Dans un Navire ennemi, car il n'est pas permis de freter un vaisseau ennemi et les marchandises et effets quoi qu' appartenans aux Sujets du Roi ou à ses alliez, ne seroient pas moins de bonne prise que le navire ennemi; cet Art. a été confirmé par un arrêt du conseil du 26 Octobre 1692, et par un autre du 23 Juillet 1704.

The ordonnance of 1704 decreed:

S'il se trouve sur les vaisseaux neutres des effets appartenans aux ennemis de Sa Majesté les vaisseaux et tout le chargement seront de bonne prise.

Here was a gross violation of neutral rights. A flagrant departure from the public law of Europe and from the custom and practice of centuries. That it could be supported by some forgotten rule of Roman Law or by the maxim "que la robe ennemi confisque la marchandise et la vaisseau ami" was no justification for a departure from accepted International Law. But the late sixteenth and early part of the seventeenth centuries were the period of the expansion of commerce. The treaties begin to bristle with commercial stipulations and nations were becoming more and more interdependent. Whilst we may allow full weight to the sordid motives of the privateersmen there was certainly another factor governing the Law of Capture at Sea. The war of exhaustion had become an international weapon. Commerce sustained the strength of a nation, the deprivation of commerce weakened and exhausted a nation.

In the War of the Spanish Succession the exhaustion of France was the governing influence that induced Louis XIV to sign what to him must have been the humiliating Treaty of Utrecht. England was not exhausted, and owed her vigorous vitality to sea power. Yet the 17th Article of the Commercial Treaty of Utrecht between. England and France stipulated for free ships, free goods except contraband of war and was a distinct repudiation of the French Law. This article was a British article. Why? Because the Power that has the mastery of the sea has no need for la guerre des courses, or for privateering. Moreover, the British maritime supremacy was not limited to vessels of war, but included a growing mercantile marine. Privateering is always the resource of the weaker naval power. But the weapon of an effective or virtual blockade, amounting to an interruption or

prohibition of commerce, is a serious military weapon. The exploits of the Alabama and her consorts in no way influenced the Civil War in America, but the blockade of the southern coasts exhausted the Confederacy. It was as much a factor in the decision of the war as the victories of General Grant.

This is the prominent fact that has influenced the history of Europe from the date of the battle of La Hogue in 1692 to the present day. Sea power is telling every day, and the exploits of the submarine could not and did not, as the Germans expected, decide the

war.

The 17th Article of the Commercial Treaty of Utrecht was an attempt to readjust the balance between neutral rights and belligerent claims. It was a departure from the principles of the Roman Law and the clear cut distinctions of the Consolato del Mare; but it was a special contract with France and was not of universal application. It was not the law, but was an exception to the law.

The French Regulation of October 21, 1744, is too long for quotation, but it gave neutral vessels sailing from their own ports the right to carry the goods of their own country to an enemy port, except contraband of war. It also gave neutral ships the right to sail from an enemy port with goods loaded on account of neutral sovereigns for a port of their own sovereign. But otherwise enemy goods on neutral ships were good prize.

On January 18, 1753, the law officers of the British Crown submitted a memorandum of the law in the matter of prize. This memorandum is an annexure to the well-known despatch of the Duke of Newcastle in the matter of the Silesian loan, and is too long for quotation in full. But the following extract gives the pith of the

statement:

First as to the Law.

When two Powers are at war, they have a right to make prizes of the ships, goods, and effects of each other upon the High Seas. Whatever is the property of the Enemy may be acquired by capture at sea; but the Property of a Friend cannot be taken provided he observes neutrality. Hence the Law of Nations has established:

That the goods of an Enemy on board the ship of a Friend may be taken.

That the lawful goods of a Friend on Board the ship of an Enemy ought to be restored.

That contraband goods going to the enemy tho' the Property of a Friend may be taken as Prize; because supplying the enemy with what enables him better to carry on the War is a departure from Neutrality.

This is substantially the Consolato del Mare plus the confiscation of contraband. The law officers were not legislating, they were stating the law, and the law had come to recognize a new factor in war, and a new distinction in the right of a belligerent. The right of plunder, of confiscating enemy property was still present in the law. But a new and competitive motive or justification for belligerent rights appeared.

The law of capture at sea was gradually taking the direction that the right of the belligerent was to intercept succors or aids sent to his enemy, a much nobler and more justifiable right than the right to plunder. The two rights stand concurrently in the law, but it is evident that as between belligerents the path of progress, if motive is to weigh, lies in the replacement of the right to plunder by the right to intercept or control succor. Provided always that full consideration is given to the rights of neutrals.

