unchanged whether their provisions be specifically renewed or not, in later Treaties, except in so far as they are derogated from by subsequent conventions. But it will be morally impossible to contend with success that provisions respecting a particular subject, forming an exception to the general law, which have not been renewed in later Treaties naturally connected with the subject, can be holden, either by the usage of nations or by the reason of the thing, to be any longer in force.

CCVI. Up to the period of the present war, Great Britain has not renewed any of the few Treaties by which she formerly engaged herself to maintain the principle that "free ships make free goods;" but, on the contrary, she has withdrawn from her most ancient and favoured ally, Portugal, the privilege which on this subject she had once accorded to her. This privilege was abrogated by the Treaty of 19th February, 1810;(h) and in the Treaty between the two countries, *namely, that of July [*291] 13, 1842, it is expressly stipulated that the reciprocal liberty of commerce and navigation stipulated for in the present Treaty shall not be extended to contraband of war, nor to objects belonging to the enemies of either party; and it is hereby notified, that the license hitherto allowed by former Treaties to the ships of both countries to transport any objects of merchandize belonging to the enemies of either country is henceforth abandoned and renounced."(1)

During the whole of this century, therefore, up to the period of the present war, England has either incorporated into her Treaties, as with Russia in 1801, and Portugal in 1842, a positive negation of the doctrine that free ships do make free goods, or has preserved an entire silence upon the subject, and therefore, according to the soundest principles of International Jurisprudence, has reserved to herself all the rights accruing to her from the general law.

CCVII. Since the Treaty of Vienna, various Treaties have been contracted between the European and the South American States, and between the different States themselves on the American Continent.(k)

The United States of North America, in their earliest negotiation with the different States of South America, proposed the establishment of the principle of free ships make free goods between all the Powers on that continent. In practice, however, the United States of North America have introduced this very important and significant qualification, namely, that the new rule is to be understood "as applying to those Powers only who recognize this principle; but if *either of the two contract[*292] ing parties shall be at war with a third, and the other neutral, the flag of the Neutral shall cover the property of enemies whose Government acknowledges the same principle, and not of others."

This extract is from a Treaty between the North American United

(h) Art. XXVI.

(i) Art. XIII. De Martens, N. R., t. iii. p. 327. In Oliver Cromwell's Treaty with Portugal, June 10, 1654, art. xxiii., it was said, "Omnia autem hostium alterutrius bona mercesve in naves partis alterutrius eorumve populi aut subditorum impositæ intacta sint."-Dumont, Corps Diplom., t. vi. pt. 2, p. 84. This provision was continually renewed with Portugal till 1842.

(k) United States' Statutes at Large, vol. viii. pp. 262, 312, 328, 393, 437, 472, 490.

States and the Republic of Columbia ;(7) but the restriction, which had been previously incorporated into the Treaty of 1819, between Spain and the North American United States, has been subsequently inserted, in most if not all the Treaties between the North American United States and the States of South America,(7) and indeed between the North American United States and the European States with the exception of England. It is remarkable, that though the subject was matter of discussion between these two Governments, the important Treaty of Washington was concluded August 8, 1842, without any reference to it.(m)

CCVIII. France, in her Treaty with Texas, revived her old doctrine, enemy's ships enemy's goods, though she conceded that free ships made free goods.(n) This is a fact well worthy of observation at the present time.

CCIX. At the breaking out of the present European war (1855,) England found herself in close alliance, offensive and defensive, with France. They were to wage war together, both by sea and land. It was therefore supposed to be necessary that there should be an agreement between them as to the question, (o) which has been so long under our consideration, *of the exercise of belligerent rights towards Neutrals. The result was a compromise. France abandoned [*293] her doctrine, that enemy's ships made enemy's goods. England agreed to allow, during her alliance with France in the present war, the doctrine that free ships made free goods. But she scrupulously and expressly declared that in so doing she "waived a part of the belligerent rights appertaining to her by the Law of Nations." It will be seen, therefore, from the principles already laid down in this work, (p) as well as from the reason of the thing, (q) that England has retained unimpaired her belligerent right upon this important subject.(r) In the communications which have passed on this subject between England and the North

(k) Art. XII. of Treaty, October 3, 1824.

