The Laws of War, Affecting Commerce and Shipping

by H. Byerley Thomson

Since the completion of the Second Edition of this work, two very important Orders in Council, (dated April 15th, 1854,) have been published. Before proceeding to explain the intended effect of these Orders, it will be well to state that the consent of both the Allies of England in this war is necessary to give full validity to the Orders.

It is a very old principle that, during a conjoint War, no subject of an ally can trade with the common enemy without liability to forfeiture, in the prize courts of the ally, of all his property engaged in such trade. This rule can be relaxed only by the permission of the allied nations, according to their mutual consent.[212]

Lord Stowell lays down the principle in much broader terms, thus—

"It has happened, since the world has grown more commercial, that a practice has crept in of admitting particular relaxations; and if one state only is at war, no injury is committed to any other state. It is of no importance to other nations how much a single belligerent chooses to weaken and dilute his own rights; but it is otherwise when allied nations are pursuing a common cause against a common enemy. Between them it must be taken as an implied, if not an express contract, that one state shall not do anything to defeat the general object. If one state admits its subjects to carry on an uninterrupted trade with the enemy, the consequence may be that it will supply aid and comfort to the enemy; especially if it is an enemy very materially depending on the resources of foreign commerce, which may be injurious to the prosecution of the common cause, and the interests of its ally. It should seem that it is not enough, therefore, to say that one state has allowed this practice to its own subjects; it should appear to be at least desirable, that it could be shown that the practice is of such a nature that it can in no way interfere with the common operations, or that it has the allowance of the confederate state."[213]

Trade with the enemy has always been held to be a direct interference with the common operations of the war, and indirect trade has been regarded with as much jealousy as direct trade. If Lord Stowell is to be trusted, this country cannot in any way waive its belligerent rights, without the consent of its ally; so that it is quite in the option of France at any time to withdraw its assent, or to modify it in terms, and thus bind English merchants to the terms of their assent.

The intended effect of these Orders is well described in the Times, of April 21st, 1854.

"The Order in Council of the 15th April, 1854, recites, in the first instance, Her Majesty's declaration made on the opening of the war; but it then goes on to enact not only that enemies' property laden on board neutral vessels shall not be seized, but that all neutral and friendly ships shall be permitted to import into Her Majesty's dominions, all goods and merchandizes whatsoever, and to export everything in like manner, except to blockaded ports, and except those articles which require a special permission as being contraband of war. But this liberty of trade is not confined to neutrals. It is further ordered, that, with the above exceptions only, British subjects shall have free leave to. trade 'with all ports and places wherever situate,' save only that British ships are not permitted to enter the ports of the enemy. The effect of this Order is, therefore, to leave the trade of this country with neutrals, and even the indirect trade with Russia, in the same state it was in during peace, as far as the law of our courts maritime is concerned; and the doctrine of illegal trading with the enemy is at an end.[214] The restrictions henceforth to be imposed are solely those arising out of direct naval and military operations, such as blockade, and those which the enemy may think fit to lay upon British and French property. As far as we are concerned, except that British ships are not to enter Russian ports—which it is obvious that they could not do without incurring the risk of a forfeiture of their property and the imprisonment of their crews—the trade may be lawfully carried on in any manner which the ingenuity and enterprise of our merchants can devise. In order to facilitate the removal of British property from the ports of the Baltic and the White Sea, which were frozen up at the date of the Order of the 29th of March, further leave has been given to Russian vessels to come out of those ports, if not under blockade, until the 15th of May; as, in fact, it is only by taking up Russian ships that British property in those ports is likely to be removed, as neutrals will not enter them from fear of the blockade.

"It is not easy to convey to the mind of the mercantile classes of the present generation, who have had no practical experience of the state of war, the extent of the change which is thus effected in their favour. The vigilance of our cruisers and the acuteness of our lawyers were incessantly employed in all former contests in tracking out the faintest scent of enemy's property on board every vessel met on the seas. The character of enemy's property was regarded as an infection, and reprobated with all the terms originally reserved for guilty practices. The mercantile ingenuity of the country, pressed by the increased demand and exorbitant prices of prohibited articles, was strained to evade by every species of fraud these prohibitions, and a warfare was carried on within our own courts of justice between the pitiless exactions of the laws of war and the irresistible impulse of the laws of trade. To allay, in some degree, the inconveniences of this system, and to provide by legal means some of those commodities which it was for the public interest to purchase, the English and French Governments were driven, even during the height of the Continental System, to the granting of licences. But here again fresh abuses of every kind arose. These licences were an authorized mode of evading that very prohibition which the belligerents conceived it to be for their interest to maintain. They conferred a monopoly on the holder of the licence, which enabled him to sell his cargo of French wines or French silks at a prohibition price; and the law books of the time are still full of the endless litigation and fraud to which these practices gave rise.

"From all these evils we trust that the Order in Council of the 15th April has permanently relieved us, and the change it is calculated to bring about in the state of war is not of inferior importance to that which marked the transition from Protection to Free Trade in the state of peace. The system of licences is at an end, for all the liberty of trade with the enemy which it is in the power of the Government to confer at all, is thus conferred at once, and indiscriminately upon all; and, unless the Russian Government find means to maintain a prohibitive system on their frontiers, we hope that the supply of raw material from that country will not be reduced to scarcity."

In addition, however, to this very lucid explanation, it may be added, that it might become necessary to grant licences to trade directly (with the consent of our allies) to the Russian ports.