The Laws Of War, Affecting Commerce And Shipping Part 14

Since the completion of the Second Edition of this work, two very important Orders in Council, (dated April 15th, 1854,) have been published. Before proceeding to explain the intended effect of these Orders, it will be well to state that the consent of _both_ the Allies of England in this war is necessary to give full validity to the Orders.

It is a very old principle that, during a _conjoint_ War, no subject of an ally can trade with the common enemy without liability to forfeiture, in the prize courts of the ally, of all his property engaged in such trade. This rule can be relaxed only by the permission of the allied nations, according to their mutual consent.[212]

Lord Stowell lays down the principle in much broader terms, thus--

"It has happened, since the world has grown more commercial, that a practice has crept in of admitting particular relaxations; and if _one_ state only is at war, no injury is committed to any other state. It is of no importance to other nations how much a _single_ belligerent chooses to weaken and dilute his _own_ rights; but it is otherwise when allied nations are pursuing a common cause against a common enemy. Between them it must be taken as an implied, if not an express contract, that one state shall not do anything to defeat the general object. If one state admits its subjects to carry on an uninterrupted trade with the enemy, the consequence may be that it will supply aid and _comfort_ to the enemy; especially if it is an enemy very materially depending on the resources of foreign commerce, which may be injurious to the prosecution of the common cause, _and the interests of its ally_. It should seem that it is not enough, therefore, to say that one state has allowed this practice to its own subjects; it should appear to be at least desirable, that it could be shown that the practice is of such a nature that it can in no way interfere with the common operations, or that it has the allowance of the confederate state."[213]

Trade with the enemy has always been held to be a direct interference with the common operations of the war, and indirect trade has been regarded with as much jealousy as direct trade. If Lord Stowell is to be trusted, this country cannot in any way waive its belligerent rights, without the consent of its ally; so that it is quite in the option of France at any time to withdraw its a.s.sent, or to modify it in terms, and thus bind English merchants to the terms of their a.s.sent.

The _intended_ effect of these Orders is well described in the _Times_, of April 21st, 1854.

"The Order in Council of the 15th April, 1854, recites, in the first instance, Her Majesty's declaration made on the opening of the war; but it then goes on to enact not only that enemies' property laden on board neutral vessels shall not be seized, but that all neutral and friendly ships shall be permitted to import into Her Majesty's dominions, all goods and merchandizes whatsoever, and to export everything in like manner, except to blockaded ports, and except those articles which require a special permission as being contraband of war. But this liberty of trade is not confined to neutrals. It is further ordered, that, with the above exceptions only, British subjects shall have free leave to.

trade 'with all ports and places wherever situate,' save only that British ships are not permitted to enter the ports of the enemy. The effect of this Order is, therefore, to leave the trade of this country with neutrals, and even the indirect trade with Russia, in the same state it was in during peace, as far as the law of our courts maritime is concerned; and the doctrine of illegal trading with the enemy is at an end.[214] The restrictions henceforth to be imposed are solely those arising out of direct naval and military operations, such as blockade, and those which the enemy may think fit to lay upon British and French property.

As far as we are concerned, except that British ships are not to enter Russian ports--which it is obvious that they could not do without incurring the risk of a forfeiture of their property and the imprisonment of their crews--the trade may be lawfully carried on in any manner which the ingenuity and enterprise of our merchants can devise. In order to facilitate the removal of British property from the ports of the Baltic and the White Sea, which were frozen up at the date of the Order of the 29th of March, further leave has been given to Russian vessels to come out of those ports, if not under blockade, until the 15th of May; as, in fact, it is only by taking up Russian ships that British property in those ports is likely to be removed, as neutrals will not enter them from fear of the blockade.

