CORRIGENDA 
 
 On p. 38, 2nd para., for 'French Memorandum (see pp. 29, 32)' 
 read 'Prussian Answer to the Law Officers' Report (see p. 36) ' 
 
 On p. 62, line 28, for ' President Jefferson ' read ' Mr. Jefferson, 
 the Secretary of State,' 
 
 Foot-note, for 1795 ' read ' 1799 ' 
 
 Freedom of the Seat
 
 PUBLISHED FOR THE HISTORICAL SECTION OF THE 
 FOREIGN OFFICE 
 
 HE FREEDOM OF THE SEAS 
 
 HISTORICALLY TREATED 
 
 BY 
 
 SIR FRANCIS PIGGOTT, KT. 
 
 Author of " The Armed Neutralities," $c. 
 
 OXFORD UNIVERSITY PRESS 
 
 LONDON EDINBURGH GLASGOW NEW YORK 
 
 TORONTO MELBOURNE CAPE TOWN BOMBAY 
 
 HUMPHREY MILFORD 
 1919
 
 PREFACE 
 
 THERE must be some fundamental principles 
 governing the relations of belligerents and neutral 
 merchants; they cannot be regulated by a series of rules 
 which have all the appearance of being haphazard, 
 unless some recognised principle underlies them. But, 
 even when Congresses meet for the express purpose of 
 arriving at an agreement as to the rules, we look in 
 vain for some statement as to what this principle is. 
 Meanwhile, many undigested theories are advanced, 
 based on very doubtful hypotheses. Of these the fore- 
 most, which has taken hold of many international 
 lawyers, is that neutral commerce with the belligerents 
 ought not to be interfered with, but nlust be allowed 
 to continue in war as in peace, with exception only in 
 the case of contraband of war and trade with blockaded 
 places. On this the alleged right, as distinguished 
 from treaty agreement, rests that "free ships" make 
 "free goods." 
 
 There is also much insistence on the doctrine that the 
 rules of international law are based on the common 
 practice of nations. If this means all nations, so great 
 is the divergence in actual practice that few rules would 
 survive. If it means the practice of many, or the 
 majority of nations, then, in 1780, England would have 
 been in a minority of one, and her supremacy at sea 
 would have passed away. Yet there must be, and is, 
 some test of right and wrong. It is to be discovered by 
 a study of what nations did, as belligerents and 
 neutrals, in time of war, and testing it by the motive 
 which lay behind ; for motive is more easily judged than 
 action. The motives are written very plain in history: 
 abundant war profits for the neutrals, essential assis- 
 tance to the enemy. Belligerent action, whether it were 
 the seizure of contraband cargoes or of ships running
 
 PREFACE ii 
 
 blockade, or the larger operations of commerce-destroy- 
 ing, has always been based on the necessity of pre- 
 venting that assistance reaching the enemy. The 
 standing illustration is the incessant dispute between 
 England and France during the two years which pre- 
 ceded the declaration of war in 1778, when the pro- 
 fessed object of the Cabinet at Versailles was to assist 
 the American Colonies in their rebellion. 
 
 The historical method is essential to the under- 
 standing of what, for want of a better term, is called 
 " International Law " ; and the object of this little book 
 is to give in outline the story of the different periods 
 when England's action at sea was challenged by com- 
 binations of the Neutral Powers. 
 
 F. T. P. 
 
 EDITORIAL NOTE 
 
 THIS treatise is confined to the historical side of the 
 question, and avoids any discussion of its controversial 
 aspects, except in so far as these form part of its 
 history. It is issued to the public as supplying an 
 indispensable preliminary to the understanding of 
 present conditions and international difficulties. 
 
 . G. W. PROTHERO.
 
 TABLE OF CONTENTS 
 
 PAGE 
 
 I. Introductory ... ... ... ... ... 1 
 
 II. The Treaty of Utrecht, 1713, and the maxim 
 
 " free ships free goods " ... ... ... 14 
 
 III. The Silesian Loan, 1752-3 29 
 
 IV. The Seven Years War, 1756-63 37 
 
 V. The War of American Independence, 1776-83 ... 39 
 
 VI. The First Armed Neutrality, 1780 42 
 
 VII. The period between the First and Second Armed 
 
 Neutralities ... ... ... ... ... 61 
 
 VIII. The Second Armed Neutrality, 1800 72 
 
 IX. Napoleon and "La Liberte des Mers " ... ... 81 
 
 X. Abandonment of theJArined Neutrality principles 87
 
 * FREEDOM OF THE SEAS ' 
 
 HISTORICAL 
 
 I 
 INTRODUCTORY 
 
 THE appropriation of the formula, the " Freedom of 
 the Seas," by our late enemy necessitates an historical 
 examination of its use by the enemies of Great Britain, 
 and a renewed assertion of its true meaning. The 
 enemy has adopted it as a comprehensive term, to deny 
 the right of a belligerent to interfere with his free use 
 of the sea in time of war. 
 
 For a belligerent to claim free navigation and com- 
 merce at the hands of his enemy, to assert that he is 
 entitled to use the sea as freely in war as in peace, is 
 to ignore the circumstances of war and practically to 
 deny the right to tight upon the sea. 
 
 But when the neutral makes this claim, the question 
 assumes a very different and a more serious aspect ; for 
 his assertion appears at first sight to be unanswerable. 
 He is unconcerned with the war; a priori, therefore, 
 he should not be affected by it, and should be 
 allowed to continue in peaceful exercise of his rights 
 of free navigation and commerce upon the sea. Yet 
 this also ignores the circumstances and conditions of 
 war ; for, obviously, free navigation and free com- 
 merce would carry with it free intercourse with the 
 enemy and raise the question how far this is consistent 
 with neutrality. 
 
 In the historic disputes in which England's attitude 
 at sea has been challenged, the neutral has put forward 
 his claim in this simple fashion; he has hardly dis- 
 guised the fact that his aim has been to maintain free 
 
 [1947] B
 
 intercourse with the enemy. The only exceptions he 
 has been willing to admit are trade in contraband and 
 with blockaded ports. The issue is therefore very 
 clearly denned, and it has not varied from the time it 
 was first raised to the present day. 
 
 It must be obvious that it lies only with the neutrals 
 to put forward this claim of free navigation. If the 
 enemy has any right to claim it, it can only be (in the 
 absence of a treaty) as a derivative from the neutral's 
 right. The historical examination of the question will 
 amply demonstrate the accuracy of this statement. 
 
 Our enemy sought at the outset to cloud the issue by 
 confusing the Laws of War with what is popularly 
 called " International Law," and did so with some 
 success. It is suggested that the only sound way of 
 treating the subject is to say that the relations of 
 belligerent and belligerent are governed by the Laws of 
 War; that "International Law " properly applies to 
 the relations between belligerent and neutral States; 
 and that the questions which commonly arise in con- 
 nection with the " Freedom of the Seas," can only be 
 accurately defined as the relations of belligerents and 
 neutral merchants. 
 
 The point need not be laboured, but must be noticed 
 in order to emphasise the importance of preserving an 
 accurate nomenclature in the discussion. Confusion 
 of meaning in the terms used has prevailed since the 
 question was first debated, and the enemy has always 
 availed himself of that confusion. 
 
 To make my meaning clear. The question whether 
 it is legitimate in war to destroy the commerce of the 
 enemy can only depend on the Laws of War ; the point 
 being whether the effect of this belligerent action does 
 not so affect the civil population as to remove such 
 action from legitimate warfare. The destruction 
 cf the enemy's trade with himself his coasting 
 trade, for example could not be condemned on 
 any other ground. But when we come to the 
 enemy's trade with the neutrals another factor 
 is introduced into the discussion j the question passes
 
 fromi the sphere of the Laws of War, because other 
 parties the neutral merchants are affected, who are 
 unconcerned with the war. The issue then takes this 
 form : whether those parties have commercial rights 
 which are paramount to the right of the belligerent to 
 annihilate his enemy. It is not easy to disentangle 
 the two questions Whether the neutral merchant has 
 a right to trade with the enemy? Whether the enemy 
 has a right to trade with the neutral merchant! The 
 discussion of the principle " free ships free goods ' 
 is infected with this difficulty. But, war being what it 
 is, in the absence of any support from the Laws of War, 
 it is obvious that, if the enemy has any such right, it 
 must be derived (in the absence of a treaty) from the 
 right, if any, of the neutral merchant, and from the 
 impossibility of severing the rights of the two parties 
 to the contracts of which all commerce is composed. 
 
 The argument in favour of the enemy cannot be put 
 higher than this : that his commerce cannot be inter- 
 fered with, because the right of the neutral merchant 
 would also be interfered with. And this argument is 
 no stronger than its converse the neutral merchant 
 can have no right to trade with the enemy, because any 
 rights which the enemy has are at the mercy of the 
 belligerent. 
 
 The solution of the difficulty either way must depend 
 on some sounder process of reasoning. 
 
 The position assumed by England may be stated very 
 simply. Interference with neutral trade is justified 
 whenever the premiss on which the neutral claim rests 
 unconcern with the war is negatived by the facts. 
 When the neutral has established relations with the 
 enemy his claim of absolute right is vitiated. To 
 this fundamental principle England's action has been 
 at all times referable. It was not until the pressure 
 of her power upon the sea became so great as prac- 
 tically to annihilate those relations that the 
 neutrals had recourse to the formula " Freedom of the 
 Seas " to destroy it. The enemy followed his lead. In 
 
 [1947] B 2
 
 4 "FREEDOM OF THE SEAS " 
 
 this sense and for this purpose the formula came into 
 common use on the Continent from 1776 to 1782, at the 
 time of the American War of Independence and 
 the First Armed Neutrality. In this sense and 
 for this purpose Bonaparte at the time of. the Second 
 Armed Neutrality, in 1800, adopted it as his own. 
 This combination of neutral and enemy, their resent- 
 ment at the action of the Power which, used her 
 supremacy at sea to interfere with their trading rela- 
 tions, led to her being called the " Tyrant of the Seas," 
 an epithet based solely on the assumption that the use 
 of the sea in peace continues unaltered in war. 
 
 Now, in the first place, war upon the sea must 
 interfere with its free use. The quarrels of 
 maritime nations are fought out upon the sea. There 
 will be fighting wherever enemy ships are found 
 (except in neutral territorial waters) ; and free 
 navigation on the trade routes will be interrupted. 
 Thus indirectly war diminishes the Freedom of the 
 Seas. 
 
 War also prejudices it directly; and, quite apart 
 from the familiar questions of blockade and contra- 
 band, free commerce is curtailed. This point must at 
 the outset be made clear: that except indirectly, as just 
 indicated, neutral trade with neutral is not inter- 
 fered with, but remains "free." But it is obvious 
 that neutral commerce alters its character directly an 
 ultimate destination of the cargoes to the enemy is 
 intended, and loses it altogether when it is commerce 
 with the enemy. A new element has been introduced 
 which entitles the belligerent to revise his admission 
 that neutral commerce is free. This is invariably over- 
 looked in all the statements of the case against 
 England; interference with neutral trade with the 
 enemy is treated as being in the same category as inter- 
 ference with purely neutral trade with neutral. The 
 former might be completely destroyed, and yet genuine 
 neutral commerce remain intact. It follows, therefore, 
 that the measure of belligerent interference with the 
 trade of the neutrals is the nature and extent of the
 
 5 
 
 relations which the neutrals themselves establish with 
 the enemy. 
 
 Those relations have compelled the assertion by belli- 
 gerents of a right to visit and search neutral merchant- 
 men in all circumstances, and of a correlative duty in 
 the neutrals to submit to visit and search whenever it 
 is claimed. There is in this a very direct interference 
 with the Freedom of the Seas. Round this question all 
 the historic disputes have centred, for the neutrals 
 denied the duty and resisted the exercise of this right. 
 
 The wars in which these disputes arose were those 
 in which a yet larger issue was involved, a struggle 
 for world- dominion. Of such wars England inevitably 
 became the pivot. For, if one country hold the com- 
 mand of the sea, so great is its influence that, even with 
 little strength on land, it interposes an effective bar to 
 the achievement of the ambition. 
 
 Such was the position of England. By the develop- 
 ment of sea-power, the natural resource of an island 
 kingdom, she created from the surrounding seas the 
 barrier of her safety. Hence the later struggles for 
 world-dominion have involved an attempt to wrest from 
 England the supremacy of the seas. 
 
 It must be conceded that the rules of sea warfare 
 cannot be framed to suit the exigencies of one country's 
 position in the world. But the point involved is this: 
 that an analysis of the history of these conflicts con- 
 demns the principles which enemy and neutral sought 
 to force on England, because it reveals the true motive 
 underlying them, and shows very clearly that the 
 principles which the neutrals proclaimed did in fact 
 very largely concern and benefit the enemy. 
 
 Not the least of these important facts is that the 
 most vehement assertions of these principles by the 
 neutrals have coincided with projects for the invasion 
 of England. The foundations of the dispute were laid 
 in the time of the Armada; it grew in strength in 
 1756, was further developed in 1783, and reached its 
 zenith in 1805. History has lately repeated itself. 
 
 An analysis of the principles themselves leads to the
 
 6 " FREEDOM OF THE SEAS ' 
 
 same conclusion. The neutral claims took the form of 
 " freedoms," whose principal characteristic was the 
 development of an admitted truth into a fallacy 
 favourable to the enemy. Thus, freedom of trade upon 
 the sea became " freedom of neutral trade with the 
 enemy." Thus also that state of quiescence which 
 neutrality not merely enjoins, but which the security of 
 neutral States demands, was transformed into the free- 
 dom of the neutral flag to protect enemy property at 
 sea, known familiarly in the form of the maxim, " free 
 ships free goods." And so the fact that the sea is free 
 was perverted into an all-embracing ' ' Freedom of the 
 Seas," favourable to neutral activities of commerce 
 with the enemy, and restricting within the narrowest 
 limits belligerent activities to prevent it. 
 
 These general statements are borne out by the out- 
 standing fact that this spurious "Freedom of the Seas,' ' 
 conceived by the neutrals to serve their own ends, be- 
 came Bonaparte's catchword when he sought to destroy 
 England's supremacy at sea as an essential preliminary 
 to establishing it for himself, and so achieving world- 
 dominion. The new formulas which it included would, 
 if they had been admitted, have become effective 
 weapons. They would have supplied him with mer- 
 chantmen to carry his commerce in place of his own, 
 which had been driven from the sea; the neutral flag 
 would have saved him from the necessity of supplying 
 them with the escort of men-of-war. 
 
 The foundations of fallacy once laid, further fal- 
 lacies, devised with the same object, came to be built 
 upon them. Of these the most notorious were, that 
 neutral produce should be free; that private property 
 should be exempt from capture at sea ; that war on the 
 sea should be conducted in the same way as war on land ; 
 that merchant ships under convoy should be exempt 
 from search and seizure. 
 
 The acceptance of these theories by the majority of 
 European States at different times has undoubtedly 
 given them the appearance of being founded in justice; 
 and they were endowed with a fictitious morality
 
 INTRODUCTORY 7 
 
 because they do, at first sight, seem to come within the 
 scope of the true " Freedom of the Seas." 
 
 If there were any substance in the contention that a 
 widely spread recognition of a theory entitles it to rank 
 as a principle of the Law of Nations, then undoubtedly 
 there is a mass of evidence favourable to this theory of 
 the neutrals. On this so-called unanimity the writers 
 persistently dwell, and on the strength of it the 
 Declaration of Paris was framed. The other side 
 of the case was ignored. Of greater weight than 
 England's consistent refusal to accept the theory is the 
 fact that, when these neutrals went to war, they had no 
 qualms of conscience about abandoning it. They advo- 
 cated it only when it suited their purpose and brought 
 them profit. English statesmanship during the great 
 wars was specially directed to combating what were 
 rightly called " new-fangled doctrines," to whose 
 appearance a specific date, 1752, and to whose develop- 
 ment a specific period, 1752 to 1815, can be assigned. 
 
 The form of this treatise, which is essentially 
 historical, does not admit of any prolonged study of 
 the doctrines themselves; but they must be briefly 
 examined in order to make history intelligible. The 
 historical analysis makes this much plain : that the doc- 
 trines had their origin in a human desire, as old as 
 fighting itself, to make profit out of other peoples' wars. 
 The tmder contended that " commerce " attracts to 
 itself certain natural rights which are paramount in 
 war. But the rights of commerce had been reduced 
 into something like order in the thirteenth century by 
 the Consolato del Mare, in which the claims of the 
 neutral trader to non-interference were nicely balanced 
 against the claims of the belligerent to non-interference. 
 The principles worked out by the Consolato had become 
 time-honoured through their adoption by the majority 
 of States. The new contention involved a departure 
 from them. 
 
 In the seventeenth and eighteenth centuries another 
 person forced himself prominently into notice the 
 carrier. He, like the trader, pursued a profitable
 
 8 " FREEDOM OF THE SEAS ' 
 
 calling, and his profits, like those of the trader, were 
 enhanced by other peoples' wars. He also resorted to 
 formulas to protect and develop those profits ; but in 
 justice it must be said that it was long before he turned 
 them into assertions of rights. He achieved his end 
 by the more legitimate method of barter, offering some- 
 thing in exchange for the privilege he sought to 
 acquire ; more often than not, an alliance. 
 
 In 1752 the dispute developed dangerous symptoms. 
 Without offering the same consideration, the trader 
 claimed the carrier's privileges as his own rights; then 
 in process of time vendor and carrier merged into one 
 person, the "neutral," who surrounded himself with 
 a barrier of formulas. 
 
 Finally, the enemy adopted for his own benefit all the 
 formulas, together with all the privileges and rights 
 they represented. They exactly fitted the neces- 
 sities of his case ; and the analogy of a legal 
 principle stood him in good stead. He was pur- 
 chaser of the commodities, consignee of the cargoes; 
 the rights of vendor and carrier, once established, 
 enured to his benefit. There was thus established the 
 most powerful weapon a belligerent can possess the 
 sympathy of the neutral trader, springing from com- 
 munity of interest. 
 
 It is very necessary to appreciate one feature of the 
 discussion which has already been hinted at. The 
 rights were asserted as belonging to neutral nations, 
 and were thus lifted from the plane of mere profit. 
 But the privileges and the rights, if they existed, 
 were to be enjoyed by individuals. Undoubtedly 
 the resultant mass of profit benefited the in- 
 dividual's Government, since the prosperity of the sub- 
 ject reacts beneficially on its fiscal departments. But 
 a clear insight into the problems raised can only be ob- 
 tained by remembering that the actual questions in dis- 
 pute were not national. To endow them with that 
 quality is to eliminate the element of the human trader 
 with which every phase of the subject abounds. At one
 
 INTRODUCTORY U 
 
 stage of the dispute "the flag" was introduced, and 
 the real issue still further obscured. 
 
 On the other hand, this also must be constantly 
 borne in mind. " Neutrality " is a state which affects 
 Governments, not individuals. Strictly speaking, 
 there is no such being as a " neutral person." Any 
 duties of non-interference by individuals in war must 
 be imposed by municipal legislation, and may vary in 
 each State. They lie outside the province of " Inter- 
 national Law." That law does not forbid trading 
 by subjects of a neutral State, even in contra- 
 band of war, with either belligerent; nor does it pro- 
 hibit carrying the objects of that trading even in con- 
 traband, on the sea. If there were any such law it 
 would apply on land as well as on the sea. But 
 carriage of commodities to one belligerent by 
 sea is subject to a risk the risk that the other belli- 
 gerent may seize them. Disregard of this principle 
 characterised the Armed Neutralities; and their 
 municipal legislation did not fulfil its promise. 
 
 These, however, are abstract considerations; the 
 point lies in their concrete application to the great 
 struggle in which they were forced into prominence. 
 Supremacy at sea could not be wrested from England 
 otherwise than by fighting her at sea. Fighting at sea 
 necessitated repairing battered ships and building new 
 ones. The special trade with the neutrals which was 
 essential to the enemy was in ship's timber and naval 
 stores, in which the principal traders were Russia and 
 the Scandinavian Powers. Thus it came about that the 
 formulas were specially concerned with the protection 
 of this trade, and their chief advocates were the 
 Northern Powers of Europe. The controversy reached 
 its climax in the Napoleonic Wars. 
 
 German ambition in the late war reflected the 
 ambition of Bonaparte. The claim of the spurious 
 " Freedom of the Seas," and of all the old formulas 
 included in it, was revived to serve the old purpose 
 the destruction of the great impediment to world- 
 dominion, England's supremacy at sea.
 
 10 ' FREEDOM OF THE SEAS ' 
 
 The following quotations from German writers dur- 
 ing the war state quite frankly German aims: 
 
 ' What do we Germans understand by freedom of the seas ? 
 Of course, we do not mean by it that free use of the sea which 
 is the common privilege of all nations in time of peace, the 
 right to the open highways of international trade. That sort 
 of freedom we had before the war. What we understand to- 
 day by this doctrine is that Germany should possess such 
 maritime territories, and such naval bases, that at the out- 
 break of a war we should be able, with our navy ready, reason- 
 ably to guarantee ourselves the command of the seas. We 
 want such a jumping-off place for our navy as would give us a 
 fair chance of dominating the seas, and of being free of the 
 seas during a war. The inalienable possession of the Belgian 
 seaboard is therefore a matter of life and death to us, and 
 the man is a traitor who would faint-heartedly relinquish this 
 coast to England. Our aim should be not only to keep what 
 our arms have already won on this coast, but sooner or later 
 to extend our seaboard to the south of the Strait of Calais." 
 
