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Freedom of the Seas



PEACE was signed through the mediation of the Empress Catherine II and the Emperor Joseph II in 1783, at Versailles, between England and France, and England and Spain; at Paris, without mediation, between England and the United States; and with Holland at Paris in 1784.

The mediators had informed the Courts of the League that they intended, previous to signing the treaties to which those Courts were parties, to propose to the belligerents that the four "principles" should be embodied in a Universal Maritime Code, which had, in fact, been drafted. The instructions to the Russian Ambassador in London were limited to proposing, not to insisting on, its acceptance. The proposal was declined by England. The draft Code was then laid aside, and the subject ceased to have any interest.

The statement was made by Sir William Molesworth in the House of Commons in 1854 that the Armed Neutrality "attained its object"; inferring that we were compelled to recognise its principles in these treaties of peace. He also dwelt on the fact that in the same year the United States made a treaty with Sweden which contained the "free ships free goods clause. The last is a fact, but the first is typical of many erroneous statements on the subject; it is advisable, therefore, to state exactly how the matter stands

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In the Treaty of Versailles with France, the subject was not referred to, but the Treaty of Utrecht and many others were confirmed. The Treaty with Spain is equally silent; but existing treaties were also conF 2



firmed in which the maxim was recognised. regard to the United States, it is true that she believed in the doctrine. Her policy was to develop a carrying trade, and the general acceptance of the doctrine would. be useful. It was therefore included in her treaties with those States who also approved of it as with Sweden in 1783, and Prussia in 1785. But in the Jay Treaty with Great Britain in 1795, the belligerent right of seizing enemy property on neutral ships is assumed. Article XVII contains no more than an agreement that ships detained because they have enemy property on board should be taken to the nearest convenient port, to be proceeded against without delay, and released so soon as the enemy cargo was removed.


The United States during this period never departed from the principle that the Law of Nations warranted these seizures, and that any arrangement to the con trary affected only the contracting parties. France declared war upon England in 1793, instructions were issued to the British Fleet to detain all vessels loaded with flour or grain bound for French ports; and many American ships were seized and their cargoes for France confiscated. Ignoring their own

orders to the same effect, the French Government called on the United States to protest, using the old argument that the inclusion of the maxim in many treaties showed that it was accepted as a principle of international law. Mr. Jefferson, Secretary of State, instructed the Minister in Paris as




"We have introduced it [the maxim] into our treaties with France; Holland, and Prussia; the French goods found by the latter nations in American bottoms are not made prize of. It is our wish to establish it with other nations. But this requires their consent also as a work of time, and in the meanwhile they [the English] have a right to act on the general principle without giving to us or to France cause of complaint.

The twelfth article of the Treaty with Prussia of 1799 de clared that, experience having proved that the principle adopted in Article XII of the Treaty of 1785, according to which free ships make free goods, has not been sufficiently respected during the

Freedom of the Seas

The Jay Treaty dealt with the question in the spirit of this instruction.

It is necessary now to refer to a few facts connected with the French Revolution. Catherine, struck with horror at the murder of Louis XVI, allied herself with England against the Revolutionary Government. All intercourse between Russia and France was cut off; the ports of both countries were closed against French ships; and all measures were taken for injuring the commerce of France. The two Governments also engaged to unite their efforts to prevent other Powers from giving 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.



Denmark was asked to join, but Count Bernstorff refused, declaring that le droit des gens est inaltérable; ses principes ne dépendent pas des circonstances." In spite of the Revolution, he pointed out that the country, France, still existed, and commercial relations continued; treaties were "frequently complied with, and the protection of belligerent property by the Danish flag had often been claimed with success.

