but not that friends' goods shall be seizable on board enemies' ships.(b) France and Holland renewed in 1785 the articles of the Treaty of Utrecht, (c) which stipulated that free ships make free goods, and enemies? ships enemies' goods. In the same year, Austria and Russia(d) renewed the provisions of the Armed Neutrality on this subject. In the great commercial treaty of 26th September, 1786, negotiated by Mr. Eden, under the auspices of Mr. Pitt, with France, Great Britain engaged that "free ships should make free goods, and enemies' ships enemies' goods."(e) In the debate which took place in Parliament upon the preliminaries. of this treaty, it was objected that they contained a recognition by Great Britain of the doctrines of the Armed Neutrality. To this it was answered that the provisions of this treaty were only intended to apply to a case, in itself improbable, that either of the contracting parties should be engaged in a maritime war, whilst the other should remain *neutral, and that these provisions were not intended to furnish a general rule to be observed towards other nations.(f) [*278] This authoritative interpretation of the treaty is remarkable and important, and appears to have been entirely overlooked by those(g) who have cited the treaty as evidence that Great Britain intended to introduce the general principle of free ships free goods, into the International Code of Maritime Law. CXCIII. The United States of North America, the new Power which had firmly established itself before the Treaty of Versailles was made in 1783, and which carried the doctrines of International Law into a new hemisphere, incorporated the two maxims, free ships free goods, and enemies' ships enemies' goods, into her treaties with Holland in 1782, with Sweden in 1783, and with Prussia in 1785.(h) CXCIV. The benevolent and philosophical Franklin introduced into this last-mentioned treaty various stipulations, having for their object to mitigate the necessary horrors of war, abolishing privateering, protecting fishermen and unfortified cities, and providing for the good treatment of prisoners.(i) The interval between the two Armed Neutralities is still more remarkable for the appearance of two celebrated works on the rights and duties of Neutrals by two Italian jurists, Galiani and Lampredi. Galiani was, as he tells us, ordered to write his book as fast as possible, to defend the conduct of the King of the Two Sicilies in adhering to the Russian League. He published his work at Naples in 1782.(k) In 1788, Lampredi published his work at Florence.(7) He expressed his (c) Ib., 68. (b) De Martens, iv. 42. (g) Edinburgh Review for July, 1854, p. 214. (h) Elliot's (American) Diplomatic Code, I., pp. 134-168, 334. (i) Wheaton's Hist., p. 308. Vide ante, p. 8, sec. iv. (d) Ib., 76. (k) Dei Doveri dei Principi neutrali verso i Principi guerregianti, e di questi verso i Principi neutrali. Napoli, 4to., 1782. (1) Del Commercio dei Popoli neutrali in Tempo di Guerra. Firenze. He had previously published Juris Publici Universalis, sive Juris Naturæ et Gentium Theoremata. Liburni, vol. iii., 1776-8. Mr. Wheaton considers him to be a much abler writer than Galiani.-Wheaton's Hist., 310. [*279] conclusion, founded upon *very learned premises, that there was no comparison between the relative importance of the rights of the Belligerent and of the Neutral, assuming them to be in collision upon the question of enemies goods on board neutral ships. For what, after all (he says,) is the injury sustained by the Neutral from the capture of his vessel laden with enemies' goods, if his vessel be restored, and he, as the treaties and usage of nations require, be paid his freight? Merely the delay and the possible loss of a return voyage. On the other hand, if the right of the Belligerent be forgone, the fatal consequence may ensue that the entire commerce of the enemy may be carried on under the neutral flag, and thus escape from capture, to the great injury of the Belligerent, the main object of whose maritime warfare is to destroy the commercial resources and revenues of his enemy, the sinews of his naval power. CXCV. It has been said(m) that all the members of the Armed Neutrality abandoned, upon the very next opportunity of their becoming Belligerents, the creed which they had sought to enforce by arms when Neutrals. The forward zeal of Sweden in favour of this creed has been noticed. Let us now, having careful reference to dates, look at the conduct of those States. The Armed Neutrality was in 1780. The Peace of Versailles was in 1783. The next war, in which Sweden was a Belligerent, happened in 1788: it was a war against Russia. Her first act was absolutely to renounce the principle of free ships free goods, which she had contended for so furiously as a Neutral. "It would be too gross an affront" (Mr. Ward observes) "to her justice to suppose that she has two lines of conduct,―one as Neutral, the other as Belligerent: we *will [*280] therefore rather suppose that she saw the errors into which the aspiring genius of Russia, or her own impulses, heightened, perhaps, by the