66 66 66 "tions of a like kind, made for similar reasons in the com"mercial policy of its enemy; it is answered, that certainly "if this proposition could be maintained without any limita"tion, viz., that wherever any variation whatever is made during a war, and on account of the state of war, the party "who makes it binds himself in all the variations to which the "necessities of the enemy can compel him, the whole colonial "trade of the enemy is legalised, and the instructions which "are directed against any part, are equally unjust and impertinent. The opening of free ports is not necessarily a measure arising from the demands of war; it is frequently "a peace measure in the colonial system of every country. "There are others which more directly arise out of the ne"cessities of war. The admission of foreigners into the "merchant service, as well as into the military service of this "country, the permission given to vessels to import commo"dities not the growth, produce, and manufacture of the country to which they belong, and other relaxations of municipal law, and other regulations founded thereon—these, "it is true, take place in war, and arise out of a state of war; "but then they do not arise out of the predominance of the 66 66 66 66 enemy's force, or out of any necessity resulting therefrom, and "that is the true foundation of the principle. It is not every "convenience, or even every necessity, arising out of a state "of war, but that necessity which arises out of the impossibility of otherwise providing against the urgency of distress "inflicted by the hand of a superior enemy, that can be ad"mitted to produce such an effect. Thus, in time of war, "every country admits foreigners into its general service; "every country obtains, by the means of neutral vessels, those products of the enemy's country which it cannot possibly receive, either by means of his navigation or its own. These are ordinary measures to which every country has resort “in every war, whether prosperous or adverse. They arise, "it is true, out of a state of war, but are totally independent of its events, and have, therefore, no common origin with "these compelled relaxations of the colonial monopoly. 66 66 "These are acts of distress, signals of defeat and depression: 66 they are no better than partial surrenders to the force of "the enemy, for the mere purpose of preventing a total dispossession" (n). 66 It was upon these grounds that Lord Stowell vindicated. the principle of the Rule of 1756. CCXXVII. With respect to the penalty inflicted on the Neutral for a violation of this Rule, it should be observed, that in an early case (o) brought before the British Prize Court, the cargo was condemned, but the ship was restored, though without freight; in a subsequent case (p), the ship was restored in the Admiralty Court; but in a later case, in which there was an appeal to the Lords, the ship, as well as the cargo, were condemned, on the ground of the illegality of the trade between the mother country and the colony (q). CCXXVIII. The complaint of the United States (r) of North America, between whom and Great Britain this question was a fruitful source of contention, was directed partly against the Rule itself, and partly against the enlarged sphere of the Rule, accorded to it by the decisions of the Prize Court. CCXXIX. With respect to the Rule itself, the United States, in their diplomatic intercourse, constantly and earnestly protested against its legality, and insisted that it was an attempt to establish "a new principle of the Law of Na"tions," and one which subverted "many other principles "of great importance, which have heretofore been held "sacred among nations." They insisted that neutrals were of right entitled "to trade, with the exception of blockades "and contrabands, to and between all ports of the enemy, " and in all articles, although the trade should not have been (n) The Immanuel, 2 Robinson's Adm. Rep. pp. 203-4. (p) The Minerva (in 1801), 3 Robinson's Adm. Rep. pp. 232. (9) The Jonge Thomas (in 1801), ib. p. 233. (r) Wheaton's (.1mer.) Reports, vol. i. App. p. 531. 66 opened to them in time of peace"(s). It was considered to be the right of every independent Power to treat, in time of Peace, with every other nation, for leave to trade with its colonies, and to enter into any trade, whether new or old, that was not of itself illegal, and a violation of Neutrality. One State had nothing to do with the circumstances or motives which induced another nation to open her ports. The trade must have a direct reference to the hostile efforts of the Belligerents, like dealing in contraband, in order to render it breach of Neutrality. Nevertheless, the Rule of 1756, especially in respect to colonial trade, has been defended, as well as attacked, by Jurists and Judges of great authority in the United States of North America. Mr. Chancellor Kent is of opinion that the principle of the Rule may very fairly be considered as one unsettled and doubtful, and open to future and vexed discussion. He remarks that the Chief Justice of the United States, in the case of 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 resources seem to in"dicate, and which shall prove sufficient to render it expe"dient for her maritime enemy (if any such enemy shall ever "exist), to open all his domestic trade to enterprising Neu"trals, 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). 66 The opinion of Judge Story, it will be seen, is strongly (s) Mr. Munroe's Letter to Lord Mulgrave, of September 23, 1805, and Mr. Madison's Letter to Messrs. Munroe and Pinckney, dated May 17, 1806. (t) 1 Wheaton's Reports, p. 396. in favour of the legality of the principle of the Rule of 1756, though opposed to the extension of it (x). 66 Vattel's opinion (y) is clear and decided, that so long as Neutrals 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, devroient se refuser un bénéfice considérable 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). (c) Vide infra, p. 383. (y) L. iii. c. vii. s. 3. (The words are reinarkable.) "Mais si elles ne font que 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. (2) "M. Hübner, dans son Traité 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 plaider leur cause. Il 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 saisie 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. The (b) French Règlement, both of July, 1704, and of October, 1744, enforced, in the severest manner, the principle contained in the Rule of 1756. CCXXX. But little, if any, light upon the question is thrown from the examination of Treaties. Independent States have pursued no consistent 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 authorise 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 (f) and 1679 (g). The trade is allowed in the Treaties of Utrecht, between France and England, and between France and Holland (h); in the Treaty between Holland and Russia, in 1715 (i); and in the Treaty between Spain and the Empire, in 1725 (k). In several more recent Treaties, such trade is allowed to either con (b) Valin, Ord. de la Marine, t. ii. pp. 248–251. (c) 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. (e) Dumont, Corps Dipl. vii. i. p. 319. (f) Ib. p. 325. (g) Ib. p. 439. (h) Ib. viii. i. pp. 348 380. (i) Ib. p. 469. (k) Ib. viii. ii. p. 115. |