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cannot attack his enemy nor seize his goods in such a place; and the Prussian vessels were a neutral place:
Cette loi du droit des gens se trouve confirmée par cette maxime notable, expressément établie dans les traités entre l'Angleterre et la Hollande et entre l'Angleterre et la France, que les vaisseaux libres rendent les marchandises libres."
It was further contended that neutral commerce with a belligerent continued during war on the same footing as in peace, except in regard to contraband, which was limited to munitions of war.
To the general proposition advanced by the Prussian lawyers, that the sea is free, the English Law
They who maintain that proposition in its utmost extent do not dispute but that when two Powers are at war they may seize the effects of each other upon the high seas, and on board the ships of friends. Therefore that controversy is not in the least applicable upon the present occasion.
This, they said, was too clear to admit of dispute. It was supported by every writer upon the Law of Nations, and by the constant practice; but the general rule could not be more strongly proved than by the exceptions which particular treaties had made to it.
Dealing with the specific proposition that free ships make free goods, the English Law Officers went to the root of the matter. The new doctrine had been deliberately invented to justify a new form of neutral assistance to the enemy. From 1746 " the Prussians engaged in the gainful practice of covering the enemy goods; but were at a loss in what shape, and upon what pretences, it might best be done"; before that year they "don't appear to have openly engaged in covering enemy's property.'
This practice was not justified by the Law of Nations, which had established the following propositions: (1) That the goods of an enemy, on board the ship of a friend, may be taken. (2) That the lawful goods of a friend, on board the ship of an enemy, ought to be restored. Particular treaties bad, how
ever, by agreement, inverted both these rules, declaring. the goods of a friend, on board the ship of an enemy, to be prize; and the goods of an enemy, on board the ship of a friend, to be free.’ (3) That contraband goods, going to the enemy, though the property of a friend, may be taken as prize.
These propositions justified the seizure of the Prussian ships. The Law Officers' reference to the inversion of the rule of the Law of Nations by some treaties, including the Commercial Treaty of Utrecht, was probably sufficient for their purpose, which was simply to show that no such agreement existed with Prussia. And indeed the Prussian lawyers had not relied on that treaty as governing the case. It was referred to, as also the treaty of 1674 between England and Holland, in order to establish the application to the case of the alleged principle that "le droit des gens se vérifie principalement par les exemples et les traités des puissances maritimes." Both sides, therefore, appear to have recognized that the Commercial Treaty of Utrecht did not apply to the case; though the reason was not specifically mentioned. As pointed out in the preceding section, that treaty did not accept "free ships free goods as applicable to war between England and France. It did no more than allow each Party to trade freely with, and carry free the goods of, any third State with which the other Party might be at war.
The third document (see p. 29) emanated from the French Government. The British Cabinet had asked France for bons offices in the settlement of the dispute. Both the Exposition des Motifs and the Answer had been published to the European Powers; and the French Government tried to convert this request into one for mediation. There were still some outstanding questions between England and France in respect of prizes taken during the war; and the occasion for presenting a Note was too good to be missed. Some of
1 Cf. Satow, op. cit., ch. xiv.
the principles of prize law contained in the Law Officers' opinion necessarily affected the rights of French subjects; it seemed indispensable, therefore, to state those on which France agreed, and to discuss others in the hope of arriving at some agreement in regard to them. A few paragraphs in this document' merit attention.
The proposition was accepted that a belligerent has the right to seize the ships, cargoes, and property of his enemy on the high seas, and that everything that belongs to the enemy is good prize, while the property of a friend, so long as he remains neutral, cannot be seized. But the conclusion was not necessarily that which the Law Officers had drawn. This is dealt with in the following paragraph, to be specially noted on account of the very hesitating way in which "free ships free goods is advanced. The Law Officers, it said, had drawn the natural conclusions from the general principle; but, as exceptions often prove the rule, the opposite doctrine which supported the maxim might possibly (peut-être) be the right one.
