tions, so applied the Rule of 1756, as to cut off the exportation of the produce of the enemy's colonies from neutral countries, into which it had been imported, unless the produce had become incorporated into the general stock of national commodities, according to certain rules prescribed to break the continuity of the voyage, and which rules they denounced as fluctuating(u) and uncertain.

CCXXV. The writer of these pages is inclined to accept the opinion of Judge Story, as being on the whole a *judicial result of the [*311] evidence both as to fact, and the law respecting the decisions of the British Prize Courts upon this rather delicate subject. That most accomplished and learned American Jurist and Judge, writing to Mr. Wheaton in 1816, observes:- My own private opinion certainly is, that the coasting trade of a nation, in its strict character, is so exclusively a national trade, that Neutrals can never be permitted to engage in it during war, without being affected with the penalty of confiscation. The British have unjustly extended the doctrine to cases, where a Neutral has traded between ports of the enemy, with a cargo taken in at a neutral country. I am as clearly satisfied that the colonial trade between the mother country and the colony, where that trade is thrown open merely in war, is liable in most instances to the same penalty. But the British have extended this doctrine to all intercourse with the colony, even from or to a neutral country, and herein it seems to me they have abused the rule. This at present appears to me to be the proper limits of the rule, as to the colonial and coasting trade; and the Rule of 1756 (as it was at that time applied,) seems to me well founded; but its late extension is reprehensible."(x)

Those who defer on the whole, as the writer of these pages does, to this opinion, may yet observe, that the instructions of the crown, and the decisions of the British Prize Court, allowed to Neutrals considerable relaxations from that strict rule which prohibited all intercourse between the Neutral and the colony of the belligerent.

Soon after the commencement of the war, which broke out in 1793, the first set of instructions issued by England, were framed, not on the exception already referred to, of the American war, but on the antecedent practice, and directed cruisers "to bring in for lawful adjudication, all

vessels laden with goods, the produce of any colony of France, or [*312] *carrying provisions or supplies for the use of any such colony." The relaxations that have since been adopted, have originated chiefly in the change that has taken place, in the trade of that part of the world, since the establishment of an independent government on the continent of America. In consequence of that event, American vessels had been admitted to trade in some articles, and on certain conditions, with the colonies both of this country and of France. Such a permission had become a part of the general commercial arrangements, as the ordinary state of their trade in time of peace. The commerce of America was, therefore, abridged by the foregoing instructions, and debarred of the

(u) Upon the point of continuity, see-The Maria, 5 Robinson's Adm. Rep., p. 365. The William, ib., p. 385.

(x) Life and Letters of Joseph Story, vol. i. p. 287.

right generally ascribed to neutral trade in time of war, that it might be. continued, with peculiar exceptions, on the basis of its ordinary establishment. In consequence of representations made by the United States Government to this effect, new instructions to our cruisers were issued, 8th January, 1794, apparently designed to exempt North American ships. trading between their own country and the colonies of France. The directions were, "to bring in all vessels laden with goods, the produce of the French West India Islands, and coming directly from any port of the said Islands to any port in Europe."(y)

(y) 4 Robinson's Adm. Rep., App. A., p. iii. See also the Providentia, 2 Rob. Adm. Rep., p. 142. The Immanuel, ib., p. 197. The Margaretha Magdalena, ib.,

p. 138.

A neutral American ship, captured on a voyage from an enemy colony to a neutral island, both in the West Indies, though not the port of the proprietors of the ship or cargo, was restored. The Hector and the Sally (before the Lords of Appeal,) 4 Robinson's Adm. Rep., App. A., pp. 14, 15, and note.

The leading cases in the British Prize Court upon the subject of this chapter are well classified by Mr. Pritchard in his Analytical Digest of Admiralty Cases. London, 1847.

