472

BERLIN AND MILAN DECREES.

In this condition of affairs, the same allies entered into a fourth coalition in 1806. But Prussia engaging prematurely, lost the battle at Jena and Auerstadt, thus permitting Napoleon to enter its capital, Berlin, in triumph. Hence was issued November 21, 1806, the famous Berlin decree; whereby Napoleon first inaugurated what is termed his "continental system" for Europe, declaring the British Isles in a state of blockade, and prohibiting all commercial trade and correspondence with them.

To this Great Britain retorted with its orders in council of February and November 1807, prohibiting neutral trade between ports from which the British flag was excluded. Thus was commenced a system of retaliatory measures between the two governments of England and France, in which each denounced the proceedings of the other as outrages and violations of the law of nations. But the declared blockade of the British Isles was further followed up in December 26, 1807, by the Milan decree of the French Emperor, still more severe in its character; by which were declared denationalized all vessels, neutral and others, which submitted to search, tribute, or being carried into port, at England's pleasure, without asserting their national independence by resistance or remonstrance to England's menaced enforcement of tribute, percentage, search, or arrest, at sea or in port.

The fifth coalition was formed April 1809, by Great Britain and Austria.

During this collision of arms and diplomacy in which all Europe became embroiled, and the neutral carrying trade of the United States was seriously crippled and damaged, many prizes were captured and condemned,

BRITISH ORDERS IN COUNCIL.

473

and the rights of belligerents and rules of blockade were largely discussed by and before Lord Stowell as judge of the High Court of Admiralty in England. The retaliatory measures thus produced, necessitated a system of licenses from neutral and other ports. In St. Domingo, the political situation was anomalous; some ports open, others closed. The blockade was partially raised in portions of that island, where the French had not a firm footing, especially in those which Christophe and the insurgent blacks had succeeded in getting possession and control. Accordingly these ports were, by the British orders in council, designated as ports not "under the dominion and in the actual control of His Majesty's enemies."

The sixth coalition, by Great Britian, Russia, and Prussia in 1813, was after the Berlin decree was revoked.

The legality of these British orders in council, and French Berlin and Milan decrees, were frequently drawn in question in Admiralty, and whenever sustained, were so sustained solely upon the ground of necessity, or expressly as a part of a system of retaliatory measures and then not by reason of any recognized rule of international law. Indeed, in some of the reported. cases in Edwards (especially those of the Fox et al., p. 312, and the Snipe et al., p. 380), it is conceded arguendo by Lord Stowell, that the orders in council were a strain upon the standing law of nations, only to be justified as retaliatory measures; and upon retraction of the offensive French decrees, the order should thereupon cease to be operative.

In the case of the Fox (p. 314), Lord Stowell says of the British "orders and instructions:" "I have no hesitation in saying that they would cease to be just if

474

LEGALITY OF ORDERS DEFENDED,

they ceased to be retaliatory; and they would cease to be retaliatory, from the moment the enemy retracts, in a sincere manner, those measures of his which they were intended to retaliate."

Again (p. 315), "Their establishment was, doubtless, a great and signal departure from the ordinary administration of justice, in the ordinary state of the exercise of public hostility; but was justified by that extraor dinary deviation from the common exercise of hostility in the conduct of the enemy."

In these cases of the Fox and the Snipe, this eminent Admiralty judge exhibited more national zeal and partiality than usual in a magistrate, and his decisions, if correct, have been doubted and controverted by other eminent jurists; such as Kent (vol. i. p. 103), and Duer in his first volume on Insurance (p. 644 n.). The latter even insists that his judgment and doctrine in the case of the Fox is irreconcilable with his language used in the case of the Flad Oyen (1 Ch. Rob. 142). That was the case of an English prize ship, captured by the French; carried to Bergen, Norway, there condemned by a French consul, and, under his decree of condemnation, sold to a Danish merchant, and afterward, on the voyage from Bergen to St. Martin's, was recaptured, January 12, 1798, and proceeded against in the British Admiralty Court as lawful prize. The ostensible owner and purchaser intervened as claimant, and his counsel, Messrs. Arnold and Sewell, insisted upon the legality of his title, if the condemnation and sale were regular. But the court, Sir. W. Scott, held otherwise, declaring the condemnation by a pretended French consular court in a neutral country not legal, and restored the ship to her former British owner, on salvage.

AND WHEN DOUBTED, UPHELD RELUCTANTLY.

475

In this opinion, he characterized the "act of the French consul as a licentious attempt to exercise the right of war within the bosom of a neutral country, where no such exercise has ever been authorized."

And as to the appropriate mode of reforming or correcting any irregularity in procuring condemnation as prize, the court said: "The true mode of correcting the irregular practice of a nation is, by protesting against it, and by inducing that country to reform it. It is monstrous to suppose that because one country has been guilty of an irregularity, every other country is let loose from the law of nations, and is at liberty to assume as much as it thinks fit."

Such was the language of the great expositor of British Admiralty and Prize Law in the early part of the present century; and if Mr. Duer's critical comment be well-founded, it would seem that opinions expressed in the case of the Flad Oyen are not quite consistent with the decisions given in the cases reported in Edwards.

The protracted diplomatic and warlike struggle between the English and French courts to circumvent, overreach, and checkmate each other, precipitated also the people of the two nations, as well as the courts, into a corresponding hostile attitude towards each other. Both parties, judging from their decrees and orders, went to the extreme verge of international propriety, to say the least, in action and denunciation. By the court, Napoleon is referred to as the so-called "ruler of the French," his ministers as the so-called "Duke de Bassano and Duke de Cadore," as will appear in the opinions as reported in the cases in Edwards. On the one hand, the French decrees were denounced as "violations of the usage of war, establishing an unprece

476

DUKE DE BASSANO'S REPORT TO THE

dented system of warfare," while on the other, the British Islands were declared to be in a state of blockade, both by land and sea, in just retaliation "of the barbarous system adopted by England, which assimilates its legislation to that of Algiers."

In a report made to the French Conservative Senate, by the Duke of Bassano, French Minister of Foreign Affairs, it was claimed that the Berlin decree answered the English declaration of 1806, interdicting neutral commerce, and the Milan decree answered the orders of 1807, levying tribute but relaxing the interdiction.

Here it may be useful to extract a portion of that report, stating what was then supposed to be the "obligations of beligerents towards neutral ports." The report is directed to the Emperor, and reads thus:

"SIRE,―The maritime rights of neutrals as solemnly fixed by the treaty of Utrecht, became the common law of nations. This law, completely renewed in all subsequent treaties, has consecrated the principles which I am going to state.

"The flag covers the merchandise. Enemy's goods, under a neutral flag, are neutral; as neutral property, under an enemy's flag, is considered as belonging to an enemy.

"Contraband articles are the only property which a neutral flag does not cover, and arms and warlike stores alone are contraband.

"All visiting of a neutral vessel by an armed ship can be made by a small number of men only, the armed ship keeping without cannon-shot.

"Every neutral ship may trade from an enemy's port to an enemy's port, and from an enemy's port to a neutral one.