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hibition of neutrals from the colonial trade of belligerents, as follows:
Upon the breaking out of a war, it is the right of neutrals to carry on their accustomed trade, with the exception of the particular cases of a trade to blockaded ports, or in contraband articles (in both which cases their property is liable to be condemned), and of their ships being liable to visitation and search, in which case, however, they are entitled to freight and expenses.
“I do not mean to say, that in the accidents of war, the property of neutrals may not be entangled and endangered. In the nature of human connections, it is hardly possible that inconveniences of this kind should be altogether avoided. Some neutrals will be unjustly engaged in covering goods of the enemy, and others will be unjustly suspected of doing it. These inconveniences are more than fully balanced by the enlargement of their commerce,
“The trade of the belligerents is usually interrupted, in a great degree, and falls in the same degree, into the lap of neutrals. But, without reference to accidents of the one kind or the other, the general rule is, that the neutral has a right to carry on, in time of war, his accustomed trade, to the utmost extent of which that accustomed trade is capable. Very different is the case of a trade which the neutral has never possessed, which he holds by no title of use or habit, in times of peace, and which, in fact, can obtain in war by no other
" The Emanuel, 2 Rob., 197; vide also Lord Erskine's speech on the Orders in Council, March 8th, 1808.
title than by the success of the one belligerent against the other, and at the expense of that very belligerent under whose success he sets up his title. And such I take to be the colonial trade, generally speaking
"What is the colonial trade, generally speaking? It is a trade generally shut up to the exclusive use of the mother country to which the colony belongs; and this is a double use—that of supplying a market for the consumption of native commodities, and that of furnishing to the mother country the peculiar commodities of the colonial regions. Upon the interruption of a war, what are the rights of belligerents and neutrals, respectively, with regard to colonial territories? It is an indubitable right of a belligerent to possess himself of such places, as of any other possession of the enemy. This is his common right; but he has the certain means of carrying such right into effect, if he has a decided superiority at sea. Such colonies are dependent for their existence, as colonies, on foreign supplies. If they cannot 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 places 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 bave, 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 had never presumed to interfere, but we will interpose to prevent his absolute sur render by the means of that very opening which the prevalence of your arms has effected. Supplies shall be sent, and their products be exported. You 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—not for your own interest, but for the common benefit of others. Upon these grounds, it cannot 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 counsels, but of British force." Upon these grounds, sentence of condemnation was ordered in the case under consideration. And in a subsequent case, the doctrines thus enunciated by Lord Stowell, were fully confirmed by the Court of Appeal, in which the Lord Chancellor pronounces the opinion thus decisively:
“ It has already been pronounced to be the opiuion of this court, that by the general law of nations, it is not competent in neutrals to assume in time of war, a trade with the colony of the enemy which was not permitted in time of peace; and
lonial trade is
onder this general position, the court is of opinion thet this ship and cargo are liable to confiscation.”
The rule which prohibits neutrals from engaging When the coin the colonial trade of belligerents, rests upon
permitted to assumption that their permission to do so by the neutrals in parent of the colony, results from a relaxation on the rule of
prohibition its part of the rule of exclusion from such trade in does not opetime of peace. Where, therefore, previously exist- rate in time of ing commercial relations, resulting from treaty or otherwise, permitted such commerce in time of peace, the doctrine of prohibition in time of war does not apply.
So it was held, in the case of a neutral ship, sailing between France and Senegal, then a French colony—it having been ascertained, upon much investigation, that France had been accustomed to leave open the trade of Senegal to foreign ships, as well before as after the war that the vessel should be restored to the neutral claimants. The rule of the establishprohibition of trade by neutrals with the colonies public of the of the enemy, was first established in a case which the origin of arose in 1756, and is therefore called “the rule of the relaxation 1756." The relaxations of the rule originated prohibition. chiefly in the great change which took place in the commerce of the world, by the permanent establishment of the independent republic of the United States on the continent of America.
By reason of that event, the ships of the United States were admitted to trade in some articles, and on certain conditions with the colonies both of Eng. land and France. Such were the established com
ment of the ro
of the rule of
The Wilhelmina, 4 Rob., Appendix 4. ? The Juliana, 4 Rob., 321.
mercial relations between the countries in time of peace. The application of the strict rule of prohibition would therefore have operated to abridge the acquired and customary commerce of Americans,
By reason of representations made by the United States government, orders were issued in 1794 by Great Britain during the then existing war with France, apparently designed to direct British cruisers to exempt American ships from capture, which were trading between their own country and the French colonies. In consequence of this relaxation in favor of the United States, it was in 1798 further extended by concessions in favor of the neutral states of Europe.
By this relaxation of the rigid rule of prohibition, neutral vessels were allowed to carry on a direct commerce between the colony of the enemy and
their own country. The applica- This is the extent of the relaxation, and upon the rule, and the rule and the exceptions much discussion has arisen
in many important cases."
In a case before cited, it was determined that trade was unlawful carried on directly between the colony and the parent state of the enemy.
So, too, was held to be a trade between the country of the enemy and the colony of his ally. And a trade between the settlement of one enemy to the colony of another, was decided to fall within the same principle.
Under the judicial construction of the relaxation of the rule, it was held, that a neutral ship trading
tion of the
exceptions in particular cases.
I The Emanuel, 2 Rob., 186. The Rose, 4 Rob., App.
3 The New Adventure, 4 Rob., App.; The Wilhelmina, 4 Rob., App. 4.