(2) Wheaton's Elm., pp. 530-1-2-3. (Ed. Lawrence, 1855.) De Martens, N. R., vi. pp. 826, 991. Ib., Nouveau Suppl. t. ii. p. 412. 4th September, 1816, with Sweden, art. xii.-De Martens, N. R., iv. p. 258. Ibid., July 4, 1827.-De Martens, N. R. vii. p. 278. With Prussia, May 1, 1828, (art. xii.) vii. 615.

(m) Wheaton's Hist., pp. 669-739.

(n) De Martens, N. R., xvi. p. 988. (0) Upon other points, it will be seen hereafter, considerable differences still remain.

(p) Vide ante, as to the effects of protests, vol. i. pp. 308-9.

(g) Vide ante, vol. i.

(r) A debate upon this subject took place in the House of Commons on the 4th of July, 1854, (motion of Mr. George Phillimore.) The House was remarkably thin from the commencement of the debate, and was counted out, forty members not being present after a few speeches. The conduct of the Government was defended by only one minister, and whose office (that of Chief Commissioner of Public Works) had no connection with the matter discussed. The Ministerial leader of the House of Commons was absent; the Foreign Office was not represented. The First Lord of the Admiralty was present, and did not speak, but signified, in the usual parliamentary manner, his approval of the statement, that England had only waived for the present her unquestionable belligerent right. This was not denied by the minister who did speak, and who in fact rested his case upon this ground; though in the course of his oration, he seemed to intimate his private opinion, in favour of the doctrine that free ships make free goods.

American United States, the minister of the latter country observed in his reply, "Nowithstanding the sincere gratification which Her Majesty's declaration has given to the President, it would have been enhanced if the rule alluded to had been announced as one which would be observed, not only in the present, but in every future war in which Great Britain shall be a party."(s)

[*294]

*The Declaration is as follows:-
:-

"Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, having been compelled to take up arms in support of an ally, is desirous of rendering the war as little onerous as possible to the Powers with whom she remains at peace.

"To preserve the commerce of Neutrals from all unnecessary obstruction, Her Majesty is willing, for the present, to waive a part of the belligerent rights appertaining to her by the Law of Nations.

"It is impossible for Her Majesty to forego the exercise of her right of seizing articles contraband of war, and of preventing Neutrals from bearing the enemy's despatches; and she must maintain the right of a belligerent to prevent Neutrals from breaking any effective blockade which may be established with an adequate force against the enemy's forts, harbours, or coasts.

"But Her Majesty will waive the right of seizing enemy's property laden on board a neutral vessel, unless it be contraband of war.

"It is not Her Majesty's intention to claim the confiscation of neutral property, not being contraband of war, found on board enemies' ships; and Her Majesty further declares, that being anxious to lessen as much as possible the evils of war, and to restrict its operations to the regularly organized forces of the country, it is not her present intention to issue letters of marque for the commissioning of privateers." (t)

A declaration of Her Majesty, dated the 15th of April, 1854, further extended the privilege upon this subject, already accorded to Neutrals. "It is this day ordered, by and with the advice of her Privy Council, that all vessels under a neutral or friendly flag, being neutral or friendly property, shall be permitted to import into any port or place in [*295] Her Majesty's dominions all goods and merchandize whatsoever, to whomsoever the same may belong; and to export from any port or place in Her Majesty's dominions to any port not blockaded, any cargo or goods, not being contraband of war, or not requiring a special permission, to whomsoever the same may belong.

"And her majesty is further pleased, by and with the advice of her Privy Council, to order, and it is hereby further ordered, that, save and except only as aforesaid, all the subjects of her majesty, and the subjects or citizens of any neutral or friendly State, shall and may, during and notwithstanding the present hostilities with Russia, freely trade with all ports and places, wheresoever situate, which shall not be in a state of blockade, save and except that no British vessel shall, under any circum

(s) Wheaton's Elm. (ed. Lawrence,) p. 539, note. In 1823 and 1826-7 vain attempts were make to adjust this question between England and N. A. United States, ib., p. 535.

(t) Westminster, March 28, 1854.

stances whatsoever, either under or by virtue of this order or otherwise, be permitted or empowered to enter or communicate with any port or place which shall belong to or be in the possession or occupation of her majesty's enemies."