(1.) Colonial Trade generally :-The Calypso, 2 Robinson's Adm. Rep., p. 154. The Phoenix, 3 Ib., p. 186. The Star, Ib., p. 193, n. The Rose, 2 Ib., p. [*313]

206. *The Immanuel, 2 Robinson's Adm. Rep., p. 205. The New Adventurer, and also the Oxolen (before the Lords of Appeal,) 4 ib., App. A., p. 4, n. The Minerva, 3 ib., p. 229. The Anna Dorothea, ib., p. 229, n. The Jonge, 3 ib., p. 332, n. The Whilelmina (before the Lords of Appeal,) 4 ib., Appendix A., p. 4, and note, pp. 12-13.

(2.) Of the relations therein allowed by Great Britain: (a) Generally :—The Providentia, 2 Robinson's Adm. Rep., p. 142. The Immanuel, ib., p. 197. The Margaretha Magdalena, ib., p. 138. The Hector and the Sally (before the Lords of Appeal,) 4 ib., Appendix A., pp. 14, 15, and note. The Lucy, ib., p. 14. The Charlotte (before the Lords of Appeal,) ib., p. 13. The Conferenzrath, 6 Ib., p. 362. (b) As dependent on the question of the continuity of the voyage:-The Polly, 2 Robinson's Adm. Rep. p. 361. The Immanuel, ib., p. 197. The Mercury (before the Lords of Appeal,) 4 ib., Appendix A., p. 6. The Eagle, ib. The Maria, 5 ib., p. 365. The William, ib., p. 385. The John, 1 Acton's Rep., p. 39. The Star, 3 Robinson's Adm. Rep., p. 193, n.

(3.) Of the principles applicable to, as to settlements in the East Indies:-The Juliana, 4 Robinson's Adm. Rep., p. 328. The Patapsco, 1 Acton's Adm. Rep., p. 270. The Rebecca, 2 Ib., p. 119.

(4.) Under extraordinary and privileged contracts with the parent State :-The Anna Catharina, 4 Robinson's Adm. Rep., p. 107. The Rendsborg, ib., p. 121. Coasting Trade:-The Emanuel, 1 Robinson's Adm. Rep., p. 302. The Speculation, 2 ib., p. 293. The Welvaart, 1 ib., p. 124. The Johannah Tholen, 6 ib., p. 72. The Ebenezer, ib., p. 252. The Schooner Sophie, ib., p. 251, n. *The Thomyris, Edward's Adm. Rep., p. 17. The Two Brothers, 2 Acton's [*314] Adm. Rep., p. 38. The Cora, ib., p. 44. The Yonge Jan, and other ships, 6 Robinson's Adm. Rep., p. 42, n.

Fishing Trade:-The Ospray, cited in the Vigilantia, 1 Robinson's Adm. Rep., p. 14. The Young Jacob and Johanna, ib., pp. 20-1. The Susa, 2 ib., p. 251. Other cases-The William and Grace, and cases therein cited, Hay and Marriott, p. 76. The Belle Sauvage, cited in the Friendship, ib., p. 79. The Sally, ib., p. 83. The Friendship, ib., p. 78. The Commerce, ib., p. 80. The Rebecca, ib., p. 197. The Jeane Isabelle, ib., p. 186. The Maria, 6 Robinson's Adm. Rep., p. 201. The Charlotte Sophia, ib., p. 204, n. The Lisette, ib., p. 394. The Mercurius, Edward's Adm. Rep., p. 53, and the Minna, therein cited. Exemptions, under Treaties, from the penalties of:

(1.) Where allowed, et contra. The Ringende Jacob, 1 Robinson's Adm. Rep., The Catherina Joanna, 6 ib., p. 42, n.

p. 89.

Practice in cases of:-Vreede, 5 Robinson's Adm. Rep., p. 231,

[*315] *PART THE TENTH.

CHAPTER I.

CONTRABAND.

CCXXVI. IT cannot be too emphatically declared that it is the unquestionable right of the Neutral to carry on a general trade with the Belligerents.

