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rules of the Peace of Utrecht. In 1809 Count Champagny wrote to General Armstrong,

The right, or rather the pretension of blockading, by a proclamation, rivers and coasts, is as monstrous (revoltante) as it is absurd. A right cannot be derived from the will or caprice of one of the interested parties, but ought to be derived from the nature of things themselves. A place is not truly blockaded, until it is invested by land and by sea; it is blockaded to prevent it from receiving the succors which might retard its surrender. It is only then that the right of preventing neutral vessels from entering it exists; for the place so attacked is in danger of being taken, and the dominion of it is doubtful, and contested by the master of the town and him who besieges it. Hence the right of preventing even neutrals from having access to it. 13

In how far this view was affected by the general military status of the day, it is difficult to say. One thing is evident, that should such rules have been applied to blockades the advantage would have been entirely on the side of the French and neutrals. It is difficult to conceive that Napoleon would have been so solicitous of the welfare of neutrals had it not, at the same time, been the most advantageous course for France. This principle if put in force would have made it utterly impossible for a nation having control of the sea to enforce a blockade without at the same time having control of the territory of the enemy.

It has ever been the custom among nations to make reprisals against an enemy when the latter violates any rule of international law. This is the principle upon which Napoleon justified his decrees and Great Britain her orders in council. The injury and discomfiture which such an act brings upon neutrals is generally not given much consideration; but in this case each by shifting the blame upon the other tended, through the severity of the measures which it was forced to adopt, to cause the United States to enter the conflict on either the one or the other side. The rights of neutrals were a serious interference with the free action of the belligerents, and they were subordinated to the purposes of the latter. Whether the one side or the other suffered the more abuse from attack is hard to decide; but it is certain, as will be pointed out, that all recognized and accepted rules of blockade, as at that time understood by either party, were flagrantly violated not only with re

13 Am. State Papers, For. Rel. III, 325.

spect to belligerents but also with respect to neutrals. The decrees and orders in council were war measures, and, as such, the blow they were intended to deal the enemy must first brush aside the neutral if the latter's rights in any degree might act as a buffer to lessen its effect.

The Berlin decree, therefore, was a measure of retaliation against Fox's blockade. To this end, although the Emperor could not keep a single ship of war on the seas except as a fugitive from his omnipresent enemies, it declared the British Isles in a state of blockade.

In addition to this it proclaimed that:

4. All warehouses, merchandise or property of whatever kind belonging to a subject of England shall be regarded as a lawful prize.

5. Trade in English goods is prohibited, and all goods belonging to England or coming from her factories or her colonies are declared lawful prize.

7. No vessel coming directly from England or from the English colonies or which shall have visited these since the publication of the present decree shall be received in any port.

8. Any vessel contravening the above provision (7) by a false declaration shall be seized, and the vessel and cargo shall be confiscated as if it were English property. 14

From the above extracts it is readily seen how far-reaching the provisions of this decree were. If they were to be literally applied, they would contravene all recognized rules of blockade even to a greater extent than was the case with the order in council that preceded them.

The last paragraph of the first section showed a desire on the part of Napoleon to compromise and lessen the severity of the order if the British would come to the French way of thinking. It reads:

The provisions of the present decree shall continue to be looked upon as embodying the fundamental principles of the Empire until England shall recognize that the law of war is one and the same on land and sea, and that the rights of war cannot be extended so as to include private property of any kind or the persons of individuals unconnected with the profession of arms, and that the right of blockade should be restricted to fortified places actually invested by sufficient forces.

15

This decree for various reasons was not fully enforced by Napoleon; and for nine months it assumed more the form of a municipal law than

14 Anderson, Constitutions and Documents, France (Translated by James H. Robinson), 386–387.

15 Ibid., 386.

of an international order. The manner of enforcement was, however, not inquired into by the British Government, which responded on January 10, 1807, with a second order in council proclaiming on penalty of capture and condemnation that it is

judged expedient to order that no vessel shall be permitted to trade from one port to another, both which ports shall belong to, or be in possession of France or her allies, or shall be so far under their control as that British vessels may not freely trade thereat; and that the commanders of His Majesty's ships of war and privateers have been instructed to warn every neutral vessel coming from any such port, and destined to another port, to discontinue her voyage, and not to proceed to any such port. 1o

16

This decree would have required actual direct notice to the vessel and was therefore probably within reasonable limits.

