The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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Conduct of Great Britain |
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 | The writings of James Madison, |  |
Conduct of Great Britain
If it be not enough to have shewn, that the belligerent claim
asserted by Great Britain is condemned by all the highest authorities
on the law of nations, by the clearest testimony of
treaties among all the principal maritime nations of the world,
herself included, and by the practice of all other nations; she
cannot surely demur to the example of her own proceedings.
And it is here, perhaps, more than any where else, that the
claim ought to shrink from examination. It will be seen, in
the course of the following observations, that Great Britain is
compelled, under every appeal that can be made to herself, to
pronounce her own condemnation; and what is much worse,
that the innovation, which she endeavors to enforce as a right
of war, is under that name a mere project for extending the
field of maritime capture, and multiplying the sources of
commercial aggrandizement; a warfare, in fact, against the
her enemies.
Whilst Great Britain denies to her enemies a right to
relax their laws in favor of neutral commerce, she relaxes her
own, those relating as well to her colonial trade, as to other
branches.Whilst she denies to neutrals the right to trade with
the colonies of her enemies, she trades herself with her enemies,
and invites them to trade with her colonies.That Great Britain relaxes in time of war her trade
laws, both with respect to her colonies and to herself, is a fact
which need not be proved, because it is not denied. A review
of the progress and modifications of these relaxations will be
found in Reeves'[110] Law of Shipping and Navigation; and in the
270successive orders of the British council, admitting in time of
war neutral vessels, as well as neutral supplies, into her West
India colonies. It will not be improper, however, to shew,
that in these relaxations of her peace system, she has been
governed by the same policy of eluding the pressures of war,
and of transferring her merchant ships and mariners from
the pursuits of commerce to the operations of war, which she
represents as rendering unlawful the like relaxations of her
enemies.
1st.
2d.
1st.
The object of dispensing, in time of war, with the navigation
act, was avowed by the legislature itself, in the preamble to one
of its acts, which was passed not long after the navigation act
was adopted. The preamble recites, "And whereas by the laws
"no win force, the navigating of ships or vessels in divers cases,
"is required to be, the master and three-fourth parts of the
"mariners being English, under divers penalties and forfeitures
"therein contained: And whereas great numbers of seamen
"are employed in her majesty's service for the manning of the
war, to dispense with the said laws, and to allow a greater
"number of foreign mariners for the carrying on of trade and
"commerce: Be it enacted, &c., that during the present war,"
&c.
Without pursuing the series of similar recitals during successive
wars, one other example of later date will be given, in
which the same object is avowed. The preamble of 13 G. 2,
Ch. 3, is in the following words: "For the better supply of
mariners and seamen to serve in his majesty's ships of war, and
on board merchant ships and other trading vessels and privateers,
and for the better carrying on the present or any future
war, and the trade of Great Britain during the continuance
thereof," &c.
The British orders of council, and proclamations of governors,
issued from time to time during war, and opening, on account
of war, the colonial trade to neutrals, in cases where it
was shut to them in times of peace, are too well known to require
particular recital or reference. Orders to that effect are
the case of the colonial trade as of the trade with the parent
country, the same thing is done by Great Britain herself, which
she denies the right of doing to her enemies.
2d. That she trades with her enemies, and invites them to
trade with herself, during war, are facts equally certain and
notorious.
The efforts of Great Britain to maintain a trade at all times
with the colonies of other nations, particularly of Spain, both
in peace and in war, and both by force, and clandestinely, are
abundantly attested by her own, as well as other historians.
The two historians of Jamaica, Long and Edwards, are alone
sufficient authorities on the subject.
It has been already noticed, that, in the infancy of her beltogerent
pretension against the trade of neutrals with the colonies
of her enemies, she favored, by special licences, a trade of
her own subjects with the same colonies.
