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Secondly, the Report is based on a fallacy. A treaty has no larger effect than the parties themselves propose to give to its provisions. It binds those who make it and those who adhere to it, but no others. And what is true of one treaty between many parties is equally true of any number of identical treaties. Although, therefore, the observance of a treaty, like the fulfilment of any other agreement made by States, is rightly said to be required by the Law of Nations, the provisions of a treaty have no claim to be regarded as principles of that law.
It was boldly asserted by the Prussian lawyers in the Silesian Loan dispute that treaties of maritime nations are evidence of the Law of Nations. I doubt if so crude a statement is ever now made; a more insidious argument has taken its place. It is contended that, where the same provision is found in many treaties, this shows that the trend of opinion among the nations is favourable to that provision, and that this is practically equivalent to its adoption as a principle of International Law. But this contention is completely answered by history. Many treaties, almost identical in their provisions, were concluded at the time of the First Armed Neutrality. Not only did England decline to admit that they were principles of International Law, but the parties to them found them so unpractical when they were themselves belligerent, that within a few years they all had abandoned them.
The Report is also inaccurate in another statement of fact. The "Treaty of Utrecht" did not fulfil any condition, real or imaginary, which justified the Duc de Bassano's assertion that it became, or was ever intended to become, the "common law of nations. It is no more than a convenient historical expression used used to indicate all the treaties by which the War of the Spanish Succession was brought to an end in 1713. There were separate treaties between England, Prussia, Holland, Savoy, and Portugal on the one hand, and France and Spain on the other. These were treaties of peace, with
Freedom of the Seas
which we have no concern. There were also commercial treaties between England and France, England and Spain, France and Holland, Spain and Holland, France and Savoy, and Spain and Portugal. Only the first three dealt with trade between neutrals and the enemy. According to the Duc de Bassano, therefore, the "common law of nations" depends on the identity of principles adopted in these three treaties.
Yet even this does not exhaust the fallacies with which the subject is surrounded. It is very commonly asserted that, by the Commercial Treaty of Utrecht between England and France, England "accepted the doctrine that free ships make free goods. If this were true, the hostile criticism of England's attitude would be amply justified. It is essential, therefore, once and for all, to get at the true facts of the case.
A brief study of the meaning of the doctrine will be necessary, because the assertion that enemy property ought to be, and therefore is, exempt from capture on board neutral ships, is woven into every phase of the history of England's disputes with the neutrals, and is the cardinal principle on which rests the spurious "Freedom of the Seas.' All the subtleties involved in its gradual rise to its present prominence must be studied quite apart from the fact that it was included in the Declaration of Paris.
Now, first, it is a treaty formula, and nothing else. In spite of all that has been alleged to the contrary, the principle involved in the formula is not, and never has been, a principle of International Law. The laws of no State recognized it prior to the French law of July 1778, but, on the contrary, the laws of all maritime States empowered their cruisers to seize enemy property on neutral ships.
On the very threshold of the enquiry, moreover, we are confronted with a difficulty. For the practical purpose of appreciating what the consequences of the maxim would be in war, it would seem essential to be familiar with the wording of the clauses embodying it. In no other way can we ascertain to whom the privilege
has been granted, and in what circumstances it may be exercised. Nowhere so far as I have been able to trace has the form in which the maxim is commonly introduced in the treaties been fully considered and properly emphasized. It is to this effect: if one of the two contracting parties is at war with a third State, then the other, remaining neutral, may trade freely with the enemy, and may even carry his goods free. To take a concrete case. Suppose a treaty between Holland and Peru contained this clause: then, if Peru were at war with Bolivia, Holland might carry Bolivian goods free; or, if Holland were at war with Bolivia, Peru might do the same. Obviously this is a very limited adoption of the principle, for the case of war between Holland and Peru does not come within the scope of the arrangement. If the principle were agreed to in such a case, the language of the clause would run somewhat as follows-" If the two contracting parties are at war with each other (which God forbid), then the goods of each may be carried on neutral vessels without interference from the other.'
The consequences resulting from these two forms are radically different. By the first, the right to carry free is granted to one neutral only. The enemy, the "third State" with which one of the parties may be at war, will only have a very limited right to "free" carriage for his goods. By the second, free carriage by all neutrals would be conceded to the potential enemy, and thus, through him, the privilege would be acquired by all neutrals.
