Treaty exceptions to the Law of Nations.
With the exception of the famous Prussian Remonstrance of 1753, which I shall refer to in the next chapter, the principle that enemies' goods were seizable in neutral vessels was never challenged as a recognized maxim of international law, and even the armed neutralities, which we shall have to consider at the same time, were rather attempts to change the law by force, in the interest of neutral commerce, than to deny the principle of the law of nations, which was undisputed and indisputable.
This, however, did not prevent contracts being entered into between nations, by which this principle was relaxed, as between the contracting parties. This very exception proves the general rule: we conceded a part of the advantage which the law of nations gave us for certain treaty benefits for which we stipulated in return. As Pitt said in 1800, "with respect to the law of nations, the principle on which we are now acting has been universally admitted and acted upon, except in cases where it has been restrained and modified by particular treaties between different states. The very circumstance of making an exception by treaty proves what the general law of nations would be, if no particular treaties were made to modify or alter it. The question was whether we were to suffer neutral nations, by hoisting a flag in a sloop or a fishing-boat, to convey the treasures of South America to Spain or the naval stores of the Baltic to Brest and Toulon."
I will now proceed to describe the manner in which it came about that this particular stipulation (that the neutral flag should cover enemies' merchandize) became incorporated in a great number of international treaties. But before doing so, I have four or five preliminary observations to offer on the subject.
I. No number of treaties can make a law of nations in the sense in which I have already defined a law of nations. At most it can only establish a "conventional law," and then only when all nations agree to it. If the Declaration of Paris were signed by all European nations it would then become a "conventional law of nations," but could never rise to the dignity of a "law of nations" in the highest sense. But these treaty stipulations by no means even amounted to a "conventional law of nations" for they only obtained between the contracting parties, and did not affect their relation with other powers. The very same nations which made these contracts with one nation made others with precisely contrary stipulations with other nations. Thus France whilst stipulating in the Treaty of Utrecht (1714) with England and Holland for "free ships, free goods" made an exactly contrary stipulation with the Hanse Towns in 1716, with Hamburg in 1769, and with Mecklenburg in 1779, and left the matter untouched in her treaty with Portugal at the Peace of Utrecht, 1714. Again, Denmark stipulated for the new rule with France in 1662, and the old rule with England in 1670; and the United States stipulated for the new rule with France in 1778 and the old rule with England in 1794, as we have already seen.
II. If a law of nations were to be gathered from a consensus of stipulations in treaties, and if such a consensus as to the new rule could be (as I have just shown it cannot be) gathered from the treaties on the subject, then would the converse principle, "enemies" ships make enemies' goods," i.e. that neutral goods should be seizable on board enemies' ships, require to be equally erected into a maxim of international law, for it is remarkable that there is not a single treaty in which the former rule is stipulated for, in which (as a sort of practical compensation for the cession of undoubted belligerent rights) the latter is not equally agreed upon.
III. We shall find that although there were a great many treaties in which "free ships, free goods" and "enemies' ships, enemies' goods" were stipulated, there were a great many at the same time in which the opposite provisions, (i.e, the old rule of the Consolato del Mare) were stipulated, and still more in which, nothing being stipulated, the old rule was acknowledged in default of express stipulation; and that the cases in which the new rules were agreed to were, generally speaking, divisible into—
(a.) Treaties with small nations, which we had a peculiar interest in attaching to us, such as Portugal and the small Barbary States.
(b.) Nations which we particularly desired to detach from some hostile alliance by means of important concessions, like Holland, and who would be usually not neutral but either in alliance with or hostile to us, in both of which cases the concession would not injure us.
(c.) Nations usually at war with us—like France, when the concession would be, ipso facto revoked on the first declaration of war; whereas we studiously avoided making this stipulation with those nations who habitually held to a neutral policy—like Sweden and Denmark in the Northern Seas, and Spain, Naples, &c. in the Southern Seas.