incidental injuries inseparable from war, had betrayed her; and that she thought, as her Treaties bade her think, that the principle before us could only be matter of convention." (n) Such was the conduct of Sweden, practically affirming that this supposed right of the Neutral was inconsistent with the clear right of the Belligerent. As to Denmark, we have seen that in the year of the Armed Neutrality, 1780, she signed a Treaty against the principle, free ships make free goods, on the 4th of July, and in favour of it on the 8th. By the Convention of 1794, Denmark and Sweden renewed the renunciation of the maxim, free ships make free goods, which they had made in their Treaties about one hundred years before. These Treaties had never been abrogated, and by this convention these States declared that they claimed no advantages other than those which were clearly founded upon their respective Treaties with the different Powers at war. Denmark, moreover, especially confirmed her ancient Treaty, referring, in her instructions to her merchants,(o) to her Treaty of 1670 with England, in which it was stipulated that there should be a certificate amongst the ship's papers to prove that the cargo belonged to a neutral (m) Vide ante, p. 275. (n) Ward, pp. 164-5. (0) Feb. 22, 1793. Power, and ordered her magistrates in 1793 to deliver such necessary certificates. But what did the author of the League(p) itself do? Why, on the 8th of February, 1793, Russia herself declared that her Treaty with France of 1786, in which the two principles which have been so much discussed were contained, were no longer obligatory until the restoration of order in France.(g) She went much farther, however, and renewed in the same year her Treaty with England of 1766, the stipulations of *which were, that neutral commerce should be carried on "accord[*281] ing to the principles and rules of the Law of Nations generally recognized." (r) Nor did she even stop here, but on the same day entered into another Treaty with Great Britain, by which the two Powers engaged to prevent Neutrals "from giving, on this occasion of common concern to every civilized State, 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."(s) In the very same year, Great Britain concluded Treaties containing articles to the same effect with Spain,(t) with Russia, (u) and with Austria.(x) France, the most important member of the Russian League, was not the last to throw overboard the doctrines for the propagation of which it was established. On the 9th of May, 1793,(y) a decree of the National Convention declared that enemies' good on board neutral vessels were good prize; that the vessels were to be released, and freight paid to the captors on the 21st of March, 1797.(z) The Executive Directory issued a similar decree. CXCVI. So much for the fruits of the first Armed Neutrality. The soundness of the principle, and the faith of the engagements, were wafted, with the first breath of war, to those winds which bore the fleets and privateers of the Neutral League, now become Belligerent, to execute not the new but the ancient maritime International Law. Atque îdem venti vela fidemque ferunt."(a) *CXCVII. The conduct of the United States of North Ame [*282] rica with respect to this subject, deserves especial notice. This nation had been the cause of that war during the course of which appeared the first Armed Neutrality. It was at least her apparent interest to sanction the new law. Still more was she animated to do so by her resentment towards Great Britain and by gratitude to France; but her conduct with respect to this matter has been, under the most trying circumstances, marked not only by perfect consistency, but by preference for duty and right over interest and the expediency of the moment. The Treaty of the United States with France in 1780 was founded (p) Manning, p. 272. (s) Ib., v. 440. (y) Ib., 382. (t) Ib., 447. (9) De Martens, v. 382. (r) De Martens, 432. (u) Ib., 485. (x) Ib. 489. (z) Ib., 393. (a) Ovid, Ev. vii. upon the stipulations of 1778, by which this Power, as far as her own predilections and private wishes were concerned, was at all times ready to abide. In her Treaty with England of 1795, (b) these predilections and wishes, which had found their legitimate issue in particular conventions, were abandoned, and their place was taken by the ancient general law. By the seventeenth article of this Treaty, the United States agreed that enemies' property on board her vessels should be confiscated, the ship and the remainder of the cargo being allowed to depart without hindrance; but that, on just suspicion, the vessels themselves might be detained and carried into the nearest port for the purpose of examining and adjudicating upon them. CXCVIII. It was of course perfectly competent to this Power to make these two different Treaties with different States, and, to her enduring honour, she adhered to both under circumstances of some difficulty. In 1798, France promulgated(c) a new doctrine to the United States, viz., that as this Power was bound to treat France as the most favoured nation, it was also