, but to have sailed from the ports of their respective countries before the declaration of the blockade shall have arrived there, to advertise them thereof, and to admonish them to go to other ports; but they are not to molest them afterwards, unless it shall appear that they have continued their course with intent to enter the blockaded port; in which case they shall be subject to capture and condemnation, as shall likewise all ships, wheresoever found, that shall appear to have sailed from their ports, bound to any port which his Majesty shall have declared to be blockaded, after such declaration