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besieged." Violation of neutral territorial waters long remained common, though during the eighteenth century neutral States which refrained from making protests and obtaining redress for such attacks on their sovereignty were liable to be and not infrequently were treated as allies of the State so doing, and as professing a sham neutrality. Treaties were still being entered into for the preservation of strict neutrality, as it was recognised that it was not unneutral for States to lend assistance to a belligerent if bound to do so by treaty before the outbreak of war. Thus Holland, by the Treaty of Nymegen, 1678, promised Louis XIV henceforth to preserve a strict neutrality and not to assist either directly or indirectly the enemies of France. Bynkershoek (1737) and Vattel (1759) both formulated ideas of neutrality, though the former writer did not use the word. Bynkershoek abandoned the Grotian principle of the justice of the cause being the measure of the neutral's duties, but it was retained by Vattel as regards the right to allow the passage of troops through belligerent territory. Practice was still far behind the teaching of the publicists and examples of violation of neutral waters were not infrequent. These were especially noticeable in the seventeenth century. In 1666 the Dutch captured English vessels in the Elbe, an English fleet attempted to capture Dutch ships in Bergen in 1665, and the French attempted to cut out some Dutch ships in Lisbon in 1693. Neutral sovereignty was better respected in the eighteenth century, but in 1742 a British captain chased some Spanish galleys and drove them into the French port of St Tropez, and burned them there, though France was officially neutral.2 In 1759 Admiral Boscawen captured two French vessels in Portuguese waters, and France made the non-compliance by Great Britain with the Portuguese claims for reparation a ground of her declaration of war against Portugal in 1762, alleging that Portuguese neutrality was fraudulent. Recruiting in neutral States was not considered improper down to the middle of the eighteenth century and in 1677 England granted to both France and Holland, then at war, the right to enrol Englishmen in their armies. Letters of marque to neutral privateers were also granted by belligerents.

The subject of contraband has always been one on which nations have taken divergent views, and even to-day it cannot be said that a really unanimous custom is established. The principle that a belligerent always had the right to prevent access to his enemy of commodities immediately of use to him in the prosecution of the hostilities has always been received; the difficulty has turned on the articles to be included under this head. The word "Contraband" means "in defiance of an injunction" (Contra bannum), and belligerents issued lists of articles or made treaties enumerating those which

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came under this head. Grotius distinguished three classes of articles: "There are some objects which are of use in war alone, as arms; there are others which are useless in war, and which serve only for purposes of luxury; and there are others which can be employed both in war and in peace, as money, provisions, ships and articles of naval equipment".1 There was a general agreement among States that the first class was liable to capture when destined for an enemy country, fleet or army; the dispute, which has not even yet been ended, turned on those which came under the third heading (res ancipitis usus). Numerous treaties enumerating contraband articles were made between States with the object of saving disputes when war arose, but these treaties are not consistent with each other, and vary from generation to generation.2 The English doctrine of treating goods of the third class as contraband only according to special circumstances such as a clear destination to the armed forces of the enemy gave rise to the class of contraband known as "conditional", but these by treaty were often dealt with less severely than the first class, called absolute contraband, and when captured they were brought in for pre-emption not for condemnation. The law was uncertain, and treaties by no means uniform; these facts must be remembered in considering international disputes on the subject during this period. The use of blockade as a means of depriving a belligerent of all commercial relations with neutrals appears in the latter part of the sixteenth century. It seems possible that an earlier attempt to introduce blockade may be attributed to Edward III in 1346, who ordained that every foreign ship which should attempt to enter a French port should be taken and burned. The Dutch in the war of liberation from Spain in 1584 and 1586 declared that the coasts of Flanders then in Spain's possession were under blockade, and that ships endeavouring to enter the ports would be captured. Such a declaration was merely one on paper; the Dutch had not the means to make it effective in the sense in which that word came to be understood subsequently, that is, dangerous for any ship to attempt to contravene. They issued similar decrees in 1622 and 1624 and again in June 1630. The latter appears to be the first public document determining the conditions of blockade and was the subject of a learned commentary by Bynkershoek. The doctrines therein enunciated were afterwards incorporated into English Prize law. The edict laid down that not only would ships and cargoes which were seized when actually attempting to break blockade be condemned, but that a ship was liable to capture from the moment it started on its voyage with intent to break the blockade. It was further provided

