chandises anglaises, est déclaré de bonne prise, quel que soit le propriétaire des dites marchandises.

66

II. Tout bâtiment étranger qui, dans sa traversée, aura relâché en Angleterre, ne pourra entrer en France si non dans le cas d'une relâche forcée; il en sortira, dès que les causes de la relâche auront cessé.”

In the following year, 1799, a debate took place in the Conseil des Anciens in connection with the effect of this decree. The commercial condition of France was admitted to be disastrous, and it was attributed directly to the working of this law. A neutral ship, it was said, came within reach of the French coast only at her extreme peril. Neutrals, allies, even French vessels themselves, carrying on the little trade with the neighbouring States, were preyed on by French corsairs. Neutrals being repelled, friendly and even French shipping was scared away, and commerce was seriously crippled for want of carriage.

In 1798 Denmark adopted the policy of convoying her merchantmen, and claimed that a statement from the senior naval officer that the cargoes contained nothing contraband exempted them from the right of search. It is material to note that protective convoys had long been used; and, although a dispute arose in 1778, the First Armed Neutrality did not include this claim among its principles. However, when the quesThe more accurate explanation of their decrees I believe to be this that in nearly all cases they revived principles of the old French law, which was peculiarly severe against the neutrals, though it is probably true that, having taken this law as the basis, they developed its stringency along lines of their own. The decree of 1798 has been criticised, even by Mahan, as something especially iniquitous. The criticism should be directed against the French law on which it was based. The law of 1681 authorised the confiscation of neutral ships which carried enemy property. The character of vessels was thus determined by their cargo; in other words, "enemy goods made enemy ships." The second article of the decree was the original conception of the Directory. But even this was not a breach of International Law. A State has a right, if it choose, to prohibit its ports to foreign vessels. It was a shortsighted policy, and did much harm to French commerce. It was, in fact, one of the causes which led to the failure of the Continental System.

tion was referred by Sweden to Catherine, she declared that it came within the intent and meaning of them. She did, in fact, insert a provision by which the "right of convoy was agreed to in many treaties concluded after 1782, e.g., those with Denmark, Austria, France, Sicily and Portugal.

,,

England refused, as she always had done, to accept the principle; and, when the convoys sailed down Channel, search was demanded. When this was refused, broadsides were exchanged, and many merchantmen, laden with timber and naval stores on their way to France, were seized and taken before the Prize Court. Diplomatic discussions arose in the cases of the Swedish frigate Ulla Fersen and the Danish frigates Freya and Havfruen, which led to the Second Armed Neutrality. They will be discussed below.

The "right of convoy came before the Prize Court in connection with the seizure of the Maria,' taken in January 1798 in the Channel. She was one of a fleet of Swedish merchantmen sailing under convoy of a Swedish frigate, carrying pitch, tar, hemp, deals, and iron, to several ports of France, Portugal, and the Mediterranean. Visit and search by a British cruiser were resisted, and she was proceeded against on this ground. The question was elaborately discussed by Sir William Scott, who held that the right of search is an incident of naval warfare, which could not be resisted, even though the convoy were escorted by menof-war; and that, by the Law of Nations, the convoyed vessels were legitimately seized for resistance, and were, with their cargoes of contraband, good prize. The case went to the Appeal Court, and according to the judgment of Sir William Scott in a later case (the Elsabe, 1803), the leading and fundamental positions on which the judgment was based were affirmed.

2

The French laws, combined with English action at sea, operated disastrously on French commerce; and in 1799 the Directory admitted' that "not a single merchant ship under French colours sailed the high

11 C. Rob. 340.

4 C. Rob. 408. Mahan, op. cit. ii, 254.

seas."

In November, Bonaparte overthrew the Govern ment and became First Consul.

The relations between Great Britain and the newlyborn United States of America during the beginning of the French wars form a separate subject. The activities of the new American mercantile marine were specially directed to trade with the French West Indian Colonies; and, carrying on the tradition of the Seven Years' War, the Rule of 1756" became, at the outbreak of war in 1793, the basis of the Instructions to the British Fleet. A vigorous attack was made on the French colonial trade, the result of which was that a great number of American ships were seized and condemned.