CCX. As the end of all war is peace, the expediency of abandoning or retaining a belligerent right ought to be chiefly ascertained by the tendency of the exercise of that right to delay or to hasten the return of peace; judged by this criterion, it may, to say the least, reasonably be doubted whether the waiver of the belligerent right under discussion has been an encouraging or successful experiment. The trade of Russia has been carried on during the present war, with comparatively small injury to her, by Prussia; the ports of the two countries, owing to the close neighbourhood and easy inland transit by railway between them, have been practically identical; thereby the pressure of the belligerent force has been materially weakened, the continuance of the horrors and evils of war much prolonged, and the return of the normal state of peace greatly delayed, not to mention the inducement to Neutrality which her increased commerce has offered to Prussia at a period when it was the professed object of the allies to form a general league of the

*great European Powers against Russia as the one aggressor, [*296]

and the great facility which has been afforded to the carriage of contraband.

CCXI. There are some miscellaneous points which should be noticed before we pass from the present subject: they relate to the decisions of International Tribunals with respect to the ships and goods of nations with whom Treaties authorizing the new maxim subsist.

It has been decided in the Prize Courts both of Great Britain and the United States of North America,(x) that the privilege of the neutral flag to protect enemy's property, whether the result of Treaty stipulations, or municipal ordinances, however comprehensive may be the terms in which it may be expressed, cannot be interpreted to extend to the fraudulent use of that flag to cover enemy's property in the ship as well as the cargo.(y)

The Treaty of 1654, between England and Portugal, embodied the two maxims of enemy's ships enemy's goods, and free ships free goods. But it was decided by Lord Stowell that the clause in the article which condemns the goods of either nation found on board the ships of the enemy of the other contracting party could not be fairly applied to the case of property shipped before the contemplation of war. "It did not follow," Lord Stowell observed, "that because Spanish property put on board a Portuguese ship would be protected in the event of the interruption of war, therefore Portuguese property on board a Spanish ship should become instantly confiscable on the breaking out of hostilities with Spain; that in one case the conduct of the parties would not have been different if the event of hostilities had been known. The cargo was entitled to the protection of the ship generally by this stipulation of the

(x) Wheaton's Elm. (ed. Lawrence, 1855,) p. 531.

(y) The Cittade de Lisboa, Robinson's Adm. Rep., vi. p. 358. The Estern, Dallas's (Amer.) Rep., vol. ii. p. 34.

Treaty, even if shipped in open war; and à fortiori, if shipped under *circumstances still more favourable to the Neutrality of the [*297] transaction. In the other case, there might be reason to suppose that the Treaty referred only to goods shipped on board an enemy's vessel in an avowed hostile character; and that the neutral merchant would have acted differently, if he had been apprised of the character of the vessel at the time when the goods were put on board.”(z)

COLONIAL AND COASTING TRADE.-RULE OF 1756.

CCXII. IT has been stated that it is perfectly competent to a Neutral to carry on a general trade with either belligerent; but we now approach the discussion of a question, (a) which at one time much agitated both Europe and America, which recent alterations, both in the colonial system and the navigation laws of many countries, especially of England,(6) have stripped in great measure, of its former importance, but which cannot, nevertheless, be passed by, because it is impossible to say what may be the future policy of nations with respect to the coasting trade, and also because the principle which lies at the root of the question demands a statement and examination in a work of this description.

This question, generally stated, is, whether it be lawful for a Neutral to carry on in time of war, with a Belligerent, a trade which he is not allowed to carry on in time of peace.

CCXIII. The practical shapes in which this abstract question became embodied, were :—

[*299]

*1. The carrying on by the Neutral of the trade between the belligerent mother country and the colonies.

2. The carrying on the coasting trade of the Belligerent-such trade being confined in time of war to the Belligerent's subjects.

3. The carrying on the trade by a Neutral from a port in his own country to a port of the colony of the Belligerent.

4. The carrying on by a Neutral of a trade between the ports of the Belligerent, but with a cargo from the Neutral's own country.

It is necessary to bear in mind the distinction between these separate propositions: because while the two former have obtained, under the title of the Rule of the War of 1756, the approbation of the best authorities in England and America, the two latter propositions have been

(2) The Marianna, 6 Robinson's Adm. Rep., p. 28.

(a) Lee on Captures (1803,) first published 1759, p. 131. Manning, chap. v. Wheaton's (Amer.) Reports, vol. i., App., note 3, on the Rule of the War, 1756. Wheaton's Elements (ed. Lawrence,) p. 572. Judge Story's Life, vol. i. pp. 287288. (London, 1851.)

(b) During the present war, the Rule of 1756 is superseded by the Order in Council of the 15th of April, 1854, allowing Neutrals to trade to all ports and places, wheresoever situated, that are not in a state of blockade.