"to its time-honoured principles, and respects the private property of enemy citizens "(e).

The writer next refers to certain statutes passed by Congress and ratified by the President, under which private property may be confiscated:

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“The confiscation measures" (he says)" of 1861 and 1862 are still in force. Under them private property of enormous value, amounting I believe to hundreds of millions, belonging to enemy subjects or citizens, has been taken, and "its proceeds appropriated to the use of the government."

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According to the constitution of the United States, the judicial power may supervise the statutes of the Congress, so as to refuse legal validity to them if they exceed the bounds which the Constitution has prescribed. The Supreme Court exercises this arduous and important authority. These Statutes of confiscation were impugned before this august tribunal. By it they were pronounced to be legal (f). In 1870 Mr. Justice Story stated the premisses upon which this conclusion of legality was provided in the following language(g):-"It is argued that though there are no express "constitutional restrictions upon the power of Congress to "declare and prosecute war or to make rules respecting "captures on land or water, there are restrictions implied in "the nature of the powers themselves. Hence, it is said, "the power to prosecute war is only a power to prosecute "it according to the Law of Nations, and the power "to make rules respecting captures is a power to make such "rules only as are within the Law of Nations. Whether "this is so or not we do not care to inquire, for it is not necessary to the present case. It is sufficient that the

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right to confiscate the property of all public enemies is a "conceded right. Now what is that right, and why is it "allowed? It may be remarked that it has no reference

(e) North American Review, ubi supr. p. 396.

(f) Miller v. United States, 11 Wallace Rep. 248. North American Review, ubi supr. pp. 397-8.

(g) North American Review, ubi supr. p. 398.

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"whatever to the personal guilt of the owner of confiscated "property, and the act of confiscation is not a proceeding "against him. The confiscation is not because of crime, but "because of the relation of the property to the opposing belligerent, a relation in (into) which it has been brought in "consequence of its ownership. It is immaterial to it whether "the owner be an alien or friend, or even a citizen or "subject of the power that attempts to appropriate the "property. In either case the property may be liable to "confiscation under the rules of war. It is certainly enough to warrant the exercise of this belligerent right "that the owner be a resident of the enemies country, "no matter what his nationality. The whole doctrine of "confiscation is built upon the foundation that it is an "instrument of coercion, which, by depriving an enemy of "property within reach of his power, whether within his territory or without, impairs his ability to resist the con"fiscating government, while at the same time it furnishes "to that government means for carrying on the war. "Hence, any property which the enemy can use, either by "actual appropriation or by the exercise of control over "its owner, or which the adherents of the enemy have "the power of diverting to the enemy's use, is a proper subject of confiscation."

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CCXIX. There are some miscellaneous points which should be noticed before we pass from the subject of this chapter: they relate to the decisions of International Tribunals with respect to the ships and goods of nations with whom Treaties authorising the new maxim subsisted before the declaration of 1856.

It has been decided in the Prize Courts both of Great Britain and the United States of North America (h), 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

(h) Wheaton's Elem. (ed. Lawrence, 1855), p. 531.

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 (i).

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 Treaty, even if shipped in open war; and à fortiori, "if shipped under circumstances still more favourable to "the neutrality of the transaction. In the other case, "there might be reason to suppose that the Treaty referred

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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" (k).

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(i) The Cittade de Lisboa, 6 Robinson's Adm. Rep. p. 358.

The Estern, Dallas's (Amer.) Rep. vol. ii. p. 34.

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

CHAPTER XI.

COLONIAL AND COASTING TRADE.-RULE OF 1756.

CCXX. 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. CCXXI. The practical shapes in which this abstract question became embodied were—

(a) Lee on Captures (1803), first published 1759, p. 131. Menning, 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. 287-288. (London, 1851.) Cauchy, ii. 216. s. vi.

(b) During the last war with Russia, the Rule of 1756 was 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.

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

CCXXII. 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 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.

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

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"The rule commonly called the Rule of 1756 (d) acquired this denomination from its having been first (e) 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.