PACIFIC BLOCKADE

547 fleet, which was sighted off Cape Passaro. A Spanish ship opened fire on the British fleet, which then bore down on the Spaniards and "made an end of them" (11 August). Very few escaped. Spain at once ordered reprisals on British ships and merchandise in Spanish ports; Byng retaliated on Spanish shipping, but a formal declaration of war was delayed till the end of the year (28 December).1 Twenty years later, in 1739, when again England and Spain were on the verge of war and negotiations were on foot to stave it off, England, as part of a compromise, agreed to allow Spain to set off against the indemnity demanded for the wrongful exercise of the rights of visit and search in the Spanish Main, the damage done to her fleet at Cape Passaro, a recognition by England of the doubtful legality of that action. In February 1744 a great sea fight between the British and combined French and Spanish fleets took place off Toulon, before war was actually declared.3

Again, in 1725, British policy was directed towards preventing Spain from joining Russia and Austria, and in furtherance thereof Walpole gave orders for the pacific blockade of Porto Rico, giving strict injunctions against fighting. Walpole's manœuvres, cutting off for the time being supplies on board the Spanish ships assembled there, were successful in preserving the peace; though the action was one of high-handed power, it is an interesting example of Pacific Blockade against a Great Power. Spain, in retaliation, made an unsuccessful land attack on Gibraltar, but did not declare war till 1727. The continued struggle between England and France in America in time of peace has already been mentioned. In 1755, nearly a year before war broke out, Hawke was sent to sea to seize all French ships between Ushant and Finisterre, and later to send in all French ships. So before the end of the year and six months before war came there were 300 French merchant ships and 6000 French sailors in England. France retaliated in April 1756 by the attack on Minorca which cost Admiral John Byng his life. English and French warships fought each other in the Channel and in the West Indies though war was not officially declared until May 1756.4 A curious situation was caused in India in 1744 when war had actually broken out between England and France. La Bourdonnais who was in command of the islands received orders from the French East India Company not to attack the English Company if the latter consented to refrain from hostilities. The English Company accepted the French proposal on the understanding that it did not bind the Home Government. But as the latter sent naval forces into the Indian Ocean and was capturing French shipping, the French acted on the 1 Clowes, W. M. L., The British Navy, II, 32; Mahan, A. T., The influence of sea power upon history, p. 237.

= C.M.H. VI, 157.

3 Mahan, p. 265; C.M.H. vı, 239.

4 Mahan, p. 284; Clowes, III, 291.

offensive and in September 1745 La Bourdonnais captured Madras. In the terms of the capitulation the governor was allowed to ransom it for £420,000, which was paid. Dupleix, however, subsequently refused to observe the capitulation as being made without his superior authority and kept Madras till it was restored to England by the Treaty of Aix-la-Chapelle.

There are few subjects in international law which have occasioned more controversy than the position in time of war of enemy goods carried in neutral ships, and of neutral goods carried in enemy ships. From the middle of the seventeenth century onwards until the middle of the nineteenth there was a constant endeavour on the part of neutral States to obtain the most favourable treatment of their ships and goods. The controversy was pre-eminently one in which carrying States desirous of remaining neutral wished to obtain the greatest possible advantages for their commerce, and, as was natural, the Dutch, a great carrying power, were the foremost in pressing for the acceptance of a rule which their position rendered most desirable. The law and practice of the Middle Ages undoubtedly gave the belligerent the right to capture the privately owned property of his enemy, though in process of time this right was modified as regards private property on land. Reasons of expediency and military discipline were those which told in favour of this mitigation, but similar arguments did not avail as regards property carried in ships at sea. We have already seen that neutral rights were of such slight importance in the early part of the seventeenth century that Grotius devoted to them only one short chapter in his De jure belli ac pacis. After the Peace of Westphalia, 1648, the claims of neutral States for protection of their trade increased. Taking the position that they were not concerned in the contest, they claimed for their subjects the right to carry on their commerce with all the belligerents as if no war existed. The belligerents' attitude was that any interference by a neutral in the trade with the enemy was an advantage to him by releasing his sailors for military operations, and so enabling him to obtain fresh supplies of money and commodities. England early apprehended the principle that the destruction of the commerce of the enemy is one of the chief aims of naval warfare, and was consistent in contending for the maintenance of the rules of capture of enemy property, not only on board enemy ships, but also on board those of neutrals. The earliest rules on the subject are contained in the Consolato del Mare,1 a code of maritime law drawn up at Barcelona in the fourteenth century, but embodying older usages. The principles enunciated are that enemy property whether ship or cargo is capturable, while neutral property whether ship or cargo is free. The Black Book of the Admiralty which contains the decisions of the English Courts on

1 For text see Twiss, Sir Travers, Black Book of the Admiralty, vol. i; Pardessus, Collection des Lois maritimes, vol. II.

"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 1650,2 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 commerce1 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. п, chap. vi and authorities cited; also Hall, W. E., International Law, § 255; Manning, W. Ó., Law of Nations, chap. vi.

2 Dumont, VI, 1, 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, 34The 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.3 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. I, cause première; Manning, W. O., p. 292; Satow, Sir E., The Silesian Loan, and Frederick the Great.

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

* 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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