French report concerning the Continental system.

mate objects. The decree is useful as illustrative of character, and serves to show to what extremity of vindictive feeling the animosity of Napoleon had arrived, against the only country which thwarted his designs.

In 1812 a report, dated the 10th March, was addressed to Napoleon by his minister for foreign affairs, concerning the maritime rights of the British, and the operation of the Berlin and Milan decrees. A reply was published by the British government, dated the 21st April, of the same year. In these state papers the claims of both parties are explained at length; but the limits of the present work prevent the insertion of the arguments, nor do I think that the French exposition requires any laboured analysis to make its flimsiness apparent. I believe that any one who reads it will be brought by the arguments themselves to conclusions the reverse of those which the writer intended; but if he should need a commentary, he will find a good one in the reply of the British government. (1) In the conclusion of the latter document it was stated, that as our Orders in Council had been entirely measures of retaliation for the Berlin and Milan decrees, as soon as these decrees were revoked by the enemy, our decrees should, eo facto, and without further notice, cease to be in operation. On the 23rd June following, an Order in Council was published, proclaiming, that in virtue of this latter declaration, and as the chargé d'affaires of the United States had presented a copy of an act, then for the first time communicated to our government, by which the Berlin and Milan decrees were annulled by the French government, as far as concerned vessels of the United States, our Orders in Council were also declared to be rescinded as far as regarded American vessels, and their cargoes of American property. This revocation of

(1) The documents are found at length in De Martens, Supp.

V. 530-535, and 542-546.

our orders was, however, only to take effect in the event of the American government rescinding their order, closing their ports against our vessels of war and commerce. (1) Before the publication of this Order, war had been already commenced by the American government, on the 18th June,-a war which was terminated by the treaty of Ghent in 1814, when the overthrow of the power of Napoleon, and the restoration of peace, put an end to the vexatious questions which had occasioned hostilities.

on these various

measures.

The above is but a very brief abstract of the lengthy Considerations diplomatic papers to which the restrictions of the Continental System gave occasion. With regard to the justice of the case, I hope that it is not national prejudice which inclines me to believe that our country is not liable to much reproach. Our measures were strictly retaliatory. At the time of the publication of the Berlin decree, nothing had been done by our government to warrant such aggression, and the decree was clearly dictated by a desire to wrest the Law of Nations into an instrument for injuring those with whom Napoleon could not cope in maritime warfare. Our subsequent Orders in Council certainly interfered with the rights of neutrals, but such interference was in a great degree rendered justifiable by neutrals not having resisted the attempts of our opponent. If one belligerent attempts to injure his enemy, by acts which violate the rights of neutrals, and if these neutrals offer no resistance to such violation, it cannot be expected that the other belligerent shall submit to be attacked in this manner without retaliating upon his enemy by similar measures. It is as if our enemy attacked us by marching across a neutral territory; he violates neutrality by so doing, but it is surely no longer incumbent upon us to respect the neutral territory; we are not called upon to wait upon the borders and allow our enemy to injure us

(1) De Martens, Supp. V. 547-549.

American non

It

under the protection of our respect for neutrality; it is
clearly our right also to march into the neutral territory,
if such invasion be likely to forward our purposes.
was the same thing with the question we are now con-
sidering if the American government had passed a
non-intercourse act against France, to continue in force
as long as the Berlin decree existed, this vindication of
their neutral rights would have prevented any invasion of
those rights on our part. On this point it is important
to remember, that there seems to have been some under-
standing between the French and American governments,
that the Berlin decree was not to be enforced against ships
of the United States; but no official notification of this
intention was conveyed; nor am I aware that this was
even known in England till after the publication of our
Orders in Council; certainly at the time of the publication
of our Orders, nothing had been done by the American
government to vindicate their neutrality, but the United
States stood in the position of having their neutrality made
by our enemy into an instrument for our detriment.
Supposing this position to be true, our government was
undoubtedly justified in preventing our country from being
injured through a neutral power; and the evils which the
latter sustained by our measures, must be regarded as
principally consequences of their own acts, in not having
repelled the first aggression. Sufficient time was allowed
for this purpose; the Berlin decree was dated November
1806; our Order of January 1807 merely closed the
coasting trade of the enemy to neutrals, and it was not
till November 1807, twelve months after the date of the
Berlin decree, that our measures of retaliation were pro-
claimed.

The American non-intercourse act was a measure which intercourse act, seemed both just and politic. Powers acting in such flagrant violation of neutral rights, however one or both might be justified by the necessity of the case, could not

complain because they were no longer admitted on the footing observed in peace towards them: and, on the other hand, it was expedient to prevent commerce being carried on, at a time when both parties in the war had exposed all property to capture. Had the non-intercourse act been passed at an earlier period, it might probably have prevented the evils which ensued, and war was among those evils; but saying what politicians should have done when you have the results before you, is merely prophesying after events have occurred. To have passed the non-intercourse act against France, immediately after the Berlin decree, would have been a vindication of American rights, but it would have involved the immediate sacrifice of a lucrative neutral commerce, and such generosity in defence of a principle is seldom to be expected from any government, least of all from a government which, like that of the United States, is subject to the immediate action of the trading classes.

It seems then that both the British and the American Conclusion. governments had good grounds for measures, which could hardly be said to have originated with themselves, so much as to have followed as consequences of French aggression. It is not likely that similar conjunctures will again occur; the evils which then raged were immense ;--indeed the history of those times supports morality, less by affording precedents for imitation, than by the respect for Rights which is produced by observing the consequences of their violation.

CHAPTER XI.

Necessity of
Search.

Opinion of

SEARCH.

THE right on the part of ships of war to visit and search merchant vessels during the continuance of war, has been granted by all writers of any authority. The right of search is indeed a sort of necessary complement to the rights of confiscating contraband, and the property of enemies. If any maritime capture of any description be allowable, then the right of search must be granted, in order to ascertain whether the ship or cargo encountered, be liable to seizure. It is equally the law of Europe that resistance to visitation and search constitutes a lawful prize of the neutral vessel and cargo so resisting.

Bynkershoek does not discuss the question at length, Bynkershoek. but mentions incidentally, and as a thing uncontested, the right of stopping a neutral vessel, in order that it may appear, not from the flag, which may be fraudulently assumed, but from the ship's papers, whether the vessel be really neutral. (1)

Of Valin.

Valin says, that refusal to shorten sail and submit to search, on the part of a merchant vessel, when summoned by a commissioned vessel, entails confiscation. (2)

(1) Quæst. Jur. Pub. lib. I. cap. XIV.

(2) Ordonn. de la Mar. liv. III. tit. IX. art. XII. This article Valin says, was merely a renewal

of the article LXV. in the ordonnance of 1584, and was similar to the Spanish ordonnance of 1718.