PART THE TENTH.

CHAPTER I.

CONTRABAND.

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

"Des enfants de Japhet toujours une moitié

Fournira des armes à l'autre " (a),

says a well-known French writer.

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 populos quoscunque ullos commeatus resve alias in Hispaniam ferre; "si qui secus faxint, ut hostibus faventes vice hostium fu"turos "(b). 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 (c) of August 12, 1689, which incorpo

(a) La Fontaine, 1. 2. F. vi. : "L'Oiseau blessé d'une Flèche." (b) Grot. Hist. 1. viii.

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

rated 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.

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"It cannot, I think," says Lord Liverpool, "be doubted that, according to those principles of natural equity which "constitute 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 Govern"ments in time of war have often most licentiously disturbed, "and sometimes prohibited totally, the commerce of neutral "nations with their enemies" (d).

Such was the attempt made by Russia (e), thirty-five years after Lord Liverpool's treatise was published, to coerce the

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

(e) 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 by and by.-See Instructions to Cruisers, De Martens, Tr. V. p. 596 (1793).

other Scandinavian Powers (ƒ) into an abstinence from all commerce with France. This attempt was a clear and indefensible violation of International Law (g), 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" (h).

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

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(f) "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, pp. 175–6.

(g) See the Instructions of Russia in 1793.—Collection of Acts and Papers, &c. p. 149.

p. 169.

Ward's Treatise on the Relative Rights of Belligerent and Neutral, He characterizes them truly as 66 a gross and flagrant invasion, on the part of Russia, of the independent sovereignty of Denmark, and justly commends the Danish Minister's (Bernstorf's) reply. (h) The Wilhelmina, note to the Rebecca, 2 Robinson's Adm. Rep. p. 102. (July 3, 1799.)

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"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 con"nections, it is hardly possible that inconveniences of this "kind should be altogether avoided. Some Neutrals will be unjustly engaged in covering the goods of the enemy, and "others will be unjustly suspected of doing it. The incon"veniences 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 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" (i).

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CCXXXV. 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, which considers the question of trading in contraband goods.

But first in order should be considered the distinction of the contraband cargo, because a bonâ fide commerce between neutrals in articles of contraband cannot be pre

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

vented by the Belligerent. But he has a right to ascertain -a matter often of great difficulty-that the alleged destination of contraband articles, the commerce in which is perhaps solely caused, certainly greatly enhanced, by the war in which he is engaged, be real and not pretended.

During the recent American Civil War, this part of the general subject underwent careful and repeated discussion; the vicinity of Neutral Nassau and Matamoras to the blockaded coast of the enemy, the Confederate States, tempting large ventures in contraband from neutral ports in Europe, ostensibly to these neutral places, but really to the Southern coast of Florida. The judgments of the Supreme Court of the United States, in the cases of the Bermuda and the Peterhoff, contain very valuable and sound expositions of the law, professedly, and for the most part really, in harmony with the earlier decisions of English Prize Courts. I invite attention to the following extracts from the Bermuda (k). The Court says:

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"The theory of the Counsel for Haigh is, that she was "a neutral ship, carrying a cargo, in good faith, from one "neutral port to another neutral port; and they insist that "the description of cargo, if neutral, and in a neutral ship, "and on a neutral voyage, cannot be inquired into in the "Courts of a belligerent.

"We agree to this: Neutral trade is entitled to protec"tion in all Courts; neutrals, in their own country, may "sell to belligerents whatever belligerents choose to buy. "The principal exceptions to this rule are, that neutrals "must not sell to one belligerent what they refuse to sell "to the other, and must not furnish soldiers or sailors to "either; nor prepare, nor suffer to be prepared within their territory, armed ships or military or naval expeditions against either. So, too, except goods contraband of war, or conveyed with intent to violate a blockade, neutrals

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(k) The Bermuda, Wallace's (Amer.) Rep. vol. iii. pp. 551, 552, A.D. 1865.