 This statement was made by Count Reventlow at a 
 public meeting in Berlin in March 1917, and was 
 afterwards quoted by Lord Robert Cecil in the House 
 of Commons. An attempt was made to attribute it to 
 the German Navy League only, but there is no doubt 
 that it expresses views widely held in Germany, and 
 enjoying at least semi-official approval, which are to 
 be found in many other similar statements in the public 
 press. The following are typical examples : 
 
 From an article in the semi-official monthly, 
 Ueberall, by Lieut. -Commander Bierbrauer zu Brenn- 
 stein, towards the end of 1917: 
 
 " For Germany there is only one ' freedom of the seas,' 
 which is the liberation of the seas from the tyranny of England. 
 England's outrageous power must be broken for ever. To 
 achieve this end a strong and mighty Germany is required, 
 and then the seas will be free. To achieve this a strong 
 and powerful German navy is also required. We must have 
 defended naval bases in our colonies and also on the Belgian 
 coast, where no Englishman may land with hostile intent. 
 Germany will then be the real protector of the neutrals and of 
 the freedom of the seas. It must and shall be so. ' '
 
 INTRODUCTORY 11 
 
 From an article by Herr Winand Engel in the Pan- 
 German organ, Das Grossere Deutschland: 
 
 " German policy is forced, to secure for itself by all con- 
 ceivable means domination over the world-sea. I deliberately . 
 use the expression ' domination over the world- sea ' and not 
 the expression ' freedom of the seas,' which is common to-day. 
 The latter expression is either dishonest or stupid. The sea is 
 free to us only if we dominate it. If we do not dominate it, 
 it may one day be closed against us." 
 
 , ' i . . ' 5 ' : 
 
 These statements breathe the same spirit as 
 Bonaparte's fiery utterances. The " Freedom of the 
 Seas " is explained to mean something which would 
 enable Germany to obtain certain strategic advantages 
 and improve her position as a maritime Power. But 
 the nature of these strategic advantages the naval 
 bases demanded; the use to which they would be put 
 (" jumping-off places" for the navy) reveal very 
 clearly the ulterior object of the claim. The German 
 object in claiming the " Freedom of the Seas " does not 
 differ from Bonaparte's to destroy England's com- 
 mand of the sea, and to obtain the command as the 
 essential factor of world-dominion. This is the mili- 
 tary aspect of the question; the commercial aspect, as 
 it is derived from history, is dealt with in outline in 
 this, essay. For Bonaparte it was another means of 
 achieving the same object, and the doctrines he 
 advanced have been advanced by the Germans. It may 
 be summarised in one short sentence to utilise the 
 neutral. 
 
 The aim of the neutral was to trade with the enemy 
 with greater freedom from England's belligerent inter- 
 ference. The aim of the enemy was to trade with the 
 neutral with the same freedom, because that trade 
 would assure his supplies of ships' timber and naval 
 stores, without which he could not carry on the war. 
 
 This was as true of the war carried on by 
 Louis XVI as it was of the Napoleonic Wars. Bona- 
 parte's principle was that as against England no 
 nation had a right to be neutral; and the " Continental 
 System " was built up by the use he made of unwilling
 
 12 " FREEDOM OF THE SEAS ' 
 
 neutrals, compelling them to refuse to trade with Eng- 
 land. Louis XVI's Minister, de Vergennes. also 
 devised a Continental System by the law of July, 
 1778. He promised the neutrals " free ships free 
 goods," on condition that they would compel England 
 to recognise the principle. He withdrew the favour 
 from the Dutch, until they were forced to insist on a 
 one-sided interpretation of the Treaty of Westminster 
 of 1674, which led them into war with England. In 
 both cases " free ships free goods " was the strategic 
 formula by which, under the guise of " free com- 
 merce," world-dominion was to be obtained. As 
 Mahan says, the neutral carrier " was the key of the 
 position." 1 
 
 The broad principle on which England's action 
 against the neutrals has been based is to prevent their 
 assistance in any form reaching the enemy, whether 
 that assistance took the form of carrying the enemy's 
 coasting trade, assisting him in carrying on his 
 colonial trade, carrying the enemy's goods to his ports, 
 'or creating a shore depot through wnich goods passed 
 to the enemy overland. 
 
 The subsidiary points specially dwelt on in this 
 essay are: (i) that treaties do not, as a rule, establish 
 general principles of International Law; the enjoy- 
 ment of the privileges created by them are limited to 
 the parties who have entered into them; (ii) that the 
 trade by which assistance is rendered to the enemy is 
 carried on by individual merchants and shipowners, and 
 not by neutral States; (iii) that the laws of neutrality 
 affect Governments, not individuals; and although 
 attempts have often been made to prohibit trade with 
 the enemy, even in contraband, or with blockaded ports, 
 the trading instinct is so strong that they have failed 
 There is no other solution of the difficulty than the 
 recognition of the fact that this trade is carried on 
 subject to the risk of seizure by the belligerent. 
 
 So much emphasis has been laid by the Germans on 
 
 1 Influence of Sea Power upon the French Revolution and 
 .Empire, Vol. II., p. 354.
 
 INTRODUCTORY 13 
 
 the breach of neutrality which they allege to be 
 involved in supplying contraband to the belligerents, 
 that it may be well to point out that, if trade in con- 
 traband were prohibited by law, it would lead to this 
 inevitable result that all States would be compelled to 
 fight on their own resources, and", inevitably, the small 
 States would be rapidly absorbed by a powerful State 
 bent on achieving world-dominion. 
 
 Exigencies of space prevent this essay from being as 
 complete as it should be. There are at least three 
 important questions in the history of the subject which 
 it has been impossible to elaborate: (i) the policy of 
 Louis XVI in 1778, which led to the passing of the law 
 of July, in which " free ships free goods " was first 
 adopted; (ii) the maritime law of France; and (iii.) 
 the general scheme of the old commercial treaties in 
 which the maxim "free ships free goods" was agreed 
 to between the parties to them as a corollary to their 
 acceptance of " enemy ships enemy goods."
 
 II 
 
 THE TREATY OF UTRECHT, 1713, AND 
 THE MAXIM '" FREE SHIPS FREE GOODS " 
 
 IN March, 1812, the Due de Bassano, Minister of 
 Foreign Affairs, presented a Report to Bonaparte, 
 which was read before the Senat-Conservateur of the 
 Empire. It began with the following sentences : 
 
 " Sire, 
 
 Les droits maritimes des neutres ont ete regies solennelle- 
 ment par le traite d'Utrecht, devenu la loi commune des 
 nations. Cette loi, textuellement renouvelee dans tous les 
 traites subsequents, a consacre les principes que je vais ex- 
 poser. Le pavilion couvre la marchandise. La marchandise 
 eniiemie sous pavilion neutre est neutre, comme la mar 
 chandise neutre sous pavilion ennemi est ennemie. 
 
 " Les seules marchandises que ne couvre pas le pavilion, 
 sont les marchandises de contrebande, et les seules mar- 
 chandises de contrebande sont les armes et les munitions de 
 guerre. 
 
 ***** 
 
 The Report is based on this thesis: the Berlin and 
 Milan Decrees must remain in force until the English 
 Orders in Council are withdrawn, and the principles of 
 the Treaty of Utrecht regarding neutrals are restored 
 to validity (remis en mgueur). England is to be 
 banished from the Continent until she consents "finally 
 to adopt the principles on which European society is 
 based, to recognise the Law of Nations, and to respect 
 the rights consecrated by the Treaty of Utrecht. ' ' 
 
 England's many offences were recited in the pre- 
 amble to the Berlin Decree, but her crowning iniquity, 
 in the eyes of the enemy, was the declaration of 
 blockade of the coasts from the River Elbe to the Port
 
 TREATY OF UTRECHT 15 
 
 of Brest on May 16, 1806. The Due de Bassano con- 
 tinued : 
 
 " Ce fut en 1806 que commenca 1'execution de ce systeme, 
 qui tendait a faire flechir la loi commune des nations devant 
 les ordres du Conseil et les reglements de l'Amiraut6 de 
 Londres. 
 
 Le Gouvernement anglais arrachait ainsi le masque dont 
 il avait couvert ses projets, proclamait la domination universelle 
 des mers, regardait tous les peuples comme ses tributaires, et 
 imposait au continent les frais de la guerre qu'il entretenait 
 centre lui. Ces mesures inou'ies exciterent une indignation 
 generale parmi les Puissances qui avaient conserve le senti- 
 ment de leur independance et de leurs droits." 
 
 This Report forms a convenient starting-point for 
 the consideration of the historical aspect of the " Free- 
 dom of the Seas." It states, as no other document, in 
 the most concise form, the nature of the long-standing 
 grievance against England. In reality it is the griev- 
 ance of the neutrals; it is here adopted by the enemy. 
 Moreover, it puts the case of the neutrals as high as it 
 can be put: that it rests on treaty, the treaty of 1713, by 
 which the political system of Europe had been adjusted. 
 If the neutrals could be persuaded to believe that the 
 Law of Nations had also been settled at the same time, 
 England's dominion over the seas would be shown to 
 be based on the breach of this fundamental treaty ; they 
 would then the more easily be persuaded to try to shake 
 themselves free from her domination, and Bonaparte 
 would have gone a long way to establishing that " Free- 
 dom of the Seas " of which he claimed to be the pro- 
 tector. But, if the case against England as put by 
 Bonaparte breaks down, it is certain that the neutrals 
 can find no more powerful advocate, nor any stronger 
 argument. 
 
 Now. first, the Report starts with a distorted state- 
 ment of fact. The notification of the blockade of the 
 Elbe was itself a reprisal for the closing by Prussia, at 
 the instigation of Bonaparte, of the North Sea ports 
 against British shipping on 1st April, 1806. 1 
 
 1 Cambridge Modern History, Vol. IX., pp. 364, 365.
 
 16 'FREEDOM OF THE SEAS" 
 
 Secondly, the Report is based on a fallacy. A treaty 
 has no larger effect than the parties themselves propose 
 to give to its provisions. It binds those who make it 
 and those who adhere to it, but no others. And what is 
 true of one treaty between many parties is equally true 
 of any number of identical treaties. Although, there- 
 fore, the observance of a treaty, like the fulfilment of 
 any other agreement made by States, is rightly said to 
 be required by the Law of Nations, the provisions of a 
 treaty have no claim to be regarded as principles of 
 that law. 
 
 It was boldly asserted by the Prussian lawyers in the 
 Silesian Loan dispute that treaties of maritime nations 
 are evidence of the Law of Nations. I doubt if so crude 
 a statement is ever now made; a more insidious argu- 
 ment has taken its place. It is contended that, where 
 the same provision is found in many treaties, this shows 
 that the trend of opinion among the nations is favour- 
 able to that provision, and that this is practically 
 equivalent to its adoption as a principle of Inter 
 national Law. But this contention is completely 
 answered by history. Many treaties, almost identical 
 in their provisions, were concluded at the time of the 
 First Armed Neutrality. Not only did England decline 
 to admit that they were principles of International 
 Law, .but the parties to them found them so unpractical 
 when they were themselves belligerent, that within a 
 few years they all had abandoned them. 
 
 The Report is also inaccurate in another statement 
 of fact. The " Treaty of Utrecht " did not fulfil any 
 condition, real or imaginary, which justified the 
 Due de Bassano's assertion that it became, or 
 was ever intended to become, the " common law 
 of .nations." It is no more than a convenient 
 historical expression used to indicate all the 
 treaties by which the War of the Spanish Succes- 
 sion was brought to an end in 1713. There were sepa- 
 rate treaties between England, Prussia, Holland. 
 Savoy, and Portugal on the one hand, and France and 
 Spain on the other. These were treaties of peace, with
 
 TREATY OF UTRECHT 17 
 
 which we ha.ve no concern. There were also commer- 
 cial treaties between England and France, England 
 and Spain, France and Holland, Spain and Holland, 
 France and Savoy, and Spain and Portugal. Only the 
 first three dealt with trade between neutrals and the 
 enemy. According to the Due de.Bassano, therefore, 
 the " common law of nations " depends on the identity 
 of principles adopted in these three treaties. 
 
 Yet even this does not exhaust the fallacies witli 
 which the subject is surrounded. It is very commonly 
 asserted that, by the Commercial Treaty of Utrecht 
 between England and France, England "accepted" 
 the doctrine that free ships make free goods. If this 
 were true, the hostile criticism of England's attitude 
 would be amply justified. It is essential, therefore, 
 once and for all, to get at the true facts of the case. 
 
 A brief study of the meaning of the doctrine will be 
 necessary, because the assertion that enemy property 
 ought to be, and therefore is, exempt from capture on 
 board neutral ships, is woven into every phase of the 
 history of England's disputes with the neutrals, and is 
 the cardinal principle on which rests the spurious 
 "Freedom of the Seas." All the subtleties involved in 
 its gradual rise to its present prominence must be 
 studied quite apart from the fact that it was included 
 in the Declaration of Paris. 
 
 Now, first, it is a treaty formula, and nothing else. 
 In spite of all that has been alleged to the contrary, the 
 principle involved in the formula is not, and never has 
 been, a principle of International Law. The laws of 
 no State recognised it prior to the French law of July 
 1778, but, on the contrary, the laws of all maritime 
 States empowered their cruisers to seize enemy pro- 
 perty on neutral ships. 
 
 On the very threshold of the enquiry, moreover, we 
 are confronted w r ith a difficulty. For the practical 
 purpose of appreciating what the consequences of the 
 maxim would be in war, it would seem essential to be 
 familiar with the wording of the clauses embodying it. 
 In no other way can we ascertain to whom the privilege 
 
 [1947] C
 
 18 "FREEDOM OF THE SEAS 11 
 
 has been granted, and in what circumstances it may be 
 exercised. Nowhere so far as I have been able to 
 trace has the form in which the maxim is commonly 
 introduced in the treaties been fully considered and 
 properly emphasised. It is to this effect : if one of the 
 two contracting parties is at war with a third State, 
 then the other, remaining neutral, may trade freely with 
 the enemy, and may even carry his goods free. To take 
 a concrete case. Suppose a treaty between Holland 
 and Peru contained this clause: then, if Peru were at 
 war with Bolivia, Holland might carry Bolivian goods 
 free ; or, if Holland were at war with Bolivia, Peru 
 might do the same. Obviously this is a very limited 
 adoption of the principle, for the case of war between 
 Holland and Peru does not come within the scope of the 
 arrangement. If the principle were agreed to in such 
 a case, the language of the clause would run somewhat 
 as follows " If the two contracting parties are at war 
 with each other (which God forbid), then the goods of 
 each may be carried on neutral vessels without inter- 
 ference from the other." 
 
 The consequences resulting from these two forms are 
 radically different. By the first, the right to carry free 
 is granted to one neutral only. The enemy, the " third 
 State ' ' with which one of the parties may be at war. 
 will only have a very limited right to " free " carriage 
 for his goods. By the second, free carriage by all 
 neutrals would be conceded to the potential enemy, and 
 thus, through him, the privilege would be acquired by 
 all neutrals. 
 
 There are so many treaties in which the principle is 
 introduced, that I hesitate to make the positive state- 
 ment that this second form does not exist in any of 
 them. It is almost certain, however, that it is not to 
 be found in any treaty prior to the Armed Neutrality 
 Conventions. It was introduced into them in circum- 
 stances which are explained in this treatise, and 
 also in many concluded under its inspiration between 
 1780 arid 1800. These conventions were intended to 
 have a collective operation ; and the agreement in them
 
 TREATY OF UTRECHT 19 
 
 took the form of a definite statement of principle to 
 which the several Powers adhered : that free ships make 
 free goods. Presumably, therefore, it should have 
 applied in the case of war between any of the adhering 
 Powers, a presumption unfortunately not borne out by 
 facts. Between 1800 and 1856 the practice of indepen- 
 dent treaties between two States was reverted to ; and 
 it is during this period that the second form of the 
 clause, if it exists at all, will be found. In 1856, 
 with the signing of the Declaration of Paris, the ques- 
 tion entered another phase. 
 
 This brief survey made of a very complicated sub- 
 ject, we may now enquire what warrant there is for 
 any of the current statements with regard to the posi- 
 tion of England after the Commercial Treaty of 
 Utrecht with France. Article XVII runs as follows : 
 
 ' II sera libre a tons les sujets de la reine de la Grande- 
 Bretagne et du roi T. C. de naviguer avec leurs navires en 
 toute liberte et securite, et sans distinction relative au pro- 
 prietaire des marchandises qui y sont chargees, d'un port quel- 
 conque vers un endroit appartenant aux ennemis du roi T. C. 
 ou de la reine de la Grande -Bretagne. II sera de meme permis 
 aux susdits sujets et habitans de naviguer avec lesdites mar- 
 chandises et les navires en toute liberte^ et securite des endroits, 
 ports et stations des ennemis des deux parties ou de 1'une 
 d'elles, et cela sans aucune contradiction ni empechement, 
 non seulement directement des susdits endroits hostiles a un 
 endroit neutre, mais aussi d'un endroit hostile a un autre, 
 qu'ils soient sous la juridiction du meme prince ou sous 
 diffe'rentes juridictions. 
 
 " Et, comme il a de"ja e"te stipule, a 1'^gard des navires et 
 de& marchandises, qu'un vaisseau libre rende aussi libre la 
 marchandise, et qu'on regarde comme libre tout ce qui sera 
 trouve charge" sur les navires appartenant aux sujets de 1'autre 
 partie contractante, quand rneme la totalit^ de la cargai&on ou 
 une partie d'icelle appartiendroit aux ennemis de 1'une ou 
 1'autre majest^s, a 1'exception toutefois des marchandises de 
 contrebande, il a e'te' convenu de meme que cette liberte 
 s'^tendra aussi aux personnes qui se trouvent sur un navire 
 libre; de telle sorte que quand meme elles sont ennemies des 
 deux parties ou de 1'une d'elles, elles ne seront pas enleve"es du 
 vaisseau libre, a moins qu 'elles ne soient militaires et au 
 service de 1'ennemi." 
 
 [1947] C '2
 
 20 * FREEDOM OF THE SEAS ' 
 
 By Article XVIII contraband was excepted from 
 the application of Article XVII. 
 
 The provisions of this article are three. First, if one 
 of the parties should be at war, the subjects of the other 
 party may continue their commerce freely, irrespective 
 of the ownership of the cargo, even to enemy ports. 
 ' ' Free ships free goods ' ' is not accepted in so many 
 words ; nor is. it to be derived from a provision very 
 common in the early treaties allowing free commerce 
 with the enemy. It is the necessary inference from the 
 recognition of a right of free navigation irrespective 
 of the ownership of the cargo. 
 
 Secondly, the principle is repeated and reinforced: 
 this trade may be carried on, not only irrespective 
 of the ownership of the cargo, but also irrespective 
 of the ports of departure or destination, even though 
 both may be enemy ports. In other words, the subjects 
 of the party not at war may trade between the ports 
 of the enemy of the other party. The principle is ex- 
 tended to wars in which the two parties are engaged 
 with a common enemy. Thirdly, the principle of 
 " free cargoes " is extended to enemy subjects on board 
 vessels belonging to the other party. Unless they are 
 soldiers in the enemy's service, they are to be free 
 persons. 
 
 But this third provision is stated in a long and 
 complicated paragraph in which there is an express 
 reference to " free ships free goods," and it is this 
 paragraph which has given rise to much misconception. 
 It is assumed that it condenses into this formula the 
 effect of the first part of the article. 
 
 In order to understand this paragraph it is neoes- 
 sarv to examine the earlier treaties between France 
 and England. 
 
 In the Treatv of Westminster, concluded between 
 Cromwell and Louis XIV in 1655, the question was 
 dealt with very superficially in the following articles: 
 
 " XV. That for the space of four years to come, or until 
 other stipulations are agreed on, the ships of either nation may 
 carry commodities of any kind to the enemies of the other, 
 excepting to places besieged, and excepting military stores, 
 in which cases they shall be deemed lawful prize."
 
 TREATY OF UTRECHT 21 
 
 " XXII. Either party may traffick freely to any country at 
 war with the other, observing the stipulations of the fifteenth 
 article, in relation to contraband and places besieged." 
 
 In the Treaty of St. Germain-en-Laye, however, in 
 1677, the subject is dealt with in a much more elaborate 
 manner. The articles are very complicated, because 
 the case of each of the contracting parties is dealt with 
 separately. Article I lays down the general principle 
 of freedom of commerce carried on by the subjects of 
 each country with all countries in peace or neutrality, 
 without molestation on pretext of war between the 
 other party and those countries. The words used are 
 "naviguer, negocier, et faire toute sorte de trafic " ; 
 and they are specifically explained to mean that, with 
 the exception of contraband, traffic in war is to con- 
 tinue as in peace. 
 
 Whatever might be the interpretation of this article 
 if it stood alone, its meaning is explained in Article 
 VIII, which will be more easily understood by taking 
 the concrete case of war between France and, say, 
 Holland, England remaining neutral. The principles, 
 and the only principles, laid down are these: 
 
 (a) That English goods on Dutch [or French] ships 
 may be seized : affirming " enemy ships enemy goods " ; 
 
 " et au contraire " 
 
 (b) That Dutch [or French] goods on English ships 
 may not be seized : affirming " free ships free goods." 
 
 The article then proceeds to deal with the case of a 
 " new war," and declares that it seeks to prevent such a 
 war, in which one of the parties may become engaged, 
 from doing harm to the subjects of the party remain- 
 ing at peace. The seizure of an enemy ship laden with 
 the goods of subjects of this party is not to render the 
 goods liable to confiscation if they are laden within a 
 certain period after the outbreak of war, the principle 
 " enemy ships enemy goods " being thus suspended for 
 a time. 
 
