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XXII. Either party may traffick freely to any country at war with the other, observing the stipulations of the fifteenth article, in relation to contraband and places besieged."
In the Treaty of St. Germain-en-Laye, however, in 1677, the subject is dealt with in a much more elaborate manner. The articles are very complicated, because the case of each of the contracting parties is dealt with separately. Article I lays down the general principle of freedom of commerce carried on by the subjects of each country with all countries in peace or neutrality, without molestation on pretext of war between the other party and those countries. The words used are naviguer, négocier, et faire toute sorte de trafic " ; and they are specifically explained to mean that, with the exception of contraband, traffic in war is to continue as in peace.
Whatever might be the interpretation of this article if it stood alone, its meaning is explained in Article VIII, which will be more easily understood by taking the concrete case of war between France and, say, Holland, England remaining neutral. The principles, and the only principles, laid down are these:
(a) That English goods on Dutch [or French] ships may be seized: affirming "enemy ships enemy goods et au contraire
(b) That Dutch [or French] goods on English ships may not be seized: affirming "free ships free goods.'
The article then proceeds to deal with the case of a new war," and declares that it seeks to prevent such a war, in which one of the parties may become engaged, from doing harm to the subjects of the party remaining at peace. The seizure of an enemy ship laden with the goods of subjects of this party is not to render the goods liable to confiscation if they are laden within a certain period after the outbreak of war, the principle enemy ships enemy goods "being thus suspended for a time.
The acceptance by England of principles entirely at variance with her ancient maritime law is at first sight
startling. In order to understand the reason we must first appreciate the extreme severity of French maritime law towards neutrals. Not only were enemy goods seized on neutral ships, but the ships themselves were confiscated in virtue of the Ordinance of 1681. Also neutral goods were seized on enemy ships.
The position then before the Treaty of St. Germainen-Laye was that both France and England seized enemy goods on neutral ships, but France seized the neutral ships as well. She also seized neutral goods on enemy ships, while England restored them, only confiscating the vessel. But after the treaty, although the general laws of both countries remained unaltered, in wars in which one of the two countries was engaged, the other remaining neutral, both countries seized that neutral's goods on enemy ships, and both released enemy goods on that neutral's ships. Both countries, therefore, for this limited purpose, accepted "free ships free goods"; but, in doing so, France made a greater change than England, for she gave up the seizure of neutral ships which had enemy goods on board. The result was that, when France went to war, English neutral ships were freed from confiscation when carrying enemy goods. It was a concession for which a price was paid: enemy goods themselves were freed.
Yet even this does not explain the radical change in the law reciprocally agreed to in this treaty; for France also gave up the confiscation of enemy goods on neutral ships when they were English.
We may legitimately assume that France would not have abandoned her ancient practice without a quid pro quo. The inference is clear; England's acquiescence in enemy ships enemy goods" was the
consideration for the benefit obtained in favour of English ships. This view is supported by Schoell and Reddie.
This principle is so foreign to English principles of maritime law that a brief space must be devoted to it. The justification for its adoption is that it checks one form of assistance to the enemy; the reason for it is
that the enemy flag does prima facie impart its quality to the goods on board. But, this once admitted, it would follow that the neutral flag should also impart its quality to the goods laden under it; and thus the adoption of free ships free goods" logically followed, the justification being the mutual trade advantages derived from it. It was an arrangement by which a war in which one party should be engaged was prevented "from doing harm to the subjects of the party remaining at peace." Henceforward, therefore, the principle that the flag governed seizures was established between the two countries when one of them was at war with another Power.
This explanation inverts the usually accepted order of evolution of the two maxims, but it affords a solid reason for, and explanation of, the changes in the law of France in favour of English ships: the reciprocal adoption by both countries of a new principle of seizure, from which, while both would lose in some circumstances, both would profit in others. Moreover,
it fits in with the sequence of the maxims as dealt with in Article VIII, and the use of the words "et au contraire" (p. 21), in introducing "free ships free goods."