IV. As very few nations (none one may say) had a larger commercial marine—except England and Holland—than the necessities of their own commerce demanded, the stipulation was practically harmless and unmeaning, except in the cases of England and Holland whom alone it affected.
V. The stipulation in question occurs far less frequently in treaties than is often stated and supposed, and this on account of a confusion which I wish to point out. In the 16th century (as we have seen was the case in Francis I.'s marine Ordinance, and in those which succeeded it) the maritime nations often went beyond the equitable provisions of the Consolato del Mare, and not only forbade the neutral to undertake that part of the trade of the other belligerent which he did not possess in peace, but prohibited all trade with him. When subsequently in the two following centuries, 17th and 18th, commerce became more generally understood and of greater significance and importance, and commercial treaties began to be made between nations, it became customary to insert a clause mutually allowing "liberty to navigate freely without interruption," in time of war as in time of peace; and this clause, which was a renunciation of the right previously claimed and exercised to interdict all neutral commerce with one's enemies, has been confounded with a permission to carry enemies' goods. The distinction is manifest.
Under the more sweeping prohibition a neutral could not buy for his own use a belligerent's goods, nor sell to him in return his own wares. Under the more restricted prohibition he could carry on this habitual trade, but he might not acquire the carrying trade of the belligerent for merchandize the property of the belligerent. And what clearly proves that it was this general trade alone which was allowed by the clause concerning "free navigation" inserted in these treaties, is that in some treaties a clause is found permitting "free navigation in time of war as in time of peace," side by side with another clause expressly prohibiting the carrying trade of the enemy. In the Treaty of Upsal, for instance, between England and Sweden (Cromwell and Christina—Whitelock and Oxenstiern) it is expressly stated, " Lest such free navigation should be prejudicial to the confederate that is at war, and lest hostile goods and wares should be concealed under the disguise of friendship, and for removing all suspicion and fraud, passports and certificates shall be provided."
In the treaty, too, between Denmark and France, 1645, it is expressly stated that freedom of commerce is to consist in "leaving things exactly as they are" in both Western and Northern Seas.
Having made these preliminary observations on the subject, I will proceed to give an account of how this principle of "free ships, free goods" came into vogue.
It was Holland that became its champion and its sponsor. After the war ended by the Treaty of Munster, which secured their independence to the Netherlands, the Dutch began to turn their minds exclusively to commerce and the acquisition of wealth. There were especially two points in their policy, to the attainment of which they bent all their energies.
I. That in peace no nation should grant to its own inhabitants any privilege in relation to freightage which Holland should not equally enjoy.
II. When any other nation was engaged in war, that they should enjoy, as neutrals, the right of protecting the commerce of its enemies.
If they could only attain these two objects they might hope to acquire the carrying trade of the world;—a trade which was the basis of their prosperity and the natural direction of their energies. No other nation (except England) had more shipping than was equal to the carriage of their own produce and manufactures, and the peculiar position and characteristics of the Dutch gave them particular advantages in the competition for this trade of freightage. They had succeeded to the Hanseatic traders of the middle ages in the uncommon parsimony and industry of their race, which made them contented with smaller profits than other nations, and able therefore to outbid them in the cheapness of freights. As they had acquired all that they strove for by arms, and had little more which they could hope to acquire by war, and the size of their country excluded them from playing a great part in Europe, the acquisition of wealth, and the enjoyment of the profit arising from the dissensions of their larger neighbours, seemed to be the part which they were henceforth destined and fitted to play in Europe. The Regency therefore of Holland, under its great minister De Witt, laboured with all its might for the attainment of the two objects which I have described. Now the first object (viz., to secure the same advantages of freightage for Dutch subjects as for the natives of other states) Colbert granted to Holland, and for the simple reason that under his regulations French manufactures throve better than French navigation, and it was for the interest of France herself to increase the facilities for her commerce by the lowering of freights.
