« PreviousContinue »
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.:
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 Rambouillot 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 vongole themselves and of their crews, constitute the chief topics covered by these utterance
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 intor stages of the war, Napoleon, then emperor and dictator of Europe, did hot scruple to allege a friendly enforcement on his part of the American emLargo puroly municipal and local measure—as a reason for the confiscation loy france of United States merchantmen reaching French ports. Indell, to offeot the complete closure of British over-sea commerce became in
. Men the leading case of Gray, Adm'r v. U. S. in vol. 21, Court of Claims Reports, page $110 sq. for a complete account; also, articles in this JOURNAL by G. A. King, Vol. VI, I'. 100, 020 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 shall have been known in the country from which they have sailed, and all ships which, in the course of the voyage, shall have received notice of the blockade in any manner, and yet shall have pursued their course with intent to enter the same.
Subsequently on November 6, 1793, Great Britain ordered the seizure of all vessels engaged in the French colonial carrying trade. This was a measure openly directed against neutrals, and was intended to put in force a principle of decision already familiar to British prize courts, known as the “Rule of 1756" from its having been employed during the Seven Years' War (1756-1763) to counteract the successful carriage of enemy colonial goods by neutral Dutch merchantmen, such carriage having been in time of peace a monopoly not open to foreigners. But now since French merchantmen could no longer, by reason of the British superiority at sea, themselves maintain this valuable colonial traffic-a traffic reserved by France theretofore exclusively to its own shipping, -it was held not consonant to principles of true neutrality that a neutral Power, under shelter of international law, should assume such a trade, thus practically relieving a disabled belligerent and pro tanto modifying or perhaps annihilating the well deserved maritime success of its opponent. The principle of monopoly as regards the coasting trade was in fact on September 21, 1793 openly declared by France to be in force: “les bâtimens étrangers ne pourront transporter d'un port Français à un autre port Français ancienes marchandises des cru ou produit, ou manufactures de France, colonies ou possessions de France."
Phillimore has well summarized the bases of the rule of 1756 and its cognate principles as applied in British prize courts. He says:
The shapes in which this abstract question became embodied were:
(1) carrying on by the Neutral of the trade between the Belligerent Mother Country and the Colonies.
(2) The carrying on the coasting trade of the Belligerent-such trade being confined in time of war to the Belligerent's subjects.
(3) The carrying on the trade by a Neutral from a port in his own country to a port of the colony of the Belligerent.
(4) The carrying on the trade by a Neutral between the ports of the Belligerent, but with a cargo from the Neutral's own country.
“It is necessary,” he added, “to bear in mind the distinction between these separate propositions; because, while the two former have obtained, under the title of the 'Rule of 1756,' the approbation of the best authorities in England and America, the two latter propositions have been powerfully attacked by the United States of North America as being vicious corruptions of a sound principle of international law," it being earnestly contended that a neutral might properly trade, blockade and contraband excepted, to and between all enemy ports and in all manner of merchandise. Thus the essential reason of the rule found opposition in the United States, and its far reaching extension in prize decisions called forth from Story a clear statement of the points at issue:
My own private opinion certainly is that the coasting trade of a nation, in its strict character, is so exclusively a national trade, that Neutrals can never be permitted to engage in it during war, without being affected with the penalty of confiscation. The British have unjustly extended the doctrine to cases, when a Neutral has traded between ports of the enemy, with a cargo taken in at a neutral country. I am as clearly satisfied that the colonial trade between the mother country and the colony, where that trade is thrown open merely in war, is liable in most instances to the same penalty. But the British have extended this doctrine to all intercourse with the colony, even from or to a neutral country, and herein it seems to me they have abused the rule. This at present appears to me to be the proper limits of the rule, as to the colonial and coasting trade; and the Rule of 1756 (as it was at that time
applied), seems to me well founded; but its late extension is reprehensible. Already during the conflict of the American Revolution, in 1780, as also twenty years later, a strong effort was made to shelter neutral carrying ships behind the bulwark of a powerful league whose principles should be expressed, as was its determination to enforce them, in terms clear to the world at large. These aims were vindicated, though for brief periods only, by the celebrated Armed Neutralities of 1780 and 1800. The league of 1780 originated with the Empress Catherine of Russia and finally comprised France, Spain, Holland, Denmark, Sweden, Prussia, the Germanic Empire, Portugal and the Two Sicilies; the treaty uniting them bears date July 7, 1780 and provides:
(1) That neutral ships may freely trade from port to port, and upon coasts of nations at war.
(2) That the property of the subjects of belligerent Powers shall be free on board of neutral ships, excepting goods that were contraband.
(3) That with regard to contraband goods the Empress binds herself by what was contraband in the Arts. X and XI of her treaty with Great Britain, extending these obligations to belligerent Powers.
(4) That to determine what characterizes a blockaded port, this term shall be confined to places where there is an evident danger in entering, from the arrangements of the Power which is attacking with vessels stationary and sufficiently close.
(5) That these principles shall serve for a rule in the proceedings and judgments on the legality of prizes. In 1800 a second and similar league announced kindred principles, with the addition now of immunity from search where a neutral merchantman is convoyed by an armed cruiser of its own nationality:
1. Any neutral vessel may freely sail from port to port and along the coasts of nations at war. * Phillimore, Comm. on International Law, Vol. 3, p. 311, 1st ed. 1857. See on the "Rule of War of 1756" appendix to 1 Wheaton U.S. Reports, reprinted in the Appendix to this article, p. 413 infra.