 The acceptance by England of principles entirely at 
 variance with her ancient maritime law is at first sight
 
 22 ' FEEEDOM OF THE SEAS ' 
 
 startling. In order to understand the reason we must 
 first appreciate the extreme severity of French mari- 
 time law towards neutrals. Not only were enemy goods 
 seized on neutral ships, but the ships themselves were 
 confiscated in virtue of the Ordinance of 1681. Also 
 neutral goods were seized on enemy ships. 
 
 The position then before the Treaty of St. Germain- 
 en-Laye was that both France land England seized 
 enemy goods on neutral ships, but France seized the 
 neutral ships as well. She also seized neutral goods 
 on enemy ships, while England restored them, only 
 confiscating the vessel. But after the treaty, although 
 the general laws of both countries remained unaltered, 
 in wars in which one of the two countries was engaged, 
 the other remaining neutral, both countries seized that 
 neutral's goods on enemy ships, and both released 
 enemy goods on that neutral's ships. Both countries, 
 therefore, for this limited purpose, accepted " free 
 ships free goods"; but, in doing so, France made a 
 greater change than England, for she gave up the 
 seizure of neutral ships which had enemy goods on 
 board. The result was that, when France went to war, 
 English neutral ships were freed from confiscation when 
 carrying enemy goods. It was a concession for which 
 a price was paid: enemy goods themselves were freed. 
 
 Yet even this does not explain the radical change in 
 the law reciprocally agreed to in this treaty; for France 
 also gave up the confiscation of enemy goods on neutral 
 ships when they were English. 
 
 We may legitimately assume that France would 
 not have abandoned her ancient practice without a 
 quid pro quo. The inference is clear: England's 
 acquiescence in "enemy ships enemy. goods" was the 
 consideration for the benefit- obtained in favour of 
 English ships. This view is supported by Schoell and 
 Reddie. 
 
 This principle is so foreign to English principles of 
 maritime law that a brief space must be devoted to it. 
 The justification for its adoption is that it checks 
 one form of assistance to the enemy; the reason for it is
 
 TREATY OF UTRECHT 23 
 
 that the enemy flag does prima facie impart its quality 
 to the goods on board. But, this once admitted, it 
 would follow that the neutral flag should also impart its 
 quality to the goods laden under it; and thus the adop- 
 tion of " free ships free goods " logically followed, the 
 justification being the mutual trade advantages derived 
 from it. It was an arrangement by which a war in 
 which one* party should be engaged was prevented 
 " from doing harm to the subjects of the party 
 remaining at peace." Henceforward, therefore, the 
 principle that the flag governed seizures was estab- 
 lished between the two countries when one of them was 
 at war with another Power. 
 
 This explanation inverts the usually accepted order 
 of evolution of the two maxims, but it affords a solid 
 reason for, and explanation of, the changes in the law 
 of France in favour of English ships : the reciprocal 
 adoption by both countries of a new principle of 
 seizure, from which, while both would lose in some 
 circumstances, both would profit in others. Moreover, 
 it fits in with the sequence of the maxims as dealt with 
 in Article VIII, and the use of the words " et au con- 
 traire " (p. 21), in introducing " free ships free goods." 
 
 This distinct trace of a natural evolution eliminates 
 from "free ships free goods" the humanitarianism 
 which has been appealed to in support of it at a later 
 period. It also eliminates any general idea of com- 
 mercialism in the sense of benefiting the neutral. It 
 substitutes very substantial but reciprocal commercial 
 advantages to the parties to the treaty. 
 
 The provisions of this Treaty of Utrecht now be- 
 come intelligible. First, they are no more than a re- 
 newal of the provisions of Article VIII of the Treaty 
 of St. Germain-en-Laye, the first part of Article XVII 
 being almost identical with the earlier article. They 
 were in need of renewal on account of the revival in 
 1704 (during the Spanish Succession War) of the 
 French Ordinance of 1681. The settlement of out- 
 standing commercial questions at Utrecht was made
 
 24 " FREEDOM OF THE SEAS ' 
 
 the occasion for adjusting the difficulty and reaffirming 
 the provisions of the Treaty of St. Germain-en-Laye. 
 Secondly, the principle "enemy ships enemy goods" 
 was also reaffirmed at Utrecht, a point which the com- 
 mentators invariably overlook. Finally, the words " Et, 
 comme il a deja ete stipule " explain themselves; they 
 refer to the introduction of ' ' free ships free goods ' ' 
 into the Treaty of 1677, and not to its reaffirmation 
 in the first, part of the article. The object of the 
 second part of the article was merely to extend tjie 
 principle of " free goods " to " free persons " on board 
 enemy ships. 1 
 
 It is impossible that the second part should refer to 
 the first part of the article, because it recites a pro- 
 vision which is not contained in it : 
 
 " Et, comme il a deja ete stipule, a 1'egard des navires et 
 des marchandises, qu'un vaisseau libre rende aussi libre la mar- 
 chandise, et qu'on regarde comme libre tout ce qui sera trouve 
 charge sur les navires appartenant aux sujets de 1'autre partie 
 contract-ante, quand meme la totalite de la cargaison ou une 
 partie d'icelle appartiendroit aux ennemis de 1'une ou 1'autre 
 majestes. ..." 
 
 There are similar though not identical stipulations 
 in Article VIII of the treatv of 1677 "bien que les 
 dites marchandises fissent la meilleure partie de la 
 charge entiere des dits vaisseaux." The meaning of 
 that is that free ships are to make free goods, even 
 though the greater part of the cargo belongs to the 
 
 1 It is necessary to notice a curious and most misleading 
 mistranslation of the French text in the English official version 
 of the treaty, which is printed in Chalmers' Collection, and repro- 
 duced by Eeddie. The sentence beginning " Et, comme il a de'ja 
 ete stipule . . ."is rendered, " And it is now stipulated con- 
 cerning ships and goods, that free ships shall give a freedom to 
 goods. . ." This version of the article has undoubtedly given 
 rise to the statement above referred to, that England adopted the 
 maxim in the Treaty of Utrecht; and all the criticisms of her 
 subsequent action in regard to the maxim are clearly based upon 
 it. It is sufficient to point out that the words themselves, " comme 
 il a deja e"te stipule," show that the principle was not accepted 
 then, but had already deja been agreed to. It is further to be 
 noted that the treaty is bilingual, both the Latin and French texts 
 being joint originals.
 
 TREATY OF UTRECHT 25 
 
 enemy. The meaning of the reference in the Treaty 
 of Utrecht is that free ships make free goods if the 
 whole or even a part of the cargo belongs to the enemy. 
 Can this discrepancy in the reference be explained ? 
 It can only be a verbal discrepancy, because it is not 
 possible to construe the earlier provision to mean that 
 the ship is to impart its freedom to the goods if, say, 
 seven-eighths, but not the whole cargo, is enemy; and, 
 therefore, the existence of variable texts of the treaty 
 of 1677 might possibly furnish the reason. The more 
 probable explanation, however, is that the proceedings 
 of the French during the war, especially the re-enact- 
 ment of the law of 1681, had aroused suspicions; and 
 that, therefore, a paraphrase, intended to remove any 
 doujb't as to the meaning of the earlier provision, was 
 introduced into the Treaty of Utrecht. 
 
 The result of this somewhat elaborate analysis of 
 Article XVII of the Treaty of Utrecht may now be 
 summarised. It disposes of the contention that 
 England adopted in that treaty the novel principle in 
 her wars that the neutral flag covers enemy 
 cargoes. 1 It refers that adoption to a much 
 earlier period. But in regard to this adoption it 
 established these facts ; first, that it was for a very 
 definite purpose to relieve English vessels when 
 neutral in French wars from the severity of French 
 maritime law. It was therefore limited in its scope 
 and intention to France. Secondly, it was not adopted 
 by England alone, but also by France. Quite apart 
 from the reason for the change, there was a reciprocal 
 concession for a reciprocal advantage. Thirdly, this re- 
 ciprocal arrangement was not merely that the neutral 
 flag should cover enemy's goods, but that "the flag" 
 should cover the cargo in all cases; if the flag was 
 enemy, then the goods were to be considered enemy ; if 
 neutral, then the goods were to be considered neutral. 
 
 1 See Cambridge Modern History, Vol. V., p. 443.
 
 26 ' FREEDOM OF THE SEAS " 
 
 But this leads to a more far-reaching conclusion. Of 
 the maxim, " free ships free goods," Pitt declared that, 
 when granted, it was as a matter of favour, not as of 
 right. Fox, when he justified his offer to Catherine, 
 in 1782, to accept the principle, declared that he in- 
 tended to get something in return an alliance with 
 Russia, of which we then stood greatly in need. 1 In 
 the foregoing analysis of our agreement with France 
 the something that we obtained in return has been 
 made clear ; it was a material alteration of the French 
 law in favour of our ships. And so it is in all the 
 other cases in which we have accepted the maxim in 
 a treaty. Nowhere is there to be found a bald accept- 
 ance of the principle. It is accepted reciprocally in 
 treaties of commercial alliance; that is, in treaties 
 concluded under the influence of a desire by both 
 parties to obtain reciprocal commercial advantages. 
 Commercial alliances, however, are often intimately 
 connected with political alliances ; and in every other 
 case in which England has accepted the maxim a 
 political alliance has been close at hand. 
 
 This hardly needs emphasising in the case of the 
 Dutch. The manifest advantage conceded, after many 
 years of strenuous diplomacy, to the great carrying 
 nation in 1674 was compensated by the specific agree- 
 ment of 1678 for mutual succour in the event of either 
 party being attacked. 
 
 In the case of Spain the commercial treaty was 
 made in 1667, and was confirmed by the treaty of 
 alliance in 1670. In the case of Portugal the first 
 commercial treaty was concluded in 1642 ; but this was 
 replaced by the treaty of 1654, which was a treaty of 
 peace and alliance. 
 
 This, then, is the first fact to be appreciated in 
 regard to the appearance of the maxim in the English 
 treaties. But there is another of equal importance, 
 which enables us to get to closer grips with the Due de 
 
 1 March .25, 1801 (Hansard, Parl. Hist., Vol. xxxv, Col. 1127 et seq.)
 
 TREATY OF UTRECHT 27 
 
 Bassano's statement that the "common law of 
 nations " was established at Utrecht. 
 
 A commercial treaty was also concluded in 1713, 
 between France and Holland, in which the principle of 
 the flag was accepted. It existed in the old treaty 
 between England and Holland. Therefore these three 
 countries, England, France, and Holland, severally 
 agreed that, whenever there was a war between any 
 two of them, the flag of the third, remaining neutral, 
 should protect the property of either belligerent from 
 seizure by the other. 
 
 The consequences of this will be made clearer by 
 taking concrete cases : 
 
 (a) England at war with Holland: Dutch goods on 
 French ships would be free under the Anglo-French 
 treaty, English goods on French ships would be free 
 under the Franco-Dutch treaty. 
 
 (b) England at war with France : French goods on 
 Dutch ships would be free under the Anglo-Dutch 
 treaty; English goods on Dutch ships would be free 
 under the Franco-Dutch treaty. 
 
 (c) France at war with Holland : French goods on 
 English ships would be free under the Anglo-Dutch 
 treaty; Dutch goods on English ships would be free 
 under the Anglo-French treaty. 
 
 The freedom of enemy goods on neutral ships in any 
 of these several wars would extend no further than as 
 here stated, for the plain reason that the treaty stipu- 
 lations warrant no more extended modification of the 
 practice. Again concrete cases will make this intelli- 
 gible: 
 
 If England were at war with Holland, neither 
 Dutch nor English goods would be free on Russian 
 ships ; nor, if England were at war with France, would 
 French or English goods be free on Bremen ships ; nor, 
 if France were at war with Holland, would French or 
 Dutch goods be free on Danish ships; for in none of 
 these cases is there a treaty to support the claim.
 
 28 l FREEDOM OF THE SEAS ' 
 
 Two things are thus made abundantly clear. Firstly, 
 that, in the common form in which " free ships free 
 goods" is accepted in the treaties, its application is 
 strictly limited to the specific case provide<I for ; and 
 nothing but a stipulation that the principle is to apply 
 in case of war between the parties to a treaty could 
 warrant the claim to the wider freedom for enemy 
 goods on all neutral ships. Secondly, that, so long as 
 the common form is adhered to, a number of similar 
 treaties between different States would bring the prin- 
 ciple no nearer to that universal acceptance which alone 
 would warrant the statement that it has become part 
 of the " common law of nations." Such universal accep- 
 tance could only be arrived at, if at all, by a treaty to 
 which all nations were adherent, in which " free ships 
 free goods " was accepted as a definite principle. It 
 would then, all being adherent, govern every war 
 between any two or more nations, and the belligerents 
 and all neutrals would be entitled to claim the benefit 
 of it. 
 
 The application of the principle " enemy ships 
 enemy goods," also accepted in these three treaties, 
 would work out in a corresponding manner.
 
 Ill 
 
 THE SILESIAN LOAN, 1752-3 
 
 THE history of the Silesian Loan, of its guarantee by 
 Frederick the Great, of his refusal to pay the final 
 instalment in order to recoup his subjects for losses 
 sustained by them on account of the seizure of some 
 Prussian neutral ships by English privateers during 
 the war with France (1744-1748) , together with the 
 full text of the documents and despatches, will be found 
 in Sir Ernest Satow's monograph, " The Silesian Loan 
 and Frederick the Great." 1 The documents are 
 (1) The "Exposition des Motifs," prepared by 
 Frederick's lawyers ; (2) the Report of George II of 
 the English Law Officers, commonly known as the 
 " Reponse sans Replique/' ; (3) A Memorandum pre- 
 pared by the French Government. The English Law 
 Officers were Sir George Lee, Dean of Arches ; Dr. G. 
 Paul, Advocate-General; Sir Dudley Ryder, Attorney- 
 General; and Mr. William Murray, afterwards Lord 
 Mansfield, Solicitor- General. 
 
 The Prussian Exposition is of great importance, 
 because it was the first public challenge to established 
 practice, and claimed that free ships as of right make 
 free goods. It recognised the fact that, up to that time, 
 the maxim was only to be found in treaties; but it de- 
 duced from this fact its general acceptance by the 
 nations as a principle of the Law of Nations. The 
 chain of reasoning was this. Belligerent rights as 
 against neutrals are limited to search for and seizure 
 of contraband and seizure for breach of blockade. This 
 established, it followed that enemy property could not 
 be seized on board neutral ships, and therefore that 
 free ships must make free goods. 
 
 1 Oxford, 191.
 
 30 "FREEDOM OF THE SEAS' 
 
 Of the ships seized some had been simply returned; 
 but (1) some were restored by the Prize Court with 
 freight and the enemy goods on board only condemned ; 
 and (2) some were restored, but their cargoes con 
 demned as contraband going to the enemy. 
 
 The argument of the Exposition des Motifs took the 
 form of answers to a series of questions propounded by 
 Frederick. The first question was whether the English 
 cruisers had a right to seize Prussian vessels at sea 
 and take them into an English port for adjudication, 
 in spite of the exhibition of their papers, which showed 
 that there was no contraband on board. The answer 
 of the lawyers was that the seizure was a violation of 
 the Freedom of the Seas. 
 
 Ce precede est visiblement contraire au droit de la nature 
 et des gens, selon lequel c'est un principe universellement 
 reconnu par tous les peuples raisonnables, que la mer est au 
 nombre des choses appele"es res nullius, ou desquelles I'homme 
 ne peut se rendre le maitre. Si done personne ne peut s'attri- 
 buer la souverainete" et la propriete de la mer, il s'ensuit 
 naturellement que 1'usage en est commun a tous les hommes, 
 et que personne n'est en droit de 1'interdire aux autres. Selon 
 ces principes fonde"s dans la raison, toutes les Puissances ont 
 un droit egal de naviguer et de commercer sur mer." 
 
 The second question was whether there was a right 
 to visit Prussian vessels at sea, on the ground that they 
 had enemy property on board ? The answer was that 
 although the vessels had been released, and only the 
 French enemy property on board confiscated, yet this 
 was contrary to the Law of Nations and all treaties, 
 because Prussians had by that law the right to traffic 
 with France and Spain. It was insisted that no wrong 
 could be done to England, because these vessels had 
 been seized on their return voyage to neutral ports, 
 and therefore there could have been no question of 
 contraband, which was the only exception to free navi 
 gation applicable to the case. Further, it was incon- 
 testable that '' selon la raison et le droit des gens 
 meme," enemies are safe from one another when they 
 meet in a neutral place; that therefore a belligerent
 
 SILESIAN LOAN 31 
 
 cannot attack his enemy nor seize his goods in such a 
 place; and the Prussian vessels were a neutral place: 
 
 Cette loi du droit des gens se trouve confirmee par cette 
 maxime notable, expressement etablie dans les traite's entre 
 1'Angleterre et la Hollande et entre 1'Angleterre et la France, 
 que les vaisseaux libres rendent les marchancKses libres." 
 
 It was further contended that neutral commerce with 
 a belligerent continued during war on the same footing 
 as in peace, except in regard to contraband , which was 
 limited to munitions of war. 
 
 To the general proposition advanced by the Prussian 
 lawyers, "that the sea is free," the English Law 
 Officers replied: 
 
 ' They who maintain that proposition in its utmost extent 
 do not dispute but that when two Powers are at war they may 
 seize the effects of each other upon the high seas, and on 
 board the ships of friends. Therefore that controversy is not 
 in the least applicable upon the present occasion." 
 
 This was too clear to admit of dispute. It was 
 supported by every writer upon the Law of Nations, 
 and by the constant practice ; but the general rule could 
 not be more strongly proved than by the exceptions 
 which particular treaties had made to it. 
 
 Dealing with the specific proposition that free ships 
 make free goods, the English Law Officers went to the 
 root of the matter. The new doctrine had been deliber- 
 ately invented to justify a new form of neutral assist- 
 ance to the enemy. From 1746 " the Prussians engaged 
 in the gainful practice of covering the enemy goods ; 
 but were at a loss in what shape, .and upon what. pre- 
 tences, it might best be done"; before that year they 
 "don't appear to have openly engaged in covering 
 enemy's property." 
 
 This practice was not justified by the Law of 
 Nations, which had established the following proposi- 
 tions : (1) That the goods of an enemy, on board the 
 ship of a friend, may be taken. (2) That the lawful 
 goods of a friend, on board the ship of an enemy, 
 ought to be restored. Particular treaties had, how-
 
 32 'FREEDOM OF THE SEAS" 
 
 ever, by agreement, inverted both these rules, declaring 
 " the goods of a friend, on board the ship of an enemy, 
 to be prize; and the goods of an enemy, on board the 
 ship of a friend, to be free." (3) That contraband 
 
 foods, going to the enemy, though the property of a 
 riend, may be taken as prize. 
 
 These propositions justified the seizure of the Prus- 
 sian ships. The Law Officers' reference to the inver- 
 sion of the rule of the Law of Nations by some treaties, 
 including the Commercial Treaty of Utrecht, was pro- 
 bably sufficient for their purpose, which was simply to 
 show that no such agreement existed with Prussia. 
 And indeed the Prussian lawyers had not relied on 
 that treaty as governing the case. It was referred to. 
 as also the treaty of 1 674 between England and Hol- 
 land, in order to establish the application to the case 
 of the alleged principle that " le droit des gens se 
 verifie principalement par les exemples et les traites 
 des puissances maritimes." Both sides, therefore, 
 appear to have recognised that the Commercial Treaty 
 of Utrecht did not apply to the case ; though the 
 reason was not specifically mentioned. As pointed out 
 in the preceding section, that treaty did not accept 
 "free ships free goods " as applicable to war between 
 England and France. It did no more than allow each 
 Party to trade freely with, and carry free the goods 
 of, any third State with which the other Party might 
 be at war. 
 
 The third document (see p. 29) emanated from the 
 French Government. The British Cabinet had asked 
 France for bons offices in the settlement of the dispute. 
 Both the Exposition des Motifs and the Answer had 
 been published to the European Powers ; and the 
 French Government tried to convert this request into 
 one for mediation. 1 There were still some outstanding 
 questions between England and France in respect of 
 prizes taken during the war : and the occasion for 
 presenting a Note was too good to be missed. Some of 
 
 1 Of. Satow, op. cti., ch. xiv.
 
 SILESIAN LOAN 33 
 
 the principles of prize law contained in the Law 
 Officers' opinion necessarily affected the rights of 
 French subjects; it seemed indispensable, therefore, to 
 state those on which France agreed, and to discuss 
 others in the hope of arriving at some agreement in 
 regard to them. A few paragraphs in this document 1 
 merit attention. 
 
 The proposition was accepted that a belligerent has 
 the right to seize the ships, cargoes, and property of 
 his enemy on the high seas, and that everything that 
 belongs to the enemy is good prize, while the property 
 of a friend, so long as he remains neutral, cannot be 
 seized. But the conclusion was not necessarily that 
 which the Law Officers had drawn. This is dealt with 
 in the following paragraph, to be specially noted on 
 account of the very hesitating way in which " free 
 ships free goods" is advanced. The Law Officers, it 
 said, had drawn the natural conclusions from the 
 general principle; but, as exceptions often prove the 
 rule, the opposite doctrine which supported the maxim 
 might possibly (peut-etre} be the right one. 
 
