certainly is not; but has it not all the effects of such an "importation? Suppose that the French navy had a de"cided ascendant, and had cut off all British communication "between the northern and southern parts of this island, "and that Neutrals interposed to bring the coals of the "North for the supply of the manufactures and for the "necessities of domestic life in this metropolis; is it possible "to describe a more direct and a more effectual opposition "to the success of French hostility, short of an actual "military assistance in the war?" (1) CCXXVI. As to trading with the colonies of the enemy, Lord Stowell observed, that it was as an indubitable right of the Belligerent to possess himself of such places, as of any other possession of his enemy. This was his common. right; but he had the certain means of carrying such a right into effect, if he had a decided superiority at sea. Such colonies were dependent for their existence, as colonies, on foreign supplies. If they could not be supplied and defended, they must fall to the Belligerent, of course; and if the belligerent chooses to apply his means to such an object, what right has a third party, perfectly neutral, to step in and prevent the execution? No existing interest of his is affected by it; he can have no right to apply to his own use the beneficial consequences of the mere act of the Belligerent, and to say,-" True it is, you have, by force of "arms, forced such place out of the exclusive possession of "the enemy, but I will share the benefit of the conquest, "and, by sharing its benefits, prevent its progress. You have "in effect, and by lawful means, turned the enemy out of "the possession which he had exclusively maintained against "the whole world, and with whom we have never presumed "to interfere; but we will interpose to prevent his absolute surrender, by the means of that very opening which the prevalence of your arms alone has effected. Supplies "shall be sent, and their products shall be exported. You 66 66 (1) The Emanuel, Robinson's Adm. Rep. vol. i. pp. 297, 301. "have lawfully destroyed his monopoly, but you shall not "be permitted to possess it yourself. We insist to share "the fruits of your victories; and your blood and treasure "have been expended, not for your own interest, but for "the common benefit of others." It could not, upon these grounds, be contended to be a right of Neutrals to intrude into a commerce which had been uniformly shut against them, and which is now forced open merely by the pressure of war; for when the enemy, under an entire inability to supply his colonies and to export their products, affects to open them to Neutrals, it is not his will but his necessity that changes his system. That change is the direct and unavoidable consequence of the compulsion of war-it is a measure not of French councils, but of British force. 66 Upon these and other grounds it was that an instruction "issued at an early period of the last war with France, for "the purpose of preventing the communication of Neutrals "with the colonies of the enemy; it was intended to be car"ried into effect on the same footing on which the prohibition "had been legally enforced in the war of 1756. Upon further "inquiry, it turned out that one favoured nation, the "Americans, had in times of peace been permitted, by special "convention, to exercise a certain very limited commerce "with those colonies of the French, and it consisted with justice that that case should be specially provided for; but no justice required that the provision should extend beyond "the necessities of that case. Whatever went beyond that, was not given to the demands of strict justice, but was "matter of relaxation and concession " (m). 66 66 "As to the argument that variations are made in the com"mercial systems of every country, in wars and on account "of wars, by means of which Neutrals are admitted and invited into different kinds of trade, from which they stand usually excluded; and if so, that no one Belligerent country "has a right to interfere with Neutrals for acting under varia 66 (m) The Immanuel, 2 Robinson's Adm. Rep. pp. 200–1. 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. |