CHAPTER IV. CARRIAGE OF BELLIGERENT GOODS IN NEUTRAL VESSELS. theories on the 52. No branch of international law has been Conflicting debated at such length or with greater keenness than those which refer to belligerent goods carried in subject. neutral vessels, and to neutral goods in belligerent vessels. It is possible, and indeed probable, that the Declaration of Paris, to which most civilised states have adhered, has permanently secured an identical practice among the signataries to it, and that it will in time be definitively accepted by those states also which for the present have reserved the right to pursue their accustomed policy. But the terms of the declaration are not authoritative law, and it is therefore not yet superfluous to sketch, though more lightly than was formerly necessary, the history and the grounds of the rival doctrines which have been held upon the two subjects. Usually these subjects have been treated together, and the verbal jingle, 'Free ships, free goods; Enemy ships, enemy goods,' has been thought to express a necessary correlation, which has been equally supposed to exist between the contrary doctrines. The Declaration of Paris, in choosing from each system the part most favourable to neutrals, has at least restored their natural independence to two essentially distinct questions of law. Two theories have been held, and two usages Early usage. Practice in the seven teenth century. have existed, with respect to the treatment of belligerent goods in neutral vessels. In the simpler and primitive view they were enemy's goods, and therefore liable to seizure, wherever found outside the jurisdiction of a third state; according to a later and more artificial doctrine, the neutral vessel is invested with power to protect them. 2 § 53. The first of these doctrines is found in the Consolato del Mare, the rules of which embodied the customs authoritative in the western Mediterranean during the Middle Ages; and Louis XI., in writing to the King of Sicily, speaks of the principle as being in his time accepted beyond all question.1 The French Ordonnances of 1538, 1543, and 1584, not only confiscated the hostile goods, but extended the penalty to the ship in which they were embarked, and though the courts appear to have avoided giving full effect to the law, their actual rules were not milder than those enforced by other nations. It was not till 1650 that the principle of the immunity of goods carried in a neutral vessel was asserted or agreed upon. In that year a treaty was concluded between Spain and the United Provinces, in which it was agreed that the goods of the enemies of either party should be free from capture, when on board the ships of the other party, the latter being neutral; and in 1655 a treaty was made between France and the Hanse Towns, the language of which seems to convey the privilege,3 but its real meaning, as understood by one of the contracting parties, may probably be best read by the light of negotiations which took place some time before between France and the United Provinces. In 1646 a treaty had provided that for four years the Dutch Government should be excepted from the operation of the Ordinances, and that 'their ships should free their cargo, notwithstanding the presence in it of merchandise, and even of grain and vegetables belonging to enemies, excepting always articles contraband of war.' On an attempt being made by De Witt in 1653 to take the plain meaning of these words as the ground of a permanent arrangement, it appeared that the French had merely understood the treaty of 1646 to preserve from confiscation the ship and neutral merchandise associated in its cargo with that of an enemy. It is not likely, as is remarked by Manning, that Louis XIV. would grant larger immunities to the Hanse Towns than to Holland, and the treaty made with them in 1655 may therefore be no doubt interpreted in the same sense.1 In 1659 a clause appears in the Peace of the Pyrenees, by which free ships are made to free goods, and during the remainder of the seventeenth century France concluded nine treaties, in which a like provision was contained.2 But in the midst of these treaties the Ordonnance of 1681 proved how entirely they were exceptions to the general policy of the state, by re-enacting in all their severity the provisions of the law of 1584, and in 1661 and 1663 treaties were concluded with Sweden in which no stipulation inconsistent with it was contained.3 1 Dumont, vi. i. 342; Manning, 248. 