There are so many treaties in which the principle is introduced, that I hesitate to make the positive statement that this second form does not exist in any of them. It is almost certain, however, that it is not to be found in any treaty prior to the Armed Neutrality Conventions. It was introduced into them in circumstances which are explained in this treatise, and also in many concluded under its inspiration between 1780 and 1800. These conventions were intended to have a collective operation; and the agreement in them
took the form of a definite statement of principle to which the several Powers adhered that free ships make free goods. Presumably, therefore, it should have applied in the case of war between any of the adhering Powers, a presumption unfortunately not borne.out by facts. Between 1800 and 1856 the practice of independent treaties between two States was reverted to; and it is during this period that the second form of the clause, if it exists at all, will be found. In 1856, with the signing of the Declaration of Paris, the question entered another phase.
This brief survey made of a very complicated subject, we may now enquire what warrant there is for any of the current statements with regard to the position of England after the Commercial Treaty of Utrecht with France. Article XVII runs as follows:
"Il sera libre à tous les sujets de la reine de la GrandeBretagne et du roi T. C. de naviguer avec leurs navires en toute liberté et sécurité, et sans distinction relative au propriétaire des marchandises qui y sont chargées, d'un port quelconque vers un endroit appartenant aux ennemis du roi T. C. ou de la reine de la Grande-Bretagne. Il sera de même permis aux susdits sujets et habitans de naviguer avec lesdites marchandises et les navires en toute liberté et sécurité des endroits, ports et stations des ennemis des deux parties ou de l'une d'elles, et cela sans aucune contradiction ni empêchement, non seulement directement des susdits endroits hostiles à un endroit neutre, mais aussi d'un endroit hostile à un autre, qu'ils soient sous la juridiction du même prince ou sous différentes juridictions.
Et, comme il a déjà été stipulé, à l'égard des navires et des marchandises, qu'un vaisseau libre rende aussi libre la marchandise, et qu'on regarde comme libre tout ce qui sera trouvé chargé sur les navires appartenant aux sujets de l'autre partie contractante, quand même la totalité de la cargaison ou une partie d'icelle appartiendroit aux ennemis de l'une ou l'autre majestés, à l'exception toutefois des marchandises de contrebande, il a été convenu de même que cette liberté s'étendra aussi aux personnes qui se trouvent sur un navire libre; de telle sorte que quand même elles sont ennemies des deux parties ou de l'une d'elles, elles ne seront pas enlevées du vaisseau libre, à moins qu'elles ne soient militaires et au service de l'ennemi."
By Article XVIII contraband was excepted from the application of Article XVII.
The provisions of this article are three. First, if one of the parties should be at war, the subjects of the other party may continue their commerce freely, irrespective of the ownership of the cargo, even to enemy ports. "Free ships free goods" is not accepted in so many words; nor is it to be derived from a provision very common in the early treaties allowing free commerce with the enemy. It is the necessary inference from the recognition of a right of free navigation irrespective of the ownership of the cargo.
Secondly, the principle is repeated and reinforced: this trade may be carried on, not only irrespective of the ownership of the cargo, but also irrespective of the ports of departure or destination, even though both may be enemy ports. In other words, the subjects of the party not at war may trade between the ports of the enemy of the other party. The principle is extended to wars in which the two parties are engaged with a common enemy. Thirdly, the principle of "free cargoes is extended to enemy subjects on board vessels belonging to the other party. Unless they are soldiers in the enemy's service, they are to be free persons.
But this third provision is stated in a long and complicated paragraph in which there is an express reference to free ships free goods," and it is this paragraph which has given rise to much misconception. It is assumed that it condenses into this formula the effect of the first part of the article.
In order to understand this paragraph it is necessary to examine the earlier treaties between France and England.
In the Treaty of Westminster, concluded between Cromwell and Louis XIV in 1655, the question was dealt with very superficially in the following articles:
'XV. That for the space of four years to come, or until other stipulations are agreed on, the ships of either nation may carry commodities of any kind to the enemies of the other, excepting to places besieged, and excepting military stores, in which cases they shall be deemed lawful prize."