The Prussian Remonstrance of 1753.
In the last chapter we reviewed the exceptions to the common law of the sea introduced by special treaties between different nations. So far from being a challenge of the principle of the common law, these special exceptions were the best of all possible acknowledgments of the force of that common law where no treaties intervened. The only direct challenge to the principle itself took place in the middle of the 18th century, in a negotiation known in history as the Prussian Remonstrance, which ended in the signal defeat of the Remonstrants and the conclusive establishment of the English or rather international rule. The following is the history of that famous Remonstrance.
Frederick II. had seized Silesia from Maria Theresa, and, by the Treaties of Breslau and Dresden, had taken over with this province certain debts secured on this province and owing to Englishmen. But on the ground that England had seized Prussian vessels engaged in contraband trade and taken enemies' cargoes out of them, the Prussian king refused to pay the Silesian indemnity until the counter claims of the Prussian subjects, who had sustained these maritime losses, had been satisfied. Upon this, the Duke of Newcastle, who was the English Minister, wrote a letter (founded on the report of a Commission issued to examine into these claims, on which Sir George Lee, Judge of the Prerogative Court; Dr. Paul; H.M.'s Advocate-General; Sir Dudley Ryder, Attorney-General; and Mr. Murray, Solicitor-General, sat) of so conclusive a kind that Montesquieu called it a réponse sans réplique and it brought the negotiations to a close by the immediate payment by Prussia of the Silesian indemnity.
As the points established in this letter, and by the English Commission, are exactly points germane to our inquiry, I will proceed to state them in detail They answered to the several points raised by the Prussian Remonstrance.
I. That affairs of this kind are, and can only be cognizable in the courts belonging to that Power where the seizure is made.
II. That those Courts (of Admiralty) always decide according to the universal law of nations only.
III. That the cases complained of have been decided upon the rule prescribed by the law of nations—a rule clearly established by the constant practice of other nations and by the authority of the greatest men.
IV. No treaty can be a pretext for altering that rule.
V. As justice was not denied, and the complainants themselves did not appeal to the Higher Courts, there is no case for reprisals on the part of Prussia.
VI. The clear words of the Treaties of Breslau and Dresden demand the Silesian indemnity to be paid.
The first point, that affairs of prize can only be judged in the prize courts of belligerents, was long established by the custom of nations. There never was, nor can there be, any other equitable mode of trial. All maritime nations have, when at war, from the earliest times uniformly proceeded in this way, with the approbation of all the powers at peace. If justice is denied by the prize courts of a belligerent nation, or if its decisions are notoriously contrary to justice, then such a pretext is a just cause of remonstrance and even of war, principle of the locality of prize courts had never been called in question.
2nd. As to the uprightness of the decisions of the English prize courts, they had always enjoyed the very highest reputation. The Duke of Newcastle points out (1) that the judges, especially the Commissioners of Appeal, were men of the highest legal reputation; (2) that they are bound to decide on the principles of the universal law of nations and particular treaties; (3) that in England the Crown never interferes with the judges, and never issues nor can issue orders to them; and (4) that they are independent of the Executive, and call only be removed by an address from both Houses of Parliament.
Apropos of the high character of the judges of the English High Admiralty Courts it is not out of place perhaps to quote here Lord Stowell's words pronounced in the case of the famous Swedish convoy, many years after this. "I trust it has not escaped my anxious recollection what it is that the duty of my station calls for from me, viz., to consider myself as stationed here, not to deliver occasional and shifting opinions to 'serve present purposes of particular national interest, but to administer, with indifference, that justice which the law of nations holds out without distinction to independent states, some happening to be neutral and some belligerent. The seat of judicial authority is indeed locally here in the belligerent country, according to the known law and practice of nations, but the law itself has no locality. It is the duty of the person sitting here to determine this question exactly as he would determine the same question if he were sitting at Stockholm, to assert no pretension on the part of Great Britain which he would not allow to Sweden in the same circumstances. If I state the law in this matter, I assert that which I consider, and which I mean should be considered, the universal law on the subject."
These words may be taken as the authoritative exposition of the principles which ought to, and do, regulate the decisions of prize courts in England. The Duke of Newcastle goes on to cite a great number of treaties, between most of the European nations, recognizing the principle of the locality of prize courts in the belligerent's country; between England, France, Spain, Holland, and Denmark; and with respect to witnesses, appeals, reviews, &c.
The third point raises the whole of the questions which we have been considering in the previous chapters, as to what the law of nations is on the subject of the liability of enemies' goods to be captured in neutral vessels. From the year 1746 the Prussians had been engaged in the gainful practice of covering enemies' goods, and they now asserted their right to do so by the law of nations.
The Duke of Newcastle's answer is crushing on this head. He quotes chapter and verse of all the great writers on International Law on the subject, and I cannot do better than transcribe here the authorities he quotes:—
(1) The "Consolato del Mare." Cap. 273.
(2) Grotius de jure belli ac pacis. Lib. III cap. I. sect. 5, note 4 citing the above (1) quotation, and also in his notes, L. III. c. 6. 5, 6.
(3) Vattel, L. IIL cap. 7. " If any goods belonging to the enemy are found on board a neutral ship they may be seized by the right of war, but the freight must naturally be paid to the master of the ship, who must not himself suffer by such seizure."
(4) Bynkershock, L. L c. 14. "We must rather consider reason itself than treaties. I cannot see any cause why it should not be lawful to take enemies' goods, though found in the ship of a nation not at war; for I consider it as the property of an enemy, and belonging by the right of war to the conqueror."
(5) Loccenius, de jure maritimo. L. II. c. 4, s. 12.
(6) Voet, de jure militari. C. 5, n. 21.
(7) Heineccius (a Prussian) de navibus ob vecturam vetilarum mercium commissis. C. 2, s. 9. (Perfectly clear and explicit on this head).
(8) Zouch, de judicio inter gentes. Pars II. s. 8, n. 6.
As to the fourth point the Duke of Newcastle goes on to say: "What I have laid stress upon, on more than one opportunity, is, that the general rule cannot be more strongly proved than by the exceptions which particular treaties have made to it."
The fifth point is an argument by itself. With reference to reprisals, the law of nations, founded on justice, equity, convenience, and the "reason of the thing" and confirmed by long usage, only allows of reprisals in cases of violent injuries directed and supported by the State, and when justice is absolutely denied "in re minimè dubiâ," by all the tribunals and afterwards by the Prince. Cf. Grotius de jure belli ac pacis, L. III. c. 2, s. 4, 5; also the treaty between England and Holland, 31 July, 1667, Art. XXXI. "Reprisals shall not be granted until justice is demanded according to the ordinary course of law." Also the treaty of commerce of Ryswick, 20th Sept. 1697, between France and Holland, Art. IV. "Reprisals shall not be granted except on manifest denial of justice."
The sixth point is the mere statement of a matter of fact.
I have already stated that this answer of the Duke of Newcastle was considered so conclusive that the Prussian counter-claims were withdrawn, and the Silesian indemnity paid.