 ' Les Magistrats anglais ont tire de ce principe plusieurs 
 consequences. La premiere, que les effets d'un ennemi 
 peuvenfc etre saisis, quoi qu'& bord d'un vaisseau ami; la 
 seconde, que les effets d'un ami doivent etre rend us', quoi quo 
 trouv^s a bord d'un vaisseau ennemi. 
 
 " Ces deux consequences paroissent naturellement r^sulter 
 du principe que 1'on vient de rapporter; mais comme 1'excep- 
 tion est souvent une confirmation de la regie, on pourrait peut- 
 etre soutenir que le pavilion ennemi rend la marchandise de 
 1'ami sujette & la confiscation." 
 
 It was then suggested that the uncertainty of the 
 consequences resulting from the general principle of 
 seizure of enemy property had probably been the reason 
 why nations had agreed in treaties that their flag 
 should cover enemy goods; though it was not possible 
 to decide whether these stipulations were ?.n exception 
 to, or a confirmation of, the Law of Nations, At any 
 rate, the uniformity of the treaties on this subject may 
 
 1 Satow, op. cit., Appendix, No. 75. 
 
 [10471 D
 
 34 'FREEDOM OF THE SEAS" 
 
 be taken as ' ' a sort of maritime jurisprudence ' ' 
 accepted by the European Powers. Whether this were 
 so or not, the treaties of France with England and 
 Holland are formal on the question ; they are the law 
 on the subject between France and these two countries, 
 irrespective of what the Law of Nations may be on the 
 subject. 
 
 It is clear from what has already been said, that the 
 several Commercial Treaties of Utrecht are here given 
 a larger significance than their language warrants. 
 
 The French Government also objected to the third 
 consequence drawn by the Law Officers from the funda- 
 mental principle: that contraband going to the enemy 
 is good prize, although it belongs to a friend. It was 
 based on the supposition that the European nations 
 were in agreement as to what goods are contraband. 
 In the absence of agreement the result of this would be 
 that each belligerent could decide what he proposed to 
 treat as contraband, and " on pourroit envelopper sous 
 ce vaste pretexte presque toutes sortes de marchandises 
 et d'effets." 
 
 The argument again adopts treaty agreements as 
 substantive rules of the Law of Nations. The Law 
 Officers had not explained with precision what thev 
 held to be contraband; it was, therefore, necessary to 
 look upon existing treaties as the least equivocal and 
 most impartial statements of what the European 
 nations considered contraband. By these treaties the 
 definition of contraband was limited to soldiers, horses, 
 and munitions of war, and provisions carried to a 
 blockaded port. If the English Courts had condemned 
 cargoes of wood and hemp (bois et chanvre), or pro- 
 visions going to ports not blockaded, as contraband, it 
 was clear that they had not these treaties before their 
 eyes. 
 
 Thus the question on which the discussions during 
 the next sixty years were to turn was quite frankly 
 stated. " Bois et chanvre" may be taken as standing 
 for ships' timber and' naval stores. They were not 
 included in these treaty definitions of contraband ;
 
 SILESIAN LOAN 35 
 
 therefore they were not contraband. The reference to 
 provisions is important. It implies that, if they are 
 going to a blockaded port, they may be treated as con- 
 traband. Even in those days, therefore, the intimate 
 relation in principle between blockade and contraband 
 must have been appreciated. 
 
 Two further documents were prepared ; the Answer 
 of the English Law Officers to the French Memoire, 
 and the Prussian Answer to the English Report. 
 Neither of these documents .was presented, as the dis- 
 pute was amicably settled. The English answer is not 
 extant; but the most important part of the Prussian 
 answer is printed ' in Vol. II. of Martens' Causes 
 Celebres. It is interesting, because its statement of the 
 contention, that " free ships free goods " is a principle 
 of the Law of Nations, is more primitive than that con- 
 tained in the Exposition des Motifs. Briefly it was as 
 follows: By natural right a man may not be dispossessed 
 of his property even for a single moment ; therefore 
 his ship cannot be visited to search for enemy property 
 any more than his territory. " Free commerce and 
 navigation " is of universal utility ; ' ' tout le monde y 
 trouve son compte." This is the fundamental principle 
 of the Law of Nations. The inconvenience resulting 
 from the opposite rule has led the majority of 
 commercial nations to adopt "free ships free goods" 
 by treaty ; therefore these treaties are not an excep- 
 tion, but show that the rule ought to be followed 
 by all nations. No nation has a greater interest in its 
 universal recognition than the English; for what 
 would become of their commerce with the East and 
 West Indies in the event of war between Spain and 
 Holland? 
 
 ' Enemy ships enemy goods ' is the parent rule 
 of *' ; free ships free goods " ; and the rule of the flag in 
 its two branches sets at rest all disputes as to the 
 nature of the cargoes, and leaves to each neutral nation 
 free commerce in everything except contraband, and in 
 the blockaded ports. But to this broad principle a 
 very important exception was admitted, which has been 
 
 [1947] D 2
 
 36 'FREEDOM OF THE SEAS" 
 
 lost sight of in subsequent statements of the neutral 
 contention; it only held good so long as the neutral 
 nation pursues only its own commerce, without engag- 
 ing in what may be called with justice " faire le com- 
 merce des ennemis pour eux" Then the neutral would 
 become an auxiliary, and after due notice would 
 deserve to be treated as an enemy.
 
 IV 
 
 THE SEVEN YEARS WAR, 1756-63 
 
 IN 1756 the long-simmering dispute between France 
 and England over their American colonies broke out, 
 and the Seven Years' War began. The war holds an 
 important place in the development of the principles 
 of English maritime warfare, because what is known 
 as the "Rule of 1756 " was put in force immediately 
 it commenced. Stated concisely, the "Rule" is this: 
 If neutrals engage during war, either on their own 
 account or on beha ] f of the enemy, in commerce 
 which is forbidden to them by that enemy in time of 
 peace, they are held to be assisting or identifying 
 themselves with the enemy ; and their vessels are there- 
 fore treated as enemy vessels, and confiscated. 
 
 The colonial and the coasting trades were monopolies. 
 When, therefore, the enemy threw them open to the 
 neutrals, the " Rule " applied. It is generally 
 assumed that the Rule was abandoned after the 
 Napoleonic Wars, as it had caused so much ill-feeling 
 among the neutrals. But M. Drouyn de Lhuys informs 
 us that in 1854, when arrangements were under con- 
 sideration for assimilating French and English prac- 
 tice during the Russian War, the British Government 
 desired to maintain the Rule. M. Drouyn wrote at that 
 time to the French Ambassador in London: * 
 
 " Le Gouvernement anglais parait insister pour que le projet 
 de declaration d^fende aux neutres de se livrer, pendant la 
 guerre, soit au commerce colonial, soit au cabotage, s'ils sont 
 reserves pendant la paix. Je n'ai pas besoin de vous rappeler 
 avec quelle persistance le Gouvernement francais, a toutes les 
 
 1 Printed in a Mi-moire published in Paris in 1868.
 
 38 
 
 ^poques, a soutenu les reclamations nombreuses et vives que 
 1'adoption de cette regie souleva, des 1'origine, de la part des 
 nations neutres. La France est done li^e par ses precedents 
 historiques; elle Test 4galement par des tradtes faits avec 
 plusieurs Etats dont elle s'est engagee a laisser les navires 
 naviguer librement en temps de guerre, meme entre deux ports 
 ennemis." 
 
 This statement must be accepted with as much reserve 
 as the suggestion that the Rule itself has been aban- 
 doned. It amounts to no more than that the Rule 
 pressed heavily on France as a belligerent, and that she 
 had joined her protests to those of the neutrals at the 
 time of the Armed Neutralities. 
 
 Independent criticism of the soundness of the Rule 
 as a principle of belligerency, which M. Drouyn's 
 statement would appear to suggest, is wanting. The 
 Rule has been included in the general condemnation of 
 belligerent interference with the neutral trade with the 
 enemy ; but in the last section of the French Memo- 
 randum (see pp. 29, 32) there is an express recognition 
 of the right to prevent neutrals trading on behalf of 
 the enemy : in other words, identifying themselves with 
 the enemy, which is precisely the principle on which the 
 " Rule of 1756 " rests. It is a fact, however, that when 
 two Powers have agreed to allow trading with one. 
 another's enemies, there is often a special provision 
 that this trade may be carried on " from port to port " 
 of the enemy. This referred to the coasting trade; 
 also, it was contended, to the colonial trade. Such a 
 provision exists in the Commercial Treaty of Utrecht 
 between England and France. England also accepted 
 it in the treaty concluded with Russia in 1801 as a quid 
 pro quo for Russia's abandonment of " free ships free 
 goods."
 
 THE WAR OF AMERICAN INDEPENDENCE, 
 
 1776-83 
 
 THE discussion of the neutral question in this war 
 merges into the story of the First Armed Neutrality, to 
 be considered in the next chapter, and need not there- 
 fore detain us. But a few extracts from the Diplomatic 
 Correspondence of the American Commissioners who 
 were sent to the Continent may be usefully referred to. 
 
 Benjamin Franklin wrote of the Northern League : 
 
 " All the neutral States of Europe seem at present disposed 
 to change what had before been deemed the law of nations, to 
 wit, that an enemy's property may be taken wherever found, 
 and to establish the rule that free ships make free goods. 
 This rule is itself so reasonable and of a nature to be so bene- 
 ficial to mankind that I cannot but wish it may become 
 general; and I make no doubt that the Congress will agree to 
 it in as full an extent as France and Spain. . . . 
 
 " I approve much of the principles of the confederacy of the 
 Neutral Powers, and am not only for respecting the ships as the 
 house of a friend, though containing the goods of an enemy, but 
 I even wish for the sake of humanity that the law of nations 
 may be further improved by determining that even in time of 
 war all those kinds of people who are employed in procuring 
 subsistence for the species, or in exchanging the necessaries or 
 conveniences of life which are for the common benefit of 
 mankind, such as husbandmen on their lands, fishermen in 
 their barques, and traders in unarmed vessels, shall be per- 
 mitted to prosecute their several innocent and useful employ- 
 ments without interruption or molestation and nothing taken 
 from them, even when wanted by an enemy, but on paying a 
 fair price for the same." 
 
 At a later date he condenses his views into a short 
 formula: 
 
 " In short, I would have nobody fought with but those who 
 are paid for fighting. If obliged to take corn from the 
 farmer, friend or enemy, I would pay him for it, the same for 
 the fish or goods of the others."
 
 40 " FREEDOM OF THE SEAS ' 
 
 All the Commissioners were not so simple-minded. 
 Arthur Lee, referring to the law introduced by Louis 
 XVI in July 1778, which had adopted " free ships free 
 goods," on terms, but from the benefit of which he 
 threatened to exclude the Dutch if they did not enforce 
 what they believed to be their treaty rights against 
 England, says: 
 
 " To make them [the Dutch] and other neutral nations feel 
 the necessity of supporting the privileges of their flags against 
 the English, this Court has declared its determination to make 
 prize of all goods belonging to the enemy found in neutral 
 ships, so long as the same is permitted to be done by the 
 British cruisers, with regard to the effects of France in the 
 same situation. This is such a blow to their interests as, it is 
 imagined, must rouse the Dutch to vigorous exertions against 
 Great Britain in support of their privileges as common 
 carriers." 
 
 A few sentences from John Adams' correspondence 
 in March, 1780, show a very accurate appreciation of 
 the question in dispute the imperative necessity for 
 France to obtain ships' timber and naval stores to carry 
 on the war though it did not lead him to amend his 
 views in regard to it : 
 
 " England abuses her power, exercises tyranny over com- 
 merce. . . It is essential that the Sovereign of every commer- 
 cial State should make her nation's flag respected in all the 
 seas, and by all the nations of the world. The English, not con- 
 tent with making her flag respectable, have grown more and 
 more ambitious of making it terrible. . . The grand business is 
 done between the Northern Powers on a footing very con- 
 venient for Holland, as it must compel the English to cease 
 interrupting the trade of the neutral Powers. This would be 
 more beneficial to France and Spain than to Holland, by 
 facilitating the acquisition of ship timber, hemp, and all other 
 things for the supply of their arsenals of the Marine. A prin- 
 cipal branch of the British policy has ever been to prevent the 
 growth of the navies of their enemies by intercepting their 
 supplies. . . . The greatest number [of the ships under the 
 Dutch convoy in 1799] have escaped and have carried to 
 France the most efficacious succours of which she stood in the 
 greatest necessity. 
 
 ' The principle which the English'contend for has no other 
 foundation but the insular position of Great Britain, and the 
 convenience of that nation. The principle which the neutral
 
 AMERICAN INDEPENDENCE 41 
 
 Powers are contending for is evidently laid in the common 
 good of nations, in the ease, safety, convenience, happiness, 
 and prosperity of mankind in general. But we shall see 
 whether obstinacy and fierce passions will at length give way 
 in one instance. At present there is no appearance of it." 
 
 In the early days, before France had actually declared 
 war, the views of the Commissioners were more prac- 
 tical. British commerce was suffering greatly from the 
 American privateers ; and insurance was so high that 
 British goods could not compete in foreign markets on 
 equal terms with the French and Dutch. Very 
 ingeniously they hit on the expedient of shipping goods 
 abroad in French bottoms; for France then professed 
 neutrality, and, still maintaining a show of friendship 
 with England, could not protest. The Americans, in 
 rheir turn, proposed to counter the practice by acting 
 on the old maritime law, and seizing the enemy's goods 
 on these neutral ships : 
 
 " As we have yet no treaty with France, or any other Power, 
 that gives to free ships the privilege of making free goods, we 
 may weaken that project by taking the goods of the enemy 
 wherever we find them, paying the freight. And it is imagined 
 that the captains of the vessels so freighted may, by a little 
 encouragement, be prevailed on to facilitate the necessary 
 discovery." 1 
 
 The Committee of Foreign Affairs was also much 
 exercised, and instructed the Commissioners to request 
 "that either this commerce should be prohibited, or 
 that the United States be at liberty to search into, and 
 make distinctions between, the bottom and the enemy's 
 property conveyed in that bottom." 2 
 
 The French, however, disliked search of their ships 
 by Americans, although their own law would have 
 sanctioned it, and the counter-project came to nothing. 
 
 1 Commissioners to Committee of Foreign Affairs, September 8, 
 1777. 
 
 3 Committee of Foreign Affairs to Commissioners, October 18, 
 1777.
 
 VI 
 THE FIRST ARMED NEUTRALITY, 1780 
 
 THE position of England after France and Spain 
 had openly espoused the cause of the American 
 Colonists in 1778 was one of extreme danger. She 
 stood alone in the world facing open enemies and dis- 
 contented neutrals, with a common bond of grievance, 
 real or imaginary. The question between her and the 
 neutrals entered a phase known as "Armed Neu- 
 trality," the principal characteristic of which was the 
 reinforcement of the old claims to free trading by a 
 code of new principles, the manifest tendency of which 
 was to assist the enemy. 
 
 When the war broke out in Europe, the trading 
 activities of the neutrals immediately revived; and 
 England was compelled to take the most rigorous 
 measures at sea to prevent cargoes of what she called 
 contraband of war, but the neutrals " innocent " con- 
 signments of ships' masts, timber, and naval stores, 
 reaching the French dockyards from the Baltic ports. 
 In 1778 it was well known that great quantities of 
 timber were to be despatched from the Texel. In spite 
 of diplomatic representations the Dutch persisted in 
 despatching it under convoy; it was met ?n the Channel 
 by seventeen ships-of-the-line, and, after an exchange 
 of broadsides, the Dutch flag was hauled down. 
 
 The danger of the position was aggravated by 
 " some grievous and unexpected successes obtained by 
 the colonies," which had " given a degree of strength 
 and consistency to their rebellion." The project of an 
 alliance with Russia, often proposed, took a more 
 insistent shape; and Sir James Harris, afterwards 
 first Earl Malmesbury, who had been sent to Peters- 
 burg in 1777, received special instructions to propose 
 to the Empress Catherine the conclusion of an often-
 
 ARMED NEUTRALITY, 1780 43 
 
 sive and defensive alliance. Mr. Wroughton, Minister 
 at Stockholm, and Mr. Morton Eden, Minister at 
 Copenhagen, were instructed to make similar proposals 
 to their respective Courts. 
 
 The story of the negotiations with the Empress is an 
 interminable one, and it must be condensed into a short 
 paragraph. The real motive of the proposed alliance 
 was to obtain the assistance of a Russian fleet. The 
 reason put forward was that the interests of Russia 
 and Great Britain in resisting the aggression of the 
 House of Bourbon, and in preserving the peace of 
 Europe, were identical. The proposal, however, ex- 
 cluded Catherine's quarrel with Turkey from the casus 
 foederis; for commercial reasons Great Britain would 
 not break with the Porte. Tt was foredoomed to failure, 
 for the Empress would obtain no assistance in the only 
 war in which she was likely to engage on her own 
 account, but would be required to side with Great 
 Britain in the impending struggle with France and 
 Spain, with whom, although she was not on the best 
 terms,, she had no definite quarrel. In a friendly 
 memorandum she declined the alliance on these con- 
 ditions on every occasion when the Ambassador pressed 
 it on her, though in the end the suggestion that Minorca 
 might be ceded to Russia almost altered her resolution. 
 
 During these negotiations the Scandinavian Powers 
 were loud in their protests against the British seizure 
 of their ships laden with ships' timber and naval stores 
 consigned to France, and, instigated by de Vergennes, 
 in 1778 had made overtures to Catherine to create a 
 joint fleet for the mutual protection of their commerce. 
 The policy of Versailles was to persuade the neutrals 
 to maintain a '' strict neutrality," by which was meant 
 a vigorous defence of their flag. To promote this end 
 the regulation of July 1778 was issued, promising a 
 recognition of " free ships free goods," on condition 
 that the neutrals should compel Great Britain to observe 
 the same principle. In no other way could the timber 
 and stores necessary to maintain the French fleet be 
 obtained.
 
 44 " FREEDOM OF THE SEAS ' 
 
 Meanwhile, the American privateers had been doing 
 much damage on the trade route to Archangel; and 
 Catherine determined to protect Russian commerce, 
 whether it was carried in Russian or neutral ships in 
 the northern sea. The Scandinavian proposal of a joint 
 fleet for mutual protection was rejected, and there was 
 substituted for it a plan of co-operation for individual 
 purposes, each country to protect its own commerce. 
 Catherine's own action had the effect of keeping the 
 northern seas clear of American privateers. This was 
 looked on by de Vergennes as a favour granted to Great 
 Britain ; his large plan had miscarried. The first phase 
 of the Armed Neutrality went no further than this. 
 But in "due course Russian vessels carrying consign- 
 ments to France of stores from the French merchants 
 in Russia were seized by the British cruisers ; and 
 Catherine requested that special orders should be given 
 that Russian ships should be allowed to pass free. It 
 seems clear that some degree of favour was shown them, 
 but the order for absolute immunity was refused. 1 
 Spain also seized enemy goods on neutral ships, 
 declaring that she was compelled to act in the same way 
 as Great Britain. 
 
 The seizure by Spain of two Russian ships, bound 
 for Malaga with corn, for an alleged breach of the 
 blockade of Gibraltar, brought matters to a head ; and 
 the suggestion of the Scandinavian Powers of an armed 
 neutrality of the Northern Powers suddenly material- 
 ised. In March 1780, Catherine issued a Declaration 
 to the three European belligerents, setting out four 
 principles for regulating maritime warfare on which 
 it was her intention to insist. 
 
 The Empress dwelt on " the rights of neutrality, 
 and the liberty of universal commerce." Her confidence 
 that her subjects during the war ' ' would peaceably 
 enjoy the fruits of their industry, and the advantages 
 
 1 The instructions to the Fleet did, however, recognise the 
 definition of contraband contained in articles X and XI of our 
 Treaty with Kussia of June 20, 1766. (Council Kegister: 18 
 Geo. III.).
 
 ARMED NEUTRALITY, 1780 45 
 
 belonging to a neutral nation" had been misplaced. 
 There had been hindrances to the liberty of trade in 
 general, and 1 to that of Russia in particular. It was 
 Catherine's intention to free that trade by all means 
 compatible with her dignity, and to prevent any future 
 infringements. She therefore " thought it but just to 
 publish to all Europe the principles she means to 
 follow which are the properest to prevent any mis- 
 understandings, or any occurrences that may occasion 
 it." She " finds these principles coincident with the 
 primitive right of nations which every people may re- 
 claim, and which the belligerent Powers cannot invali- 
 date without violating the laws of neutrality, and 
 without disavowing the maxims they have adopted in 
 the different treaties and public engagements." The 
 principles " are reducible to the following points, 
 which are to serve as rules for proceedings and judg- 
 ments upon the legality of prizes ' ' : 
 
 "First, that all neutral ships may freely navigate from port 
 to port, and on the coasts of nations at war. 
 
 " Secondly, that the effects belonging to the subjects of the 
 said belligerent Powers shall be free in all neutral vessels, 
 except contraband merchandise. 
 
 " Thirdly, that the Empress, as to the specification of the 
 above-mentioned merchandise, holds to what is mentioned in 
 the tenth and eleventh articles of her treaty of commerce with 
 Great Britain, extending these obligations to all the Powers at 
 war. 
 
 " Fourthly, that, to determine what characterises a port 
 blockaded, this is only to be understood of one which is so 
 well kept by the ships of the Power which attacks it, and 
 which keep their places, that it would be dangerous to 
 enter." 
 
