the laws of war 17

the laws of war 17

Secondly, that the authority of the Sovran of the neutral country,

being interposed in any manner of mere force, cannot legally vary the

rights of a lawfully commissioned belligerent cruizer. It cannot be

maintained, that if a Swedish commissioned cruizer, during the wars of

his own country, has a right, by the Laws of Nations, to visit and

examine neutral ships, the King of England, (being Neutral to Sweden,)

is authorized by law to obstruct the exercise of that right with

respect to the merchants' ships of his country.

 

Thirdly, that the penalty for the violent contravention of this right,

is the confiscation of the property withheld from visitation and

search.

 

The judgment of condemnation, pronounced in this case, was followed by

the Treaty of Armed Neutrality entered into by the Baltic Powers to

resist the Right of Search, in 1800, which league was dissolved by the

death of the Emperor Paul, and the points in controversy between those

Powers and Great Britain were finally adjusted by the Convention of

5th of June, 1805.[195]

 

[Sidenote: Convoys.]

 

It now remains to say a few words on the subject of Convoy. Convoy is

a ship or ships of war appointed by the Government, or by the

Commander-in-Chief on a particular station, for the guard of merchant

vessels bound to their destination. A warranty that the vessel shall

sail with convoy, is very common in Policies of Insurance, and if not

complied with, the Insurance becomes absolutely void.

 

This warranty to sail with convoy, does not mean that the vessel shall

depart with convoy immediately from the lading port, but only from the

place of rendezvous appointed for vessels bound from that port, and

must be strictly and impartially maintained by force, to the uniform

universal exclusion of all vessels not privileged by law.[196]

 

From many ports, and among others from the port of London, no convoy

ever sails. It has therefore been held sufficient for a vessel bound

from London to sail with convoy from the _Downs_, and even from

_Spithead_, when there was no convoy appointed from the _Downs_.

Neither does it require the vessel to sail with convoy bound to the

precise place of her destination; but if the vessel sail with the only

convoy appointed for vessels going to her place of destination, it is

sufficient. It sometimes happens that the force first appointed, is to

accompany the ships only for a part of their voyage, and to be

succeeded by another; at other times a small force is detached from

the main body to bring up to a particular point; if a vessel sail

under the protection of a vessel thus appointed or detached, the

warranty is satisfied.

 

But this warranty requires not only that the vessel shall sail under

the protection of the convoy, but also that she shall continue during

its course under the same protection, unless prevented from so doing

by tempest or other unavoidable accident, in which case, the master

and owners will be excused, if the master does all that is in his

power to keep with the convoy.

 

The merchantman must, before sailing, obtain or endeavour to obtain,

the sailing orders issued by the convoying squadron. The value of a

convoy appointed by Government arises in a great degree from its

taking the ships under control, as well as under protection; but this

control cannot be exercised except by means of sailing orders.

Otherwise, the master could not learn the rendezvous in case of

dispersion by a storm, or obey signals in case of attack.

 

The obligation to sail with convoy does not depend merely on special

agreement; but, by act of parliament, a merchant cannot sail without a

convoy, on a _foreign_ voyage, unless previously licensed to do

so.[197]

 

 

 

SECTION IV.

 

 

[Sidenote: _Armed Neutralities_.]

 

It is not improbable the course of events in the present war may make

it not uninteresting to my readers to have some short account of the

origin and meaning of _Armed Neutralities_, especially as the

principles on which they were founded may again be open to discussion.

The right to take enemy's property on board neutral vessels has, in

the present war, been waived by the Queen, in a declaration, dated

Buckingham Palace, March 29th 1854. This is however tempered by a

reservation of the right to search for contraband. Up to the present

time the right to take enemy's goods on board a neutral vessel has in

this country been steadily maintained; though in France it has been

fluctuating; the interests of another commercial power became the

origin of the extraordinary confederacies termed _Armed Neutralities_.