"It is not easy to convey to the mind of the mercantile cla.s.ses of the present generation, who have had no practical experience of the state of war, the extent of the change which is thus effected in their favour. The vigilance of our cruisers and the acuteness of our lawyers were incessantly employed in all former contests in tracking out the faintest scent of enemy's property on board every vessel met on the seas. The character of enemy's property was regarded as an infection, and reprobated with all the terms originally reserved for guilty practices. The mercantile ingenuity of the country, pressed by the increased demand and exorbitant prices of prohibited articles, was strained to evade by every species of fraud these prohibitions, and a warfare was carried on within our own courts of justice between the pitiless exactions of the laws of war and the irresistible impulse of the laws of trade. To allay, in some degree, the inconveniences of this system, and to provide by legal means some of those commodities which it was for the public interest to purchase, the English and French Governments were driven, even during the height of the Continental System, to the granting of licences. But here again fresh abuses of every kind arose. These licences were an authorized mode of evading that very prohibition which the belligerents conceived it to be for their interest to maintain. They conferred a monopoly on the holder of the licence, which enabled him to sell his cargo of French wines or French silks at a prohibition price; and the law books of the time are still full of the endless litigation and fraud to which these practices gave rise.

"From all these evils we trust that the Order in Council of the 15th April has permanently relieved us, and the change it is calculated to bring about in the state of war is not of inferior importance to that which marked the transition from Protection to Free Trade in the state of peace. The system of licences is at an end, for all the liberty of trade with the enemy which it is in the power of the Government to confer at all, is thus conferred at once, and indiscriminately upon all; and, unless the Russian Government find means to maintain a prohibitive system on their frontiers, we hope that the supply of raw material from that country will not be reduced to scarcity."

In addition, however, to this very lucid explanation, it may be added, that it might become necessary to grant licences to trade directly (with the consent of our allies) to the Russian ports.

That on the part of British vessels, the

"entering or communicating with any port or place in the possession or occupation of the enemy, will place the English vessel in the position of an illegal trader, and that the vessel will then be liable to the same penalties as if this Order had not been published."

With respect to Contraband, it will have to be remembered that contraband _to_ Russia will not be contraband to England, unless it is despatches, treasonable letters, enemy's forces, secret agents or spies. Neutral property on board an enemy's vessel is not generally liable to seizure, unless on an "armed vessel of force;" but even this, by the Order, seems to be protected. By the same Order, British property on Russian vessels is _not_ protected. It is quite in the option of neutrals, or British vessels, to break any Russian blockade.

The renunciations in these Orders are a waiver only of certain parts of the Queen's belligerent rights, and in no way diminish the state of war between England and Russia. Notwithstanding these Orders, Russo-English partnerships are dissolved, contracts with the enemy invalid, and even though a free trade is permitted, an Englishman cannot draw a good bill on a Russian, and _vice-versa_. All attempts to communicate with the enemy are still illegal. The Queen has not altered her belligerent rights, she merely declares that she will not put them into motion; but that does not alter, nor can she of her own authority alter, any part of the International Law, which also is a part of our common law. These, Orders, therefore, give no power to the enemy to sue or reside here, or to make a valid indors.e.m.e.nt to any British subject. Insurances will become legal on cargoes that by these Orders may be imported.

(From the _Gazette_ of Tuesday.)

At the Court of Windsor, the 15th day of April, 1854, present the Queen's Most Excellent Majesty in Council.

Whereas Her Majesty was graciously pleased, on the 28th day of March last, to issue her Royal declaration on the following terms--

"Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, having been compelled to take up arms in support of an ally, is desirous of rendering the war as little onerous as possible to the Powers with whom she remains at peace.

"To preserve the commerce of neutrals from all unnecessary obstruction, Her Majesty is willing, for the present, to waive a part of the belligerent rites appertaining to her by the Law of Nations.

"It is impossible for Her Majesty to forego the exercise of her right of seizing articles contraband of war, and of preventing neutrals from bearing the enemy's despatches, and she must maintain the right of a belligerent to prevent neutrals from breaking any effective blockade which may be established with an adequate force against the enemy's forts, harbours, or coasts.

"But Her Majesty will waive the right of seizing enemy's property laden on board a neutral vessel, unless it be contraband of war.[215]

"It is not her Majesty's intention to claim the confiscation of neutral property, not being contraband of war, found on board enemy's ships;[216] and Her Majesty further declares that, being anxious to lessen as much as possible the evils of war, and to restrict its operations to the regularly organized forces of the country, it is not her present intention to issue letters of marque for the commissioning of privateers."