 In making these points public, the Empress did not 
 hesitate to declare that to maintain them, and to pro- 
 tect the honour of her flag, and the security of the 
 trade and navigation of her subjects, she had put into 
 commission " the greatest part of her maritime 
 forces " ; but this would not influence " the strict neu- 
 trality she has sacredly observed, and will observe so 
 long as she is not provoked and forced to break the 
 bounds of moderation and perfect impartiality. It is
 
 46 ' FREEDOM OF THE SEAS " 
 
 in this extremity that her fleet will have orders to go 
 wherever honour, interest, and need may require." 
 Finally, she promised herself "that the belligerent 
 Powers, convinced of the sentiments of justice and 
 equity which animate her, will contribute to the 
 accomplishment of her salutary views, which mani- 
 festly tend to the good of all nations, and to the advan- 
 tage even of those at war." 
 
 The Declaration was communicated to Sweden and 
 Denmark; and, in answer to certain questions put by 
 Sweden as to the procedure to be followed, Russia ex- 
 plained that protection and mutual assistance were to 
 be arranged for by a convention to which all other 
 neutrals would be invited to adhere, " the principal 
 object of which is to ensure a free navigation to the 
 merchant ships of all nations." 
 
 Whenever such vessel shall have proved from its papers 
 that it carries no contraband goods, the protection of a 
 squadron, or vessels of war, shall be granted her, under whose 
 care she shall put herself, and which shall prevent her being 
 interrupted. From hence it follows that each Power must 
 concur in the general security of commerce." 
 
 The explanations concluded with this sentence : 
 
 It is probable that this convention, once ratified and estab- 
 lished, will be of the greatest consequence; and that the belli- 
 gerent Powers will find in it sufficient motives to respect the 
 neutral flag, and prevent their provoking the resentment of a 
 respectable Confederacy, founded under the auspices of the 
 most evident justice, and the sole idea of which is received 
 with the universal applause of all impartial Europe." 
 
 Answers were received from the three belligerents. 
 Spain declared that it was entirely owing to the 
 conduct of England, both in the present and the last 
 wars ("a conduct wholly subversive of the received 
 rules among neutral Powers ' ' ) that she had been com- 
 pelled to act in similar fashion by way of reprisals. 
 The conduct complained of was that the English paid 
 " no respect to a neutral flag, if the same be laden with 
 effects belonging to the enemy." It was, howey_er, 
 pointed out that the neutrals had laid themselves open 
 to the inconveniences they had suffered, by furnishing
 
 ARMED NEUTRALITY, 1780 47 
 
 themselves with double papers and other artifices to 
 prevent the capture of their vessels. Nevertheless, the 
 King of Spain 
 
 ' ' will once more have the glory of being the first to give 
 the example of respecting the neutral flag of all the Courts 
 that have consented, or shall consent, to defend it, till His 
 Majesty finds what part the English Navy takes, and whether 
 they will, together with their privateers, keep within proper 
 bounds." 
 
 In the French answer, which was in the following 
 terms, the formula " The Freedom of the Seas " 
 appears in a public document, I believe, for the first 
 time: 
 
 "The war in which the King is engaged having no other object 
 than the attachment of His Majesty to the freedom of the 
 seas, he could not but with the truest satisfaction see the 
 Empress of Russia adopt the same principle and resolve to 
 maintain it. That which Her Imperial Majesty claims from 
 fche belligerent Powers is no other than the rules already pre- 
 scribed to the French marine, the execution of which is main- 
 tained with an exactitude known and applauded by all Europe. 
 
 " The liberty of neutral vessels, restrained only in a few 
 cases, is the direct consequence of neutral right, the safeguard 
 of nations, and the relief even of those at war. The King has 
 been desirous not only to procure a freedom of navigation to 
 the subjects of the Empress of Russia, but to those of all the 
 States who maintain their neutrality, and that upon the same 
 conditions as are announced in the Declaration to which His 
 Majesty this day answers. 
 
 ' ' His Majesty thought he had taken a great step for the 
 general good, and prepared a glorious epocha for his reign, by 
 fixing, by his example, the rights which every belligerent Power 
 may, and ought to acknowledge to be due to neutral vessels. 
 His hopes have not been deceived, as the Empress, in avowing 
 the strictest neutrality, has declared in favour of a system 
 which the King is supporting at the price of his people's blood, 
 and as Her Majesty claims the same laws that he would wish 
 to make the basis of the universal maritime code." 
 
 The " great step for the general good ' was the 
 adoption of "free ships free goods" by the regulation 
 of July 1778. France, however, still adhered to the 
 principle "enemy ships enemy goods." The books 
 throw no light on the question why the neutrals did 
 not protest against this principle of seizure. It may
 
 48 'FREEDOM OF THE SEAS" 
 
 well be that to seize neutral property on enemy ships 
 can be justified, like the English principle of seizure, 
 on the broad ground that it prevents neutral assis- 
 tance to the enemy of a peculiarly insidious kind. 
 But it was, like the English principle, an interfer- 
 ence with the liberty of universal commerce, a dis- 
 turbance of neutral subjects in the peaceable enjoy- 
 ment of " the fruits of their industry and the advan- 
 tages belonging to a neutral nation " ; it was a " hin- 
 drance to the liberty of trade in general ' ' ; and one 
 would have thought that the Empress would find her- 
 self obliged to free that also "by all means compatible 
 with her dignity and the well-being of her subjects." 
 Yet this question was not dealt with in the four points 
 of her Declaration; and thus the Ministers of Louis 
 XVI were able to assert in their answer a complete 
 regard for the neutral flag, but to ignore all questions 
 of regard for neutral commerce. 
 
 We now come to the British answer to the Empress 
 Catherine. As published in all the books, it was very 
 simple. It declared that the King had acted towards 
 neutrals according to the principles of the Law of 
 Nations; that he had given special orders to pay to the 
 Russian flag the regard due to it by that law and by 
 treaty engagements ; and that, if anv irregularities 
 happened, they would be redressed in an equitable 
 manner by the Court of Admiralty. 
 
 This answer has been praised as beiner couched " in 
 terms of studied courtesy." But Sir James Harris, 
 writing in 1782 to Lord Grant ham, described it as 
 "ambiguous and trimming," and declared that we 
 seemed equally afraid to accept or dismiss the " new- 
 fangled doctrines." This view is quoted by Mr. Fiske, 
 a more acid historian of the American Revolution than 
 Bancroft, to reinforce his comments, that " the imme- 
 diate effect of the Armed Neutrality was to deprive 
 England of one of her principal weapons of offence " ; 
 and that 
 
 " this successful assertion of the rights of neutrals was one 
 of the greatest and most beneficial revolutions in the whole
 
 ARMED NEUTRALITY, 1780 40 
 
 history of human warfare; was the most emphatic declaration 
 that has ever been made of the principle that the interests of 
 peace are paramount and permanent, while those of war are 
 subordinate and temporary. In the interest of commerce it 
 put a mighty curb upon warfare, and announced that for the 
 future the business of the producer is entitled to higher con- 
 sideration than that of the destroyer. Few things have ever 
 done so much to confine the area of warfare and limit its 
 destructive power." 
 
 This is typical of the view very generally prevalent 
 in regard to the Armed Neutrality, not only in foreign 
 countries, but also in England. The official opinion 
 of most foreign countries probably coincides with Sir 
 William Molesworth's statement in the House of Com- 
 mons, in a speech in 1854, that the Armed Neutrality 
 " attained its object " ! There can be little doubt that 
 English opinion has been in large measure based on, 
 and continental opirion confirmed by, the Malmesbury 
 Correspondence ; for the letters of Lord Malmesbury to 
 different Foreign Secretaries and to personal friends 
 abound in criticisms of the action of the British 
 Government, and refer to advice given by him but not 
 followed by his superiors. These volumes have long 
 been accepted as faithful historical records, for they 
 contain official despatches. But these are only extracts, 
 and are often inaccurate; important despatches are 
 omitted, in particular the despatch from Lord Stor- 
 mont, conveying the instructions to the Ambassador as 
 to action to be taken on Catherine's Declaration. 
 
 In view of what has been said as to the prevailing 
 opinion of England's attitude, the exact instructions 
 sent by Lord Stormont are important. The answer that 
 has been published was to serve as a dummy, though 
 for very inadequate reasons. But the real instructions 
 contained a well-reasoned argument against the " free 
 ships free goods " principle, together with a collection 
 of authorities, beginning with the Consolalo del Mare, 
 which were to be, and in fact were, presented to 
 Catherine and her Ministers. There are references in 
 other Foreign Office despatches relating to this ques- 
 
 [1947] E
 
 50 "FREEDOM OF THE SEAS" 
 
 tion, which are conceived in the same spirit, that in no 
 circumstances could the principle be assented to : 
 
 " We cannot, and shall not, subscribe to such doctrine, I 
 have repeatedly told you." 
 
 After references to the uniform friendship of the 
 Empress to England, and to the just resentment which 
 she had expressed at the unwarrantable conduct of 
 Spain (in connection with the seizure of the Russian 
 vessels), which make it impossible to suppose that she 
 can have the least intention of throwing difficulties in 
 our way, the despatch proceeds : 
 
 " And yet the style of the Declaration does carry an appear- 
 ance which our enemies will endeavour to make use of to our 
 disadvantage. 
 
 "The second article (that free ships make free goods), as you 
 will see at once, proceeds upon a mistake, and lays down, as a 
 principle of the Law of Nations that which is a manifest varia- 
 tion of that law which some States have agreed to make by 
 particular specifick engagements. It is established by the con- 
 current opinion of the best writers upon the subject and by 
 the constant uniform decisions of, I believe, every Court of 
 Admiralty in Europe, that, according to the Law of Nations, 
 the goods of an enemy, whether contraband or not, when 
 found on board a neutral ship, are legal prize, and the lawful 
 goods of a friend on board an enemy's ships are free, and con- 
 sequently, if taken, must be restored. 
 
 " Particular treaties, as our treaty with Portugal in 1654, 
 and that with Holland in 1674, have inverted the rule, and 
 have, by express stipulation agreed that the flag of the contract- 
 ing Powers shall cover enemy's property, excepting contraband, 
 and that their property on board an enemy's ship shall be 
 deemed lawful prize. But this is, as I have already said, a 
 direct, positive, specifick engagement. Such engagements form 
 the exception ; and the general principles of the Law of Nations 
 constitute the rule that applies to all cases where there is no 
 particular treaty. All that any neutral Power can, or ever did 
 claim, is the observance of the general Law of Nations, where 
 there is no treaty; and the accomplishment of particular speci- 
 fick engagements, where such engagements exist. They do 
 exist between this country and many others, but they are 
 different with different Courts, and consequently are not re- 
 ducible to one measure or rule. 
 
 " As you may not have the books by you, I inclose a note 
 of the passages from different writers in support of the above- 
 mentioned doctrine, which indeed is indisputable. How the
 
 ARMED NEUTRALITY, 1780 51 
 
 mistake in the second article of the Declaration arose I cannot 
 pretend to say. I suppose it to be a wilful one, and made 
 with a very bad design. 
 
 "As it would be awkward in an answer to so friendly a Court 
 as Kussia to enter into anything that had the appearance of dis- 
 cussion, and as it is absolutely impossible to accept a principle 
 that is in direct contradiction to the uniform decisions, of the 
 Court of Admiralty of this and every other country, from time 
 immemorial, it was thought better to make the inclosed answer 
 in general terms. Before you present it to Count Panin you 
 will, if possible, contrive to explain to Her Imperial Majesty 
 the objections there are to some of the positions of the Declara^ 
 tion, particularly to the second article. This is a matter of 
 nicety and must be done with delicacy and address." 
 
 After further examination of the question, the in- 
 structions continue : 
 
 ' ' As soon as you have prepared the way by this explanation, 
 you will present the inclosed answer to Count Panin, and 
 accompany it with the strongest assurances of the King's 
 constant and invariable friendship for the Empress, and of his 
 entire reliance on that of Her Imperial Majesty. ... It will 
 not, I think, be expedient to enter with Count Panin into any 
 particular discussion of the second article of the Declaration, 
 unless he should force you to it, but, at all events, you will 
 take the greatest care not to drop a syllable that can be con- 
 strued into an acquiescence in the erroneous doctrine which 
 that article endeavours to establish, and to which it is im- 
 possible to subscribe." 
 
 Declarations were also presented to the belligerents 
 by the Kings of Denmark and Norway and of Sweden. 
 The former stated that 
 
 " the neutral navigation has been too often molested, and the 
 most innocent commerce of his subjects too frequently 
 troubled; so that he finds himself obliged to take proper 
 measures to assure to himself and his Allies the safety of 
 commerce and navigation and the maintenance of the in- 
 separable rights of liberty and independence. ... A nation 
 independent and neuter does not lose by the war of others the 
 rights which she had before the war, because peace exists 
 between her and all the belligerent Powers. Without receiving 
 or being obliged to follow the laws of either of them, she is 
 allowed to follow in all places (contraband excepted) the traffick 
 which she would have a right to do if peace existed with all 
 Europe as it exists with her. . . . The King cannot accord 
 [ ? accede] to the principle that a Power at war has a right 
 to interrupt the commerce of his subjects." 
 
 [1947] E 2
 
 52 " FREEDOM OF THE SEAS ' 
 
 The English reply relied on the treaties existing be- 
 tween England and Denmark, in which the reciprocal 
 rights and duties of the two Powers had been traced. 
 These treaties had always been, and would continue to 
 be, respected as an inviolable law for both the one and 
 the other. 
 
 The treaty of alliance and commerce between the two 
 Powers had been made in 1670; and on July 4, 1780, 
 that is, after the Russian Declaration had been received 
 and answered, and only four days before the Danish 
 Declaration was issued, the articles (of 1670) relating 
 to contraband had been revised. In the new article 
 (1780) the following were declared to be contraband: 
 
 " Ship timber, tar, pitch and rosin, sheet copper, sails, hemp 
 and cordage, and generally whatever immediately serves for the 
 equipment of ships ; unwrought iron and deal planks, however, 
 excepted." 
 
 The Swedish Declaration referred to the Russian 
 document with approval, and concluded thus : 
 
 " The King .... will enjoin all his subjects under 
 rigorous pains, not to act in any manner whatever contrary 
 to the duties which a strict neutrality imposes unto them ; 
 but he will protect their lawful commerce, by all possible 
 means, whenever they carry on the same conformably to the 
 principles here above mentioned. 
 
 The English answer referred specifically to the 
 twelfth article of the treaty between England and 
 Sweden of 1661, which was. in these terms: 
 
 " If the goods of an enemy are found in a ship of the Ally, 
 that part only belonging to the enemy shall be made prize ; 
 and that part belonging to the Ally shall be immediately 
 restored." 
 
 This article, therefore, expressly recognised the right 
 of one of the parties to the treaty (" ally " or " con- 
 federate," which is sometimes used, merely means party 
 to the treaty), being at war, to seize enemy goods on 
 the ships of the other party; the reason given in the 
 treaty being lest the freedom of navigation or passage 
 of the subjects of one party " shooild be of detriment 
 to the other while ensued in war on sea or land with
 
 53 
 
 other nations, and lest the goods and merchandise 
 belonging to the enemy should be concealed." This 
 provision, as well as the reason for it, were repeated 
 and emphasised in the treaty of 1666. 
 
 A scurrilous story was started in Stockholm that 
 this paragraph did not exist in the original treaty, 
 but had been deliberately and fraudulently interpo- 
 lated by the British Government for the purposes of the 
 answer. The charge was, it is hardly necessary to say, 
 groundless; but the copies of the treaty are very de- 
 fective, 1 and in the Swedish Government copy this 
 clause did not exist. There is, however, abundant in- 
 ternal evidence from the treaty itself, as well as from 
 the treaties of 1654 and 1656, that it was intended to 
 authorise the seizure of enemy goods on neutral ships. 
 The question is referred to because the charge was 
 repeated in a work dealing with the Armed Neutrali- 
 ties published in 1893. 2 
 
 The " Convention for an Armed Neutrality " was 
 concluded on June 28, 1780. It declared, among other 
 things, that these Powers would " enforce the most 
 rigorous execution of the prohibition against contra- 
 band commerce of their subjects with any Powers at 
 present engaged in war, or who may hereafter be en- 
 gaged therein." To avoid all ambiguities and mis- 
 understandings with regard to contraband, they de- 
 clared that they would " only acknowledge such articles 
 to be contraband commodities as are included and men- 
 tioned as such in the treaties now subsisting between 
 their respective Courts and the one or other of the belli- 
 gerent Powers " ; and that it is their " will and inten- 
 tion " that " all other commerce shall be and remain 
 free." Further, having claimed in their Declarations 
 " the general principles of natural right, of which the 
 liberty of commerce and navigation, as well as the 
 rights of neutral nations, are a direct consequence, 
 
 1 See note to the treaty in Dumont, Corps Diplomatique, 
 Vol. VI, pt. 2, p. 384. 
 
 2 Dr. Fauchille, La Diplomatic Franq.aise et la Ligue tics 
 Neutres de 1780. Paris, 1893.
 
 54 " FREEDOM OF THE SEAS ' 
 
 they have resolved not to let them any longer depend 
 on arbitrary interpretation suggested by independent 
 and momentary interests." After stating the foufr 
 principles, they declared that " these stipulations shall 
 be considered as permanent, and serve as a law in 
 matters of commerce and navigation, whenever there 
 shall be a question of appreciating the rights of neutral 
 nations." 
 
 Other Powers equally neutral were to be allowed to 
 adhere. Holland adhered in 1780 ; Prussia, with some 
 modifications of detail, in May 1781; the Emperor 
 Joseph II in October of that year; Portugal in July 
 1782; and the Two Sicilies in February 1783. 
 
 Separate articles were signed between Russia, Den- 
 mark, and Sweden on the same day as the Armed 
 Neutrality Convention, declaring that these Powers, 
 being equally interested in safeguarding the tran- 
 quillity of the Baltic, would continue to maintain that 
 it was a closed sea wherein all nations "doivent et 
 peuvent naviguer en paix." They would also maintain 
 the tranquillity of the North Sea " dans leurs parages." 
 
 The documents in which the pretensions of the First 
 Armed Neutrality were put forward enable us to un- 
 derstand what the claim of " Freedom of the Seas " at 
 this time really meant. The propositions involved in it 
 are there definitely stated. In general terms they 
 sought to secure " the safety of commerce and naviga- 
 tion.'' But the major proposition was this: " a nation 
 independent and neuter does not lose by the war of 
 others the rights which she had before the war, because 
 peace exists between her and all the belligerent 
 Powers." The conclusion was that, therefore, " a 
 Power at war has no right to interrupt the commerce 
 of the subjects of a neutral Power," except always in 
 contraband and with blockaded ports. 
 
 The insidiousness of the proposition lies in its sim- 
 plicity and its assumed innocence, which would appeal 
 to other neutrals who had not yet joined the League. 
 It would also appeal, and does even now appeal, to
 
 55 
 
 those whose temperament is averse from war, and who 
 are prone to advocate principles tending to control 
 belligerent action without going too deeply into 
 reasons which make that action necessary reasons 
 which depend on the nature of war, and its 
 inevitable consequences. So far as the enemy is 
 concerned, the simpler the statement the better. 
 Anything which would help him to evade the conse- 
 quences of his adversary's supremacy at sea is 
 welcome. 
 
 A few words are necessary in order to make it clear 
 why it was impossible for England to acquiesce in this 
 proposition and the conclusion drawn from it. A sound 
 proposition should be capable of statement without 
 exception. But the principle of freedom of commerce 
 in war cannot be stated unless in immediate conjunc- 
 tion with its exception ; and, when the exception of 
 trade in contraband is admitted, the right ceases to be 
 absolute. But this exception in reality governed the 
 principle, because there was no accepted definition of 
 contraband, and therefore the extent of the free com- 
 merce was also undefined. The broad generality that 
 it meant ' ' munitions of war ' ' was too vague to be 
 accepted by a maritime Power. The solution of the 
 difficulty was certainly not to be found in insisting, as 
 the Northern Powers insisted, on a definition drawn 
 from treaties to which neither all the neutrals, nor all 
 the belligerents, were parties. 
 
 The principle of contraband is as imperfectly under- 
 stood as the problem which is involved in it. To 
 imagine that "things which are useful in war" are 
 capable of bein^ scheduled with precision was and is 
 obviously fallacious, because it is based on the assump- 
 tion that finality in defining such things had been 
 reached. But it was radically unsound, because it 
 ignored the ingredients of which these things were 
 made a lesson only fully learned during the late war. 
 
 But this does not touch the root of the discussion 
 of those days. The concession to the belligerent of the 
 right to seize contraband was accepted as inevitable;
 
 56 FREEDOM OF THE SEAS ' 
 
 but the interest of the neutral made him resist the in- 
 clusion of articles which were the staple produce of his 
 country. Thus the question resolved itself into a clash 
 of interests. The question was never stated in quite 
 so simple a fashion ; but, resolved into its elements, the 
 contention of each party was that he had a right 
 not to be disturbed in his occupation. The occu- 
 pation of the belligerent was war, that of the neutral 
 was commerce. England as belligerent contended that 
 the neutral had no right to do anything to help the 
 enemy carry on the war ; that if he did help him he must 
 do it at his own risk. The neutrals contended that their 
 subjects had a right during war to "enjoy peaceably 
 the fruits of their industry, ' ' and that therefore one of 
 " the advantages belonging to a neutral nation " was to 
 sell these .fruits to the enemy "peaceably," in other 
 words, without risk. 
 
