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port in Europe, not being a port of this kingdom, nor a port of that country to which such ships, being neutral ships, shall belong." There was the same proviso as in 1794 for seizure of cargo on neutral ships when it belonged to enemy subjects, " to whatever port the same may be bound.'
The special exception thus introduced was in favour of British ports, and was devised to carry out Pitt's policy of making England the store-house and toll-gate of the world's commerce. Its result was to make deviation at an American port unnecessary. The deviation to the Continent now occurred in England; the re-exportation which had been contrived at such a port as Marblehead could now be contrived at such a port as Plymouth.
The Instructions with their concessions, the commercial policy which prompted them, the attempt of the American trader still to evade the restrictions and to gain further concessions, form a special theme which does not fall within the compass of this essay. It culminates in the doctrine of "continuous voyage,' and, when that in its simple form proved too weak to check the ingenuity of the neutral merchant, in the evolution of the auxiliary doctrine of "common stock," which was made the test of a genuine importation into the neutral country.
The subject does, however, hold a definite place in the historical evolution of the spurious "Freedom of the Seas"; and it is, perhaps, the best illustration of the motive of the neutral which underlies it, to secure the profit resulting from a successful voyage successful that is, in getting his goods to the enemy, in spite of the obstacles created by the belligerent-and of the motive of the enemy in supporting the doctrine, to secure the successful landing of the cargoes.'
The limitations attached by the late Professor Westlake (in his work International Law-War, 2nd edn., p. 293) to the principle of continuous voyage may be referred to here in order to enter a caveat against doctrines which, if they were true, would make the principle worthless and reduce sea-power to impotence.
THE SECOND ARMED NEUTRALITY, 1800
THE foregoing survey of the events which happened between the outbreak of war in 1793 and the end of the eighteenth century will serve as an introduction to the consideration of the causes which led to the formation of the Second Armed Neutrality. It sprang directly out of the convoy question, its principal feature being the emphasis laid on the inviolability of the neutral flag, behind which, as a screen, stood the old claim to freedom of trade with the enemy. England did not deny the sanctity of the neutral flag. But she did deny that, with the question of ships' timber and naval stores unsettled, the neutral flag could protect these disputed cargoes on their way to the enemy. The "right of convoy per se is not a very troublesome question. It is based on the existence of a prohibition by a neutral Government to its merchants against shipping contraband, and requires the acceptance of a statement by the commander of the escort, after due examination, that there is no contraband on the convoyed ships. With the question of contraband not merely unsettled, but very much in dispute, it was obviously impossible for England to acquiesce in the contention. But the Armed Neutrality principle was specially unpractical, because it contemplated mutual convoys; and therefore the statement of a Russian officer was to be accepted as to goods on board, say, a Swedish ship. The right of convoy" was a direct counter to the "right of search"; as an auxiliary to the contraband dispute, it was no more than an ingenious method of getting round it.
The neutrals displayed further ingenuity in putting forward their case. In the voluminous correspondence which followed each seizure of their ships the real question in dispute-whether ships' timber was contraband-was hardly, if at all, mentioned. To assert the
inviolability of the neutral flag, and complain of the insult" involved in visit and search, was therefore to assume a dispute to be settled which was not settled. The same flag hoisted on a warship did not improve the position. But the presence of the warships led to firing, and compelled England, in her turn, to complain of forcible resistance to the search. Thus there was also an "insult" to the English flag. It had been fired on when peace existed between the two countries. Each country, therefore, demanded apology and reparation from the other.
It will be useful to quote a caustic remark upon the convoy question by M. de Martens, the impartial and dispassionate collector of of diplomatic documents. Alluding to the decrees of the Directory issued in 1798, referred to in the last chapter, he says':
"However revolting these decrees, they were tolerated by the Northern Powers; at least no alliance was formed to resist them. But they sufficed for Denmark and Sweden to increase the number of these convoys, even in the seas in which they had not done so before, and where they had less to fear from France than England. Measures legitimate in themselves, but which had never been regarded with favour by belligerents." England contended that "the right to visit merchantmen at sea is an incontestable right of a nation at war. Resistance to a friendly warship must be construed as an act of hostility."
