The Laws Of War, Affecting Commerce And Shipping Part 11

But this warranty requires not only that the vessel shall sail under the protection of the convoy, but also that she shall continue during its course under the same protection, unless prevented from so doing by tempest or other unavoidable accident, in which case, the master and owners will be excused, if the master does all that is in his power to keep with the convoy.

The merchantman must, before sailing, obtain or endeavour to obtain, the sailing orders issued by the convoying squadron. The value of a convoy appointed by Government arises in a great degree from its taking the ships under control, as well as under protection; but this control cannot be exercised except by means of sailing orders.

Otherwise, the master could not learn the rendezvous in case of dispersion by a storm, or obey signals in case of attack.

The obligation to sail with convoy does not depend merely on special agreement; but, by act of parliament, a merchant cannot sail without a convoy, on a _foreign_ voyage, unless previously licensed to do so.[197]

SECTION IV.

[Sidenote: _Armed Neutralities_.]

It is not improbable the course of events in the present war may make it not uninteresting to my readers to have some short account of the origin and meaning of _Armed Neutralities_, especially as the principles on which they were founded may again be open to discussion.

The right to take enemy's property on board neutral vessels has, in the present war, been waived by the Queen, in a declaration, dated Buckingham Palace, March 29th 1854. This is however tempered by a reservation of the right to search for contraband. Up to the present time the right to take enemy's goods on board a neutral vessel has in this country been steadily maintained; though in France it has been fluctuating; the interests of another commercial power became the origin of the extraordinary confederacies termed _Armed Neutralities_.

At an early period it was an object of interest with Holland, a great commercial and navigating country, whose permanent policy was essentially pacific, to obtain a relaxation of the severe rules which had previously been observed in maritime warfare. The States General of the United Provinces having complained of the provisions in the French Ordinance of 1538, a treaty of commerce was concluded between France and the Republic in 1646, by which the law, as far as respected the capture and confiscation of neutral vessels for carrying enemy's property, was suspended; but it was found impossible to obtain, at that time, any relaxation as to the liability to capture of enemy's property in neutral vessels.

This latter concession, however, the United Provinces obtained from France by the treaty of alliance of 1662, and the commercial treaty signed at the same time with the peace, at Nimiguen, in 1671; confirmed by the treaty of Ryswick, in 1697. The maxim that _free ships_ make _free goods_ was coupled in these treaties with its correlative maxim, _enemy's ships_ make _enemy's goods_.

The same concession was obtained by Holland from England in 1668 and 1674, as the price of an alliance between the two countries against the ambitious designs of Louis XIV.

In the subsequent war of 1756, a controversy arose between England and Holland, in which it was said, on the one hand, that England had violated the rights of neutral commerce; and on the other, that Holland had not fulfilled the guarantees under which those privileges had been granted.

Afterwards, when the American Revolution gave rise to a war between France and Great Britain, the latter power, instead of following the example of her enemy, (who had issued an ordinance prohibiting the seizure of neutral vessels, even when bound to or from enemy ports, unless carrying contraband,) issued an order in council, (March, 1780,) suspending the special stipulations respecting commerce and navigation contained in the Treaty of 1674.

This was the crisis of many complaints made by the neutral powers against Great Britain; and, in 1780, the Empress of Russia proclaimed the principles of the Baltic Code of Neutrality, and declared she would maintain them by _force of arms_.

This system of armed neutrality contained the following principles.

1. That commerce with the ports and roads of the enemy is free to neutral powers.

2. That the ship covers the cargo.

3. That those merchandizes only be considered as contraband, which are declared to be such by treaties with the belligerent powers, or with one of them.

4. That no place shall be considered as blockaded, till it is surrounded in such a manner by hostile ships that no person can enter it without manifest danger.

5. That these principles shall serve as a basis for decisions concerning the legality of prizes.

The princ.i.p.al powers of Europe, as Sweden, Denmark, Prussia, Germany, Holland, France, Spain, Portugal, Naples, and also the United States, acceded to the Russian principles of neutrality.

The Court of London answered this declaration by appealing to "the principles generally acknowledged as the Law of Nations, being the only law between powers where no treaties subsist;" and to

"the tenor of its different engagements with other powers, where those engagements had altered the primitive law by neutral stipulations, according to the will and convenience of the contracting parties."

England, being thus opposed to all the maritime world, was at this time obliged to smother her resentment; only simply expostulating with Russia. But the want of the consent of a power of such decided maritime superiority as that of Great Britain, was an insuperable obstacle to the success of the Baltic Conventional Law of Neutrality; and it was abandoned in 1793 by the naval powers of Europe, as not sanctioned by the existing law of nations, in every case in which the doctrines of that code did not rest upon positive compact.

During the protracted wars of the French Revolution, all the belligerent powers began by discarding in practice, not only the principles of the armed neutrality, but even the generally received maxims of international law by which neutral commerce in time of war had been previously regulated. France, on her part, revived the severity of her ancient prize code; decreeing not only the capture and condemnation of the goods of her enemies found on board neutral vessels, but even of the vessels themselves laden with goods of British growth, produce, and manufacture.

In 1801, princ.i.p.ally in consequence of the doctrines of the British Admiralty Courts with regard to the right of search, great efforts were made by the Baltic powers to recall and enforce the doctrines of the armed neutrality of 1780. This attempt is generally known as the Armed Neutrality of 1800, and was met, promptly overpowered, and the confederacy finally dissolved, by the naval power of England. Russia gave up the point, and by her convention with England of the 17th of June, 1801, expressly agreed, that enemy's property was not to be protected on board of neutral ships.[198] This settlement was ended by the death of the Emperor Paul.