On February 1, 1793, the French Convention declared war on England, and the British Government at once entered into a series of treaties prohibiting the export to France of naval and military stores or provisions. The signatories to those treaties included Russia, Spain, Naples, Prussia, Austria and Portugal. In fact all Europe except Sweden and Denmark. Here we find the right of control of commerce, as distinct from the right of plunder of commerce, coming into prominence.

PREEMPTION

And this new right or claim was emphasized when both France and England preempted the cargoes of ships laden with corn, flour

or meat.

England's action gave ground for controversy. For although the Treaty of 1691 between England and Sweden made money, provisions, and horses, with furniture necessary for horses, contraband, Sweden,

Denmark and the United States protested. The British Government held that by modern law provisions are contraband whenever the depriving of an enemy of these supplies is one of the means of reducing him to terms. Here, in this argument, we are getting on more legitimate ground than the old motive of plunder. We are leaving the claim to use war as legalized brigandage and taking our stand on the right of a belligerent to prevent aid or succor in any shape from reaching his enemy-a much more respectable position, to say the least of it. The argument in the case of England was supported by the fact that the French Government had armed almost the whole French nation-and had established a virtual monopoly of the corn trade, but this was merely an extension of the principle laid down by the British Court of Admiralty, and in so far as it was a valid justification, its effect was to limit the use of the weapon of interception, or control of commerce, to nations where conscription or government control of food was in force.

On the British side it could be contended that it was not an invidious rule, but the revival of a practice recognized in many treaties of the seventeenth century. But, as we have seen, the United States objected. Jefferson wrote: "Such a stoppage to an unblockaded port would be so unequivocal an infringement of neutral rights, that we cannot conceive it will be attempted." As the law stood Jefferson had a strong case. For in the absence of express treaty stipulations the law, as stated by the law officers in 1753, was good law and we may put aside for the moment the argument derived from the general mobilization of the French nation, for as we have seen this is a limiting argument, and look frankly at the conflict of claims.

There are no two nations which have a greater respect for the rights of property and the liberty of the subject than America and Great Britain. But there are also no more practical nations than those which form the two great branches of the Anglo-Saxon race, and they are quick to recognize that conditions may change in such a manner that the logical exercise of a right is out of date, and that rights which grew up under different conditions, call for a new interpretation suited to the changes brought about by human progress. Slavery was once a legal right in America-it has ceased to be so. The protection

of property and the liberty of the individual are guaranteed by the 5th amendment to the American Constitution, but the American Statute Book contains laws intended to limit such rights—in such a manner that the right of one party shall not be another's wrong. Here then we were in presence of two conflicting claims. On the one side we had a claim to use sea power not for purposes of plunder-but as a weapon of war for the purpose of bringing the enemy to terms. Sea power was to be used to intercept supplies and control commercebut not to plunder commerce. On the other side was an appeal to a legal right which had been long established.

The matter was very properly referred to negotiation and compromise, and the negotiations resulted in the famous Jay Treaty of 1794. The 18th Article of that treaty reads as follows:

In order to regulate what is in future to be deemed contraband of war, it is agreed that under the said denomination shall be comprised all arms and implements serving for the purposes of war, by land or by sea, such as cannon, muskets, mortars, petards, bombs, grenades, carcasses, saucisses, carriages for cannon, musket rests, bandoliers, gunpowder, match, saltpetre, ball, pikes, swords, head pieces, cuirasses, halberts, lances, javelins, horse furniture, holsters, belts, and generally all other implements of war, as also timber for ship building, tar or rozin, copper in sheets, sails, hemp and cordage, and generally whatever may serve directly to the equipment of vessels, unwrought iron and fir planks only excepted; and all the above articles are hereby declared to be just objects of confiscation, whenever they are attempted to be carried to an enemy.

And whereas the difficulty of agreeing on the precise cases in which alone provisions and other articles not generally contraband may be regarded as such, renders it expedient to provide against the inconveniences and misunderstandings which might thence arise: It is further agreed that whenever any such articles so becoming contraband, according to the existing laws of nations, shall for that reason be seized, the same shall not be confiscated, but the owners thereof shall be speedily and completely indemnified; and the captors, or, in their default, the Government under whose authority they act, shall pay to the masters or owners of such vessel the full value of all such articles, with a reasonable mercantile profit thereon, together with the freight, and also the demurrage incident to such detention.

This treaty was concluded by George Washington, John Jay, William Pitt, and Lord Grenville.