The Danish contention (case of the Havfruen) may be thus summarized: The right of visit is recognized by custom and treaties; it is not a natural, but a purely conventional right; and right; and it cannot be extended arbitrarily beyond what has been agreed or accorded. No Power has ever admitted the right to visit ships under escort; they could not do so sans dégrader leurs pavillons, et sans renoncer à une partie essentielle de leurs propres droits." Far from acquiescing in this hitherto unknown pretension, the majority of the
1 Martens, Recueil, Supplement II, p. 346.
2 The documents now to be referred to are printed in Piggott and Omond, Documentary History of the Armed Neutralities, Part II.
neutral Powers have thought it right to enunciate the opposite principle in their conventions with the most respectable Courts in Europe. The distinction made. between convoyed and non-convoyed ships is as just as it is natural. The right of visit in respect of nonconvoyed ships is limited to verification of their flags and examination of their papers, in order to establish their neutrality, and the regularity of their bills of lading. If these are in order, further visit is illegal. Thus the authority of the Government which issues them ensures the requisite security for belligerents. When that Government convoys its merchantmen, it offers to belligerents a more authentic guarantee than is afforded by the papers, and it cannot consistently with its honour admit of doubts and suspicions, injurious to itself and unjust on the part of those who raise them.
To the suggestion that some small neutral State might cover illicit commerce by its flag, it was answered (case of the Freya): “a suspicion of such vile conduct is as injurious to the Government creating it as to the one which did not merit it. The officers have made themselves personally responsible that the convoy contains no contraband; and it is easy to see that it would be more difficult to escape the vigilance of such officers than of those who pretend to exercise the illusory and odious right of search.'
It is not necessary to refute this argument piecemeal. It was a fact that many neutrals had thus limited the right of search among themselves in their treaties by interposing the escort of a warship; but it was equally true that these treaties had been entered into with the express object of supporting this contention after the affair of the Dutch convoy in the Downs in 1779. The facts remained that the merchantmen were full of ships' timber and naval stores for France, or it would not have been worth while risking a naval engagement; and that England did not and could not admit that they were non-contraband.
The British answer (case of the Havfruen) may be condensed into one sentence:
The honour of the King's flag has been insulted almost within sight of his coasts, and this action has been sustained by contesting indisputable rights, founded on the most evident rights of nations; from which rights His Majesty will never depart, but the moderate exercise of which is indispensably necessary for the maintenance of the dearest interests of his Empire.
In August, 1800, Lord Whitworth, supported by a squadron under Admiral Dixon, was sent to Copenhagen to negotiate an amicable arrangement. Denmark seems then to have recognized the essential difference in the fundamental principles asserted by her and Great Britain, and proposed arbitration by Russia, "which is friendly to both States." The answer was that "there is no Sovereign in whom Great Britain has greater confidence than the Tsar. Nevertheless, it is hoped that Denmark will so act as not to render it necessary. The result of the negotiations was that a preliminary convention was signed at Copenhagen on August 29, by which the Freya was released, and Denmark agreed to suspend her convoys until a definite convention was entered into.
The alliance between England and Russia was still in force; but the glamour of Bonaparte's genius and military successes had begun to fascinate the Tsar Paul, and his friendship for England was gradually weakening. The appeal of the neutrals over the convoy question led him to follow his mother's example, and he issued a Declaration to the neutrals based on Catherine's, inviting them to renew the Armed Neutrality.
The Declaration opened with a flamboyant reference to the Declaration of 1780, to which it was alleged that Europe had given its approbation. It then referred to the case of the Freya. The Tsar believed that the King of England would disapprove this violation of the Law of Nations and of the principles of neutrality. Nevertheless, in order to