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"FREE SHIPS, FREE GOODS'

549 Admiralty matters during the fourteenth century shows that the rule of the Consolato del Mare as regards the liability to capture of enemy property on a neutral ship was adopted in the middle of the fourteenth century, but the freedom of neutral goods on an enemy ship was not adopted till later. French Ordonnances of 1533 and 1543 condemned neutral ships carrying enemy goods, and the English Court observed the same rule against the French by way of retaliation, but after the middle of the century the freedom of neutral goods on enemy ships was admitted, and thereafter it became the rule of the English Prize Courts until the Declaration of Paris, 1856.1 In 1646 the Dutch obtained from France the acceptance of the rule of "free ships, free goods", and the same concession was made by Spain in 1650, but in 1654, in their treaty with England, the old rule was maintained. In the Treaty of the Pyrenees (1659) France and Spain agreed to "free ships, free goods" with the corollary "enemy ships, enemy goods", but France formally enunciated her older custom of confiscating neutral ships carrying enemy goods and neutral goods in enemy ships in the Ordonnance of 1681; the enemy character of ship or goods was held to infect neutral goods or ships. Under this doctrine neutral ships could safely carry only neutral goods. In this severe treatment of neutrals she stood alone till Spain, by Ordinances of 1702 and 1718, adopted the same rule.3 On the same day as the Treaty of Utrecht was signed between Great Britain and France, the same Powers signed a treaty of navigation and commerce containing the "most favoured nation" clause; it also dealt with the thorny subject of "free ships". The doctrine of Louis XIV, enunciated in the pride of his naval power in 1681, had been extended to attach an enemy character to the produce of enemy territory in neutral ships, a doctrine subsequently adopted by the Prize Courts of Great Britain and the United States.5 The severity of the French rule was seen in the fact that neutral ships loaded in an enemy port, and going to a neutral port, were liable to condemnation under the doctrine of "infection", laid down in the Ordonnance. Article xvII of the treaty of navigation and commerce adopted the doctrine of "free ships, free goods" (except contraband) and also gave freedom from seizure of enemy persons on board neutral ships unless such persons were actually in the service of the enemy. By Article xxvn the doctrine of "enemy ships, enemy goods" was also adopted, except for goods laden for specified times before and after the outbreak of war. This was the only treaty signed at Utrecht by Great Britain in which she accepted a variation of her traditional doctrine. Louis XV in 1744

1 See Westlake, J., International Law, vol. I, chap. vi and authorities cited; also Hall, W. E., International Law, § 255; Manning, W. Ó., Law of Nations, chap. vi.

Dumont, VI, I, 57.

3 Ortolan, Diplomatie de la Mer, II, 108; Wheaton, H., History of the Modern Law of Nations, 107, 114. Strupp, K., Documents pour servir à l'histoire du droit des gens, 1, 34. The Phoenix, 5 C. Rob. 201; Bentzon v. Boyle, 9 Cranch. 191.

modified the Ordonnance of 1681 by releasing neutral ships carrying enemy goods, though the latter were still condemned. The Dutch were able between 1650 and 1700 to obtain from Spain, Portugal, France, England and Sweden the acceptance of the "free ships, free goods" doctrine. Except where bound by treaty England continued to maintain the rule of the Consolato which remained the common law of nations in the absence of special stipulation, and down to the middle of the eighteenth century no writer of repute claimed for neutrals greater privilege. An attempt was made by Prussia in the controversy with Great Britain in 1752 on the Silesian Loan question1 to establish the doctrine "free ships, free goods" as the rule of international law, but it is generally recognised that the British Report of the law officers in 1753 on the action of Frederick II in withholding payment of interest on the Silesian Loan,2 being a reply to the Prussian "Exposition des motifs fondés sur le droit des gens", was in Montesquieu's words a "réponse sans réplique". The French rules from 1681 to 1744 were peculiar to their Prize Courts, and to those of Spain; the practice of other states was to confiscate the goods of the enemy alone. The key to the changes which took place in the treatment of belligerent goods under the neutral flag was the anxiety of States to secure the carrying trade of belligerents. The price which Holland was prepared to pay for the freedom of goods under her flag was that of suffering the loss of her own goods entrusted to belligerent merchant ships; by the various treaties by which she secured the immunity of goods under her flag she left her own goods to share the fate of the vessel. In her various treaties "free ships, free goods" involved the corollary "enemy ships, enemy goods". States which pursued a definite policy of neutrality realised that in time of war goods of their own subjects would seldom be carried by belligerent ships, therefore the acceptance of "enemy ships, enemy goods" in practice was a small price to pay for the concession of "free ships, free goods". The rule of the Consolato del Mare, which was that of England, retained the right to capture enemy goods under the neutral flag, but left immune neutral goods under the enemy flag. England by maintaining this principle was furthering her policy of attacking enemy trade whenever she was belligerent, whether enemy merchandise was found on enemy or neutral ships.