At an early period it was an object of interest with Holland, a great

commercial and navigating country, whose permanent policy was

essentially pacific, to obtain a relaxation of the severe rules which

had previously been observed in maritime warfare. The States General

of the United Provinces having complained of the provisions in the

French Ordinance of 1538, a treaty of commerce was concluded between

France and the Republic in 1646, by which the law, as far as respected

the capture and confiscation of neutral vessels for carrying enemy's

property, was suspended; but it was found impossible to obtain, at

that time, any relaxation as to the liability to capture of enemy's

property in neutral vessels.

 

This latter concession, however, the United Provinces obtained from

France by the treaty of alliance of 1662, and the commercial treaty

signed at the same time with the peace, at Nimiguen, in 1671;

confirmed by the treaty of Ryswick, in 1697. The maxim that _free

ships_ make _free goods_ was coupled in these treaties with its

correlative maxim, _enemy's ships_ make _enemy's goods_.

 

The same concession was obtained by Holland from England in 1668 and

1674, as the price of an alliance between the two countries against

the ambitious designs of Louis XIV.

 

In the subsequent war of 1756, a controversy arose between England and

Holland, in which it was said, on the one hand, that England had

violated the rights of neutral commerce; and on the other, that

Holland had not fulfilled the guarantees under which those privileges

had been granted.

 

Afterwards, when the American Revolution gave rise to a war between

France and Great Britain, the latter power, instead of following the

example of her enemy, (who had issued an ordinance prohibiting the

seizure of neutral vessels, even when bound to or from enemy ports,

unless carrying contraband,) issued an order in council, (March,

1780,) suspending the special stipulations respecting commerce and

navigation contained in the Treaty of 1674.

 

This was the crisis of many complaints made by the neutral powers

against Great Britain; and, in 1780, the Empress of Russia proclaimed

the principles of the Baltic Code of Neutrality, and declared she

would maintain them by _force of arms_.

 

This system of armed neutrality contained the following principles.

 

1. That commerce with the ports and roads of the enemy is free to

neutral powers.

 

2. That the ship covers the cargo.

 

3. That those merchandizes only be considered as contraband, which are

declared to be such by treaties with the belligerent powers, or with

one of them.

 

4. That no place shall be considered as blockaded, till it is

surrounded in such a manner by hostile ships that no person can enter

it without manifest danger.

 

5. That these principles shall serve as a basis for decisions

concerning the legality of prizes.

 

The principal powers of Europe, as Sweden, Denmark, Prussia, Germany,

Holland, France, Spain, Portugal, Naples, and also the United States,

acceded to the Russian principles of neutrality.

 

The Court of London answered this declaration by appealing to "the

principles generally acknowledged as the Law of Nations, being the

only law between powers where no treaties subsist;" and to

 

"the tenor of its different engagements with other powers,

where those engagements had altered the primitive law by

neutral stipulations, according to the will and convenience

of the contracting parties."

 

England, being thus opposed to all the maritime world, was at this

time obliged to smother her resentment; only simply expostulating with

Russia. But the want of the consent of a power of such decided

maritime superiority as that of Great Britain, was an insuperable

obstacle to the success of the Baltic Conventional Law of Neutrality;

and it was abandoned in 1793 by the naval powers of Europe, as not

sanctioned by the existing law of nations, in every case in which the

doctrines of that code did not rest upon positive compact.

 

During the protracted wars of the French Revolution, all the

belligerent powers began by discarding in practice, not only the

principles of the armed neutrality, but even the generally received

maxims of international law by which neutral commerce in time of war

had been previously regulated. France, on her part, revived the

severity of her ancient prize code; decreeing not only the capture and

condemnation of the goods of her enemies found on board neutral

vessels, but even of the vessels themselves laden with goods of

British growth, produce, and manufacture.

 

In 1801, principally in consequence of the doctrines of the British

Admiralty Courts with regard to the right of search, great efforts

were made by the Baltic powers to recall and enforce the doctrines of

the armed neutrality of 1780. This attempt is generally known as the

Armed Neutrality of 1800, and was met, promptly overpowered, and the

confederacy finally dissolved, by the naval power of England. Russia

gave up the point, and by her convention with England of the 17th of

June, 1801, expressly agreed, that enemy's property was not to be

protected on board of neutral ships.[198] This settlement was ended by the death of the Emperor Paul.