This order was followed on November 11, 1807, by a second and more severe order which decreed that France, her allies and colonies, were in state of blockade; made all goods of produce or manufacture of such territory subject to capture and condemnation, unless such trade in them be carried on through British ports; all vessels leaving blockaded ports were subject to capture unless they were destined for a British. port; vessels which left port before the issuance of the order must have been notified of the blockade before being captured for violation of it; and vessels carrying French certificates of origin were subject to condemnation.17

It was held that these measures were justifiable because the neutral states acquiesced in the provisions of the French decree, which, however, seems not to have been the case. In a letter by Pinckney to Madison, November 23, 1807, we read:

The British orders annihilate the whole public law of Europe relative to maritime prize, and substitute a sweeping system of condemnation and penalty in its place. The French decree produces no such change at all in that law. The last was no more than a legitimate, though possibly an ungracious, exercise of the right of local sovereignty; while the former can be referred only to force, and look for the scene of their operation to the ocean.

16 Am. State Papers, For. Rel. III, 5.

17 Ibid., 269-270.

Nor can it be shown that knowledge had in any form come to the United States Government of a strict enforcement of the Berlin decree before the issuance of the order in council of November 11th.

So long as the decree was enforced only as a local or municipal law, the United States did not remonstrate because it was not affected by the operation of the act. There was little exchange of notes between France and this country on this subject prior to November, 1807, when the more stringent enforcement went into effect. The position in which American vessels were placed by the contradictory and opposed decrees and orders was very unsatisfactory. They could not touch at France or her allies, and they could not touch at England, nor could they carry either French or British goods without subjecting themselves to capture.

Count Champagny asserted that from the French view the United States was at war with England from the time that the orders in council were issued. France was merely waiting to see whether the United States would declare hostilities or not before enforcing the Berlin decree in its liberal purport.18

The American Government protested strongly against the application of municipal laws against foreign nations on the high seas, and even showed astonishment at the act of France in her extraordinary declaration when she was without the slightest means of enforcing it.19 The Emperor's council itself was opposed to extending the execution of the decree, but Napoleon was determined through it to determine the position of the United States in her relations with Great Britain.20

On December 17, 1807, Napoleon met the new British order in council with his famous Milan decree. This decreed that the British orders would have the effect of denationalizing the vessels of all nations of Europe, thus affecting the sovereignty of the states themselves; and

18 Am. State Papers, For Rel. III, 250.

19 Madison to Armstrong, Feb. 8, 1808.

"That the execution of local laws against foreign nations on the high seas is a violation of the rights of the former and freedom of the latter, will probably not be questioned. A contrary principle would, in fact, imply the same exclusive dominion over the entire ocean as is enjoyed within the limits of the local sovereignty, and a degradation of every other nation from its common rights and equal rank." Am. State Papers, For. Rel. III, 249.

20 Am. State Papers, For. Rel. III, 250.

that all vessels submitting to search or entering British ports become ipso facto denationalized and hence are English property; that such vessels are subject to capture as lawful prizes; that all vessels either going to or coming from English ports, colonies or any country in the possession of English troops are lawful prize; that the decree shall not apply to such countries as force England to respect their flags; and that the decree shall be ipso facto abrogated and void so soon as the English Government shall abide by the principles of the law of nations.2

21

The enforcement of these blockades seems to have been something just short of legalized piracy. Napoleon could keep but few scattered cruisers and privateers on the seas, with which he now began to prey upon American trade. England's whole navy, large as it was, was notoriously inadequate to maintain a blockade of the European Continent and the French colonial possessions. Seizures by both sides were numerous, and it is small wonder that the United States Government changed from official protest to active measures of defense. The counterstrokes of the belligerents became more destructive to neutrals than to the belligerents. The United States Government sought to protect its commerce against such unlawful spoliation. The reckless Yankee skipper began to trump up various excuses for blockade running, among which some of the most prominent in the British admiralty reports are the "distress of the vessel," "exhausted crews" and "entered to procure a pilot."

The United States Government unofficially ordered American vessels not to speak to British cruisers, but rather to run, upon which Sir William Scott of the British High Court of Admiralty remarked,

If these directions are to be taken in their full extent, as authorizing the masters of American ships to fly from British cruisers, it is a practice which, I venture to say, will be attended with very great inconvenience to American navigation. It must be understood that every commissioned cruiser has an undoubted right of inquiry, and it is not the arbitrary decrees of other belligerents that can abrogate it. On strict principle, to defeat that right by evasion might be as penal as to resist it by force, though it has not been held so in practice.22

21 Anderson, Constitutions and Documents, France, 303-304.

22 The Mentor, Edwards' Admiralty Reports, 208. See also the Arthur, Ibid., 203, and the Elizabeth, Ibid., 198, all decided in 1810.

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