The Instructions of June, 1793, did no more than authorize the detention of all ships laden wholly or in part with corn, flour, or meal, bound to any port in France, or any port occupied by the armies of France. The ships were to be sent to a convenient port where the cargoes would be purchased by the British Government, and the ships released after a due allowance for freight had been made out of the proceeds of the cargo. In November of the same year, however, Additional Instructions were issued, under which "all ships laden with goods the produce of any colony belonging to France, or carrying provisions or other supplies for the use of any such colony," were to be seized and brought in for lawful adjudication. This amounted to a restatement of the Rule of 1756.

The merchants of the United States were the first, and by far the most enterprising adventurers in the new field that was opened to neutrals in the Antilles; and the ports of the French islands were speedily crowded with their vessels. The United States protested, and fresh Instructions were issued in January, 1794, under which the seizures were limited to vessels laden with produce of the French West Indies, “and coming directly from any port of the said islands to any port in Europe." When the goods were the

property of French subjects, they were to be seized, to whatever ports they might be bound.

In order to appreciate the concession made by the new Instructions, it is necessary to bear in mind the point made in the Introductory Remarks, that a claim to "free commerce with the enemy "differs essentially from a claim to "free commerce pure and simple; and that the maintenance of the latter is perfectly consistent with the destruction of the former. There was a genuine market for the West Indian produce in the United States, especially coffee. It was never the policy of England to interfere with purely neutral trade; such interference could not be justified in any circumstances. This American trade with the French colonies was, however, not neutral trade with neutral; it was trade with the enemy; but it was for neutral consumption, and, in order to preserve good relations with the Americans, the concession was made.

The Instructions must be studied in the light of the truism, that a belligerent is not bound to have recourse to his full power at any time, or at all, during a war; therefore, what he may do is not necessarily to be judged by what he actually does. Some powers may be held in reserve; the exercise of extreme rights may be waived. The issue of the Instructions of 1794 is not, therefore, to be construed into an admission that the American protest against those of November 1793 was justified. It was a concession, and nothing more.

At this point the difficulties in the relations between Great Britain and the United States began to be intensified, and what came to be called at the time "Frauds of the Neutral Flag developed rapidly. The second provision of the Instructions maintained the traditional principle of belligerency-the seizure of enemy property on neutral ships. We have it on the testimony of James Stephen, who wrote in 1805, that "it was evident that the flag of the United States was, for the most part, used to protect the property of the French planter, not for the American merchant.""

War in Disguise; or, the Frauds of the Neutral Flag (1917 ed.), p. 19.

This was, however, only one method of evading the British cruisers which the connivance of the neutral trader suggested. The concession itself was full of commercial potentialities which the American traders were quick to seize. Coffee and other colonial produce were in as great demand in Europe as in the States; they could be imported freely into the United States; they were simply re-exported to France and the Continent," the broken voyage being considered to purge the origin of the commodities." Mahan says

that, "debarred from going with it direct to Europe by the Rule of 1756, the rise in price, due to diminished production and decrease of transport, allowed them to take the sugar and coffee of the colonies at war with England to American ports, re-ship it to the Continent, and yet make a good profit on the transaction." This was the germ of that devious method of getting cargoes to the enemy which was subsequently developed to such an extent as to lead the Prize Court to enunciate the doctrine of "continuous voyage,' of which, a few years later, we were to hear so much.

The friction between the two countries having become acute, the United States proposed their adjustment by treaty; and John Jay was sent as envoy to England. The treaty, concluded in November 1794, was not ratified till October 1795. American ships had, by the Instructions of January 1794, the privilege of direct trade between their own country and the British East and West Indies, but they were precluded from carrying the produce of those colonies to other foreign ports. A provision had been introduced into Art. XII of the treaty, which would have stopped the practice of the broken voyage by which they sought to evade the effect of the Instructions; but the Senate rejected it, and the treaty was ratified without it.

In 1798 fresh Instructions were issued, and a further concession was made. Vessels laden with the produce of enemy colonies were to be seized "coming directly from any port of the said islands or settlements to any

1 1 Mahan, op. cit., Vol. II, p. 253.