It is not necessary to examine in detail the history of the struggle of neutral States for greater freedom of trade in time of war; no State was continuously consistent in its policy. The period from the accession of William III to the end of the Seven Years' War was notable for the great development of the use of sea power against commerce. The struggle

1 de Martens, Ch., Causes célèbres du droit des gens, vol. n, cause première; Manning, W. O., p. 292; Satow, Sir E., The Silesian Loan, and Frederick the Great.

Marsden, R. G., Law and Custom of the Sea.

3 Manning, p. 319; Hall, §§ 255, 267; Clark, G. N., The Dutch alliance and the war against French trade, chap. i.

THE "RULE OF THE WAR OF 1756"

551 between the English and Dutch emphasised principles which were again brought into prominence in the wars at the end of the eighteenth century, and also in the World War of 1914-18. The Dutch policy of "free ships, free goods" permitted their vessels to carry the commerce of both belligerents; the only limitations on this "freedom of the seas" which they were prepared to acknowledge were those connected with contraband and blockade, both of which were and still remain fruitful sources of friction between belligerents and neutrals. The British view was that the freedom of the enemy to carry on his trade in time of war enabled him to prolong the struggle, and that by increasing the list of contraband goods, and capturing enemy property under neutral flags, economic pressure could effectually be brought to bear on him. For a short time during the early days of the Anglo-Dutch alliance against France from 1689 to 1697, the Dutch fell in with the British views, but the policies of the two countries ultimately diverged, and France and Holland agreed to the rule of "free ships, free goods" in the Treaty of Ryswick.1

At the opening of the Seven Years' War the British Government took an important step in relation to the treatment of neutral ships. The trade between European countries and their colonies was the monopoly of the mother country, though it was frequently invaded by others who ran the risk of losing their ventures. Sir William Scott (Lord Stowell) thus spoke of the colonial trade in 1799: "What is the colonial trade, generally speaking? It is a trade generally shut up to the exclusive use of the mother country to which the colony belongs, and this to a double use, that of supplying a market for the consumption of native commodities, and the other of furnishing to the mother country the peculiar commodities of the colonial regions"." When the mother country could maintain a regular service of shipping with the colonies, and provide them with all they required, the colonists had little to complain of, but this system of excluding the ships of other nations which was embodied in the Navigation Acts, while it encouraged shipbuilding and the growth of a mercantile marine, was naturally viewed with jealousy by other maritime States who were in a less favourable position, and a large amount of illicit trade sprang up, especially by Dutch traders, in the Spanish colonies who were badly supplied by the mother country. But on the outbreak of war in 1756, the French, owing to the power of the British Navy, were no longer able to carry on the colonial trade, and therefore announced that licences would be issued to Dutch vessels to take it up. The British minister at the Hague was instructed to inform the Government of the Netherlands that neutral vessels engaged in a trade which was opened up to them in time of war but which was closed

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to them in time of peace would be treated as enemy ships, and captured and condemned. This warning was unheeded and Dutch vessels engaged in trade between French colonies and the mother country were condemned under the principle subsequently known as the "Rule of the War of 1756". This was bitterly resented then, and subsequently during the French Revolutionary wars, when the rule was extended to the coasting trade of belligerents. The British Prize Courts were firm in their execution of the principle which was a sound application of the basic principle of naval war; neutral vessels by carrying the produce of enemy colonies to the mother country afforded great relief and succour to the enemy's trade, doing for him what he could not do for himself. The Dutch remonstrated against the English practice and based their protest on the ground that it was a violation of a treaty with England in 1674 whereby the two Powers had adopted the rule of "free ships, free goods", as well as the explanatory declaration of 1675 which declared that neutral navigation extended to the trade from one enemy's port to another.1 The British Government denied that it was applicable to the circumstances, which, they contended, constituted in effect a grant of French nationality to the Dutch ships. Denmark also protested and sent a mission to England headed by Hübner, and this was the occasion for the publication, in 1759, of his important work on the seizure of neutral ships.2