1 De jure belli ac pacis, lib. ш, cap. i, s. 5.

2 Hall, §§ 237, 238.

3 Westlake, J., War, p. 281.

• Quaestiones juris publici, lib. 1, cap. iv; Fauchille, P., Traité de droit international public, § 1596; Westlake, J., Collected Papers, p. 326.

that vessels that had entered a port under blockade were liable to capture on their return voyage until they had reached a neutral port. When Holland was at war with England in 1652 and 1666 the StatesGeneral declared a blockade not only of all the ports of Great Britain but of all her possessions in other parts of the world. In these cases any real investment was obviously impossible. When Holland was at war with France in 1672 and 1673 a similar blockade was declared against France and French possessions. The Treaty of Whitehall1 between England and Holland (22 August 1689) contains an important preamble setting forth the principles of naval warfare which the Powers would adopt. The greatest damage was to be done to the enemy and particularly all commerce and traffic with him was to be broken off so that he should not be able to obtain the means of carrying on his war. "Le but de toute guerre maritime est la ruine du commerce ennemi", said a French admiral in 1874, and the Treaty of Whitehall in providing "qu'on fasse en sorte que tout le commerce et trafic avec les sujets du Roi Très-Chrétien soit effectivement rompu et interdit" enunciated a similar doctrine. The treaty forbade the subjects of both of the allies to trade with the enemy under penalty of condemnation of ship and cargo, while as regards neutrals they were to be informed that vessels which sailed for French ports before notification would be diverted, and that those which sailed after such notification would be captured and condemned as good prize. In the treaty the word "blockade" is not used, and it has been stated by a great international lawyer2 that the document did not profess to exercise a belligerent right against neutrals, but in effect to forbid neutrality. Whether this be so, or whether it may be taken as another instance of paper blockade, it is an example of the use which naval Powers were prepared to make of their strength so long as neutrals were not sufficiently powerful to assert themselves. The blockade of 1689, says Westlake, was the first appearance of England as a blockading Power, except in case of siege, and probably the first appearance of any Power other than Holland in this rôle. There are other treaties of the period which deal with blockade as a species of siege by investment by sea, and the wider extension of the idea to exclude neutrals from all commerce with the enemy, not merely to prohibit trade in contraband, alarmed neutral States such as Sweden and Denmark. These two States in 1693 resorted to reprisals to obtain relief from the belligerent burdens and succeeded in obtaining the release of several of their ships by both England and Holland and a recognition of the necessity of blockades being effective. The struggle between belligerent claims to decree "paper" blockades (blocus du cabinet) and neutral insistence on close and effective 1 Dumont, vol. vш, pt п, p. 238; Strupp, 1, 22; Calvo, Droit international théorique et pratique, v, 180.

2 Westlake, J., International Law, War, p. 261; cf. Clark, G. N., p. 33. 3 Westlake, J., Collected Papers, p. 332.

BLOCKADE AND THE RIGHT OF SEARCH

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blockades continued, and treaties were entered into in the early part of the eighteenth century declaring that blockades were only effective when vessels attempting to enter were exposed to the fire of ships of the blockading squadron,1 and some went so far as to fix the number of ships necessary to constitute the blockade.2

It does not appear that blockade had definitely acquired the meaning of lawful exclusion of all commerce from an invested place, leaving open the question of what might be a real investment. The claims of belligerents by a mere declaration to exclude all neutral commerce from enemy ports without any attempt at making the declaration effective caused neutrals increasingly to claim the right to maintain freedom of commerce with the belligerents, and by the middle of the eighteenth century the preponderating opinion and practice were against the validity of paper blockades.

