the Commercen,(t) alluded to the Rule, but purposely avoided expressing any opinion on the correctness of the principle; and the Chancellor winds up his observations by saying: "It is very possible, that if the United States should attain that elevation of maritime power and influence which their rapid growth and great rescources seem to indicate, and which shall prove sufficient to render it expedient for her maritime enemy (if any such enemy shall ever exist,) to open all his domestic trade to enterprising Neutrals, we might be induced to feel, more sensibly than we have hitherto done, the weight of the arguments of the foreign Jurists in favour of the policy and equity of the Rule."(u) The opinion of Judge Story, it will be seen, is strongly in favour of the legality of the principle of the Rule of 1756, though opposed to the extension of it.(x) Vattel's opinion(y) is clear and decided, that so long as Neu[*308] trals *only continue their customary trade, they exercise a right which they are not bound to sacrifice to the Belligerent. Hübner, the neutral champion at all risks,(z) in dealing with this question, gives a strange proof of his partiality to his clients. "Neutrals," he says, "have a right to trade in war as in peace.”—Bien entendu qu'ils ne sortent point de leur caractère; qu'ils ne trafiquent avec les nations belligérantes que comme en temps de paix." But there is a difficulty, he adds, about the colonial trade of the Belligerent: true, it is notoriously closed to the Neutral in time of peace; true it is only open to him in war, and “à cause de la guerre ;" nevertheless (he whimsically adds,) "je ne vois pas pourquoi les sociétés souveraines, qui sont neutres, devroint se refuser un bénéfice considerable qui se présente." A very honest, if not a very creditable avowal of the Rule which, in his opinion, should guide the consciences of neutral Governments.(a) The(b) French Réglement, both of July, 1704, and of October, 1744, enforced, in the severest manner, the principle contained in the Rule of 1756. CCXXII. But little, if any, light upon the question is thrown from the examination of Treaties. Independent States have pursued no con (t) 1 Wheaton's Reports, p. 396. (x) Vide infra, p. 309. (u) Kent's Com., vol. i. pp. 90-92. 80-82 (y) L. iii. c. vii. s. 3. (The words are remarkable.) suivre tout uniment à leur commerce, elles ne se déclarent point par-là contre mes intérêts; elles exercent un droit que rien ne les oblige de me sacrifier." Π (z) "M. Hübner, dans son Traite de la Saisie des Bâtimens Neutres, t. i. pt. ii. c. 2, ss. 5, et suiv., depuis la page 207, jusqu'à la 226, fait plus, car il entreprend de prouver fort sérieusement que le pavillon neutre couvre toute la cargaison, quoiqu'elle appartienne à l'ennemi, ou qu'elle soit chargée pour son compte, de manière qu'il n'en excepte que les effets de contrabande. Mais cet auteur est absolument décidé pour les Neutres et semble n'avoir écrit que pour plaidre leur cause. pose d'abord ses principes, qu'il donne pour constants; puis il en tire les conséquences qui lui conviennent. Cette méthode est fort commode. On commencera par lui demander sur quoi il établit que les marchandises ennemies sont exemptes de saisies sur un bâtiment neutre? Au surplus, par nos loix, cette saisie est autorisée; nous devons nous y tenir."-Valin, Traité des Prises, c. v. s. 5, 5. (a) De la Saisie des Bâtimens Neutres, tom. i. chap. iv. sec. 6. Manning, p. 200. (b) Valin, Ord. de la Marine, t. ii. pp. 248-251. [*309] sistent course upon this subject. It appears, (c) that in 1674, the English being Neutrals, and the Dutch Belligerents, the latter contended that the English Treaty with them, by which it was stipulated that the ship covered the cargo, did not authorize England to carry on a trade between one enemy's port and another. Sir William Temple, however, maintained that the Treaty justified this kind of trading, and in this position the Dutch finally acquiesced.