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)

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*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 cntitled 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."

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*CHAPTER XI.

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,(b) 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 :—

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*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.)

(6) 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.

powerfully attacked by the United States of North America, as being vicious corruptions of a sound principle of International Law.

CCXIV. It is not a matter worthy of much controversy, whether or no the Rule of 1756 was ever practically enforced before that year. It is unquestionable that its practical enforcement then first attracted general notice. But it is a matter well worthy of consideration whether the rule, whensoever practically enforced, was or was not founded upon a sound principle of International Law, upon a just view of the mutual relations of Neutral and Belligerent.

CCXV. Judge Story and Mr. Wheaton (c) give a faithful sketch of the circumstances which accompanied its introduction in 1756. They say with truth, that

"The rule commonly called the Rule of 1756, (d) acquired *this

denomination, from its having been first judicially applied by the [*300] Courts of Prize in the war of that period. The French (then at war with Great Britain,) finding the trade with their colonies almost entirely cut off by the maritime superiority of the British, relaxed their monopoly of that trade, and allowed the Dutch (then neutral) to carry on the trade between the mother country and her colonies, under special licenses or passes, granted to Dutch ships for this special purpose, excluding, at the same time, all other Neutrals from the same trade. Many Dutch vessels, so employed, were captured by the British cruisers, and, together with their cargoes, were condemned by the Prize Courts, upon the just and true principle, that by such employment they were, in effect, incorporated into the French navigation, having adopted the character and trade of the enemy, and identified themselves with his interests and purposes. They were, in the opinion of these courts, to be considered like transports in the enemy's service, and hence liable to capture and condemnation, upon the same principle as property condemned by way of penalty for resistance to search, for breach of blockade, for carrying military persons or despatches, or as contraband of war. In all these cases the property is considered, pro hâc vice, as enemy's property, as so completely identified with his interests as to acquire a hostile character. So, where a Neutral is engaged in a trade which is exclusively confined to the subjects of a country, in peace and in war, and is interdicted to all others, and cannot be avowedly carried on in the name of a foreigner, such a trade is considered so entirely national, that it must follow the hostile situation of the country.(e)

CCXVI. The Rule of the War of 1757,(ƒ) or of the Seven Years' War, was intermitted during the war between Great *Britain and her American colonies; but on the ground that, a short time

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(c) I mention both, because it will be seen from Judge Story's Life (vol. i. p. 288,) that both were concerned in the composition.

(d) For judicial opinions on this rule, see-Berens v. Rucker, 1 William Blackstone's Reports, p. 314, (published 1781); opinion of Lord Mansfield. Brymer v. Atkins, 1 Henry Blackstone's Reports, 191, (published 1791); Lord Loughborough's opinion.

1 Wheaton's Rep., p. 506; App., note 3. Story's Life, vol. i. p. 288. f) See the case of the Dutch ships considered by James Marriott, LLD. (published 1759; fourth edition, 1778.) London. 4 Robinson's Adm. Rep., App. A. AUGUST, 1857.-16

before the breaking out of hostilities, France had declared that she had abandoned the principle of monopoly, and meant, as a permanent regulation, to admit neutral merchants to trade with her colonies in the West Indies. It was considered by the British Prize Court of Appeal in 1801, that this conduct of France at the particular juncture of the American War had manifestly been adopted for the sake of avoiding the application of the principle which she clearly understood to be warranted by International Law.(g)

In the war of 1793, the first set of instructions to British cruisers were certainly framed, not on the exception of the American War, but upon the antecedent practice.(h)

But it is clear, from the judgments of the Admiralty Court-both the very early decisions of Lord Stowell, and the last of his immediate predecessor-that at first the Rule of 1756 was slowly and mildly restored to its supremacy.(i) At the same time the principle upon which it was founded was vindicated in various judgments delivered by Lord Stowell in a manner which it is easier to cavil at than to refute.

CCXVII. It is the usual practice of the Prize Court (acting on a rule in the Consolato del Mare,) to give freight to the neutral carrier of enemies' goods that are seized. In a case in which a Neutral had been captured for carrying on the coasting trade of the enemy, it was contended before Lord Stowell, that the freight was not due to the proprietors of this vessel; that she was a Danish ship, employed in the transmission of Spanish goods from one Spanish port to another, and so carrying on the coasting trade of that *country. "In Great Britain," the learned [*302] Judge observed, "it had long been the system, that the coasting trade should only be carried on by our own navigation. That in all the rage of novel experiment that had dictated the commercial regulations of France in its new condition, this policy had been held sacred. It had been enacted by a decree, 21st of September, 1793, that no goods, the growth or manufacture of France, should be carried from one French port to another, in foreign ships, under pain of confiscation.(k) The same policy had directed the commercial system of other European countries; in the ordinary state of affairs, no indulgence was generally permitted to the ships of most other countries to carry on the coasting trade; that, therefore, the onus probandi at least lay on that side, and always made it necessary to be shown by the claimants that such trade was not a mere indulgence and a temporary relaxation of the coasting system of

(g) 4 Robinson's Adm. Rep., p. xi. App. (h) Order in Council, November, 6, 1793.

1806-7.

64 January 8, 1794.

แ January 25, 1798.

(( Finally merged in the retaliatory Orders in Council of

(i) The Welwaart, 1 Robinson's Adm. Rep., p. 124. The Speculation, 2 Robinson's Adm. Rep., p. 293.

(k) "Les bâtimens étrangers ne pourront transporter d'un port Francais, à un autre port Français, aucunes denrées, productions, ou marchandises des cru, produit, ou manufactures de France, colonies ou possessions de France, sous les peines portées par l'article 3 Loi, contenant l'acte de navigation, 21st Septembre, 1793 (i. e., confiscation des bâtimens et cargaison, et de 3000 liv. d'amende,") &c.