3

In order to ascertain whether a merchant ship was enemy or neutral, and if neutral carrying contraband or attempting to break blockade, belligerent warships asserted a right to visit and search all merchant ships in time of war. The right is one of considerable antiquity, and codes of maritime law, ordinances and treaties had recognised it by the sixteenth century. During the seventeenth century there were numerous treaties regulating the formalities to be observed, one of the most important being the Treaty of the Pyrenees (17 November 1659) between France and Spain, the principles of which were embodied in the treaty of commerce made between Great Britain and France on 11 April 1714 (Arts. XXIV-XXVI).5 The question whether neutral merchant vessels sailing under the convoy of one or more of these national warships were liable to be visited was raised in 1653 when Queen Christina of Sweden ordered convoying ships to "decline that they or any of those that belonged to them be searched". By sailing under the protection of their warships neutral merchant vessels, if free from search, would be encouraged to engage in unneutral trade and thus inflict considerable damage on belligerents. The question raised by Queen Christina was left untouched by the settlement in the Treaty of Westminster (1654). In the same year the Dutch, who were now neutral, put forward arguments in favour of the right of convoy, without, however, denying the right of belligerent search. They laid stress on the inconveniences to neutral trade which it involved. Two years later Admiral de Ruyter successfully resisted an attempt to visit a convoy under his command, and after some discussion à compromise was reached whereby the papers of the convoyed ships were produced to the captain of the visiting ship,

1 Dumont, vin, 62, 113.

2 Wenck, F. A. G., Codex juris gentium, 1, 591; п, 753.

Higgins, A. Pearce, Le droit de visite et de capture dans la guerre maritime. Recueil des Cours de l'Académie de droit international, 1926, 1, 74.

Dumont, vol. vi, pt п, p. 264 (Art. xvi).

• Strupp, K., Documents pour servir à l'histoire du droit des gens, 1, 40.

and if sufficient grounds for seizure appeared, the protection of the convoying ship was withdrawn. The Dutch, when belligerents, did not hesitate to exercise the right of visit and search over convoyed neutral ships and there is no evidence of resistance until 1759 when the Dutch again claimed to withdraw their convoyed ships from the right of visit. Their purpose was to avoid the application by Great Britain of the "Rule of the War of 1756" in regard to the French colonial trade, but it would seem that their claim was unheeded by Great Britain. In the latter part of the eighteenth century and during the Napoleonic wars claims by neutrals for their convoys to resist visit and search became more frequent, but until 1781 the practice of visiting convoyed neutral vessels was general.1 Great Britain has been consistent in maintaining the exercise of the right to visit neutral convoys, the introduction of which she contended showed prima facie intention to carry on an illicit commerce. The whole subject came into great prominence during the American War of Independence and the Napoleonic wars.

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It has already been pointed out that letters of reprisal to private individuals to obtain redress of their grievances ceased about the middle of the seventeenth century. But the issue of letters of marque for the purpose of general reprisals was common and in time of war they were granted to large numbers of private persons whose ships greatly increased the fighting forces of the belligerents. The name privateer" is given in the early part of the eighteenth century to such ships. The motives of the holders of letters of marque were plunder and self-enrichment: there was an absence of proper control over the crews, and their operations constantly called for regulation. The fact that the owners had to give security and were given special instructions3 does not seem to have reduced the evils. The vessels were frequently employed in trade in addition to their warlike operations and every maritime nation, especially those with small regular navies, relied on privateers who wrought great havoc amongst their adversary's merchant ships. General regulations as regards prizes began in England by an Act of William and Mary, 1693,* which was the first of a series of Prize Acts passed at the beginning of nearly all subsequent wars. Under these Acts captors, whether ships of the Royal Navy or privateers, took their title to their prizes after they had been condemned in the Prize Court.

During this period there was little difference in construction or design between ships of the Royal Navy and merchant ships, and the Admiralty frequently hired or bought merchant ships for incorporation temporarily or permanently into the Navy. The pay in the Navy was poor, though it was increased by the capture of prizes. In the

1 Hall, § 272; Dupuis, C., Le droit de la guerre maritime, § 244.
2 See chapter VII.

4 4 & 5 Will. and Mary, cap. 25.

3 Marsden, R. G., п, xvi, 403-35.

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