(d) Since that time, several Treaties have included provisions on this question, some permitting and some disallowing such traffic. Thus, in 1675, the year after the negotiation just mentioned, a Treaty between England and Holland declared that such trade between enemies' ports was allowable to the subjects of the contracting parties, whether the said ports belonged to the same Sovereign or to two different Sovereigns.(e) The same stipulation occurs in the Treaty between Holland and Spain in 1676(ƒ) and 1679.(g) The trade is allowed in the Treaties of Utrecht, between France and England, and between France and Holland ; (h) and in the Treaty between Holland and Russia, in 1715;(i) in the Treaty between Spain and the Empire, in 1725.(k) In several more recent Treaties, such trade is allowed to either contracting party; for instance, in the Treaty between France and the North American United States, in 1778;(7) in that between Sweden and the North American United States, in 1783;(m) in that between Great Britain and France, in 1786;(n) and in that between Spain *and the North American United States, in 1795.(0) On the other hand, such trade is declared unlawful [*310] in the Treaty between England and Denmark in 1691;(p) in the Treaty between Prussia and Sweden, in 1762; (g) and in the Treaty between Great Britain and Russia, in 1801.(r) CCXXIII. But it was not only of the principle of the Rule itself, but of the extension given to it by judicial decisions, that the North American United States complained. This remark brings us to the two latter of the four propositions which have been mentioned,(s) namely, (3.) the carrying on by a Neutral of a trade 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. CCXXIV. The North American United States(t) complained that the decisions of the British Prize Courts and the instructions of the British Government had, either upon the principle of affecting the return voyage of a neutral vessel so engaged with the penalty, or upon the principle of the continuity of the voyage, upon one or other of these two assump (e) Manning, pp. 198-9, to whom I am indebted for the following remarks in this paragraph. (d) Courtenay's Life of Temple, vol. i. pp. 433-434. (k) Ib., VIII. ii. p. 115. (m) Ib., III. p. 568. (h) Ib., VIII. i. pp. 348-380. (f) Ib., p. 325. (i) Ib., p. 469. (r) Ib., VII. p. 272. (1) Wheaton's (Amer.) Rep., vol. i. p. 531, App. tions, so applied the Rule of 1756, as to cut off the exportation of the produce of the enemy's colonies from neutral countries, into which it had been imported, unless the produce had become incorporated into the general stock of national commodities, according to certain rules prescribed to break the continuity of the voyage, and which rules they denounced as fluctuating(u) and uncertain. CCXXV. The writer of these pages is inclined to accept the opinion of Judge Story, as being on the whole a *judicial result of the [*311] evidence both as to fact, and the law respecting the decisions of the British Prize Courts upon this rather delicate subject. That most accomplished and learned American Jurist and Judge, writing to Mr. Wheaton in 1816, observes :-" My own private opinion certainly is, that the coasting trade of a nation, in its strict character, is so exclusively a national trade, that Neutrals can never be permitted to engage in it during war, without being affected with the penalty of confiscation. The British have unjustly extended the doctrine to cases, where a Neutral has traded between ports of the enemy, with a cargo taken in at a neutral country. I am as clearly satisfied that the colonial trade between the mother country and the colony, where that trade is thrown open merely in war, is liable in most instances to the same penalty. But the British have extended this doctrine to all intercourse with the colony, even from or to a neutral country, and herein it seems to me they have abused the rule. This at present appears to me to be the proper limits of the rule, as to the colonial and coasting trade; and the Rule of 1756 (as it was at that time applied,) seems to me well founded; but its late extension is reprehensible."