The principle of the "Rule of the War of 1756" was not new, and the earliest case in which it appears to have been enforced was by the Dutch who, in 1604, condemned two Venetian vessels trading south of the "line", the tropic of Cancer, with licence from Spain, with whom the Netherlands were then at war. The Dutch took the position that the Venetian shipowners had, by accepting Spanish licences to engage in the closed colonial trade, made themselves the allies of Spain. Charles I applied the same principle in 1630 to neutrals engaged in the Spanish coasting trade.3

It was in vain that neutral vessels engaged in the colonial trade of the enemy attempted to evade the application of this rule by breaking their voyage from the colony to the mother country, by stopping at a neutral port and making a colourable importation at that port and then re-exporting the colonial produce to the mother country. Vessels captured on their voyage from such port with colonial cargoes were condemned on the ground that the whole voyage was one, under the doctrine of "Continuous Voyage". The doctrine of “Continuous Voyage" appears to have been applied by the English Prize

1 Wheaton, p. 218; Dumont, vol. II, pt 1, p. 342; Lord Liverpool (Mr Jenkinson), A Discourse on the conduct of Great Britain in respect to neutral nations during the present war (1757). 2 De la saisie des batimens neutres; see also Wheaton, H., p. 219.

3 Marsden, R. G., Law and Custom of the Sea, 1, 345; ibid. E.H.R. (1910), xxv,

244.

See Higgins, A. Pearce, War and the private citizen; Hall, W. E., International Law, § 234.

A DOCTRINE OF INTERNATIONAL LAW

553 Court as early as 17561, and it seems probable that the Court had in mind the fact that the goods in question were engaged in a prohibited course of commerce. There are other cases during the same war, but the fuller exposition and application of the doctrine does not appear till Lord Stowell's (Sir William Scott) decisions during the Napoleonic wars. It is noteworthy that the Dutch appear to have been the first naval Power to attach due importance to the intermingling of neutral traders in a belligerent's trade, and to visit it with the natural consequences. It was a position which could only be assumed by a strong naval Power; when the Dutch naval strength diminished and her position was chiefly that of a neutral engaged in the carrying trade, her interests changed, and her policy was consequently in favour of the greatest latitude for the neutral trader. Sir Christopher Robinson, a famous Law Reporter, stated in 1808 that the doctrine of "Continuous Voyage" was in the first instance introduced as a rule of equitable construction in favour of neutral trade, but earlier cases do not bear out this view. It was applied as an equitable construction by Lord Stowell in one case at least, but in the period of the Seven Years' War and afterwards its chief aim was to put a stop to the evasion by neutrals of belligerent rights.

During the period which elapsed between the Peace of Westphalia, 1648, and the Treaty of Paris, 1763, neutrality as a doctrine of international law may be said to have definitely taken shape. The fundamental idea of modern neutrality is that States which are not parties to a war must refrain from giving any assistance to the belligerents, and must observe complete impartiality. Neutral States, however, are under no obligation to prevent their subjects from engaging in acts of a commercial nature which may be detrimental to the interests of one of the belligerents, such as carriage of contraband goods and attempting to enter blockaded ports. For such operations the neutral State is free from liability, but belligerents have maintained the right to control and deal with neutral merchant vessels engaged in these operations to their disadvantage. Capture and condemnation by Prize Courts of the offending vessels and cargoes have been the consequences for several centuries of such intermingling of neutral merchants in a war.

The doctrine and practice of the early part of the seventeenth century were reflected in Grotius's treatment of the subject. "It is the duty of those who stand apart from a war to do nothing which may strengthen the side whose cause is unjust, or which may hinder the movements of him who is carrying on a just war; and on a doubtful case, to act alike to both sides in permitting transit, in supplying provisions to the respective armies and in not assisting persons 1 The Jesus, Burrell's Reports (ed. Marsden, 1885), 178.

Briggs, H. W., The doctrine of Continuous Voyage, p. 15; Mootham, O. H., The doctrine of Continuous Voyage, 1756-1815, Brit. Year Book of International Law, 1927, p. 62.

3 The Immanuel (1800), 2 C. Rob. 197; App., note 2 to vol. vi, C. Rob. Rep.

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