APPENDIX TO PART I.

NOTE A.--_The Law of Reprisals_.[199]

Reprisals by commission, or letters of marque and reprisal, granted to one or more injured persons, in the name and authority of the Sovereign, const.i.tutes a case of "partial, or special reprisals," and is considered to be compatible with a state of peace, and was formerly permitted by the Law of Nations; though it may be doubted if such a rule would hold good now.[200] General reprisals upon the persons and property of the subjects of another nation are equivalent to open war.

It is often the first step which is taken at the commencement of a public war, and may be considered as amounting to a declaration of hostilities, unless satisfaction is made by the offending state.

A stoppage or seizure (in other words, an embargo), must not be confounded with complete reprisals. When ships are seized for the purpose of obtaining satisfaction for a particular injury, or security against a possible event, that seizure is only an embargo. The vessels are preserved as long as there is any hope of obtaining satisfaction or justice. As soon as that hope disappears, they are confiscated, and the reprisals are accomplished. In fact, that which was _embargo_ becomes reprisals by the _act of confiscation_.[201]

In the words of Lord Stowell:

"Upon property so detained the declaration of war is said to have a retroactive effect, and to render it liable to be considered as the property of enemies taken in time of war.

The property is seized provisionally--an act hostile enough in the mere execution, but equivocal as to its effects, and liable to be varied by subsequent events, and by the conduct of the government, the property of whose subjects is so detained. Where the first seizure is equivocal, if the matter in dispute terminates in reconciliation, the seizure is converted into a mere civil embargo. This would be the retroactive effect of that course of circ.u.mstances. On the contrary, if the transactions end in hostility, the retroactive effect is directly the other way. It impresses a hostile character upon the original seizure. It is declared to be embargo; it is no longer an equivocal act, subject to two interpretations; there is a declaration of the _animus_ by which it was done, that it was done _hostili animo_, and is to be considered a hostile measure _ab initio_. The property taken is liable to be used as the property of persons, trespa.s.sers _ab initio_, and guilty of injuries which they have refused to redeem by any amicable alteration of their measures. This is the necessary course, if no particular compact intervenes for the rest.i.tution of such property taken before a formal declaration of hostilities."[202]

The modern rule seems to be, that tangible property, belonging to an enemy, ought _not_ to be _immediately confiscated_. It may be considered as the opinion of all who have written on the _jus belli_, that war gives the _right_ to confiscate, but does not of itself confiscate the property of an enemy.

Chancellor Kent expressly terms this species of hostility--_a reprisal_.[203] And Lord Mansfield says, that though foreign ports or harbours are not the high sea any more than the sh.o.r.e, yet numberless captures made there have been condemned as prize,[204] _i.e._ can be the subject _of reprisal_.

NOTE B.--_War Bill Act_.

During the last war, the War Bill Act, 34 Geo. 3. c. 9, was pa.s.sed as a measure of retaliation. It was pa.s.sed in order to prevent the effect intended to be produced by an order of the French Government, compelling all merchants, bankers, and others, possessed of money, funded property, and effects, in different parts Europe, to declare all such property, that it might be taken by violence, and applied to the purposes of the war then carried on by the government of France against the greater part of Europe.

The princ.i.p.al sections relating to bills, prohibited any British subject, from and after March 1, 1794, from wilfully and knowingly in any manner paying or satisfying any bill of exchange, note, draught, obligation, or order for money, in part or in whole, which, since January 1, 1794, had been or at any time during the said war should be drawn, accepted, or indorsed, or in any manner sent from any part of the dominions of France, &c.; every person so offending to forfeit _double_ the value, and the payment not to be effectual against any person who might otherwise have demanded the same; but the demands of all persons to remain, notwithstanding such payment, and notwithstanding such bills shall have been delivered up.

NOTE C.--_Rule of_ 1756.

During the war of 1756, the French Government, finding the trade with their colonies cut off by the maritime superiority of Great Britain, relaxed the monopoly of that trade, and allowed the Dutch, then neutral, to carry on the commerce between the mother country and her colonies, under special licences or pa.s.ses, granted for this particular purpose, excluding at the same time, all other neutrals from the same trade. Many of their vessels were captured by the British cruizers.

The policy under which they were captured is called the "Rule of 1756;" and as, in the present war, its justice and propriety has already begun to be doubted, it may not be uninteresting to read the reasons upon which it was founded.

1. They were considered as part of the French navigation, having adopted this otherwise exclusive commerce, and acting in the character of French enemy in identifying themselves with that interest, in direct opposition to the belligerent interests and purposes of Great Britain.

2. Inasmuch as they were only carriers for the French, they were to be regarded as French transports, carrying national a.s.sistance to the enemy, and therefore to be condemned on the same principle as vessels carrying troops or despatches.

3. That the property they carried being from one part of the French empire to the other, was so completely identified with French interests as to take a hostile character.

4. When war comes it is necessary to shut some of the avenues of commerce, otherwise the belligerent rights could not be protected.

5. That the neutral ought not to have _through_ and by means of the war, which is not his affair, that he has not in time of peace; and by natural justice he is only ent.i.tled to his accustomed trade. That any inconveniences he may suffer are quite balanced by the enlargement of his commerce; the trade of the belligerents is usually interrupted to a great degree, and falls into the lap of the neutral.[205]