(x) Those who defer on the whole, as the writer of these pages does, to this opinion, may yet observe, that the instructions of the crown, and the decisions of the British Prize Court, allowed to Neutrals considerable relaxations from that strict rule which prohibited all intercourse between the Neutral and the colony of the belligerent. Soon after the commencement of the war, which broke out in 1793, the first set of instructions issued by England, were framed, not on the exception already referred to, of the American war, but on the antecedent practice, and directed cruisers "to bring in for lawful adjudication, all vessels laden with goods, the produce of any colony of France, or [*312] *carrying provisions or supplies for the use of any such colony." The relaxations that have since been adopted, have originated chiefly in the change that has taken place, in the trade of that part of the world, since the establishment of an independent government on the continent of America. In consequence of that event, American vessels had been admitted to trade in some articles, and on certain conditions, with the colonies both of this country and of France. Such a permission had become a part of the general commercial arrangements, as the ordinary state of their trade in time of peace. The commerce of America was, therefore, abridged by the foregoing instructions, and debarred of the (u) Upon the point of continuity, see-The Maria, 5 Robinson's Adm. Rep., p. 365. The William, ib., p. 385. (x) Life and Letters of Joseph Story, vol. i. p. 287. right generally ascribed to neutral trade in time of war, that it might be continued, with peculiar exceptions, on the basis of its ordinary establishment. In consequence of representations made by the United States Government to this effect, new instructions to our cruisers were issued, 8th January, 1794, apparently designed to exempt North American ships trading between their own country and the colonies of France. The directions were, "to bring in all vessels laden with goods, the produce of the French West India Islands, and coming directly from any port of the said Islands to any port in Europe."(y) (y) 4 Robinson's Adm. Rep., App. A., p. iii. Adm. Rep., p. 142. The Immanuel, ib., p. 197. p. 138. See also the Providentia, 2 Rob. A neutral American ship, captured on a voyage from an enemy colony to a neutral island, both in the West Indies, though not the port of the proprietors of the ship or cargo, was restored. The Hector and the Sally (before the Lords of Appeal,) 4 Robinson's Adm. Rep., App. A., pp. 14, 15, and note. The leading cases in the British Prize Court upon the subject of this chapter are well classified by Mr. Pritchard in his Analytical Digest of Admiralty Cases. London, 1847. (1.) Colonial Trade generally :-The Calypso, 2 Robinson's Adm. Rep., p. 154. The Phoenix, 3 Ib., p. 186. The Star, Ib., p. 193, n. The Rose, 2 Ib., p. 206. *The Immanuel, 2 Robinson's Adm. Rep., p. 205. The New Ad- [*313] venturer, and also the Oxolen (before the Lords of Appeal,) 4 ib., App. A., p. 4, n. The Minerva, 3 ib., p. 229. The Anna Dorothea, ib., p. 229, n. The Jonge, 3 ib., p. 332, n. The Whilelmina (before the Lords of Appeal,) 4 ib., Appendix A., p. 4, and note, pp. 12-13. -The (2.) Of the relations therein allowed by Great Britain: (a) Generally :— Providentia, 2 Robinson's Adm. Rep., p. 142. The Immanuel, ib., p. 197. The Margaretha Magdalena, ib., p. 138. The Hector and the Sally (before the Lords of Appeal,) 4 ib., Appendix A., pp. 14, 15, and note. The Lucy, ib., p. 14. The Charlotte (before the Lords of Appeal,) ib., p. 13. The Conferenzrath, 6 Ib., p. 362. (b) As dependent on the question of the continuity of the voyage:-The Polly, 2 Robinson's Adm. Rep. p. 361. The Immanuel, ib., p. 197. The Mercury (before the Lords of Appeal,) 4 ib., Appendix A., p. 6. The Eagle, ib. The Maria, 5 ib., p. 365. The William, ib., p. 385. The John, 1 Acton's Rep., p. 39. The Star, 3 Robinson's Adm. Rep., p. 193, n. (3.) Of the principles applicable to, as to settlements in the East Indies:-The Juliana, 4 Robinson's Adm. Rep., p. 328. The Patapsco, 1 