had protested against such a blockade declared by Spain against all Portuguese ports; and on July 16, 1667, Holland concluded a treaty with Sweden, as it did in 1674 with England, laying down in plain terms the necessarily effective nature of blockade which should be so carried out as to bind all localities affected: "Urbibus et locis ab una alterave parte obsidione juxta REALITER CINCTIS." But blockade founded on a mere proclamation addressed to neutrals appeared in the notable treaty of Whitehall, concluded by England with Holland on August 22, 1689, although in this instance the proclaimed threats were actually carried out despite vigorous neutral protests. In effect, the provisions of the treaty and proclamation were as severe as any later announced by Napoleon: all commerce with hostile France was prohibited, and since the carriage of enemy goods by neutral ships was held to involve the confiscation of the carrying ship as well as of the goods, neutrals suffered heavily; nor was it until the appearance of the first armed neutrality formed by the northern Powers in 1780 that milder practices became assured. Purely fictitious blockades indeed persisted during a great part of the eighteenth century despite announcements to the contrary in many formal treaties, as was the case in the Seven Years War when Great Britain in order to strengthen its "Rule of 1756" declared all French ports blockaded. This declaration was followed by the seizure of many neutral Dutch ships some of which, however, were afterwards restored, although the celebrated admiralty judge, Sir James Marriott, is said to have justified the practice of such announcements. While, however, the armed neutrality leagues of 1780 and 1800 were not themselves destined to survive the sudden destruction of Copenhagen and the capture of the entire Danish fleet by the British on April 2, 1801, Great Britain and Russia in a treaty made two months later (June 17) assented to a compromise admitting the important principle of cruiser blockade maintained by long distance patrol sufficient to measurably guard the belligerent position: Art. III.-4. Que pour déterminer ce qui caractérise un port bloqué, on n'accorde cette dénomination qu'à celui où il y a, par la disposition de la Puissance qui l'attaque, avec des vaisseaux arrêtés ou suffisament proches, un danger évident d'entrer. That is to say, a blockade may be held legally responsive to a demand of effectiveness if so maintained as to practically close a specified area to all commerce. Such a blockade is readily distinguishable from (1) blockade by mere proclamation, (2) blockade where warships are permanently stationed outside a given port. Cruiser or long-distance blockade, that is, where the sea in the general vicinity of an enemy port or coast is so patrolled by warships as to be practically under continuous surveillance throughout its extent, would seem quite adequate to the necessities and possibilities of present-day warfare and more practicable than any blockade practices formerly recognized by the law of nations as solely legitimate. But there was really in the autumn of 1806 no actual question of proclama tion blockade on the part of the British, since, as has been seen, an order in council of September 25th had confined commercial prohibition to a line of enemy coast which could be effectively guarded by British cruiser patrol. On January 7, 1807, an order in council was promulgated by way of reply to Napoleon forbidding, on the principle of the "Rule of 1756," all belligerent coasting trade on the part of neutral merchantmen. In the following March the Grenville ministry, greatly weakened by the death of Fox in the preceding summer, resigned, and the Duke of Portland formed a Tory government, becoming Premier with Perceval as Chancellor of the Exchequer, Canning as Foreign Secretary, and Castlereagh as Secretary for War and the Colonies. The three last named members of the new cabinet were destined to be moving spirits in the development of British war policy. The principal orders in council of this period were actually drawn by James Stephen (1758–1832), Perceval's legal adviser and who had made a specialty of international jurisprudence as applied to colonial affairs. He had, for a time, resided and practiced law at St. Christopher's in the West Indies and had become closely identified with movements to abolish the African slave trade. He was a close friend of both Wilberforce and Brougham. In the troubled field of maritime disputes, therefore, Stephen came to occupy a leading position, and his little book War in Disguise, first published in 1805 and recently reprinted under the able editorship of Sir Francis Piggott (University of London Press, 1917), exercised a wide influence upon the political thought of the time. Following is the text of the order: AT THE COURT OF THE QUEEN'S PALACE, January 7, 1807. Present, the King's Most Excellent Majesty in Council: Whereas the French Government has issued certain orders, which, in violation of the usages of war, purport to prohibit the commerce of all neutral nations with His Majesty's dominions, and also to prevent such nations from trading with any other country in any articles the growth, produce, or manufacture of His Majesty's dominions; and whereas the said government has also taken upon itself to declare all His Majesty's dominions to be in a state of blockade, at a time when the fleets of France and her allies are themselves confined within their own ports by the superior valor and discipline of the British navy; and whereas