England, and formulated them in the preamble of the Berlin Decree, November 21, 1806, which was his answer to the blockade of the French northern coast established in May 1806 :

"Les dispositions du présent décret seront constamment considérées comme principe fondamental de l'Empire, jusqu'à ce que l'Angleterre ait reconnu que le droit de la guerre est un et le même sur terre que sur mer; qu'il ne peut s'étendre ni aux propriétés privées, quelles qu'elles soient, ni à la personne des individus étrangers à la profession des armes; et que le droit de blocus doit être restreint aux places fortes réellement investies par des forces suffisantes.'

This decree was followed by the British Order in Council of January 1807, and this by the first Milan Decree of November 23, 1807. In the preamble of the second Milan Decree of December 17, 1807, the refusal of England to accept "free ships free goods is referred to, thus linking up all the different theories and doctrines into the main principle they had been devised to support: "Les Anglais ont profité de la tolérance des gouvernements [neutres] pour établir l'infâme principe que le pavillon ne couvre pas la marchandise." This decree was to remain in force until the British Government "sera revenu aux principes du droit des gens, qui sont aussi ceux de la justice et de l'honneur." We thus return to the point from which we started, the doctrine which the Duc de Bassano's report endeavoured to deduce from the Treaty of Utrecht (see p. 14).

X

ABANDONMENT OF THE ARMED
NEUTRALITY PRINCIPLES

In his speech in the House of Lords in 1856 on Lord Colchester's motion expressing regret at the signature of the Declaration of Paris, Lord Derby, replying to Lord Clarendon's defence, said that "all the Powers who entered into this solemn League [the Armed Neutrality of 1780] very soon abandoned their principleswithin eighteen years." The importance of the fact is very great, but it requires some explanation.

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The main cause was, of course, the complete subversion of all preconceived ideas during the war with Revolutionary France. England was consistent in basing her action at sea on the historic right of seizing enemy property on neutral ships; but her first and immediate ally was Catherine of Russia. In her indignation at the murder of the Lord's Anointed by the hundred monsters" who had assumed the government of France, she threw all the principles of the Armed Neutrality to the winds, or, as Denmark interpreted it, she simply deferred their application." On March 25, 1793, the two Powers entered into an alliance, engaging reciprocally to shut all their ports to French ships, and to take all other measures in their power for injuring the commerce of France; and " to unite all their efforts to prevent other Powers not implicated in the war from giving any protection whatever, directly or indirectly, in consequence of their neutrality, to the commerce or property of the French on the sea or in the ports of France.'

To grant the protection of the neutral flag to the property of a belligerent, in other words, to enable that

belligerent to claim the benefit of the principle" free ships free goods," would be within the exact meaning of the words "giving protection, indirectly in consequence of neutrality, to the property of the French on the sea. Russia, therefore, as a belligerent, engaged to invite the neutrals to abandon the principle which, when herself neutral, she had exhorted them to maintain. Those of the Powers signatory to the Armed Neutrality Convention of 1780 who accepted the invitation Prussia, Austria, the Two Sicilies, and Portugal -did therefore expressly abandon the principle. The glamour with which the war had been invested by the Allies, who regarded it as an "occasion of common concern to every civilized State," did not alter the fact that it was a war in which this principle, if it were really founded on natural justice, as they had originally maintained, should have prevailed both for the benefit of the neutrals and of belligerent France. This was the attitude taken by Denmark in answer to the invitation:

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'Le droit des gens est inaltérable, ses principes ne dépendent pas des circonstances. ... La nation [i.e., France] existe . . . les liens de commerce subsistent aussi. .. La nation reconnaît encore ses traités avec nous, elle s'y conforme, du moins fréquemment; elle les réclame et nous les réclamons, et cela souvent avec succès non-seulement pour nous, mais aussi pour les effets appartenant aux Puissances en guerre couverts par notre pavillon."

The attitude of France is still more important, because in her answer to Catherine's Declaration she had relied on the alteration of her maritime law in 1778, by which "free ships free goods had been adopted. The various decrees affecting neutral ships with English goods on board were in direct violation of that principle. Holland very early in the war fell under the dominion of France, and the decrees were made applicable to the Batavian Republic.

Spain, when she joined France, must also be taken to have abandoned the principles she professed in her answer to Catherine's Declaration in 1780. The

United States entered into a treaty with England in 1794, in which seizure of enemy goods on neutral ships was recognized. By the treaty entered into between Great Britain and Russia in June, 1801, the claim that the neutral flag covered enemy goods was renounced, and in 1802 Denmark and Sweden adhered to the treaty.'

Assuming that there is anything in the suggestion that the upheaval caused by the French Revolution might justify the abandonment of any principle, a suggestion implied in the Danish despatch with reference to the case of the Havfruen-that Russia had only deferred the application of the principles because she was at war-there is a still more important case of abandonment, that of Sweden in 1789 during her war with Russia. She openly renounced the principles of the convention of 1780; and it is said by Manning that Russia tacitly followed her example. This action of Sweden evoked Sir William Scott's caustic remark in his judgment in the Maria (1 C. Rob. 340):

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"The law and practice of nations (I include particularly the practice of Sweden when it happens to be belligerent) gives

1 The abandonment by the adhering Powers of the principles of the Armed Neutrality is given somewhat differently in a note to Lord Grenville's speech in the House of Lords in 1801, in connection with the Treaty concluded with Russia in that year. The several renunciations were: By Russia, in her war with Turkey, in 1787; by Sweden, in her war with Russia, in 1789; by Russia, Prussia, Austria, Spain, Portugal, and America, in their treaties with Great Britain during the present war; by Denmark and Sweden, in their instructions issued in 1793, and in their treaty with each other in 1794; and by Prussia again in her treaty with America, in 1799." (Letters of Historicus, 1863, p. 102.)

This note appears to have been prepared for the published edition of Lord Grenville's speech. The last statements are not accurate. While Denmark, in the instructions issued in 1793, did recognize the right to seize enemy goods on neutral ships, the Swedish instructions did not. The treaty between Sweden and Denmark in 1794, as well as that between Prussia and the United States in 1799, dealt with the question in the spirit of the Armed Neutrality.

2 Law of Nations, p 336.

them [i.e., certain speculations and loose doctrines of modern fancy] no sort of countenance; and, until that law and practice are new modelled in such a way as may surrender the known and ancient rights of some nations to the present convenience of other nations (which nations may perhaps remember to forget when they happen to be themselves belligerent), no reverence is due to them.'

While it is untrue to say, as is so often said, that a principle recognized in many treaties becomes thereby a principle of the Law of Nations, the converse is true, that a principle, even though admitted in many treaties, must cease to have any claim to be a principle of that law when one of its supporters openly denounces it. Whatever merit it may possess as a principle which some nations choose to concede to their potential enemies, whatever may be the number of nations which accede to it in their treaties, all claim to be a natural principle of the Law of Nations, to be an equitable principle which neutrals have a right to insist on at the hands of belligerents, must disappear when it is found that even one of those who most warmly supported it when neutral deliberately abandoned it when it was itself engaged in war.