 It is essential to bear in mind that the neutral 
 claimed to deal in the fruits of his industry with both 
 belligerents, and that both belligerents desired to trade 
 with the neutral, especially in such commodities as 
 were essential to warfare. Neither wished to offend 
 the neutrals. While, therefore, the risk could not 
 be eliminated, there was no disinclination to limit 
 its incidence so far as it was consistent with 
 safety in special cases. These influences led to treaty 
 arrangements in which lists of contraband were in- 
 serted. .They also account for the fact that the lists 
 in different treaties were by no means uniform. Some- 
 times, for political reasons, one belligerent would 
 acquiesce in the wishes of one neutral, and accord 
 him privileges which he would not grant to another. 
 Despatches of the period make it abundantly clear that 
 the contention of the neutrals as to what was and what 
 was not contraband, outside the narrowest limitation of 
 the term " munitions of war," was governed by their 
 own commercial interests. Commodities which they 
 had to sell they declared were not contraband. This 
 was especially the case in regard to "naval stores," 
 about which the dispute with the Northern Powers
 
 ARMED NEUTRALITY, 1780 57 
 
 arose. Trade in these stores was a national interest, 
 because the revenues, and therefore the prosperity, of 
 the State depended on it. 
 
 No better illustration of the point I have tried to 
 make clear in the foregoing paragraph can be found 
 than the supplementary treaty between Great Britain 
 and Denmark (referred to on p. 52), concluded July 4, 
 1780, by which the definition of contraband was revised 
 as between those two Powers. 
 
 A dispute where each party is actuated by an in- 
 terest the preservation of which he deems essential is 
 likely to be unending. In this case, however, it does 
 seem possible to determine the merits of the rival con- 
 tentions. The neutrals held their commercial revenues 
 at a higher valuation than the consequences to England 
 of persisting in that commerce. The fleet was the 
 weapon by which the enemy hoped to win the suprem 
 acy of the sea. Ths safety of the State was involved 
 in the dispute; and it was this which inspired 
 Pitt's rhetorical denunciations of the attempts of the 
 neutrals to assert a freedom for delivering these goods 
 to the enemy. The case on the merits can be stated 
 very simply: whether the existence of one State does 
 not weigh more in the balance than the financial pros- 
 perity of another. 
 
 It must, however, be recognised that, having estab- 
 lished their point to their own satisfaction, the 
 neutrals endeavoured to carry it out logically. This 
 does not eliminate its inherent defects, but it 
 does show that they endeavoured to be faithful, 
 though to a false ideal. In the conventions which 
 they entered into between themselves they declared that 
 they would " enforce the most rigorous execution of the 
 prohibition against the contraband commerce of their 
 subjects" ; that is to say, the "contraband commerce" 
 as they understood it. Yet, even from their own point 
 of view, practical difficulties made the scheme impos- 
 sible of execution; the chief among them being the 
 innate desire of the merchant to evade them, which he 
 was always endeavouring to gratify.
 
 58 " FREEDOM OF THE SEAS ' 
 
 The question of contraband was the third of 
 Catherine's points. The others must now he briefly 
 referred to. 
 
 The first asserted that neutral ships might partici- 
 pate in the port-to-port and coasting trades of the 
 enemy,. The neutrals thus claimed freedom to partici- 
 pate in the enemy's navigation monopolies ; the first 
 point was therefore a direct attack on the "Rule of 
 1756." It meant increased freights for the neutral 
 shipowners; it also meant palpable benefit to the 
 enemy, and it was impossible for England to accept it. 
 
 The second point was that the neutral flag covers 
 enemy cargo, i.e., " free ships free goods." This sought 
 to limit the fundamental principle of maritime war, 
 seizure of enemy property wherever it could be found. 
 Ostensibly it was intended to benefit the neutral carry- 
 ing trade, but it did in fact create a sanctuary for 
 enemy property under the neutral flag. Contraband 
 was excepted as a matter of course; but the principle 
 would benefit the neutral trader in non-contraband, 
 for it would eliminate all questions as to property in 
 the cargoes seized. Whether the property was in the 
 neutral vendor or in the enemy purchaser, it would be 
 "free." 
 
 The first and second principles, taken together, show 
 the full meaning of the " Liberty of Trade " which the 
 neutrals claimed. It was not simply liberty to trade 
 in everything that was not contraband; it was not 
 merely to trade with the enemy, but to navigate on 
 behalf of the enemy, very skilfully disguised. Obviously 
 England could not accept it. 
 
 The fourth point dealt with blockade. In so far as 
 it defined a blockaded port as one " which is so well 
 kept by ships of the Power that attacks it that it would 
 be dangerous to enter it ' in other words, that the 
 blockade must be "effective" nothing need be said. 
 The sting of the proposal was that the blockading 
 ships must " keep their places." To limit blockade in 
 any way other than in its effectiveness is to limit the 
 restrictions it imposes on neutral trade with the
 
 ARMED NEUTRALITY, 1780 59 
 
 enemy ; and therefore this point, like the other three, is 
 simply answered : whatever the neutrals gained by it 
 the enemy gained also. England's position .was that 
 an " effective " blockade could be maintained by 
 cruisers, a far more efficient method for blocking a port 
 than a stationary squadron. The point therefore could 
 not be accepted. 
 
 The issue is clearly stated in the Letter of " His- 
 toricus " (p. 103), which deals with the Law and Prac- 
 tice of Blockade. The Armed Neutrality endeavoured 
 to establish the principle that the blockading vessels 
 were to be "arretes et suffisamment proches " ; the 
 English doctrine was that they should be " arrete*s ou 
 suffisamment proches ' ' ; and this was accepted by 
 Russia in the treaty of June 1801, to which Denmark 
 and Sweden adhered. 
 
 The answer to these four points cannot be better 
 given than in Pitt's speech, on Mr. Grey's motion for a 
 Committee to inquire into the State of the Nation, on 
 March 25, 1801. The Second Armed Neutrality had 
 at that time come into being, but the principles it advo- 
 cated were the same as those put forward by Catherine. 
 The speech is the more important because it states 
 clearly the English belligerent practice which the prin- 
 ciples of the League endeavoured to nullify. 
 
 The speech is reported in Hansard's Parliamentary 
 History, vol. 35; but this part of it is only given in 
 summarised form : 
 
 ' ' Here Mr. Pitt went over the grounds of the question rela- 
 tive to neutral bottoms, denying that free bottoms make free 
 goods, contending that contraband of war ought to include 
 naval as well as military stores, maintaining that ports ought 
 to be considered in' a state of blockade when it was unsafe for 
 vessels to enter them, although the ports were not actually 
 blocked up ; and denying the right of convoy to preclude neutral 
 ships from being searched. In support of these decisions he 
 quoted the decisions of Courts of Law, and treaties entered into 
 between this country and various other Powers, in which he 
 contended the rights now claimed by this country had been 
 expressly acknowledged.
 
 60 " FREEDOM OF THE SEAS " 
 
 The extreme importance which he attached to these 
 principles may be gathered from the conclusion of the 
 speech : 
 
 Shall we allow entire freedom to the trade of France? 
 Shall we allow her to receive naval stores undisturbed, and 
 to rebuild and refit that navy w r hich the valour of our seamen 
 has destroyed? Will you silently stand by and acknowledge 
 these monstrous and unheard-of principles of neutrality, and 
 ensure your enemy against the effects of your hostility? " 
 
 We have now dissected the concrete applications of 
 the vague generalities which the Powers taking part 
 in the First Armed Neutrality put forward. By the 
 " measures to ensure to their subjects that liberty to 
 which they have the most incontrovertible right " 
 which they proposed to adopt, we can test the value of 
 the references to " most innocent commerce too 
 frequently troubled." There was nothing " innocent " 
 about it. It was, on the contrary, most " nocent," 
 for at every point it assisted the enemy. 
 
 The points insisted on, the measures proposed to be 
 taken, were the primitive ingredients of the " Freedom 
 of the Seas," which was claimed against England at a 
 time when she was engaged in a life-and-death 
 struggle, and the meaning of it was abundantly clear. 
 It meant the limitation of England's power at sea, 
 which was her one means of defence against her 
 enemies.
 
 VII. 
 
 THE PERIOD BETWEEN THE FIRST AND 
 SECOND ARMED NEUTRALITIES 
 
 PEACE was signed through the mediation of the 
 Empress Catherine II and the Emperor Joseph II in 
 1783, at Versailles, between England and France, and 
 England and Spain; at Paris, without mediation, 
 between England and the United States; and with 
 Holland at Paris in 1784. 
 
 The mediators had informed the Courts of the 
 League that they intended, previous to signing the 
 treaties to which those Courts were parties, to propose 
 to the belligerents that the four " principles " should 
 be embodied in a Universal Maritime Code, which had, 
 in fact, been drafted. The instructions to the Russian 
 Ambassador in London were limited to proposing, not 
 to insisting on, its acceptance. The proposal was 
 declined by England. The draft Code was then laid 
 aside, and the subject ceased to have any interest. 
 
 The statement was made by Sir William Molesworth 
 in the House of Commons in 1854 that the. Armed 
 Neutrality "attained its object"; inferring that 
 we were compelled to recognise its principles in these 
 treaties of peace. He also dwelt on the fact that in 
 the same year the United States made a treaty with 
 Sweden which contained the " free ships free goods ' 
 clause. The last is a fact, but the first is typical of 
 many erroneous statements on the subject; it is advis- 
 able, therefore, to state exactly how the matter stands. 
 
 In the Treaty of Versailles with France, the subject 
 was not referred to, but the Treaty of Utrecht and 
 many others were confirmed. The Treaty with Spain 
 is equally silent; but existing treaties were also con-
 
 62 'FREEDOM OF THE SEAS" 
 
 firmed in which the maxim was recognised. With 
 regard to the United States, it is true that she believed 
 in the doctrine. Her policy was to develop a carrying 
 trade, and the general acceptance of the doctrine would 
 be useful. It was therefore included in her treaties 
 with those States who also approved of it as with 
 Sweden in 1783, and Prussia in 1785. But in the Jay 
 Treaty with Great Britain in 1795, the belligerent right 
 of seizing enemy property on neutral ships is assumed. 
 Article xvii contains no more than an agreement 
 that ships detained because they have enemy property 
 on board should be taken to the nearest convenient 
 port, to be proceeded against without delay, and 
 released so soon as the enemy cargo was removed. 
 
 The United States during this period never departed 
 from the principle that the Law of Nations warranted 
 these seizures, and that any arrangement to the con- 
 trary affected only the contracting parties. When 
 France declared war upon England in 1793, instruc- 
 tions were issued to the British Fleet to detain all 
 vessels loaded with flour or grain bound for French 
 ports; and many American shins were seized and their 
 cargoes for France confiscated. Ignoring their own 
 orders to the same effect, the French Government 
 called on the United States to protest, using the old 
 argument that the inclusion of the maxim in many 
 treaties showed that it was accepted as a principle of 
 international law. President Jefferson instructed the 
 American Minister in Paris as follows: 
 
 " We have introduced it [the maxim] into our treaties with 
 France, Holland, and Prussia ; the French goods found by the 
 latter nations in American bottoms are not made prize of. It 
 is our wish to establish it with other nations. But this requires 
 their consent also as a work of time, and in the meanwhile 
 they [the English] have a right to act on the general principle 
 without giving to us or to France cause of complaint." 1 
 
 1 The twelfth article of the Treaty with Prussia of 1795 de- 
 clared that, experience having proved that the principle adopted in 
 Article xii of the Treaty of 1785, according to which free ships 
 make free goods, has not been sufficiently respected during the
 
 PERIOD BETWEEN 1783-1800 63 
 
 The Jay Treaty dealt with the question in the spirit 
 of this instruction. 
 
 It is necessary now to refer to a few facts connected 
 with the French Revolution. Catherine, struck with 
 horror at the murder of Louis XVI, allied herself with 
 England against the Revolutionary Government. All 
 intercourse between Russia and France was cut off; 
 the ports of both countries were closed against French 
 ships; and all measures were taken for injuring the 
 commerce of France. The two Governments also en- 
 gaged to unite their efforts to prevent other Powers 
 from giving "any protection whatever, directly or 
 indirectly, in consequence of their neutrality, to the 
 commerce or property of the French, on the sea or in 
 the ports of France." 
 
 Denmark was asked to join, but Count Bernstorff 
 refused, declaring that " le droit des gens est 
 inalterable ; ses principes ne dependent pas des circon- 
 stances." In spite of the Revolution, he pointed out 
 that the country, France, still existed, and commercial 
 relations continued; treaties were "frequently" com- 
 plied with, and the protection of belligerent property 
 by the Danish flag had often been claimed with success. 
 
 In view of the action of the Allies, Sweden and 
 Denmark endeavoured to revive the Armed Neutrality. 
 In March, 1794, they concluded between themselves a 
 treaty on the old lines for maintaining their neutrality, 
 and for the mutual protection of the " innocent naviga- 
 tion " of their subjects against those who should dis- 
 turb the legal exercise of rights, the enjoyment of 
 which could not be denied to neutral and independent 
 nations. 
 
 two last wars, and especially in the one which still continues, the 
 Contracting Parties propose after the return of a general peace to 
 agree, either separately between themselves or jointly with other 
 Powers alike interested, to concert with the great maritime Powers 
 of Europe such arrangements and such permanent principles as 
 may serve to consolidate the liberty and the safety of the neutral 
 navigation and commerce in future wars. The scheme of estab- 
 lishing a code so soon as the war should be over, like Catherine's, 
 did not mature.
 
 64 'FREEDOM OF THE SEAS' 
 
 The decrees of the Directory were subject to many 
 variations. On November 15, 1794, enemy goods under 
 the neutral flag were declared liable to seizure until 
 such time as the enemies of France should declare 
 French property free on board neutral ships. This 
 was revoked on January 3,. 1795, by a decree which 
 was in its turn repealed on July 24, 1796, by a decree 
 " concerning the behaviour of the French flag towards 
 neutral vessels ' ' : 
 
 II sera notifie sans delai a toutes les Puissances neutres ou 
 alliees, que le pavilion de la Republique en usera envers les 
 batimens neutres, soit pour la confiscation, soit pour la visite 
 en prehension, de la meme maniere qu'elles souffrent que les 
 Anglais en usent a leur e'gard." 
 
 This decree asserted the loyalty of France in 
 respecting treaties which assured commercial advan- 
 tages to neutral countries, and declared that the same 
 advantages should accrue to France, but that this was 
 hindered by the weakness of the neutrals. The circum- 
 stances, therefore, in the opinion of the Directory, 
 warranted the refusal to abide by the treaties. 
 
 This view, that the neutrals " suffered " England to 
 exercise what she held to be her belligerent rights, and 
 that it was their duty to oppose them by force, was a 
 principle of the Directory policy which was inherited 
 from de Vergennes. It was the policy which inspired 
 the regulation of July 1778 ; and it became the text for 
 many of Bonaparte's exhortations to the neutrals later 
 in the war. 
 
 In October 1,796, a decree was issued prohibiting the 
 importation and sale of English goods. 
 
 The position of Holland in regard to France in 1796 
 is thus summarised by Mahan 1 : 
 
 " The confidence of the Directors knew no bounds, and they 
 now began to formulate the policy toward British commerce 
 which Napoleon inherited from them. The design was formed 
 of forcing the United States to recede from the obnoxious con- 
 
 1 Influence of Sea Power upon the French Revolution and 
 Empire, Vol. II, p. 247.
 
 PERIOD BETWEEN 1783-1800 65 
 
 ventions of Jay's Treaty; and the Government of Holland, then 
 entirely dependent upon that of France, was pressed to demand 
 that Dutch property on board American vessels should be 
 protected against British seizure, and to suggest the concur- 
 rence of the three Republics against Great Britain [U.S. State 
 Papers, II, p. 13J. The Dutch accordingly represented ' that, 
 when circumstances oblige our commerce to confide its in- 
 terests to the neutral flag of American vessels, it has a just 
 right to insist that that flag be protected with energy ' ; in 
 other words, that, when the British control of the sea forced the 
 Dutch ships from it, Dutch trade should be carried on under 
 the American flag; and that the "United States should fight to 
 prevent the seizure of the Dutch property, although it ad- 
 mitted that the traditional law of nations would not justify 
 it in so doing. On May 6, 1797, Spain also, doubtless under 
 the dictation of France, made the same demand. Similar re- 
 presentations were made to the other neutral country, Den- 
 mark. Here is seen the forerunner of Napoleon's contention 
 that, as against Great Britain's control of the sea, no Sta-te 
 had a right to be neutral. Soon afterwards the idea was carried 
 further. Denmark was requested to close the mouth of the 
 Elbe to British commerce." 
 
 In January 1798, the Directory issued a new decree 
 relating to vessels laden with English goods. The 
 reasons for it were stated in a message to the Council 
 of Five Hundred. The law of October, 1796, was 
 insufficient. Neutral vessels carried on British trade, 
 and even introduced articles of British manufacture 
 into France: " By so doing they aided Great Britain 
 and actually took part in the war." 1 It was, therefore, 
 urgent and necessary to pass a law declaring that " the 
 character of vessels shall be determined by their 
 cargo." 
 
 " I. L'etat d'un navire, en ce qui concerne la quality de 
 neutre ou d'ennemi, est determine" par sa cargaison: en con- 
 sequence tout batiment, charge^ en tout ou en partie de mar- 
 
 1 Mahan, op. cit., Vol. II, p. 249; see Moniteur, fol. ed. XXI, 
 p. 443. 
 
 3 The question is too complicated to deal with in this essay, 
 but it is necessary to point out that the common criticism 
 of the Directory, that they launched decrees against English com- 
 merce promiscuously, and apparently as the exigencies of the 
 moment prompted them, must be accepted with great reserve. 
 
 [1947] F
 
 66 " FREEDOM OF THE SEAS ' 
 
 chandises anglaises, est declare de bonne prise, quel que soib 
 
 le proprietaire des dites marchandises. 
 
 "11. Tout batiment etranger qui, dans sa traverses, aura 
 
 relache en Angleterre, ne pourra entrer en France si non dans 
 -le cas d'une relache forc^e; il eji sortira, des que les causes de 
 la relache auront cesse. " 
 
 In the following year, 1799, a debate took place in 
 the Conseil des Anciens in connection with the effect 
 of this decree. The commercial condition of France 
 was admitted to be disastrous, and it was attributed 
 directly to the working of this law. A neutral ship, 
 it was said, came within reach of the French coast 
 only at her extreme peril. Neutrals, allies, even 
 French vessels themselves, carrying on the little trade 
 with the neighbouring States, were preyed on by 
 French corsairs. Neutrals being repelled, friendly 
 and even French shipping was scared away, and com- 
 merce was seriously crippled for want of carriage. 
 
 In 1798 Denmark adopted the policy of convoying 
 her merchantmen, and claimed that a statement from 
 the senior naval officer that the cargoes contained 
 nothing contraband exempted them from the right of 
 search. It is material to note that protective convoys 
 had long been used ; and, although a dispute arose in 
 1778, the First Armed Neutrality did not include this 
 claim among its principles. However, when the ques- 
 
 The more accurate explanation of their decrees I believe to be 
 fchis : that in nearly all cases they revived principles of the old 
 French law, which was peculiarly severe against the neutrals, 
 though it is probably true that, having taken this law as. ,the basis, 
 they developed its stringency along lines of their own. The decree 
 of 1798 has been criticised, even by Mahan, .as something espe- 
 cially iniquitous. -The criticism should be directed against the 
 French law on which .it was based. The law of 1681 authorised 
 the confiscation of neutral ships which carried enemy property. 
 The character of vessels was thus determined by their cargo; in 
 other words,' 'enemy goods.made enemy ships. ".The second article 
 of the decree was the original conception of the Directory. But 
 even this was not a breach of International' Law. A State ..has a 
 right, if it choose, to prohibit its ports to foreign vessels. It was 
 a shortsighted policy, and did much harm to French commerce. 
 It was, in fact, one of the causes which led to the failure of the 
 Continental Svstem.
 
 PERIOD BETWEEN 1783-1800 67 
 
 '. f. if*, T *'."i '" ;- 
 
 tion was referred by Sweden to Catherine, she declared 
 that it came within the intent and meaning of them. 
 She did, in fact, insert a provision by which the " right 
 of convoy ' ' was agreed to in many treaties concluded 
 after 1782, e.g., those with Demark, Austria, France, 
 Sicily and Portugal. 
 
 England refused, as she always had done, to accept 
 the principle; and, when the convoys sailed down 
 Channel, search was demanded. When this was 
 refused, broadsides were exchanged, and many mer- 
 chantmen, laden with timber and naval stores on their 
 way to France, were seized and taken before the Prize 
 Court. Diplomatic discussions arose in the cases of 
 the Swedish frigate Vila Fersen and the Danish 
 frigates Freya and Havfruen, which led to the Second 
 Armed Neutrality. They will be discussed below. 
 
 The " right of convoy " came before the Prize Court 
 in connection with the seizure of the Maria, 1 taken in 
 January 1798 in the Channel. She was one of a fleet 
 of Swedish merchantmen sailing under convoy of a 
 Swedish frigate, carrying pitch, tar, hemp, deals, and 
 iron, to several ports of France, Portugal, and the 
 Mediterranean. Visit and search by a British cruiser 
 were resisted, and she was proceeded against on this 
 ground. The question was elaborately discussed by 
 Sir William Scott, who held that the right of search 
 is an incident of naval warfare, which could not be 
 resisted, even though the convoy were escorted by men- 
 of-war ; and that, by the Law of Nations, the convoyed 
 vessels were legitimately seized for resistance, and 
 were, with their- cargoes of contraband, good prize. 
 The case went to the Appeal Court, and according to 
 the judgment of Sir William Scott in a later case (the 
 Elsabe, 2 1803), the leading and fundamental positions 
 on which the judgment was based were affirmed. 
 
