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CHAPTER IV.

THE ORDERS IN COUNCIL AND THE BERLIN
AND MILAN DECREES.

Armed Neutrality.-Peace of Amiens.-Renewal of the War.-Maritime International Policy.-The Rule of 1756.-Relaxation of the Rule.Neutral Trading with Colonies.-Effect of Neutral Trading on British Commerce.-Order in Council of May 1806.-The Berlin Decree.-Orders in Council of January and November 1807.- The Milan and Fontainebleau Decrees.-British Policy towards Neutrals.-The Evil of the Licensing System.-The United States and the Orders in Council.-Lord Brougham's Motion.-Declaration of the Prince Regent.-Appendix: The Berlin Decree, November 21, 1806.-Order in Council, January 7, 1807.-Order in Council, November 11, 1807.-The Milan Decree, December 17, 1807.

THE political horizon was ominously dark at the commencement of the nineteenth century. Whilst grievously suffering from the high price of corn and provisions, and oppressed by the burden of a contest already sufficiently prolonged, England was threatened by the renewal of another armed neutrality on the part of the Northern powers-a neutrality based on a new code of maritime law then deemed utterly inconsistent with the rights of this country. The Northern powers wished to proclaim that free ships should make free goods; but England was determined that the trade of the enemy should not be carried on by neutrals. The Northern powers asserted, that only contraband goods should be excluded from the trade of neutrals, and those of certain definite and known articles. England did not wish the enemy to obtain timber, hemp, and other articles, which, though not contraband of war, are still essential for warfare. The Northern powers declared that no blockade should be held valid unless really effective. England had already assumed the right to treat whole coasts as blockaded, in order to prevent the enemy receiving supplies from any quarter. And when the Northern powers added that a merchant vessel accompanied and protected by a belligerent ship ought to be safe from the right of search, England was not prepared to recognise the authority of such ships, and would place no limits to the action of her cruisers. When, therefore, Russia, Denmark, and Sweden entered into a convention to enforce the principles of the armed neutrality, and, in pursuance of the same, Russia caused an embargo to be laid on all British vessels in her

ports, the British Government, ill disposed to bear with such provocation, issued a proclamation on January 14, 1801, authorising reprisals, and laying an embargo on all Russian, Swedish, and Danish vessels in British ports. What followed is well known, and with the battle of Copenhagen the Northern confederacy was completely dissolved. Public opinion in England, however, had by this time much changed respecting her policy towards France. Mr. Pitt resigned, and negotiations commenced, which ended with the conclusion of the Treaty of Amiens.1

But that peace was of short duration. War again broke out, and more than ever the patriotic spirit of the people was evoked to defend British soil against Britain's inveterate enemies.2 From class to class the national enthusiasm spread and increased. Even merchants, setting aside their books and business, issued a declaration, promising in a solemn manner to use every exertion to rouse the spirit and to assist the resources of the kingdom; to be ready with their services of every sort and on every occasion in its defence; and rather to perish altogether than live to see the honour of the British name tarnished, or that sublime inheritance of greatness, glory, and liberty destroyed which had descended to them from their forefathers, and which they were determined to transmit to their posterity. Again was Mr. Pitt called to be Prime Minister, as the only man who could really be trusted in times of so much anxiety and peril. And then it was that the Continental system was inaugurated which made of oceans and seas one vast battle-field of strife and bloodshed.

Fully to understand the policy of England as regards the orders in Council, we must briefly retrace our steps, by examining the measures taken in previous wars. During the Seven Years' War, which ended in 1763, France, hemmed in on all sides by England, and hindered by the British naval forces from carrying on any trade with her West India colonies, adopted the plan of relaxing her colonial monopoly, and allowing neutral ships to carry the produce of those islands to French or foreign ports in Europe. The produce being thus carried really or ostensibly on neutral account, it was assumed that no danger of capture could be incurred. But the prize courts of England condemned such vessels as were captured while engaged in the trade, and the rule was then adopted, called the Rule of 1756,3 to the effect that a neutral has

Peace was ratified on October 10, 1801; and the Treaty of Amiens was concluded March 25, 1802.

2 On May 16, 1803, an order in Council was made issuing letters of marque and reprisals against France, and another laying an embargo on all ships belonging to the French and Batavian republics. Reprisals against Spain were ordered on December 19, 1805; against Prussia on May 14, 1806; and against Russia on December 18, 1807.

The Rule of 1756 had been acted upon even by France on previous occasions. See Note 1, On the Practice of the British Prize Courts with regard to the Colonial Trade of the Enemy during the American War,' in 6 Rob. Rep.,

no right to deliver a belligerent from the pressure of his enemy's hostilities by trading with his colonies in time of war in a way that was prohibited in time of peace.' As Sir William Scott said, 'The general rule is, that the neutral has a right to carry on, in time of war, his accustomed trade to the utmost extent of which that accustomed trade is capable. Very different is the case of a trade which the neutral has never possessed; which he holds by no title of use and habit in time of peace; and which, in fact, he can obtain in war by no other title than by the success of the one belligerent against the other, and at the expense of that very belligerent under whose success he sets up his title.' During the American war this principle did not come practically into action, because, although then also the French Government opened the ports of her West India islands to the ships of neutral powers, it had the wisdom to do so before hostilities were commenced, and not after.