bound not to allow French property on board American ships to be seized by British cruisers, while they prevented the seizure of *British property in the same situation by the French. This demand was refused, and France threatened war in conse[*283] quence. It is most truly said by Mr. Ward,(d) that the answers of the Ünited States to France were models of dignified and convincing argu ment. "Before the Treaty with Great Britain" (it is represented in one of these notes,) "the Treaty with France existed. It follows, then, that the rights of England being neither diminished nor increased by compact, remained perfectly in their natural state, which is to seize enemies' property wherever found; and this is the received and allowed practice of all nations, where no Treaty has intervened." A new Law of Nations, it is pretended, was introduced by the Armed Neutrality; but who were the parties, and what was their object? "The compact was in its own nature confined, with respect to object and duration. It did not purport to change, nor could it change permanently and universally the rights of nations not becoming parties to it. The desire of establishing universally the principle, that neutral bottoms shall make neutral goods, is perhaps felt by no nation on earth more strongly than by the United States. Perhaps no nation is more deeply interested in its establishment; but the wish to establish a principle is essentially different from a determination that it is already established. The interests of the United States could not fail to produce the wish; their duty forbids them to indulge it, when decided on a mere right.”(e) "The complaints of the French," said another note of the American Minister to his President,(f) " had reference, amongst other things, to the abandonment by the Americans of their neutral rights, in not main (b) De Martens, v. 672. (c) Ward, 167. (e) Ib., 168, citing Collection of Acts, 198, &c. (f) Mr. Pinkney to General Washington. (d) Ward, 167. taining the pretended principles of the modern Law of Nations, that free ships make *free goods; and that timber and naval stores are not contraband of war. [*284] "The necessity, however, for the strong and express stipulations of the Armed Neutrality itself by all the various Powers which joined it, showed" (as the note went on to state) "that those maxims were not in themselves law, but merely the stipulations of compact; that, by the real law, belligerents had a right to seize the property of enemies on board the ships of friends; that Treaties alone could oblige them to renounce it; and that America, therefore, could not be accused of partiality to Great Britain, because she did not compel her to renounce it."(g) CXCIX. In the year 1795, the United States made a Treaty with Spain, including a stipulation the reverse of that contained in their Treaty with England in the same year. In the Spanish Treaty it is stipulated, that cargoes in neutral ships shall be free, no distinction being made as to who are the proprietors of the merchandises. (h) In 1799, the United States entered into a Treaty with Prussia, by the 12th article of which they declared, that as experience showed that the maxim, free ships make free goods, had not been respected in any of the wars since 1785, Prussia and the United States should, in a future time of peace, either separately between themselves, or jointly with other Powers, concert measures for the future condition of neutral commerce in time of war; meanwhile, these two Powers agree that their ships shall conduct themselves as favourably towards the merchant vessels of the Neutrals as the cause of the war then existing might permit, observing the general rules of International Law.(i) But in the next year, 1800, the old French doctrine of free ships free goods, enemy's ships enemy's goods, was *incorporated into a Treaty between France and the United States.(k) [*285] During the war which commenced between the United States and Great Britain in 1812, the Prize Court of the former uniformly enforced the generally acknowledged rule of International Law, that enemies' goods in neutral vessels are liable to capture and confiscation, except as to such Powers with whom the American Government had stipulated, by subsisting Treaties, the contrary rule, that free ships should make free goods.(7) CC. In the Treaty of Commerce of 1797, between Russia and England, the article which relates to neutral commerce(m) is silent on the question, and therefore the old law remained unchanged. In the next year (1798,) Russia entered into a Treaty with Portugal, in which it was stipulated, that free ships shall make free goods, but also that neutral goods in an enemy's ship should be confiscated.(n) CCI. The first Armed Neutrality(0) took its rise, as we have seen, in the ignoble rivalship of contending courtiers, and the vanity of a disso (g) State Papers, 5, 281, 286. (h) Art. XV. De Martens, vi. 154. (k) De Martens, vii. 103.-Arts. XIV., XV. (1) Wheaton's Elem., p. 580.-Ed. Lawrence, 1855. (m) Art. X., Ib., 362. (n) Art. XXIV., Ib., 550. (i) Ib., vi. 676. (0) Manning, p. 274. |