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Lost sight of in subsequent statements of the neutral contention; it only held good so long as the neutral nation pursues only its own commerce, without engaging in what may be called with justice "faire le commerce des ennemis pour eux." Then the neutral would become an auxiliary, and after due notice would deserve to be treated as an enemy.
Freedom of the Seas
THE SEVEN YEARS WAR, 1756-63
IN 1756 the long-simmering dispute between France and England over their American colonies broke out, and the Seven Years' War began. The war holds an important place in the development of the principles of English maritime warfare, because what is known as the "Rule of 1756" was put in force immediately it commenced. Stated concisely, the "Rule is this: If neutrals engage during war, either on their own account or on behalf of the enemy, in commerce which is forbidden to them by that enemy in time of peace, they are held to be assisting or identifying themselves with the enemy; and their vessels are therefore treated as enemy vessels, and confiscated.
The colonial and the coasting trades were monopolies. When, therefore, the enemy threw them open to the neutrals, the "Rule" the "Rule" applied. It is generally assumed that the Rule was abandoned after the Napoleonic Wars, as it had caused so much ill-feeling among the neutrals. But M. Drouyn de Lhuys informs us that in 1854, when arrangements were under consideration for assimilating French and English practice during the Russian War, the British Government desired to maintain the Rule. M. Drouyn wrote at that time to the French Ambassador in London:
"Le Gouvernement anglais paraît insister pour que le projet de déclaration défende aux neutres de se livrer, pendant la guerre, soit au commerce colonial, soit au cabotage, s'ils sont réservés pendant la paix. Je n'ai pas besoin de vous rappeler avec quelle persistance le Gouvernement français, à toutes les
1 Printed in a Mémoire published in Paris in 1868.
époques, a soutenu les réclamations nombreuses et vives que l'adoption de cette règle souleva, dès l'origine, de la part des nations neutres. La France est donc liée par ses précédents historiques; elle l'est également par des traités faits avec plusieurs Etats dont elle s'est engagée à laisser les navires naviguer librement en temps de guerre, même entre deux ports ennemis.
This statement must be accepted with as much reserve as the suggestion that the Rule itself has been abandoned. It amounts to no more than that the Rule pressed heavily on France as a belligerent, and that she had joined her protests to those of the neutrals at the time of the Armed Neutralities.
Independent criticism of the soundness of the Rule as a principle of belligerency, which M. Drouyn's statement would appear to suggest, is wanting. The Rule has been included in the general condemnation of belligerent interference with the neutral trade with the enemy; but in the last section of the Prussian answer to the Law Officers' Report (see p. 36) there is an express recognition of the right to prevent neutrals trading on behalf of the enemy : in other words, identifying themselves with the enemy, which is precisely the principle on which the "Rule of 1756 " rests. It is a fact, however, that when two Powers have agreed to allow trading with one another's enemies, there is often a special provision that this trade may be carried on " from port to port of the enemy. This
referred to the coasting trade; also, it was contended. to the colonial trade. Such a provision exists in the Commercial Treaty of Utrecht between England and France. England also accepted it in the treaty concluded with Russia in 1801 as a quid pro quo for Russia's abandonment of "free ships free goods.'
THE WAR OF AMERICAN INDEPENDENCE, 1776-83
THE discussion of the neutral question in this war merges into the story of the First Armed Neutrality, to be considered in the next chapter, and need not therefore detain us. But a few extracts from the Diplomatic Correspondence of the American Commissioners who were sent to the Continent may be usefully referred to. Benjamin Franklin wrote of the Northern League :
"All the neutral States of Europe seem at present disposed to change what had before been deemed the law of nations, to wit, that an enemy's property may be taken wherever found, and to establish the rule that free ships make free goods. This rule is itself so reasonable and of a nature to be so beneficial to mankind that I cannot but wish it may become general; and I make no doubt that the Congress will agree to it in as full an extent as France and Spain. .
"I approve much of the principles of the confederacy of the Neutral Powers, and am not only for respecting the ships as the house of a friend, though containing the goods of an enemy, but I even wish for the sake of humanity that the law of nations may be further improved by determining that even in time of war all those kinds of people who are employed in procuring subsistence for the species, or in exchanging the necessaries or conveniences of life which are for the common benefit of mankind, such as husbandmen on their lands, fishermen in their barques, and traders in unarmed vessels, shall be permitted to prosecute their several innocent and useful employments without interruption or molestation and nothing taken from them, even when wanted by an enemy, but on paying a fair price for the same.
At a later date he condenses his views into a short formula:
"In short, I would have nobody fought with but those who are paid for fighting. If obliged to take corn from the farmer, friend or enemy, I would pay him for it, the same for the fish or goods of the others."
All the Commissioners were not so simple-minded. Arthur Lee, referring to the law introduced by Louis XVI in July 1778, which had adopted "free ships free goods," on terms, but from the benefit of which he threatened to exclude the Dutch if they did not enforce what they believed to be their treaty rights against England, says:
To make them [the Dutch] and other neutral nations fee' the necessity of supporting the privileges of their flags agains the English, this Court has declared its determination to make prize of all goods belonging to the enemy found in neutral ships, so long as the same is permitted to be done by the British cruisers, with regard to the effects of France in the same situation. This is such a blow to their interests as, it is imagined, must rouse the Dutch to vigorous exertions against Great Britain in support of their privileges as common carriers.'
A few sentences from John Adains' correspondence in March, 1780, show a very accurate appreciation of the question in dispute the imperative necessity for France to obtain ships' timber and naval stores to carry on the war--though it did not lead him to amend his views in regard to it:
"England abuses her power, exercises tyranny over commerce. . It is essential that the Sovereign of every commercial State should make her nation's flag respected in all the seas, and by all the nations of the world. The English, not content with making her flag respectable, have grown more and more ambitious of making it terrible. The grand business is done between the Northern Powers on a footing very convenient for Holland, as it must compel the English to cease interrupting the trade of the neutral Powers. This would be more beneficial to France and Spain than to Holland, by facilitating the acquisition of ship timber, hemp, and all other things for the supply of their arsenals of the Marine. A principal branch of the British policy has ever been to prevent the growth of the navies of their enemies by intercepting their supplies. . . The greatest number [of the ships under the Dutch convoy in 1799] have escaped and have carried to France the most efficacious succours of which she stood in the greatest necessity.
The principle which the English contend for has no other foundation but the insular position of Great Britain, and the convenience of that nation. The principle which the neutral