 The French laws, combined with English action at 
 sea, operated disastrously on French commerce ; and in 
 1799 the Directory admitted 3 that "not a single 
 merchant ship under French colours sailed the high 
 
 1 1 C. Rob. 340. 2 4 C. Rob. 408. * Malian, oj>. 'tit. ii, 254. 
 
 [1947]' F 2
 
 68 : FREEDOM OF THE SEAS ' 
 
 seas." In November, Bonaparte overthrew the Govern- 
 ment and became First Consul. 
 
 The relations between Great Britain and the newly- 
 born United States of America during the beginning 
 of the French wars form a separate subject. The 
 activities of the new American mercantile marine 
 were specially directed to trade with the French West 
 Indian Colonies; and, carrying on the tradition of the 
 Seven Years' War, the "Rule of 1756" became, at 
 the outbreak of war in 1793, the basis of the 
 Instructions to the British Fleet. A vigorous attack 
 was made on the French colonial trade, the result of 
 which was that a great number of American ships 
 were seized and condemned. 
 
 The Instructions of June, 1793, did no more than 
 authorise the detention of all ships laden wholly or in 
 part with corn, flour, or meal, bound to any port in 
 France, or any port occupied by the armies of France. 
 The ships were to be sent to a convenient port where 
 the cargoes would be purchased by the British Govern- 
 ment, and the ships released after a due allowance for 
 freight had been made out of the proceeds of the cargo. 
 
 In November of the same year, however, Additional 
 Instructions were issued, under which " all ships 
 laden with goods the produce of any colony belonging 
 to France, or carrying provisions or other supplies for 
 the use of any such colony," were to be seized and 
 brought in for lawful adjudication. This amounted 
 to a restatement of the Rule of 1756. 
 
 The merchants of the United States were the first, 
 and by far the most enterprising adventurers in the 
 new field that was opened to neutrals in the Antilles ; 
 and the ports of the French islands were speedily 
 crowded with their vessels. The United States pro- 
 tested, and fresh Instructions were issued in January, 
 1794, under which the seizures were limited to vessels 
 laden with produce of the French West Indies, " and 
 coming directly from any port of the said islands to 
 any port in Europe." When the goods were the
 
 PEttlOD BETWEEN 1783-1800 69 
 
 property of French subjects, they were to be seized, to 
 whatever ports they might be bound. 
 
 In order to appreciate the concession made by the 
 new Instructions, it is necessary to bear in mind the 
 point made in the Introductory .Remarks, that a claim 
 to "free commerce with the enemy " differs essentially 
 from a claim to "free commerce" pure and simple; 
 and that the maintenance of the latter is perfectly 
 consistent with the destruction of the former. There 
 was a genuine market for the West Indian produce 
 in the l/nited States, especially coffee. It was never 
 the policy of England to interfere with purely neutral 
 trade; such interference could not be justified in any 
 circumstances. This American trade with the French 
 colonies was, however, not neutral trade with neutral; 
 it was trade with the enemy; but it was for neutral 
 consumption, and, in order to preserve good relations 
 with the Americans, the concession was made. 
 
 The Instructions must be studied in the light of the 
 truism, that a belligerent is not bound to have recourse 
 to his full power at any time, or at all, during a war ; 
 therefore, what he may do is not necessarily to be 
 judged by what he actually does. Some powers may be 
 held in reserve ; the exercise of extreme rights may be 
 waived. The issue of the Instructions of 1794 is not, 
 therefore, to be construed into an admission that the 
 American protest against those of November 1793 was 
 justified. It was a concession, and nothing more. 
 
 At this point the difficulties in the relations between 
 Great Britain and the United States began to be 
 intensified, and what came to be called at the time 
 ' Frauds of the Neutral Flag " developed rapidly. 
 The second provision of the Instructions maintained 
 the traditional principle of belligerency the seizure 
 of enemy property on neutral ships. We have it on 
 the testimony of James Stephen, who wrote in 1805, 
 that " it was evident that the flag of the United States 
 was, for the most part, used to protect the property of 
 the French planter, not for the American merchant." 1 
 
 1 " War in Disguise; or, the Frauds of the Neutral Flag " 
 (1917 Ed.), p. 19.
 
 70 " FREEDOM OF THE SEAS ' 
 
 This was, however, only one method of evading the 
 British cruisers which the connivance of the neutral 
 trader suggested. The concession itself was full of 
 commercial potentialities which the American traders 
 were quick to seize. Coffee and other colonial produce 
 were in as great demand in Europe as ;in .the States ; 
 they could be imported freely into the United States; 
 they were simply re-exported to France and the 
 Continent, " the broken voyage being considered to 
 purge the origin of the commodities." Mahan says 
 that,-" debarred from going with it direct to Europe by 
 the Rule of 1756, the rise in price, due to diminished 
 production and decrease of transport, allowed them to 
 take the sugar and coffee of the. colonies at war .with 
 England to American ports, re-ship it to the Continent, 
 and yet make a good profit on the transaction." This 
 was the germ of that devious method of getting cargoes 
 to the enemy which was subsequently developed to such 
 an extent as to lead the Prize Court .to enunciate the 
 doctrine of "continuous voyage," of which, a few 
 years later, we were to hear so much. 
 
 The friction between the two countries having become 
 acute, the United States proposed their adjustment by 
 treaty; and John Jay was sent as envoy to England. 
 The treaty, concluded in November 1794, was not 
 ratified till October 1795. American ships had, by the 
 Instructions of January 1794, the privilege of direct 
 trade between their own country and the British East 
 and West Indies, but they were precluded from carry- 
 ing the produce of those colonies to other foreign 
 ports. A provision had been introduced into Art. XII 
 of the treaty, which would have stopped the practice of 
 the broken voyage by which thev sought to evade the 
 effect of the Instructions; but the Senate rejected it, 
 and the treaty was ratified without it. 
 
 In 1798 fresh Instructions were issued, and a further 
 concession was made. Vessels laden with the produce 
 of enemy colonies were to be seized "coming directlv 
 from any port of the said islands or settlements to any 
 
 1 Mahan, op. cit., Vol. II, p. 253.
 
 PERIOD BETWEEN 1783-1800 71 
 
 port in Europe, not being a -port of this kingdom, nor 
 a port of that country to which such ships, being 
 neutral ships, shall belong." There was the same pro- 
 viso as in 1794 for seizure of cargo on neutral ships 
 when it belonged to enemy subjects, " to whatever port 
 the same may be bound." 
 
 The special exception thus introduced was in favour 
 of British ports, and was devised to carry out Pitt's 
 policy of making England the store-house and toll-gate 
 of the world's commerce. Its result was to make 
 deviation at an American port unnecessary. The 
 deviation to the Continent now occurred in England; 
 the re-exportation which had been contrived at such 
 a port as Marblehead could now be contrived at such 
 a port as Plymouth. 
 
 The Instructions with their concessions, the commer- 
 cial policy which prompted them, the attempt of the 
 American trader still to evade the restrictions and to 
 gain further concessions, form a special theme which 
 does not fall within the compass of this Memorandum, 
 [t culminates in the doctrine of " continuous voyage," 
 and, when that in its simple form proved too weak to 
 check the ingenuity of the neutral merchant, in the 
 evolution of the auxiliary doctrine of " common 
 stock," which was made the test of a genuine importa- 
 tion into the neutral country. 
 
 The subject does, however, hold a definite place in 
 the historical evolution of the spurious " Freedom of the 
 Seas " ; and it is, perhaps, the best illustration of the 
 motive of the neutral which underlies it, to secure the 
 profit resulting from a successful voyage successful 
 that is, in getting his goods to the enemy, in spite of 
 the obstacles created by the belligerent ; and of the 
 motive of the enemy in supporting the doctrine, to 
 secure the successful landing of the cargoes. 1 
 
 1 The limitations attached by the late Professor Westlake (in 
 his work International Law War, 2nd edn., p. 203) to the 
 principle of continuous voyage may be referred to here in order to 
 enter a caveat against doctrines which, if they were true, would 
 make the principle worthless and reduce sea-power to impotence.
 
 VIII 
 
 THE SECOND ARMED NEUTRALITY, 1800 
 
 THE foregoing survey of the events which happened 
 between the outbreak of war in 1793 and the end of 
 the eighteenth century will serve as an introduction 
 to th.e consideration of the causes which led to the 
 formation of the Second Armed Neutrality. It sprang 
 directly out of the convoy question, its principal 
 feature being the emphasis laid on the inviolability of 
 the neutral Hag, behind which, as a screen, stood the 
 old claim to freedom of trade with the enemy. Eng- 
 land did not deny the sanctity of the neutral flag. But 
 she did deny that, with the question of ships' timber 
 and naval stores unsettled, the neutral flag could pro- 
 tect these disputed cargoes on their way to the enemy. 
 
 The " right of convoy " per se is not a very trouble- 
 some question. It is based on the existence of a pro- 
 hibition by a neutral Government to its merchants 
 against shipping contraband, and requires the accept- 
 ance of a statement by the commander of the escort, 
 after due examination, that there is no contraband on 
 the convoyed ships. With the question of contraband 
 not merely unsettled, but very much in dispute, it was 
 obviously impossible for England to acquiesce in the 
 contention. But the Armed Neutrality principle was 
 specially unpractical, because it contemplated mutual 
 convoys; and therefore the statement of a Russian 
 officer was to be accepted as to goods on board, say, a 
 Swedish ship. The "right of convoy" was a direct 
 counter to the "right of search"; as an auxiliary to 
 the contraband dispute, it was no more than an 
 ingenious method of getting round it. 
 
 The neutrals displayed further ingenuity in putting 
 forward their case. In the voluminous correspondence 
 which followed each seizure of their ships the real 
 question in dispute whether ships' timber was contra-
 
 ARMED NEUTRALITY, 1800 73 
 
 band was hardly, if at all, mentioned. To assert the 
 inviolability of the neutral flag, and complain of the 
 N ' insult" involved in visit and search, was therefore 
 to assume a dispute to be settled which was not settled. 
 The same flag hoisted on a warship did not improve 
 the position. ' But the presence of the warships led to 
 firing, and compelled England, in her turn, to complain 
 of forcible resistance to the search. Thus there was 
 also an "insult" to the English flag. It had been 
 fired on when peace existed between the two countries. 
 Each country, therefore, demanded apology and 
 reparation from the other. 
 
 It will be useful to quote a caustic remark upon the 
 convoy question by M. de Martens, the impartial and 
 dispassionate collector of diplomatic documents. 
 Alluding to the decrees of the Directory issued in 
 1798, referred to in the last chapter, he says 1 : 
 
 "However revolting these decrees, they were tolerated by the 
 Northern Powers; at least no alliance was formed to resist 
 them. But they sufficed for Denmark and Sweden to increase 
 the number of these convoys, even in the seas in which they 
 had not done so before, and where they had less to fear from 
 France than England. Measures legitimate in themselves, but 
 which had never been regarded with favour by belligerents." 
 
 England contended that " the right to visit mer- 
 chantmen at sea is an incontestable right of a nation 
 at war. Resistance to a friendly warship must be con- 
 strued as an act of hostility." 
 
 The Danish contention (case of the Havfrueri) may 
 be thus summarised : The right of visit is recognised 
 by custom and treaties ; it is not a natural, but a purely 
 conventional right; and it cannot be extended 
 arbitrarily beyond what has been agreed or accorded. 
 No Power has ever admitted the right to visit ships 
 under escort; they could not do so " sans de"grader leurs 
 pavilions, et sans renoncer a une partie essentielle de 
 leurs propres droits." Far from acquiescing in this 
 hitherto unknown pretension, the majority of the 
 
 1 De Martens, Recueil, Supplement II, p. 346.
 
 74 " FREEDOM OF THE SEAS ' 
 
 neutral Powers have thought it right to enunciate the 
 opposite principle in their conventions with the most 
 respectable Courts in Europe. The distinction made 
 between convoyed and non-convoyed ships is as just as 
 it is natural. The right of visit in respect of non- 
 convoyed ships is limited to verification of their flags 
 and examination of their papers, in order to establish 
 their neutrality, and the regularity of their bills of 
 lading. If these are in order, further visit is illegal. 
 Thus the authority of the Government which issues 
 them ensures the requisite security for belligerents 
 When that Government convoys its merchantmen, it 
 offers to belligerents a more authentic guarantee than 
 is afforded by the papers, and it cannot consistently 
 with its honour admit of doubts and suspicions, in- 
 jurious to itself and unjust on the part of those who 
 raise them. 
 
 To the suggestion that some small neutral State 
 might cover illicit commerce by its flag, it was an- 
 swered (case of the Freya): "a suspicion of such vile 
 conduct is as injurious to the Government creating it 
 as to the one which did not merit it. The officers 
 have made themselves personally responsible that the 
 convoy contains no contraband; and it is easy to see 
 that it would be more difficult to escape the vigilance of 
 such officers than of those who pretend to exercise the 
 illusory and odious right of search." 
 
 It is not necessary to refute this argument piece- 
 meal. It was a fact that many neutrals had thus 
 limited the right of search among themselves in their 
 treaties by interposing the escort of a warship ; but it 
 was equally true that these treaties had been entered 
 into with the express object of supporting this con- 
 tention after the affair of the Dutch convoy in the 
 Downs in 1779. The facts remained that the merchant- 
 men were full of ships' timber and naval stores for 
 France, or it would not have been worth while risking 
 a naval engagement; and that England did not and 
 could not admit that they were non-contraband.
 
 75 
 
 The British answer (case of the Havfrueri) may be 
 condensed into one sentence: 
 
 ' The honour of the King's flag has been insulted almost 
 within sight of his coasts, and this action has been sustained 
 by contesting indisputable rights, founded on the most evident 
 rights of nations ; from which rights His Majesty will never 
 depart, but the moderate exercise of which is indispensably 
 necessary for the maintenance of the dearest interests of his 
 Empire." 
 
 , In August, 1800, Lord Whitworth, supported by a 
 squadron under Admiral .Dixon, was sent to Copen- 
 hagen to negotiate an amicable arrangement, Den- 
 mark seems then to have recognised the essential differ- 
 ence in the fundamental principles asserted by her and 
 Great Britain, and proposed arbitration by Russia, 
 "which is friendly to both States." The answer was 
 that " there is no Sovereign in wtyom Great Britain has 
 greater confidence than the Tsar. Nevertheless, it is 
 hoped that Denmark will so act as not to render it 
 necessary." The result of the negotiations was that a 
 preliminary convention was signed at Copenhagen on 
 August 29, by which the Freya was released, and Den- 
 mark agreed to suspend her convoys until a definite 
 convention was entered into. 
 
 The alliance between England and Russia was still 
 in : force; but the glamour of Bonaparte's genius and 
 military successes had begun, to fascinate the Tsar 
 Paul, and his friendship for England was gradually 
 weakening. The appeal of the neutrals over the convoy 
 question led him to follow his mother's example, and 
 he issued a Declaration to the neutrals based ori 
 Catherine's, inviting them to renew the Armed 
 Neutrality. 
 
 The Declaration opened with a flamboyant refer- 
 ence to the Declaration of 1780, to which it was 
 alleged , that Europe had given its approbation. It 
 then referred to the case of the Freya. The Tsar 
 believed that the King of England would disapprove 
 this violation of the Law of Nations and of the 
 principles of neutrality. Nevertheless, in order to
 
 76 " FREEDOM OF THE SEAS ' 
 
 prevent the recurrence of such acts of violence, it was 
 necessary to re-establish the basis of neutrality, ki so 
 that the neutral nations may enjoy the fruits of their 
 industry, and not be subject to arbitrary measures of 
 belligerents, and therefore to re-establish the 
 principles of the Armed Neutrality, and secure the 
 ' Freedom of the Seas.' Kussia would employ all 
 necessary force to maintain the honour of its flag." 
 
 The dates of the several incidents .at this time are 
 a little difficult to follow. With events passing in 
 different parts of Europe allowance must be made for 
 the time taken by the couriers. The Russian Declara- 
 tion was issued on August 16, apparently immediately 
 after the receipt of the Danish complaint about the 
 Freya, without leaving time for the negotiations with 
 England to mature. The English squadron passed the 
 Sound on August 19 ; and, news of this having in due 
 course reached Russia, Paul immediately ordered the 
 sequestration of English capital in Russia. This was 
 on the 29th, apparently on the same day as the pro- 
 visional convention was signed between England and 
 Denmark. On the arrival of this fresh news some days 
 later, the sequestration was withdrawn. 
 
 On December 4/16, 1800, a convention was signed 
 between Russia and Sweden " to re-establish the Armed 
 Neutrality, which had been adopted with so much 
 success during the American war."- It referred to the 
 indestructible principles of neutrality, and the neces- 
 sity which existed to enforce respect to them, " de re- 
 tablir dans son inviolabilite le droit commun a tous 
 les peuples de naviguer et commercer librement et in- 
 dependamment des interets momentanes des Parties 
 belligerantes." The "maximes bienf aisantes " of 1780 
 were to be renewed; and the four principles then 
 enunciated were in substance repeated with a fifth 
 added the " right of. convoy." 
 
 These principles have already been analysed. It is 
 necessary, however, to re-emphasise what has already 
 been said. All the principles in reality turned on 
 the question of contraband. The League declared
 
 ARMED NEUTRALITY, 1800 77 
 
 they would recognise as contraband only those " re- 
 putes munitions de guerre et navales." The con- 
 tracting Powers would prevent most rigorously the 
 commerce of their subjects in contraband as thus de- 
 nned ; but ' ' ils entendent et veulent que tout autre 
 trafic soit et reste parfaitement libre." On this basis, 
 and on no other, rested the principle of " free ships 
 free goods." Even if the premisses had been good, the 
 conclusion was hopelessly false. There was no con- 
 nection between the two propositions. The principles 
 were to be applicable to all maritime wars in the 
 future, and were to be regarded as a permanent guide 
 to the contracting Powers in matters of commerce and 
 navigation, " et toutes les fois qu'il s'agit d'appre"cier 
 les droits des nations neutres." 
 
 The provisions of this convention were renewed by 
 Russia and Sweden in a treaty of friendship and 
 commerce, March 13, 1801. 
 
 A convention in identical terms was entered into 
 on 4/16 December, 1800, between Russia and Denmark, 
 and a similar one with minor alterations on 6/18 
 December between Russia and Prussia. The mutual 
 accessions of each Power to the other treaties were 
 completed in February 1801. 
 
 One other incident in connection with this new 
 Armed Neutrality must be recorded. Catherine's de- 
 claration had been addressed to the belligerent Powers; 
 Paul's was addressed to the neutrals. England heard 
 of what was going on, and at once asked Denmark 
 for explanations. The correspondence can best be fol- 
 lowed by extracts, which show a curious sincerity on 
 the part of Denmark, probably shared by Sweden, in 
 the principles they advocated. It cannot, be said that 
 the English despatches put the case very clearly. The 
 point hinted at above, on which everything turned, 
 vas not referred to granted that trade in all com- 
 lodities other than contraband was free, granted even 
 .m agreement as to what was contraband, how could 
 these propositions establish the freedom of enemy 
 goods on neutral ships ? The enemy goods might not
 
 78 
 
 have been the subject of any commercial intercourse 
 with any neutral merchant; the shipowner might be 
 no 'more than a gratuitous carrier-bailee. No argu- 
 ments were advanced to prove that one principle fol- 
 lowed from the others. Nothing was said on bur side 
 to show how remote they were. And yet there was a 
 connection almost studiously kept in the background: 
 the enemy property which the neutrals claimed to carry 
 free was the ship's timber and naval stores they had 
 sold to the enemy. By joining the League, Catherine 
 had said in 1780, the Dutch Republic " secured its 
 navigation and the trading industry of its subjects, 
 which was for the most part carried on in favour of 
 the enemies of England." 
 
 The British note to Denmark of .December 27, 1800. 
 requested a frank explanation why she was engaged 
 in negotiations hostile to England. There was talk 
 in all Courts of Europe of a confederation between 
 Denmark and other Powers "to oppose by force the 
 exercise of those principles of maritime law on which 
 in great measure the naval power of Great Britain 
 rests." She had waited for Denmark to deny these 
 rumours; but the conduct and public declarations of 
 one of these Powers made it impossible to wait longer. 
 
 The Danish answer is dated December 31 : 
 
 " London must have received very inexact information to 
 suppose that Denmark has conceived hostile projects against 
 
 'England, and Denmark is much obliged for' the opportunity of 
 denying the rumours in the most positive manner. Negotia- 
 tions at' Petersburg have no other object than to renew the 
 engagements which were contracted in 1780-1781 between 
 these same Powers for the protection of their navigation. Den- 
 
 ' mark did not hesitate to accept the proposal of Russia, be- 
 cause, far from ever having abandoned these principles, she 
 has supported and claimed them on all occasions^ and has 
 never 'admitted any modifications other than those resulting 
 from, treaties with belligerent Powers. Far from wishing to 
 hinder these, Powers in the exercise of the rights w'hieh war 
 gives, them, Denmark only brings to the negotiations views 
 which are absolutely defensive, pacific, and incapable of offend- 
 ing or provoking anyone."
 
 79 
 
 It was then contended that the provisional arrange- 
 ment which had been entered into at Copenhagen on 
 August 29 (by which the Freya had been released) 
 ' ' cannot be opposed to the general and permanent prin- 
 ciples which the Powers of the North are on the point 
 of establishing in concert, which far from compromising 
 their neutrality is destined to strengthen it." Den- 
 mark hoped that this explanation would " be quite 
 satisfactory, and would cement the ancient friend- 
 ship." This answer admitted that a treaty was on 
 the point of being ratified which united Denmark to 
 a Power with which England was no longer on terms 
 of neutrality. Her retort was to impose a general 
 embargo on Russian, Danish, and Swedish ships. 
 