And the second point (securing the carrying trade in time of war) the Dutch obtained from France by the 35th article of the treaty of 1662, between France and Holland. This was an immense triumph for Dutch policy and Dutch perseverance. It was not the first treaty recognition of the maxim which they obtained (for they had obtained it in 1650 from Spain, and in 1661 from Portugal), but it was the most important instance of their success. There remained England; and if only they could obtain the same success with her, their national fortune was secured. They strove hard to obtain it. As early as 1654, in a proposal for a maritime treaty between England and Holland, Nieuport, the Dutch ambassador, pressed hard for this concession from Cromwell's Government, but, as might be expected, signally failed.
The way they eventually succeeded with England was this:—Louis XIV. had entered on his career of ambition, which it became the great object of policy on the part of England to curb. With this object it was important to detach Holland from the alliance with France, and Sir William Temple was commissioned in 1668 to effect this. He could scarcely succeed without making the same concessions to Holland which France had already made; indeed; from the importance that the Dutch statesmen attached to this particular concession, it was his chief weapon to employ, and accordingly in the treaty of commerce of the Hague; 1668, renewed in the treaty of commerce 1674, the 10th article conceded the principle of the neutral flag. Four years after the latter treaty, viz., in 1678, an offensive and defensive alliance was entered into between England and Holland, the first 12 articles in which were identical with the first 12 in the Franco-Dutch treaty of 1662—mutually guaranteeing their European possessions. And in 1716, at the Peace of Utrecht, both these treaties, 1674 and 1678, were renewed in so far as not contrary to each other.
But I must observe here that the offensive and defensive alliance of 1678 deprived the clause about the neutral flag in the commercial treaty of 1674 of all significance; because, as it stipulated that England and Holland should have the same enemies, Holland could not profit by it as a neutral; and this state of things, in fact, continued for 80 years, and when in the middle of the subsequent century, during the war of 1756, Holland, on a technical interpretation of the treaty of 1678, declined to aid England when attacked by France, and wished to remain neutral and profit by this clause about the neutral flag, England declared the treaty of 1678 violated, and absolutely refused her the privilege accorded to the neutral flag in the treaty of 1674.
So that those who trumpet Sir Wm. Temple's great name as an abettor of this principle forget both the political object he had in view in making the concession, and the further treaty by which he hedged it round.
Just in the same way some people are audacious enough to use Cromwell's name for the same purpose, because he conceded this principle to Portugal, a little state with scarcely any marine, and one, such as it was, barely sufficient for her own commerce, forgetting that the sole object of Cromwell was political, making the concession of certain undoubted acknowledged rights in order to detach a maritime nation like Portugal from the alliance of her two neighbours, and in order to make a break in a long line of coasts belonging to nations habitually hostile to England.
This is the way the principle got ushered into Europe—The Dutch obtaining it successively from Spain, Portugal, France, and England. Its introduction therefore was not as a natural right, nor a free grant made from a sense of justice, but established by way of bargain by countries stipulating for mutual advantages. It will not now surprise us that in a great number of treaties, from the middle of the 17th century to the time of the American revolution, this new rule was conceded. The matter, as investigated by Ward, stands thus. Between 1642 and 1715, 12 treaties introduced the new rule, 7 expressly stipulated for the old rule, and in 31 no mention whatever is made of it, and therefore the old rule continued in force; and between 1715 (Peace of Utrecht) and 1780 (first armed neutrality), 20 treaties either conceded the new rule or renewed the 12 previous ones that did so, and 34 make no mention of it, thus maintaining the old rule.
Thus we have 32 treaties acknowledging the new rule as against 72 maintaining the old one. And, as I have already observed, in every treaty in which the new rule is conceded, its converse, viz., that "enemies" ships should make enemies' goods (i.e, that neutral goods should be seizable in enemies' ships) was likewise stipulated; and it was never so much as urged that a particular treaty, or any number of particular treaties, with particular nations, making a particular concession, could create a new law of nations, or change the old law of nations, as a law of nations, whatever exceptions to it they conventionally introduced.
I must observe that England never conceded the principle in any treaty with the Northern States, Russia, Denmark or Sweden. She maintained her maritime rights intact in the waters bordering on her coasts.