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In view of the action of the Allies, Sweden and Denmark endeavoured to revive the Armed Neutrality. In March, 1794, they concluded between themselves a treaty on the old lines for maintaining their neutrality, and for the mutual protection of the " innocent navigation" of their subjects against those who should disturb the legal exercise of rights, the enjoyment of which could not be denied to neutral and independent nations.

two last wars, and especially in the one which still continues, the Contracting Parties propose after the return of a general peace to agree, either separately between themselves or jointly with other Powers alike interested, to concert with the great maritime Powers of Europe such arrangements and such permanent principles as may serve to consolidate the liberty and the safety of the neutral navigation and commerce in future wars. The scheme of establishing a code so soon as the war should be over, like Catherine's, did not mature.

The decrees of the Directory were subject to many variations. On November 15, 1794, enemy goods under the neutral flag were declared liable to seizure until such time as the enemies of France should declare French property free on board neutral ships. This was revoked on January 3, 1795, by a decree which was in its turn repealed on July 24, 1796, by a decree concerning the behaviour of the French flag towards neutral vessels ":


Il sera notifié sans délai à toutes les Puissances neutres ou alliées, que le pavillon de la République en usera envers les bâtimens neutres, soit pour la confiscation, soit pour la visite en préhension, de la même manière qu'elles souffrent que les Anglais en usent à leur égard."

This decree asserted the loyalty of France in respecting treaties which assured commercial advantages to neutral countries, and declared that the same advantages should accrue to France, but that this was hindered by the weakness of the neutrals. The circumstances, therefore, in the opinion of the Directory, warranted the refusal to abide by the treaties.

This view, that the neutrals "suffered " England to exercise what she held to be her belligerent rights, and that it was their duty to oppose them by force, was a principle of the Directory policy which was inherited from de Vergennes. It was the policy which inspired the regulation of July 1778; and it became the text for many of Bonaparte's exhortations to the neutrals later in the war.

In October 1796, a decree was issued prohibiting the importation and sale of English goods.

The position of Holland in regard to France in 1796 is thus summarised by Mahan':

"The confidence of the Directors knew no bounds, and they now began to formulate the policy toward British commerce which Napoleon inherited from them. The design was formed of forcing the United States to recede from the obnoxious con

1 Influence of Sea Power upon the French Revolution and Empire, Vol. II, p. 247.

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ventions of Jay's Treaty; and the Government of Holland, then entirely dependent upon that of France, was pressed to demand that Dutch property on board American vessels should be protected against British seizure, and to suggest the concurrence of the three Republics against Great Britain [U.S. State Papers, II, p. 13]. The Dutch accordingly represented that, when circumstances oblige our commerce to confide its interests to the neutral flag of American vessels, it has a just right to insist that that flag be protected with energy'; in other words, that, when the British control of the sea forced the Dutch ships from it, Dutch trade should be carried on under the American flag; and that the United States should fight to prevent the seizure of the Dutch property, although it admitted that the traditional law of nations would not justify it in so doing. On May 6, 1797, Spain also, doubtless under the dictation of France, made the same demand. Similar representations were made to the other neutral country, Den mark. Here is seen the forerunner of Napoleon's contention that, as against Great Britain's control of the sea, no State had a right to be neutral. Soon afterwards the idea was carried further. Denmark was requested to close the mouth of the Elbe to British commerce.

In January 1798, the Directory issued a new decree relating to vessels laden with English goods. The reasons for it were stated in a message to the Council of Five Hundred. The law of October, 1796, was insufficient. Neutral vessels carried on British trade, and even introduced articles of British manufacture into France: "By so doing they aided Great Britain and actually took part in the war." It was, therefore, urgent and necessary to pass a law declaring that "the character of vessels shall be determined by their cargo.

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"I.-L'état d'un navire, en ce qui concerne la qualité de neutre ou d'ennemi, est déterminé par sa cargaison; en conséquence tout bâtiment, chargé en tout ou en partie de mar

1 Mahan, op. cit., Vol. II, p. 249; see Moniteur, fol. ed. XXI, p. 443.

2 The question is too complicated to deal with in this essay, but it is necessary to point out that the common criticism of the Directory, that they launched decrees against English commerce promiscuously, and apparently as the exigencies of the moment prompted them, must be accepted with great reserve.

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