In their war with Spain, in 1599, the Dutch put forth an unlawful notification (placaart) to the world, whereby, as their historian Grotius says, "per edictum vetant populus quoscunque ullus commeatus resve alias in Hispaniam ferre; si qui secus faxint, ut hostibus faventes vice hostium futuros."(a) And, as we have seen in the last chapter, a most unjust attempt of a similar character was made by the allied forces of the English and the Dutch during the war waged by the English King William the Third against Louis the Fourteenth; and, as we have also seen, the clause in the Treaty of Whitehall(b) of August 12, 1689, which incorporated this vicious principle, was shortly afterwards annulled; the injustice of the principle was acknowledged, and the claim founded on it abandoned.

The French Ordonnance of 1704, containing a similar principle, was not justified, but in some degree at least palliated, by the fact of its being retaliatory to this unlawful Treaty.

*It cannot, I think," says Lord Liverpool, "be doubted, [*316] that, according to those principles of natural equity which con

stitute the Law of Nations, the people of every country must always have a right to trade in general to the ports of any State, though it may happen to be engaged in war with another, provided it be with their own merchandise, or on their own account; and that, under this pretence, they do not attempt to screen from one party the effects of the other; and, on condition also that they carry not to either of them any implements of war or whatever else, according to the nature of their respective situations or the circumstances of the case, may be necessary to them for their defence. As clear as this point may be, it has sufficiently appeared, by the facts deduced above, that, amid the irregularities of war, the rules of equity, in this respect, were not always enough regarded; and that many governments in time of war have often most licentiously disturbed, and sometimes prohibited totally, the commerce of neutral nations with their enemies."(c)

(a) Grot., Hist., 1. viii.

(b) It is remarkable (as Lord Liverpool, in his Essay on the Conduct of Great Britan, observes) that Puffendorf, who owed everything to the Northern Crowns, thought this Convention justifiable.-See Puffendorf's Letter in J. Groningii, Bibliotheca Universalis.

(c) Lord Liverpool, On the Conduct of the Government of Great Britain in respect to Neutral Nations, pp. 56-7.

Such was the attempt made by Russia, (d) thirty-five years after Lord Liverpool's treatise was published, to coerce the other Scandinavian Powers(e) into an abstinence from all *commerce with France. This attempt was a clear and indefensible violation of International [*317] Law,(ƒ) the true doctrine of which is laid down by Lord Liverpool in the passage which has been just cited, and which is also judicially stated by Lord Stowell in the case of the Wilhelmina.

"The Dane (he observes) has a perfect right, in time of profound peace, to trade between Holland and France to the utmost advantage he can make of such a navigation; and there is no ground upon which any of its advantages can be withheld from him in time of war."(g)

Again, in a case decided a few months afterwards, it was promulgated, by the same authority, that "upon the breaking out of a war, it is the right of Neutrals to carry on their accustomed trade, with an exception of the particular cases of a trade to blockaded places, 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 a war, the property of Neutrals may not be variously 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 [*318]

engaged in covering the goods of the enemy, and others will be unjustly suspected of doing it. The 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

(d) The language of part of the English note to Denmark would appear to lay England open to the same charge; but the whole note, as well as the fact, show that she only insisted upon the abstinence on the part of Denmark from a commerce in provisions with France, the justice or injustice of which will be considered bye and bye.-See Instructions to Cruisers, De Martens, Tr., V. p. 596, (1793.)

(e) "The usurpers of the government in France, after having subverted all order, after having embrued their murderous hands in the blood of their king, have declared themselves, by a solemn decree, the friends and protectors of all those who should commit the same horrors and excesses against their own Government in other States; and they have not only promised them succours and every assistance, but even attacked, by force of arms, most of the adjacent Powers.