2 With Denmark, 1662 (Dumont, vi. ii. 439); do. 1663 (ib. 463); United Provinces, 1662 (ib. 415); Portugal, 1667 (ib. vii. i. 17); Spain, 1668 (ib. 90); Sweden, 1672 (ib. 166); England, 1677 (ib. 329); United 3 Valin, Ord. de la Marine, liv. iii. tit. ix. art. 7. Treaties with Sweden; Dumont, vi. ii. 381 and 448. The Dutch the pro the doc trine, Free ships, The true promoters of the new principle were the moters of Dutch, to whom the security of their carrying trade was of the deepest importance. They not only were the earliest people to stipulate for the freedom of free goods. enemy's cargo in neutral ships by a treaty of undoubted meaning, but they steadily kept it before their eyes as an object to be striven for, to such purpose that they induced Spain, Portugal, France, England, and Sweden, to grant or confirm the privilege in twelve treaties between the years 1650 and 1700.1 The only treaty of the century to which neither the United Provinces nor France was a party, was concluded between England and Portugal,2 but except. when prevented by express convention, England maintained the confiscation of enemy's goods, and she confirmed her practice by several treaties.3 At least ten treaties, dealing with the commercial relations of the contracting parties, the greater number of which were made between nations which were also parties to treaties giving expression to the doctrine of Free ships, free goods, permitted by their silence the common practice to continue, and manifested the absence of a fixed policy on the part of the countries which engaged in them.1 1 With Spain, 1650 (Dumont, vi. i. 571); Portugal, 1661 (ib. ii. 369); France, 1661 (ib. 346); France, 1662 (ib. 415); England, 1667 (ib. vii. i. 49); Sweden, 1667 (ib. 38); England, 1674 (ib. 283); Sweden, 1675 (ib. 317); France, 1678 (ib. 359); Sweden, 1679 (ib. 440); England, 1689 (ib. ii. 236); France, 1697 (ib. 389). 2 England and Portugal, 1652 (Dumont, vi. ii. 84). 3 With the United Provinces, -1654 (Dumont, vi. ii. 74); Sweden, 1654 (ib. 80); Den mark, 1654 (ib. 92); Sweden, 1661 (ib. 387); Denmark, 1661 (ib. 346); Denmark, 1670 (ib. vii. i. 128). 4 England and the United Provinces, 1654 (Dumont, vi. ii. 76); England and Brandenburg, 1661 (ib. 364); England and Sweden, 1661 (ib. 384); England and Denmark, 1661 (ib. 346); Sweden and France, 1661 (ib. 381); England and the United Provinces, 1662 (ib. 423); England and Denmark, 1669 (vii. i. 126); England and Spain, 1670 (ib. 138); England and Sweden, At the commencement of the eighteenth century, Practice therefore, the new principle had made little solid in the eighteenth progress; and one of the two nations which had con- century. cluded the largest number of treaties embracing it, was in no hurry to adopt it as a voluntary rule. The French Réglement of 1704 exaggerated the harshness France. of former law by rendering liable to confiscation the raw or manufactured produce of hostile soil, when the property of a neutral, except when it was in course of transport direct from the enemy's country to a port of the neutral state to which its owner belonged. It was not till 1744 that neutral vessels carrying enemy's goods were freed from confiscation, and it was only in 1778 that the freedom of the goods themselves was conceded by the Réglement of that year. It must be presumed that the rules enforced by a country, apart from treaties, correspond to its views of justice or established usage. If, while maintaining these rules, it at the same time multiplies treaties in an opposite sense, the inference is not that it looks upon the law which it is content to administer as destitute of authority, but that its own interests are best served by inducing other nations to alter its provisions. France became the advocate of the principle of Free ships, free goods, but it is safer to appeal to her regulations than to her treaties as evidence of general rule, and it is not likely that those regulations would have been expunged from her international code if the maritime predominance of England had failed to consolidate itself. Spain imitated the policy of France, and while Spain. recognising the freedom of enemy's goods by treaty, it was not till 1780 that her private rules exempted either them or the neutral vessel from confiscation.2 1666 (vi. iii. 83); France and Sweden, 1672 (vii. i. 169). 1 Valin, Ord. de la Marine, liv. iii. tit. ix. art. 7; Pistoye et 2 De Martens, Rec. iv. 270. |