Acton's Adm. Rep., p. 270. The Rebecca, 2 Ib., p. 119. (4.) Under extraordinary and privileged contracts with the parent State :-The Anna Catharina, 4 Robinson's Adm. Rep., p. 107. The Rendsborg, ib., p. 121. Coasting Trade :-The Emanuel, 1 Robinson's Adm. Rep., p. 302. The Speculation, 2 ib., p. 293. The Welvaart, 1 ib., p. 124. The Johannah Tholen, 6 ib., p. 72. The Ebenezer, ib., p. 252. The Schooner Sophie, ib., p. 251, n. *The Thomyris, Edward's Adm. Rep., p. 17. The Two Brothers, 2 Acton's [*314] Adm. Rep., p. 38. The Cora, ib., p. 44. The Yonge Jan, and other ships, 6 Robinson's Adm. Rep., p. 42, n. Fishing Trade:-The Ospray, cited in the Vigilantia, 1 Robinson's Adm. Rep., p. 14. The Young Jacob and Johanna, ib., pp. 20-1. The Susa, 2 ib., p. 251. Other cases-The William and Grace, and cases therein cited, Hay and Marriott, p. 76. The Belle Sauvage, cited in the Friendship, ib., p. 79. The Sally, ib., p. 83. The Friendship, ib., p. 78. The Commerce, ib., p. 80. The Rebecca, ib., p. 197. The Jeane Isabelle, ib., p. 186. The Maria, 6 Robinson's Adm. Rep., p. 201. The Charlotte Sophia, ib., p. 204, n. The Lisette, ib., p. 394. The Mercurius, Edward's Adm. Rep., p. 53, and the Minna, therein cited. Exemptions, under Treaties, from the penalties of: (1.) Where allowed, et contra. The Ringende Jacob, 1 Robinson's Adm. Rep., p. 89. The Catherina Joanna, 6 ib., p. 42, n. Practice in cases of:-Vreede, 5 Robinson's Adm. Rep., p. 231. *PART THE TENTH. [*315] *Ꮲ Ꭺ Ꭱ CHAPTER I. CONTRABAND. CCXXVI. IT cannot be too emphatically declared that it is the unquestionable right of the Neutral to carry on a general trade with the Belligerents. In their war with Spain, in 1599, the Dutch put forth an unlawful notification (placaart) to the world, whereby, as their historian Grotius says, per edictum vetant populus quoscunque ullus commeatus resve alias in Hispaniam ferre; si qui secus faxint, ut hostibus faventes vice hostium futuros."(a) And, as we have seen in the last chapter, a most unjust attempt of a similar character was made by the allied forces of the English and the Dutch during the war waged by the English King William the Third against Louis the Fourteenth; and, as we have also seen, the clause in the Treaty of Whitehall(b) of August 12, 1689, which incorporated this vicious principle, was shortly afterwards annulled; the injustice of the principle was acknowledged, and the claim founded on it abandoned. The French Ordonnance of 1704, containing a similar principle, was not justified, but in some degree at least palliated, by the fact of its being retaliatory to this unlawful Treaty. *It cannot, I think," says Lord Liverpool, "be doubted, [*316] that, according to those principles of natural equity which constitute the Law of Nations, the people of every country must always have a right to trade in general to the ports of any State, though it may happen to be engaged in war with another, provided it be with their own merchandise, or on their own account; and that, under this pence, they do not attempt to screen from one party the effects of the ther; and, on condition also that they carry not to either of them amplements of war or whatever else, according to the nature of their respective situations or the circumstances of the case, may be necessary to them for their defence. As clear as this point may be, it has sufficiently appeared, by the facts deduced above, that, amid the irregularities of war, the rules of equity, in this respect, were not always enough regarded; and that many governments in time of war have often most licentiously disturbed, and sometimes prohibited totally, the commerce of neutral nations with their enemies."(c) (a) Grot., Hist., 1. viii. (b) It is remarkable (as Lord Liverpool, in his Essay on the Conduct of Great Britan, observes) that Puffendorf, who owed everything to the Northern Crowns, thought this Convention justifiable.-See Puffendorf's Letter in J. Groningii, Bibliotheca Universalis. (c) Lord Liverpool, On the Conduct of the Government of Great Britain in respect to Neutral Nations, pp. 56-7. |