This distinct trace of a natural evolution eliminates from "free ships free goods" the humanitarianism which has been appealed to in support of it at a later period. It also eliminates any general idea of commercialism in the sense of benefiting the neutral. It substitutes very substantial but reciprocal commercial advantages to the parties to the treaty.
The provisions of this Treaty of Utrecht now become intelligible. First, they are no more than a renewal of the provisions of Article VIII of the Treaty of St. Germain-en-Laye, the first part of Article XVII being almost identical with the earlier article. They were in need of renewal on account of the revival in 1704 (during the Spanish Succession War) of the French Ordinance of 1681. The settlement of outstanding commercial questions at Utrecht was made
the occasion for adjusting the difficulty and reaffirming the provisions of the Treaty of St. Germain-en-Laye. Secondly, the principle "enemy ships enemy goods was also reaffirmed at Utrecht, a point which the commentators invariably overlook. Finally, the words "Et comme il a déjà été stipulé" explain themselves; they refer to the introduction of "free ships free goods into the Treaty of 1677, and not to its reaffirmation in the first part of the article. The object of the second part of the article was merely to extend the principle of " free goods " to " free persons on board enemy ships.1
It is impossible that the second part should refer to the first part of the article, because it recites a provision which is not contained in it:
'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. .
There are similar though not identical stipulations in Article VIII of the treaty of 1677-"bien que les dites marchandises fissent la meilleure partie de la charge entière des dits vaisseaux." The meaning of this is that free ships are to make free goods, even though the greater part of the cargo belongs to the
It is necessary to notice a curious and most misleading mistranslation of the French text in the English official version of the treaty, which is printed in Chalmers' Collection, and reproduced by Reddie. The sentence beginning" Et, comme il a déjà été stipulé is rendered, And it is now stipulated concerning ships and goods, that free ships shall give a freedom to goods. This version of the article has undoubtedly given rise to the statement above referred to, that England adopted the maxim in the Treaty of Utrecht; and all the criticisms of her subsequent action in regard to the maxim are clearly based upon it. It is sufficient to point out that the words themselves, il a déjà été stipulé," show that the principle was not accepted then, but had already-déjà-been agreed to. It is further to be noted that the treaty is bilingual, both the Latin and French texts being joint originals. They are printed textually in Actes et Mémoires.
enemy. The meaning of the reference in the Treaty of Utrecht is that free ships make free goods if the whole or even a part of the cargo belongs to the enemy.
Can this discrepancy in the reference be explained? It can only be a verbal discrepancy, because it is not possible to construe the earlier provision to mean that the ship is to impart its freedom to the goods if, say, seven-eighths, but not the whole cargo, is enemy; and, therefore, the existence of variable texts of the treaty of 1677 might possibly furnish the reason. The more probable explanation, however, is that the proceedings of the French during the war, especially the re-enactment of the law of 1681, had aroused suspicions; and that, therefore, a paraphrase, intended to remove any doubt as to the meaning of the earlier provision, was introduced into the Treaty of Utrecht.
The result of this somewhat elaborate analysis of Article XVII of the Treaty of Utrecht may now be summarized. It disposes of the contention that England adopted in that treaty the novel principle that when she was at war the neutral flag should cover enemy cargoes.' It refers that adoption to a much earlier period. But in regard to this adoption it established these facts; first, that it was for a very definite purpose to relieve English vessels when neutral in French wars from the severity of French maritime law. It was therefore limited in its scope and intention to France. Secondly, it was not adopted by England alone, but also by France. Quite apart from the reason for the change, there was a reciprocal concession for a reciprocal advantage. Thirdly, this reciprocal arrangement was not merely that the neutral flag should cover enemy's goods, but that "the flag should cover the cargo in all cases; if the flag was enemy, then the goods were to be considered enemy; if neutral, then the goods were to be considered neutral.
1 See Cambridge Modern History, Vol. V., p. 443.