Les Magistrats anglais ont tiré de ce principe plusieurs conséquences. La première, que les effets d'un ennemi peuvent être saisis, quoi qu'à bord d'un vaisseau ami; la seconde, que les effets d'un ami doivent être rendus, quoi que trouvés à bord d'un vaisseau ennemi.
"Ces deux conséquences paroissent naturellement résulter du principe que l'on vient de rapporter; mais comme l'exception est souvent une confirmation de la règle, on pourrait peutêtre soutenir que le pavillon ennemi rend la marchandise de l'ami sujette à la confiscation."
It was then suggested that the uncertainty of the consequences resulting from the general principle of seizure of enemy property had probably been the reason why nations had agreed in treaties that their flag should cover enemy goods; though it was not possible to decide whether these stipulations were an exception to, or a confirmation of, the Law of Nations. At any rate, the uniformity of the treaties on this subject may
1 Satow, op. cit., Appendix, No. 75.
be taken as "a sort of maritime jurisprudence accepted by the European Powers. Whether this were so or not, the treaties of France with England and Holland are formal on the question; they are the law on the subject between France and these two countries, irrespective of what the Law of Nations may be on the subject.
It is clear from what has already been said, that the several Commercial Treaties of Utrecht are here given a larger significance than their language warrants.
The French Government also objected to the third consequence drawn by the Law Officers from the fundamental principle, that contraband going to the enemy is good prize, although it belongs to a friend. based on the supposition that the European nations were in agreement as to what goods are contraband. In the absence of agreement the result of this would be that each belligerent could decide what he proposed to treat as contraband, and "on pourroit envelopper sous ce vaste prétexte presque toutes sortes de marchandises et d'effets."
The argument again adopts treaty agreements as substantive rules of the Law of Nations. The Law Officers had not explained with precision what they held to be contraband; it was, therefore, necessary to look upon existing treaties as the least equivocal and most impartial statements of what the European nations considered contraband. By these treaties the definition of contraband was limited to soldiers, horses, and munitions of war, and provisions carried to a blockaded port. If the English Courts had condemned cargoes of wood and hemp (bois et chanvre), or provisions going to ports not blockaded, as contraband, it was clear that they had not these treaties before their eyes.
Thus the question on which the discussions during the next sixty years were to turn was quite frankly stated. "Bois et chanvre" may be taken as standing for ships' timber and naval stores. They were not included in these treaty definitions of contraband;
therefore they were not contraband. The reference to provisions is important. It implies that, if they are going to a blockaded port, they may be treated as contraband. Even in those days, therefore, the intimate relation in principle between blockade and contraband must have been appreciated.
Two further documents were prepared; the Answer of the English Law Officers to the French Mémoire, and the Prussian Answer to the English Report. Neither of these documents was presented, as the dispute was amicably settled. The English answer is not extant; but the most important part of the Prussian answer is printed in Vol. II. of Martens' Causes Célèbres. It is interesting, because its statement of the contention, that "free ships free goods" is a principle of the Law of Nations, is more primitive than that contained in the Exposition des Motifs. Briefly it was as follows: By natural right a man may not be dispossessed of his property even for a single moment; therefore his ship cannot be visited to search for enemy property any more than his territory. "Free commerce and navigation" is of universal utility; "tout le monde y trouve son compte." This is the fundamental principle of the Law of Nations. The inconvenience resulting from the opposite rule has led the majority of commercial nations to adopt "free ships free goods by treaty; therefore these treaties are not an exception, but show that the rule ought to be followed by all nations. No nation has a greater interest in its universal recognition than the English; for what would become of their commerce with the East and West Indies in the event of war between Spain and Holland?
Enemy ships enemy goods" is the parent rule of" free ships free goods ; and the rule of the flag in its two branches sets at rest all disputes as to the nature of the cargoes, and leaves to each neutral nation free commerce in everything except contraband, and in the blockaded ports. But to this broad principle a very important exception was admitted, which has been