"By so doing, they put themselves into an immediate state of war with all the Powers of Europe; and from that period, Neutrality could only take place when prudence prescribed, to conceal the resolution prescribed by the general interest. But this motive exists no longer, since the most formidable Powers have joined in league to make theirs one common cause against the enemy of the safety and prosperity of nations. If there be any whose situation does not allow such strong and decisive efforts as the other Powers have recourse to, it is but justice that they should join the common cause by other means which are wholly in their power, and especially by breaking off all commerce and intercourse with the perturbators of public rest."-Annual Reg., (1793,) vol. xxxv. pp. 175-6.

(ƒ) See the Instructions of Russia iu 1793.-Collection of Acts and Papers, &c., p. 149. Ward's Treatise on the Relative Rights of Belligerent and Neutral, p. 169. He characterises them truly as "a gross and flagrant invasion on the part of Russia, of the independent Sovereignty of Denmark, and justly commends the Danish Minister's (Bernstoff) reply.

(g) The Wilhelmina, note to the Rebecca, 2 Robinson's Adm. Rep., p. 102. (July 3, 1799.)

the lap of Neutrals. But, without reference to accidents of the one kind or 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."(h)

CCXXVII. In the last chapter we considered the lawfulness of one of the limitations by which the general liberty of the Neutral to trade with the enemy had been curtailed; and the question whether he was by the right of the Belligerent confined to his customary trade, and excluded from that which was only opened to him by the distress of one Belligerent arising from the pressure and success of the other Belligerent's force. It was shown that the lawfulness of this limitation in any shape was a question of much controversy; the same remark cannot be predicated of the subject of the present chapter.

The most ardent and partial supporters of neutral rights and privileges have admitted that it is not competent to a Neutral to trade with Contraband goods to a belligerent. The controversy has in this case arisen chiefly upon the following points, viz. :—

I. What is Contraband?

II. What is the penalty attaching to the Neutral for carrying it to the enemy?

CCXXVII. These questions(i) require a full discussion under the following heads:

[*319]

1. *The carrying of unquestionable Munitions of War, military or naval, in their perfected and completed state.

2. The permitting the sale of such articles to a Belligerent within the territory of the Neutral.

3. The carrying of a material of a kind which does not certainly indicate whether their destination be for belligerent or ordinary commercial purposes. Articles ancipitis vel promiscui usus, especially of commeatus, provisions and money.

4. The doctrine of Pre-emption.

5. The carrying of military persons in the employ of a Belligerent, or being in any way engaged in his transport service.

(h) The Immanuel, 2 ib., p. 198.

(i) One of the earliest legislative prohibitions on the subject of Contraband is probably of the Emperor Marcian, to his subjects:-"Nemo alienigenis barbaris cujuscunque gentis ad hanc urbem sacratissimam sub legationis specie vel sub quocunque alio colore venientibus aut in diversis aliis civitatibus vel locis loricas, scuta et arcus, sagittas et spathas et gladios vel alterius cujuscunque generis arma audeat venumdare: nulla prorsus iisdem tela, nihil penitus ferri, vel facti jam vel adhuc infecti, ab aliquo distrahatur. Perniciosum namque Romano imperio et proditioni proximum est, barbaros, quos indigere convenit, telis eos ut validiores reddantur instruere," &c.-Cod. iv. t. xli. 2.

The Canon Law forbade the exportation of arms to the Infidel-a prohibition which, just now, (1855,) it would be rather awkward to enforce :-"Ita quorundam animos occupavit sæva cupiditâs, ut, qui gloriantur nomine Christiano, Saracenis arma, ferrum, et ligamina deferant galearum," &c.; all such excommunicandi. Decret., 1. v. t. vi. c. 6.

See also a similar prohibition and punishment, Extrav. Comm., 1. v. t. ii. As to the International authority of the Pope, vide ante, vol. ii. p. 327. "Contrabannum-merces banno interdicta, Italis contrabbando, Gall. contrebande. Charta, anno 1445, tom. iii. Cod. Ital. Diplom. col. 1756, item quod non permittant committentes Contrabanna, dicti salis vel aliarum rerum. in dictis locis tutè et securè permanere."-Du Cange, Gloss. (ed. Carpenterius,) Parisils, 1842.