the Enemy's country; and if English merchants are secure, then the enemy merchants should have the Ancient same security 19." The early practice of England would Provisional thus appear to have been to embargo enemy merEmbargo. chants at the commencement of the war, and to practice of release them subsequently on conditions of reciprocity being observed. Such also seems to have been the practice of the Scandinavian Nations 20; and a passage in Matthew Paris seems to show that it had been the ancient practice of the kings of France not to seize the persons or goods of enemy merchants, who were resident within their dominions when war broke out, as he censures the conduct of Louis IX. of France in 1242, in arresting the persons and goods of the English merchants trading within the kingdom upon the breaking out of war, as contrary to duty and derogatory to the ancient dignity of the kingdom. Henry III. of England, on hearing of the king of France's severity, immediately retaliated by reprisals against the persons of French merchants resident in England 21. Whatever may have been the practice of France in the thirteenth century, it seems probable that the interests of international commerce had not at that period given rise to any fixed rule amongst Nations. But we find in the middle of the fourteenth century (A.D. 1354), that it was an express provision of the Law of England, that foreign merchants residing 19 Blackstone's Commentaries, facto antiquam Galliæ dignitaVol. I. 260. p. 20 Stiernhook de Jure Sueon, L. III. c. 4. 21 Rex Francorum mercatorum Angliæ corpora cum suis bonis, per regnum negotiantium, secus quam decuit, capi feraliter imperavit, lædens enormiter in hoc tem. Cum autem hujus protervitatis infamia aures et cor Regis Angliæ tetigisset, jussit similiter ut per regnum Anglorum mercatores regni Galliæ subirent merito talionem. Matth. Paris, Hist. p. 485. in England 22, when war broke out, should have convenient warning of forty days, by proclamation, to depart the realm with their goods; and if by reason of accident they should be prevented from so doing, they were to be allowed forty other days to pass with their merchandise, with liberty to sell the same. The example of England in this matter was soon afterwards followed by King Charles V. of France, when he issued an ordinance declaring that foreign merchants who should be trading in France at the time of the Declaration of War, should have nothing to fear, for they should have liberty to depart freely with their effects 23. subjects tory of a § 50. In the fifteenth century the importance of Enemyinternational commerce began to be generally appre- resident in ciated by Governments, more particularly as the Con- the terri federation of the Hanse Towns gave great political belligerent, weight to mercantile interests; and we find accordingly a treaty concluded between the Hanse Towns and Louis XI. of France (anno 1483) under which merchants of the Hanse Confederation were to be at liberty to remain in the French dominions for one year after war broke out, with protection of persons and goods. In the next century it came to be a common stipulation in treaties of commerce, that a period of time, varying from three months to two years 24, should be allowed to the subjects of the contracting parties after war should have been declared, to withdraw themselves and their goods and effects in safety from the enemy's country. France seems to have been eminently the leading Power in entering into such treaties 25. Thus we find a treaty concluded 22 Statute of Staples, 27 Ed. III. c. 17. 23 Hérault, Abrégé Chronologique de l'Histoire de la France, L. I. p. 338. 24 Dumont, Corps Diplom. L. III. p. 23. 25 In the treaty between Por in 1662 between France and the States General of the United Provinces, under which an interval of six months was to be allowed to the subjects of either of the contracting parties, if war should arise between them, to withdraw with their goods and effects from the Enemy's country. A treaty in like terms was concluded not long afterwards, between England and the States General (31 July 1667). Where there were no such treaty engagements, all that good faith could require was, that a reasonable time should be allowed for merchants to withdraw from an Enemy's country. We find accordingly that Louis XIV. of France, in declaring war against England on 26 January 1666, being under no treaty engagements without that Power to allow any definite time to English merchants to withdraw from his dominions, issued nevertheless a Proclamation (1 Feb. 1666), to the effect that "his Declaration of War was not intended to operate against those individuals of the English Nation who might be resident in France with peaceful intentions, but that they might withdraw in safety with their goods and effects within three months, saving always to such individuals, as might have become naturalised, the right of remaining in France as French subjects." It would appear from a long series of precedents too numerous to be cited in detail, that the obligation of good faith towards resident foreigners has been acknowledged by the practice of belligerent Powers to operate as a restriction upon their exercise of their summum jus, as, tugal and the States General (6 Aug. 1660) it is provided "that the subjects of either power, if war should break out between them, shall have two years to withdraw their goods." So long an interval is accounted for by the circumstance, that one or both of the contracting parties had colonies or dependencies in the East or West Indies. upon belligerents, to seize and detain them as enemies subjects of British § 51. The exercise of the summum jus of a belli- Enemygerent in regard to enemy-subjects in transitu is not in transitu. altogether obsolete, although it may be regarded as a matter of Comity between belligerent Powers to refrain from seizing and detaining, as prisoners, any enemy subjects whatsoever, who may happen to be within their respective dominions at the outbreak of war, if they conduct themselves without offence. A remarkable exception to this Comity took place upon the commencement of war between England and France in 1803, when the First Consul issued an ordinance that "all the English from the age of Detention eighteen to sixty, or holding any commission from subjects in his Britannic Majesty, who are at present in France, France by be constituted prisoners of war, to answer for those Consul in citizens of the Republic who may have been arrested and made prisoners by the vessels or subjects of his Britannic Majesty previous to any Declaration of War." This ordinance bore date 22 May 1803, and purported to be issued on a Report received on that very day from the Maritime Prefect at Brest, announcing that "two English frigates had taken two French merchant vessels in the Bay of Audierne without any previous Declaration of War, and in the First 1803. manifest violation of the Law of Nations. It appears that the British Ambassador, by order of his Government, had demanded his passports and left Paris on the 12th of May, the British Government had issued Letters of Marque and Reprisal on the 16th of May, and his Britannic Majesty had sent a message to Parliament on the 18th of May on the other hand, the French Ambassador had left Dover on the 18th of May, and the First Consul had sent a message to the Senate on the 20th of May, announcing that the negotiations with Great Britain were broken off, and that France was ready for the combat if she was attacked 26. It can hardly be disputed, that under these circumstances the capture of the French merchant vessels by the British frigates, which took place on the 20th of May, was an act of War lawfully commenced. It is also clear that the commencement of actual hostilities without any formal Declaration of War on either side was contemplated by the French Government, for the French Minister of Marine had already issued Letters of Marque against Great Britain 27 on the 21st of May, before the French Government received the announcement of the capture of the French vessels by the British frigates. Great Britain had by her own act undoubtedly given rise to a state 26 Les négotiations sont interrompues, et nous sommes prêts à combattre, si nous sommes attaqués. Message au Sénat 30 Floreal an. xi. (20 May 1803.) -Correspondence de Napoleon, VIII. p. 320. 27 There is a letter of this date from the First Consul to the Contre-Amiral Decrès, Minister of Marine and of Commerce, requesting him to send twenty-four letters of marque to various French General Officers for distribution. The letters were to be sent in blank, so that no time might be lost in doing all the damage possible to English commerce. Ces lettres seront données en blanc, pour qu'ils puissent être à même de profiter de toutes les occasions, et de ne perdre aucun moment pour faire au commerce Anglais tout le tort possible. Correspondence de Napoleon, VIII. p. 321. |