In accordance with these principles, when the war of the French Revolution commenced, instructions were given, on November 6, 1793, to the commanders of British ships of war and privateers, ordering them to stop and detain for lawful adjudication all vessels laden with goods the produce of any French colony, or carrying provisions or other supplies for the use of any such colony. And this order was the more called for from the fact that American ships were crowding the ports of the French West Indies, where the flag of the United States was made to protect the property of the French planters. A great number of ships under American colours were thus taken in the West Indies and condemned, the fraudulent pretences of neutral property in the cargoes being too gross to be misunderstood. Complaints were, however, made of the hardship of this practice on the bonâ fide American trader, and in January 1794 the instructions were so far amended that the direction was to seize such vessels as were laden with goods the produce of the French West India islands, and coming directly from any ports of the said islands to Europe. The Rule of 1756 continued in force till 1798, when again it was relaxed, by ordering that vessels' should be seized 'laden with the produce of any island or settlement of France, Spain, or Holland, and coming directly from any port of the said island or settlement to any port in Europe, not being a port of this kingdom, or of the country to which the vessel, being neutral, should belong.' European neutrals were thus permitted to bring the produce of the hostile colonies from thence to ports of their own countries; and European or American neutral ships might

App.; and Considérations sur l'Admission des Navires neutres aux Colonies françoises de l'Amérique en Tems de Guerre, p. 13, 1779; and see the Wilhelmina,' 4 Rob. Rep., p. 4, and the Immanuel Tudor.'-Leading Cases of Mercantile Lan, p. 814.

carry such produce direct to England. But when the war was resumed in 1803, the Rule of 1756 was again put in force, and instructions were given not to seize any neutral vessels which should be found carrying on trade directly between the colonies of the enemy and the neutral country to which the vessel belonged, and laden with property of the inhabitants of such neutral country, provided that such neutral vessel should not be supplying, nor should have on her outward voyage supplied, the enemy with any articles of contraband of war, and should not be trading with any blockaded ports.'

By thus allowing, however, neutrals to trade safely to and from neutral ports, means were opened to them to clear out for a neutral port, and under cover of that pretended destination to make a direct voyage from the colony to the parent state, or really to proceed to some neutral country, and thence re-export the cargo in the same or a different bottom to whichever European market, neutral or hostile, they might prefer. The former, or an assumed voyage to the parent state, being the shortest and most convenient method, was chiefly adopted by the Dutch on their homeward voyages, because a pretended destination for Prussian, Swedish, or Danish ports in the North Sea, or the Baltic, was a plausible mask, even in the very closest approach the ship might make to the Dutch coast down to the moment of her slipping into port. The latter method, or the stopping at an intermediate neutral country, was commonly preferred by the Spaniards and French in bringing home their colonial produce, because no pretended neutral destination could be given that would consist with the geographical position and course of a ship coming directly from the West Indies, if met with near the end of her voyage in latitudes of their principal ports. The American flag in particular was a cover that could scarcely ever be adapted to the former method of eluding the hostilities of British cruisers, but it was found peculiarly convenient for the latter. Such is the position of the United States, and such is the effect of the Trade Winds, that European vessels, homeward bound from the West Indies, can touch at their ports with very little inconvenience or delay; and such is also the case, though in a less degree, with regard to vessels coming from the remotest parts of South America or the East Indies. The passage from the Gulf of Mexico, especially, runs so close along the North American shore, that ships bound from the Havannah, from Vera Cruz, and other great Spanish ports bordering on that gulf to Europe, could touch at certain ports in the United States with scarcely any deviation. On an outward voyage to the East and West Indies, the proper course would be more to the southward than would well consist with touching on North America; yet the deviation for that purpose was not a very formidable inconvenience. From these causes the protection

given by the American flag to the intercourse between European states and their colonies was chiefly in the way of a double voyage, in which America was the half-way house or central point of communication. The fabrics and commodities of France, Spain, and Holland were brought under American colours to ports in the United States, and from thence re-exported, under the same flag, for the supply of the hostile colonies. Again, the produce of those colonies was brought in like manner to the American ports, and thence reshipped to Europe. The Americans, indeed, went still further. The ports of this kingdom, having been constituted by the royal instructions of 1798 legitimate places of destination for neutrals coming with cargoes of produce directly from the hostile colonies, the American merchants made a pretended destination to British ports a convenient cover for a voyage from the hostile colonies to Europe, which their flag could not otherwise give, and thus rivalled the neutrals of the Old World in this method of protecting the West India trade of the enemy, while they nearly engrossed the other. As the war advanced, after the Peace of Amiens, the neutrals became bolder and more aggressive. American ships were constantly arriving at Dutch and French ports with sugar, coffee, and other productions of the French and Spanish West Indies. And East India goods were imported by them into Spain, Holland, and France.

By these and other means, Hamburg, Altona, Emden, Gottenburg, Copenhagen, Lisbon, and other neutral markets were glutted with the produce of the West Indies and the fabrics of the East, brought from the prosperous colonies of powers hostile to this country. By the rivers and canals of Germany and Flanders goods were floated into the warehouses of the enemy, or circulated for the supply of his customers in neutral countries. The enemy, under cover of the neutral flag, rivalled the British planter and merchant throughout the continent of Europe and in all the ports of the Mediterranean, and even supplanted the manufacturers of Manchester, Birmingham, and Yorkshire; and by these means the hostile colonies derived benefit, and not inconvenience, from the enmity of Great Britain. What, moreover, especially injured the commerce of England was the increase in the cost of importation into this country from the British colonies, from freight, insurance, and other charges which, taken together, were as much as, if not superior to, those to which the enemy was subjected in his covert and circuitous trade. It was a general complaint, therefore, that the enemy carried on colonial commerce under the neutral flag, cheaply as well as safely; that he was enabled not only to elude British hostilities, but to rival British merchants and planters in the European markets; that by the same means the hostile treasuries were filled with a copious stream of revenue; and that by this licentious use of the neutral flag, the enemy was

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