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(b) During the last war with Russia, the Rule of 1756 was superseded by the Order in Council of the 15th of April, 1854, allowing Neutrals to trade to all ports and places, wheresoever situated.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.

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judicially applied by the 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 licences, "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 con"sidered 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

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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 con"fined 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 con"sidered so entirely national, that it must follow the hostile "situation of the country" (e).

CCXXIV. The Rule of the War of 1756 (ƒ), or of the

(e) 1 Wheaton's Rep. p. 506; App., note iii.

Story's Life, vol. i. p. 288.

(f) See the case of the Dutch ships considered by James Marriott, LL.D. (published 1759; fourth edition, 1778). London.

4 Robinson's Adm. Rep., App. A.

Seven Years' War, was intermitted during the war between Great Britain and her American colonies; but on the ground that, a short time 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 (¿). 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.

CCXXV. 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

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

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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 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 com"mercial 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

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indulgence and a temporary relaxation of the coasting system of the State in question, but that it was a common "and ordinary trade, open to the ships of any country. "whatever. . . . As to the coasting trade (supposing it to "be a trade not usually opened to foreign vessels), can there "be described a more effective accommodation that can be given to an enemy during a war, than to undertake it for "him during his own disability? Is it nothing that the "commodities of an extensive empire are conveyed from "the parts where they grow and are manufactured, to other "parts where they are wanted for use? It is said that this "is not importing anything new into the country, and it

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(k) "Les bâtimens étrangers ne pourront transporter d'un port Français, 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, 21me Septembre, 1793 (i.e. confiscation des bâtimens et cargaison, et de 3,000 liv. d'amende)," &c.