_Now it is this day ordered_, by and with the advice of her Privy Council, that all vessels under a neutral or friendly flag, being neutral or friendly property, shall be permitted to import into any port or place in Her Majesty's dominions all goods and merchandize whatsoever, to whomsoever the same may belong,[217] and to export from any port or place in her Majesty's dominions to any port not blockaded, any cargo or goods, not being contraband of war, or not requiring a special permission, to _whomsoever the same may belong_.

And Her Majesty is further pleased, by and with the advice of Her Privy Council, to order, and it is hereby further ordered, that, save and except only as aforesaid, _all the subjects of Her Majesty_, and the subjects or citizens of any neutral or friendly State, shall and may, during and notwithstanding the present hostilities with Russia, _freely trade_[218] with all ports and places wheresoever situate, which shall not be in a state of blockade, save and except that no British vessel shall, under any circ.u.mstances whatsoever, either under or by virtue of this order, or otherwise, be permitted or empowered to enter or communicate with any port or place which shall belong to or be in the possession or occupation of Her Majesty's enemies.

And the Right Hon. the Lords Commissioners of Her Majesty's Treasury, the Lords Commissioners of the Admiralty, the Lord Warden of the Cinque Ports, and Her Majesty's Princ.i.p.al Secretary of State for War and the Colonies, are to give the necessary directions herein as to them may respectively appertain.--C.C. GREVILLE.

At the Court at Windsor, the 15th day of April, 1854, present the Queen's Most Excellent Majesty in Council.

Whereas, by an Order of Her Majesty in Council, of the 29th of March last, it was, among other things, ordered,

"that any Russian merchant vessel which, prior to the date of this order, shall have sailed from any foreign port, bound for any port or place in Her Majesty's, dominions, shall be permitted to enter such port or place, and to discharge her cargo, and afterwards forthwith to depart without molestation; and that any such vessel, if met at sea by any of Her Majesty's ships, shall be permitted to continue her voyage to any port not blockaded."

And whereas Her Majesty, by and with the advice of Her said Council, is now pleased to alter and extend such part of the said Order, it is hereby ordered, by and with such advice as aforesaid, as follows--that is to say, that any Russian merchant vessel which, prior to the 15th day of May, 1854, shall have sailed from any port of Russia situated either in or upon the sh.o.r.es or coasts of the Baltic Sea or of the White Sea, bound for any port or place in Her Majesty's dominions, shall be permitted to enter such last-mentioned port or place and to discharge her cargo, and afterwards forthwith to depart without molestation; and that any such vessel, if met, at sea by any of Her Majesty's ships, shall be permitted to continue her voyage to any port not blockaded.

And Her Majesty is pleased, by and with the advice aforesaid, further to order, and it is hereby further ordered, that in all other respects Her Majesty's aforesaid Order in Council, of the 29th day of March last, shall be and remain in full force, effect, and operation.

And the Right Hon. the Lords Commissioners of Her Majesty's Treasury, the Lords Commissioners of the Admiralty, and the Lord Warden of the Cinque Ports, are to give the necessary directions herein as to them may respectively appertain.--C.C. GREVILLE.

H.B.T.

3, SERJEANT'S INN,

_22nd April, 1854_.

NOTES

[1: See Justice Story's Judgment in the Case of the La Jeune Eugenie.

Life, Vol. i. 341.]

[2: The Law of Reprisals; _Vide_ note (A.)]

[3: Rutherford's Inst.i.tutes, vol. ii. p. 509.]

[4: 2 Wheaton, p. 11; 1 Kent, p. 54.]

[5: Per Sir W. Scott--Case of the Eliza Ann, 4 Rob. Adm. Rep. 247.]

[6: Wildman's International Law, vol. ii. p. 5.]

[7: 1 Kent, p. 54; Vattel, book 3, chap. iv. sec. 64.]

[8: 1 Kent, p. 55.]

[9: 2 Wheaton, p. 12; 1 Kent, p. 55; Rutherford's Inst.i.tutes, book 2, chap. 9, sec. 10.]

[10: 2 Wheaton, p. 12-25; 1 Kent's Com. p. 55-6; Brown _v._ United States, 2 Cranch, 110; see also 228, 229.]

[11: Idem.]

[12: Grot, book 3, chap. 20, sec. 16.]