such attempts on the part of the enemy would give to His Majesty an unquestionable right of retaliation, and would warrant His Majesty in enforcing the same prohibition of all commerce with France, which that Power vainly hopes to effect against the commerce of His Majesty's subjects, a prohibition which the superiority of His Majesty's naval forces might enable him to support, by actually investing the ports and coasts of the enemy with numerous squadrons and cruisers, so as to make the entrance or approach thereto manifestly dangerous; and whereas His Majesty, though unwilling to follow the example of his enemies, by proceeding to an extremity so distressing to all nations not engaged in the war, and carrying on their accustomed trade, yet feels himself bound, by a due regard to the just defense of the rights and interests of his people, not to suffer such measures to be taken by the enemy, without taking some steps on his part to restrain this violence, and to retort upon them the evils of their own injustice; His Majesty is thereupon pleased, by and with the advice of His Privy Council, to order, and it is hereby ordered, that no vessel shall be permitted to trade from one port to another, both which ports shall belong to, or be in the possession of France or her allies, or shall be so far under their control as that British vessels may not freely trade thereat; and the commanders of His Majesty's ships of war and privateers shall be, and are hereby instructed to warn every neutral vessel coming from any such port, and destined to another such port, to discontinue her voyage, and not to proceed to any such port; and any vessel, after being so warned, or any vessel coming from any such port, after a reasonable time shall have been afforded for receiving information of this His Majesty's orders, which shall be found proceeding to another such port, shall be captured and brought in, and, together with her cargo shall be condemned as lawful prize. And His Majesty's Principal Secretaries of State, the Lords Commissioners of the Admiralty, and the Judges of the High Court of Admiralty, and Courts of Vice-Admiralty, are to take the necessary measures herein as to them shall respectively appertain. W. FAWKENER On November 11 and 25, 1807, there appeared an additional and highly important series of orders in council announcing retaliation by general or proclamation blockade and prohibition of all trading with French or allied ports except through Great Britain or its colonial dependencies; at the same time the possession by a neutral of certificates of property origin in pursuance of the Berlin decree was made a cause of confiscation. Again in reply to the British Government, Napoleon issued a decree from Milan on December 17, 1807, penalizing all vessels and their contents which should comply with Great Britain's orders either by submitting to visit and search or by touching at a British port, with the result that neutrals who might escape British cruisers on their way to a Continental port would ultimately be seized as contravening the emperor's commands. It will be readily seen that while the belligerent Powers would each be sufferers by these proceedings, yet results equally or still more disastrous must ensue to neutrals, of whom the chief, if not the only one, was the United States, whose supply of manufactured articles from Europe and whose immensely valuable export traffic must surely be in large measure destroyed, notwithstanding that by the orders in council of November 25, 1807 and corresponding announcements of Napoleon, an iniquitous system of governmental licenses permitting commercial intercourse despite blockades sprang into existence on both sides of the English Channel, thus nullifying to a great extent the otherwise inescapeable rigors of the situation. Of this situation Hildreth has given an admirable summary: Orders in council, dated the 11th of November but not actually promulgated till the 17th, prohibited any neutral trade with France or her allies, in other words, with the whole of Europe, Sweden excepted, unless through Great Britain. All neutral vessels, whatever their cargoes, bound to any port of France or her allies, were required, under pain of capture and condemnation, first to touch at some British or Irish port, and there to pay such re-exportation duties as might be imposed, and to obtain, by the payment of certain fees, a British license to trade to the Continent. Nor was any export to be allowed of the produce of France or her allies, except in vessels which had complied with the foregoing regulation. All such vessels which, previous to notice of this new system, had sailed for any hostile port, if fallen in with by any British cruiser, were to be ordered to some port of Great Britain or Ireland, or to Gibraltar or Malta, whence, having first paid such duties as should be established, they might proceed to their ports of destination; or, if they preferred it, they might land and enter their goods in Great Britain. A further ground of capture, after the lapse of sufficient time for the order to become known, was to be the having on board French consular "certificates of origin," required since the Berlin decree, as proof that the goods sought to be imported into France were not of British origin. Although the plea of retaliating the issue of the Berlin decree afforded a colorable pretext for these orders, they were, in reality, but a further carrying out of that restrictive policy as to neutral commerce urged for some time past upon the British government by