 The British note explaining the reasons for the em- 
 bargo dealt with the change in the Russian attitude 
 towards the principles of neutrality; especially em- 
 phasising the fact that at the commencement of the 
 present war "Petersburg, which took the leading part 
 in the coalition [of the Northern Powers in 1780] 
 formed an alliance with England, which not only was 
 .not in accord with the convention of 1780, but was 
 actually entirely opposed to it." Those engagements 
 were still in force. ' The only conclusion possible from 
 the coalition and from the activity of naval arma- 
 ments, was that the Powers have no other object than 
 to support by force pretensions which so evidently 
 deny justice. The Power which first put them for- 
 ward in favour of neutrality was also the first to 
 abandon them when she went to war." To which 
 Denmark answered, " The principles of the sacred 
 right of neutrality have never been abandoned. When 
 Russia was at war she simply deferred their applica- 
 tion." It was, however, perfectly true to say that 
 Denmark and Sweden had " announced in the face of 
 Europe [that is to say, in 1794] the unchangeableness 
 of the system they had adopted for the protection of 
 all licit commerce." 
 
 The Second Armed Neutrality, "a coalition more 
 menacing in appearance than in reality ' came to
 
 80 " FREEDOM OF THE SEAS " 
 
 aD end with the assassination of the Tsar Paul and the 
 defeat of the Danish fleet at Copenhagen. On March 
 24, 1801 : Paul was succeeded by Alexander; and, as 
 the material interests of Russia at that time pointed to 
 peace with Great Britain, a treaty of the first import- 
 ance was signed on June 5 of the same year, by which 
 mutual concessions on questions of maritime law were 
 made. In the words of Mahan, 1 it 
 
 " permitted the neutral to trade from port to port on the coast 
 of a nation at war, but renounced, on the part of Russia, the 
 claim that the neutral flag covered enemy's goods. On the 
 other hand, Great Britain admitted that property of a belli 
 gerent, sold bona fide to a neutral, became neutral in character, 
 and as such not liable to seizure; but from the operation of 
 this admission she obtained by a subsequent arrangement the 
 special exception of produce from the hostile colonies. This, 
 Russia conceded, could not be carried directly from the colony 
 to the mother-country, even though it had become neutral pro- 
 perty by a real sale; and similarly the direct trade from the 
 mother-country to the colony was renounced. Great Britain 
 thus obtained an explicit acknowledgment of the Rule of 1756 
 from the most formidable of the maritime Powers, and 
 strengthened her hands for the approaching dispute with the 
 United States. In return, she abandoned the claim, far more 
 injurious to Russia, to seize naval stores as contraband of 
 war." 
 
 1 Mahan, op. cit., Vol. II, pp. 261, 262.
 
 IX 
 NAPOLEON AND " LA LIBERTE DES MERS " 
 
 WITH the overthrow of the Directory and the 
 assumption of the government of France by Bonaparte 
 as First Consul, the history of the spurious " Freedom 
 of the Seas " enters a new phase. From a somewhat 
 nebulous doctrine advocated by the neutrals it hence- 
 forth takes definite shape and is asserted by the enemy. 
 This formed part of Bonaparte's general policy of 
 taking the neutrals under his wing and compelling 
 them to do his bidding. " As against Great Britain's 
 control of the sea no State had a right to be neutral " 
 (Mahan, II, 247). He even went the length of imagin- 
 ing that he, a belligerent, might be admitted to the 
 League of the Neutrals. We have it in Bonaparte's 
 own words that he sought admittance, but was refused : 
 " La France, qui a deja propose* d'y entrer et avait ete 
 refusee." 
 
 This fact has led me to question the statement made 
 in the Cambridge Modern History that " the voice was 
 the voice of the Northern League, but the hands were 
 the hands of Bonaparte." This opinion must, I think, 
 have been based on the " friendship " which appears 
 to have been gradually developing between the Emperor 
 Paul and Bonaparte. 
 
 But Paul was then almost the declared enemy of 
 England. It is by no means clear that his relations 
 with Sweden were very cordial. Even had he lived, the 
 Second Armed Neutrality would have proved but a 
 rickety machine at the best. But with his assassination 
 it fell to pieces, and the way was clear for Bonaparte to 
 take charge of the neutrals. His first step was to 
 remind the new Tsar of the League and to invite him to 
 
 [1947] G
 
 82 "FREEDOM OF THE SEAS' 
 
 continue its work, indicating that he could not refuse to 
 do so consistently with honour. 
 
 " Si la Eussie continuait son systeme cle neutralite armee, 
 dont il ne parait pas qu'elle puisse -s'eloigner avec honneur, 
 la France, qui a deja propose d'y entrer et avait ete refusee, 
 etait encore dans les memes dispositions." 
 
 In this attempt he was foiled; and the alliance be- 
 tween Great Britain and Russia w r as restored by the 
 treaty of 1801. From this moment we find in Bona- 
 parte's letters and speeches his authoritative exposition 
 of the " Freedom of the Seas " ; and its object is clearly 
 denned. It was to get rid of the supremacy of England 
 on the sea. It was the necessary prelude to assuming 
 it himself, and thus to secure the domination of the 
 world. The shaping of the scheme was begun in a 
 letter to Talleyrand, February 1800. He is to collect 
 as quickly as possible all the facts which would help 
 to establish England's violations of international law. 
 The iniquity of England in the exercise of her domina- 
 tion of the sea was to be the text on which he proposed 
 to preach to the neutrals, exhorting them to activity 
 against his enemy. 
 
 The instructions for drafting a note to the Tsar 
 concerning the surrender of Malta contained the fol- 
 lowing : 
 
 " II serait-dit dans cette note que le Gouvernement franqais, 
 ay ant principalement a coeur de s'opposer a I'envahissement 
 des mers et de concourir avec les autres Puissances neutres a 
 faire respecter leurs pavilions . . . ne traitera de la paix avec 
 1'Angleterre qu'autant que ces principes sacres seroient re- 
 connus . . . et qu'il serait reconnu par 1'Angleterre que la mer 
 appartient a toutes les nations." 
 
 When, in answer to the Russian embargo on English 
 ships, an embargo was imposed on Russian ships in 
 English ports, Bonaparte issued a decree protecting 
 Russian commerce. Talleyrand was to send it to Russia 
 with this explanation : 
 
 " Que la Russie ne se trouve dans cette disposition cbntre 
 1'Angleterre que pour la defense des droits de principaute* de 
 toutes les nations, et que pour delivrer les mers de cette nation, 
 qui, a elle seule, pretend en etre la dominatrice. . . . Je
 
 NAPOLEON BONAPARTE 83 
 
 desire que S.M.I, voie dans cet acte de propre mouvement la 
 consideration et 1'estime que j'ai pour elle et pour la grandeur 
 de son caractere." 
 
 Napoleon's message to the Senate after the conclu- 
 sion of the Treaty of Luneville in February 1801 is 
 conceived in the same strain. Speaking of King 
 George III he says: 
 
 " Tout le commerce de 1'Asie et des colonies immenses ne 
 sufiisent plus n son ambition ; il faut que toutes les mers soient 
 soumises a la souverainet^ de 1'Angleterre. 
 
 II arme contre la Bussie, le Danemarc, et la Suede, parce 
 que la Russie, la Suede, et le Danemarc ont assure, par des 
 traites de garanties, leur souverainete" et 1 'independence de 
 leur pavilion. Les Puissances du Nord injustement attaqu^es 
 ont le droit de compter sur la France. Le Gouvernement 
 franqais vengera avec elles une injure commune a toutes les 
 nations." 
 
 But the projected alliance with Russia, always hoped 
 for, never quite achieved, seemed the surest method of 
 accomplishing his design. " La paix avec 1'Empereur," 
 he writes to Joseph, his plenipotentiary at LuneVille, 
 " n'est rien en comparaison d'une alliance qui maitri- 
 sera 1'Angleterre et nous conservera 1'Egypte." From 
 denouncing England for all her alleged iniquities on 
 the sea he passed easily to the promise of better things 
 in store for the neutrals, which would result from the 
 restoration of the supremacy of France at sea, when 
 the oppression of all seas and of all peoples would come 
 to an end: " L' Europe opprime*e n'a plus qu'un de"sir 
 raisonnable k former, et ne doit placer ses ressources que 
 dans une seule espe"rance, le re"tablissement de la puis- 
 sance maritime de la France." 
 
 The possibility of establishing a naval supremacv 
 and of making good the cry, " Brisons le sceptre de 
 oette Rome de la mer!" had been almost annihilated 
 by the battle of the Nile ; and the effect of that victory 
 on the neutrals had to be dissipated. An article 
 was published in the Mercure de France, and reprinted 
 in the Moniteur, in which the power of the sea was 
 decried and the power of the land extolled. The con- 
 clusion was thus boldly stated :" Jamais done, la 
 
 [1947] H
 
 84 " FREEDOM OF THE SEAS ' 
 
 raison le dit, et 1'histoire 1'affirme, une puissance mari- 
 time n'a triomphe d'une puissance continentale." He 
 had forgotten Kichelieu's maxim, "La puissance en 
 armes requiert non seulement que le roi soit fort sur la 
 terre, mais aussi qu'il soit puissant sur la mer." 
 
 It was the great dream of Napoleon's life, which, as 
 Mahan points out, ultimately led to his ruin, to unite 
 the Continent against the British Islands, and, as he 
 phrased it, " to conquer the sea by the land." 1 Yet his 
 attention never wandered from the sea question. Free 
 cargoes on neutral ships were still as essential to him 
 as they were to Louis XVI in 1778. 
 
 Philosophers had devised another theory, which was 
 more captivating than the rather vague principle of 
 free ships making free goods, namely, that of the im- 
 munity of private property at sea. The suggestion 
 seems to have been first made by the Abbe* de Mably in 
 a work on " Le Droit Public de 1' Europe fonde sur les 
 Traites," published in Geneva in 1774, and appears 
 to have come into vogue among the philosophers who 
 abounded in France at the end of the eighteenth cen- 
 tury. This was the weapon which Bonaparte needed, 
 one which was easier to handle than the older maxim 
 with its dubious premiss and its still more dubious con- 
 clusion. It invited a larger appeal to the senses by 
 clothing commerce with universal humanitarianism to 
 the complete concealment of profit and loss. Thence- 
 forward Bonaparte used it freely in his attack against 
 England ; and it was reinforced by another theory, still 
 more vague, and resting on an inaccuracy that war 
 on the sea ought to be conducted, in the interest of 
 humanity, according to the same principles as war on 
 land. The second of these principles was merely an 
 auxiliary to the first. The two must be read con- 
 tinuously, thus : Private property should be immune 
 from capture at sea because it is immune from capture 
 on land, since war on the sea should be conducted on 
 the same principles as war on the land. Any attempt 
 to treat the two ideas as independent leads to con- 
 1 Mahan, op. cit., Vol. II, p. 271.
 
 NAPOLEON BONAPARTE 85 
 
 fusion, as the debates in Parliament in connection with 
 the Declaration of Paris prove. 
 
 The theory of the immunity of private property, and 
 also the auxiliary theory, have been completely de- 
 molished by Admiral Mahian in his War of 1812, 
 published in 1906. He points out that private pro- 
 perty is as immune at sea as it ought to be (but is not) 
 on land, and that to take it is common theft, which war 
 does not authorise ; but that, when the property of mer- 
 chants is sent across the sea, whether it be ships or 
 cargoes, it is merged in fhe larger term " commerce," 
 which is national, because the national wealth depends 
 on it. The theory is, therefore, no more than a device 
 for achieving immunity of commerce, and strikes at the 
 foundation of maritime warfare. 
 
 Another important aspect of the question must be 
 noticed. The arguments of the Manchester School, 
 forcibly put by John Bright in the debate in -1862, sup- 
 ported "free ships free goods" as a beneficent prin- 
 ciple, but held that it was incomplete. If enemy goods 
 were to be free, there was no reason why the freedom 
 should be limited to those goods on neutral ships ; and, 
 if the goods were free, the ships ought also to be free. 
 By this process of reasoning Bright also came to 
 support the "immunity of private property " theory. 
 This argument emphasised the vice of the argu- 
 ment of the supporters of the maxim after it 
 bad been introduced into the Declaration of 
 Paris, namely, that " free ships free goods " was a 
 concession to the neutral alone, and did not 
 confer any benefit on the enemy. Lord Palmerston 
 declared that the Declaration of Paris related entirely 
 to the relations between belligerents and neutrals, 
 and that immunity of private property at sea related 
 entirely to the relations of belligerents to each other; 
 that the two doctrines were distinct, and rested on 
 totally distinct grounds. What has already been said 
 on the subject of the maxim is sufficient to show that 
 the contention is unsound. Bonaparte definitely incor- 
 porated these two theories into his policy against
 
 86 ' FREEDOM OF THE SEAS ' 
 
 England, and formulated them in the preamble of the 
 Berlin Decree, November 21, 1806, which was his 
 answer to the blockade of the French northern coast 
 established in May 1806 : 
 
 " Les dispositions du present d^cret seront constamment con- 
 siderees comme principe fondamental de 1 'Empire, jusqu'a ce 
 que 1'Angleterre ait reconnu que le droit de la guerre est un 
 et le meme sur terre que sur mer; qu'il ne peut s'etendre ni 
 aux propri^tes privees, quelles qu'elles soient, ni a la personne 
 des individus etrangers a la profession des armes ; et que le 
 droit de blocus doit etre restreint aux places fortes reellement 
 investies par des forces suffisarites. ' ' 
 
 This decree was followed by the British Order in 
 Council of January 1807, and this by the first Milan 
 Decree of November 23, 1807. In the preamble of the 
 second Milan Decree of December 17, 1807, the refusal 
 of England to accept " free ships free goods " is re- 
 ferred to, thus linking up all the different theories and 
 doctrines into the main principle they had been devised 
 to support: "Les Anglais .... ont profite de la 
 tolerance des gouvernements [neutres] pour etablir Tin- 
 fame principe que le pavilion ne couvre pas la mar- 
 chandise." This decree was to remain in force until 
 the British Government " sera revenu aux principes 
 du droit des gens, qui sont aussi ceux de la justice et de 
 1'honneur." We thus return to the point from which 
 we started, the doctrine which the Due de Bassano's 
 report endeavoured to deduce from the Treaty of 
 Utrecht.
 
 X 
 
 ABANDONMENT OF THE ARMED 
 NEUTRALITY PRINCIPLES 
 
 IN his speech in the House of Lords in 1856 on Lord 
 Colchester's motion expressing regret at the signature 
 of the Declaration of Paris, Lord Derby, replying to 
 Lord Clarendon's defence, said that " all the Powers 
 who entered into this solemn League [the Armed Neu- 
 trality of 1780] very soon abandoned their principles 
 within eighteen years." The Importance of the fact is 
 very great, but it requires some explanation. 
 
 The main cause was, of course, the complete subver- 
 sion of all preconceived ideas during the war with 
 Revolutionary France. England was consistent in 
 basing her action at sea on the historic right of seizing 
 enemy property on neutral ships ; but her first 'and im- 
 mediate ally was Catherine of Russia. In her indigna- 
 tion at the murder of the Lord's Anointed by the 
 " six hundred monsters " who had assumed to govern 
 France, she threw all the principles of the Armed 
 Neutrality to the winds, or, as Denmark interpreted it, 
 " she simply deferred their application." On March 
 25, 1793, the two Powers entered into an alliance, en- 
 gaging reciprocally to shut all their ports to French 
 ships, and to take all other measures in their power for 
 injuring the commerce of France; and " to unite all 
 their efforts to prevent other Powers not implicated in 
 the war from giving any protection whatever, directly 
 or indirectly, in consequence of their neutrality, to the 
 commerce or property of the French on the sea or in 
 the ports of France." 
 
 To grant the protection of the neutral fla^ to the 
 property of a belligerent, in other words, to enable that
 
 88 " FREEDOM OF THE SEAS ' 
 
 belligerent to claim the benefit of the principle " free 
 ships free goods," would be within the exact meaning 
 of the words " giving protection, indirectly in conse- 
 quence of neutrality, to the property of the French on 
 the sea." Russia, therefore, as a belligerent, engaged 
 to invite the neutrals to abandon the principle which, 
 when herself neutral, sh6 had exhorted them to main- 
 tain. Those of the Powers signatory to the Armed 
 Neutrality Convention of 1780 who accepted the invita- 
 tion Prussia, Austria, the Two Sicilies, and Portugal 
 did therefore expressly abandon the principle. The 
 glamour with which the war had been invested by the 
 Allies, who regarded it as an "occasion of common 
 concern to every civilised State," did not alter the fact 
 that it was a war in which this principle, if it were 
 really founded on natural justice, as they had originally 
 maintained, should have prevailed both for the benefit 
 of the neutrals and of belligerent France. This was 
 the attitude taken by Denmark in answer to the 
 invitation: 
 
 " Le droit des gens est inalterable, ses principes ne depen- 
 dent pas des circonstances. . . .La nation [i.e., France] 
 existe . . . les liens de commerce subsistent aussi. . . . La 
 nation reconnait encore ses traites avec nous, elle s'y conforme, 
 du moins frequemment ; elle les reclame et nous les reclamons, 
 et cela souvent avec succes non-seulement pour nous, mais 
 aussi pour les effets appartenant aux Puissances en guerre cou- 
 verts par notre pavilion." 
 
 The attitude of France is still more important, be- 
 cause in her answer to Catherine's Declaration she 
 had relied on the alteration of her maritime law in 
 1778, by which "free ships free goods " had been 
 adopted. The various decrees affecting neutral ships 
 with English goods on board were in direct violation 
 of that principle. Holland very early in the war fell 
 under the dominion of France, and the decrees were 
 made applicable to the Batavian Republic. 
 
 Spain, when she joined France, must also be taken 
 to have abandoned the principles she professed in her 
 answ r er to Catherine's Declaration in 1780. The
 
 ABANDONMENT 89 
 
 United States entered into a treaty with England in 
 1794, in which seizure of enemy goods on neutral ships 
 was recognised. By the treaty entered into between 
 Great Britain and Russia in June, 1801, the claim that 
 the neutral flag covered enemy goods was renounced, 
 and in 1802 Denmark and Sweden adhered to the 
 treaty. 1 
 
 Assuming that there is anything in the suggestion 
 that the upheaval caused by the French Revolution 
 might justify the abandonment of any principle, a sug- 
 gestion implied in the Danish despatch with reference 
 to the case of the Havfruen that Russia had only 
 deferred the application of the principles because she 
 was at war there is a still more important case of 
 abandonment, that of Sweden in 1789 during her war 
 with Russia. She openly renounced the principles of 
 the convention of 1780 ; and it is said by Manning that 
 Russia tacitly followed her example. 2 This action of 
 Sweden evoked Sir William Scott's caustic remark in 
 his judgment in the Maria (1C. Rob. 340): 
 
 " The law and practice of nations (I include particularly the 
 practice of Sweden when it happens to be belligerent) 'gives 
 
 1 The abandonment by the adhering Powers of the principles 
 of the Armed Neutrality is given somewhat differently in a note 
 to Lord Grenville's speech in the House of Lords in 1801, in con- 
 nection with the Treaty concluded with Kussia in that year. The 
 several renunciations were : " By Kussia, in her war with Turkey, 
 in 1787; by Sweden, in her war with Russia, in 1789; by Russia, 
 Prussia, Austria, Spain, Portugal, and America, in their treaties 
 with Great Britain during the present war; by Denmark and 
 Sweden, in their instructions issued in 1793, and in their treaty 
 with each other in 1794; and by Prussia again in her treaty with 
 America, in 1799." (Letters of Historicus, p. 102.) 
 
 This note appears to have been prepared for the published 
 edition of Lord Grenville's speech. The last statements are not 
 accurate. While Denmark, in the instructions issued in 1793, 
 did recognise the right -to seize enemy goods on neutral ships, the 
 Swedish instructions did not. The treaty between Sweden and 
 Denmark in 1794, as well as that between Prussia and the United 
 States in 1799, dealt with the question in the spirit of the Armed 
 Neutrality. 
 
 2 International Law, p. 268.
 
 90 ' FREEDOM OF THE SEAS ' 
 
 them [i.e., certain speculations and ' loose doctrines of modern 
 fancy '] no sort of countenance; and, until that law and prac- 
 tice are new modelled in such a way as may surrender the 
 known and ancient rights of some nations to the present con- 
 venience of other nations (which nations may perhaps re- 
 member to forget when they happen to be themselves 
 belligerent),. no reverence is due to them." 
 
 While it is untrue to say, as is so often said, that a 
 principle recognised in many treaties becomes thereby 
 a principle of the Law of Nations, the converse is true, 
 that a principle, even though admitted in many 
 treaties, must cease to have any claim to be a principle 
 of that law when one of its supporters openly de- 
 nounces it. Whatever merit it may possess as a prin- 
 ciple which some nations choose to concede to their 
 potential enemies, whatever may be the number of 
 nations which accede to it in their treaties, all claim 
 to be a natural principle of the Law of Nations, to be 
 an equitable principle which neutrals have a right to 
 insist on at the hands of belligerents, must disappear 
 when it is found that even one of those who most 
 warmly supported it when neutral deliberately 
 abandoned it when it was itself engaged in war.
 
 
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