BLOCKADE AND THE RIGHT OF SEARCH 557 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 a compromise was reached whereby the papers of the convoyed ships were produced to the captain of the visiting ship, 1 Dumont, vm, 62, 113. 2 Wenck, F. A. G., Codex juris gentium, 1, 591; II, 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. xvn). '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. 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 instructions 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. LETTERS OF MARQUE 559 time of the Commonwealth a further reward was introduced in "gun-money", a payment to the officers and men on board H.M.'s ships of war of so much per gun on board enemy ships of war captured or destroyed. This was changed in 1693 to "headmoney", a payment of so much per head for every man who was on board the enemy warship at the beginning of the action in which the ship was taken. This rule still holds good, but the money so granted is called Prize Bounty.1 A distinction at one time existed between privateers and private ships furnished with letters of marque, the former only being entitled to gun or head money, but the distinction was abandoned by the time of the Napoleonic wars.2 East Indiamen commonly carried letters of marque authorising them to capture pirates who were still a scourge to navigation, and on one occasion commissions were issued to assist the East India Company in its war against the King of Bantam. The crews of these vessels thus became entitled to prize money and head money in case they captured their assailant. Merchant ships were frequently armed in self-defence and this practice was a very old one. Pirates and privateers were likely to be met and merchant ships were forced to arm or to sail in convoys. An Order in Council of 4 December 1672 ordered masters of merchant vessels going on foreign voyages to sail in convoys and to keep together and mutually assist and defend each other and for this purpose to be well provided with "muskets, small-shots, hand grenades and other sorts of ammunition and military provisions".4 Such defensively-armed ships frequently took part in engagements, and this was the rule not only with British ships, but with ships of other nations. In the case of the capture of the San Domingo convoy on 20 June 1747, nearly all the merchant ships were armed, and in the battle off Cape Finisterre in the same year four armed French East India merchant ships took part.5 Captures which such non-commissioned ships made were condemned to the Crown, as in fact were all captures, but these captures were termed "Droits of Admiralty" and only portions of the proceeds of the prizes were given ex gratia to the private captors. On the other hand, the holders of letters of marque, the privateersmen, were entitled to the prizes they captured after condemnation, such prizes as well as those captured by ships of war being called "Droits of the Crown". Naval operations during this period, especially those of privateers, were often characterised by brutality. Cruelty in the West Indies was not confined to the Spanish seamen. Rear-Admiral Stewart, 1 Higgins, A. Pearce, "Ships of War as Prize" in Studies in International Law and Relations, pp. 205-8. 3 Marsden, II, 105. The Fanny, 1 Dods. Rep. 443. Higgins, A. Pearce, "Defensively-armed merchant ships" in Studies in International Law and Relations, p. 247. Beatson, R., Naval and Military Memoirs, 1, 341, 343. writing to the Admiralty on 12 October 1731 in reference to orders he had received to make reprisals, said: "We have fifty trading ships to one of the Spaniards in these seas; so in this way of making reprisals we must in the end be losers. We are the aggressors by our illicit trade, carried on by armed sloops or with convoy, in defiance of law. The Spaniards retaliate by robbing such of ours as they can master. Our illicit traders are as cruel to the Spaniards, murdered seven or eight of them on their own shore".1 Smugglers, unlicensed traders and privateers were engaged in the work of plunder in various parts of the ocean, piracy was common and the exercise by vessels under letters of marque of the belligerent right of visit and search of neutral ships, in which a high degree of character and forbearance on the part of the visiting officers is of especial importance, was frequently carried out in such a manner as to produce serious complaints by neutral States. 1 Marsden, II, 278. CHAPTER XX MERCANTILISM AND THE COLONIES MERCANTILISM was the economic expression of the militant nationalism which sprang out of the social and political changes of the sixteenth century. Its exponents assumed that it was the business. of the State to promote the economic interests of the country. They also supposed that the normal way of doing so was to encourage foreign trade. Since they did not conceive of trade between one country and another as of mutual advantage, they were particularly concerned with measures calculated to secure a favourable balance for their own country. To this end it seemed vitally important that the value of exports should exceed the value of imports. "For as a pair of scales", says Misselden,1 "is an invention to show us the weight of things, whereby we may discern the heavy from the light... so is also this balance of trade an excellent and politique invention to show us the difference of weight in the commerce of one kingdom with another: that is, whether the native commodities exported, and all the foreign commodities imported do balance or over-balance one another in the scale of commerce.... If the native commodities exported do weigh down and exceed in value the foreign commodities imported, it is a rule that never fails that then the kingdom grows rich and prospers in estate and stock: because the overplus thereof must needs come in in treasure....But if the foreign commodities imported do exceed in value the native commodities exported, it is a manifest sign that the trade decayeth, and the stock of the kingdom wasteth apace; because the overplus must needs go out in treasure.' This passage expresses very clearly the simple form of the theory. Only commodities, i.e. material things, are taken into consideration; it is assumed that their values can be ascertained; and a favourable balance is one that imposes on another country an obligation to send "treasure", by which is understood the precious metals in the form of coin or bullion. For the mercantilists attached great importance to the accumulation of gold and silver within the country. While they did not usually fall into the crude error of confusing money with wealth, they did believe that it was necessary to adopt measures to attract it into the country. Scarcity of money seemed to them to lead to stagnation of trade, and lack of treasure might in the event of war involve disaster; they were often not clear whether they wanted a large volume of active currency or a considerable hoard only to be used in an emergency. In the second half of the seventeenth century, when Louis XIV's minister, Colbert, was vigorously applying 1 Misselden, Edward, The Circle of Commerce (1623), pp. 116–17. CHBEI 36 |