the greedy jealousy of the British colonial merchants and ship-owners, and of which the restrictions on the colonial carrying trade had been the first fruit. Their effect was to deprive American vessels of all their neutral advantages, and, so far as regarded the trade to Europe, to place them on the same level with British vessels. One advantage was indeed left them, in the supply of the French, Spanish, and Dutch colonies with provisions, lumber, and other American products, and the transport of the produce of these colonies for the supply of the United States: but the very lucrative carrying trade between these colonies and their mother countries, engrossed of late by American vessels, so much to the envy of the British shipowners, was either entirely cut off, or made to circulate through Great Britain, subject to duties, transhipment, and other embarrassments. To these orders Bonaparte very soon responded in a new decree, dated at Milan, invigorating and extending the decree of Berlin. This Milan decree pronounced every vessel "denationalized" and forfeited which should submit to be searched by a British cruiser; which should pay any tax, duty, or license money to the British government; or which should be found on the high seas or elsewhere, bound to or from any British port. Spain and Holland, with their usual subserviency, forthwith issued similar decrees.5 We here subjoin the first order of November 11, 1807. The order in council of January 7, 1807, while intended as a prohibition to neutrals of enemy coasting trade, was quite susceptible in its wording of an interpretation which would have cut off neutrals from any enemy commerce whatsoever. While this infelicity of language was clearly pointed out in Parliament, no change was ever made in the text." President Jefferson was, therefore, justified in characterizing the order, in his annual message of 5 History of the United States, Vol. VI, Chap. XX, p. 33 seq. See Appendix, page 579. 7 Cf. Mahan, Sea Power in its Relations to the War of 1812, Vol. I, p. 516 seq. October 27, 1807, as “an interdiction of 'all trade by neutrals between ports not in amity with them, i. e. with the British'" and he added “England being now at war with nearly every nation on the Atlantic and Mediterranean seas, our vessels are required to sacrifice their cargoes at the first port they touch or to return home without the benefit of going to any other market. Under this new law of the ocean our trade on the Mediterranean has been swept away by seizures and condemnations, and that in other seas is threatened with the same fate." The wide extension of the decree of November 21, 1806 by that of December 17, 1807 given below practically forbade all commercial intercourse with England or with English goods, while England, in its turn, forbade all commerce between ports controlled by Napoleon or his allies save through some British port; and the Milan decree of December 17th of the same year announced seizure and confiscation of all neutral vessels which should obey or submit to Great Britain's maritime rules, whatever might be the character of its cargoneutral or belligerent owned. 8 Opponents of the British Government of the day, such as Brougham and Erskine, did not hesitate to urge in Parliament the undeniable conflict between portions of the orders of November 11th and recognized principles of international law, since it was attempted to prevent Powers from carrying on traffic not only permitted to them in time of peace but which in no wise contravened the inhibitions of sea warfare in the matter of blockade, contraband or unneutral service; nor was it in line with any principle of the law of nations to compel the passage of neutral traffic, innocent in itself, through British ports as though it were colonial in character and hence undeniably under control of the parent state; and, lastly, the condemnation of a neutral vessel for carrying a document touching the cargo's actual origin was not in any sense permissible under international law. These considerations were embodied in a series of resolutions offered in Parliament by Erskine on March 8, 1808, and will be found in the Appendix hereto. The orders, nevertheless, were in part merged in a bill which passed and received the royal assent and thus became placed beyond attack on constitutional grounds.10 Cf. Alison, History of Europe, Chap. XLVII. 9 • Infra, page 581. 10 "On the 21st of November, 1806, a decree was published at Berlin prohibiting the inhabitants of the entire European territory allied with France from carrying on any commerce with Great Britain, or admitting any merchandise whatever that had been produced in Great Britain or in its colonies. Spain, Italy and Holland were mentioned by name in the decree; Northern Germany was treated as French territory; so that the line of coast closed to the shipping and the produce of the British Empire included everything from the Vistula to the Southern point of Dalmatia, with the exception of Denmark and Portugal, and the Austrian port of Trieste. All property belonging to English subjects, all merchandise of British origin, whoever might be the owner, was ordered to be confiscated: no vessel that had even touched at a British port was permitted to enter a Continental harbour. The grounds of international right advanced by Napoleon in justification of this decree were not intended to be taken seriously: his fixed purpose was to exhaust Great Britain, since he could not destroy her navies, or, according to his own expression, to conquer England upon the |