The like inconsistency might be verified by a train of examples
since the pretension was, during the war of 1793, brought
again into action. But it would be a waste of time to multiply
proofs of what is avowed and proclaimed to all the world by
her acts of parliament; particularly by the act of June 27, 1805,
"to consolidate and extend the provisions respecting the free
ports in the West Indies."
This act establishes certain free ports in Jamaica, Grenada,
Dominica, Antigua, Trinidad, Tobago, Tortola, New Providence,
Crooked Island, St. Vincent's, and Bermuda. These
ports, distributed throughout the West Indies, with a view to
the most convenient intercourse with the colonies, and settlements
of her enemies in that quarter, are laid open to all the
valuable productions thereof, and to small vessels with single
decks, belonging to, and navigated by, inhabitants of such colonies
and settlements. In like manner, the enemies of Great
Britain are allowed to export from the enumerated ports, rum,
negroes, and all goods, wares, and merchandizes, excepting naval
stores, which shall have been imported thither in British vessels.
in British vessels, of the enumerated productions imported
from the colonies and settlements of her enemies, to Great
Britain and her possessions, according to the regulations prescribed
by her navigation act.
In pursuance of the same principle exercised in her laws, we
find her entering into a treaty in time of war, which, in one of
its articles, opened a branch of colonial trade to neutrals not
open to them in time of peace, and which being to continue in
force only two years after the end of the war, may be considered
as made in effect for the war.
The 12th Article of the treaty with the United States in
1794, stipulated that American vessels not exceeding a given
size, may trade between the ports of the United States and the
British West Indies, in cases prohibited to them by the cplonial
system in times of peace. This article, it is true, was frustrated
by the refusal of the United States to ratify it; but the refusal
did not proceed from any supposed illegality of the stipulation.
On the part of Great Britain the article had a deliberate and
regular sanction; and as it would not have been a lawful stipulation,
but on the supposition that a trade not open in peace
may be opened in war, the conduct of Great Britain, in this
case also, is at variance with the rule she lays down for others.
But a most interesting view of the conduct of Great Britain
will be presented by a history of the novel principle which she
is endeavoring to interpolate into the code of public law, and
by an examination of the fallacies and inconsistencies to which
her Government and her courts have resorted, in maintaining
the principle.
It is a material fact that the principle was never asserted or
enforced by her against other nations, before the war of 1756.
That at the commencement of the preceding war of 1739, it
did not occur, even to the ingenuity of British statesmen
labouring for parliamentary topics of argument, is proven by
the debate which, on that occasion, took place in the House
of Lords.
In the course of the debate on the expediency of the war, this
particular point having fallen under consideration, the following
observations were made by Lord Hervey against the war:
"Some people may perhaps imagine that great advantages
"might be made by our intercepting the Spanish plate fleets,
"or the ships that are employed in the trade with their settle"ments
in America, because no Spanish ships can be employed
"in that trade; but even this would be precarious, and might
"in several shapes be entirely prevented; for if they should
"open that trade to the French and Dutch, it is what those two
"nations would be glad to accept of, and we could not pretend
"to make prize of a French or Dutch ship on account of her being
"bound to or from the Spanish Settlements in America,
no
"more than we could make prise of her on account of her being
"bound to or from any port in Spain. We could not so much
"as pretend to seize any treasure or goods (except contraband
"she had on board) unless we could prove that those goods
"or treasure actually belonged to the King or subjects of
"Spain. Thus the Spanish treasure and effects might safely
"be brought, &c."
Lord Bathurst in answer:
"We may do the Spaniards much, damage by privateering,
&c. If they bring their treasure home in flotas, we intercept
them by our squadrons; if in single ships our privateers take
them. They cannot bring it home either in French or Dutch
ships,[111]
because by the 6th Article of the treaty of Utrecht, the
usage of navigation to Spain and the Spanish Indies, than what
was practised in the reign of Charles II, of Spain, or than what
shall likewise be fully given and granted at the same time to
other nations and people concerned in trade. Therefore, the
Spaniards could not lay the trade in America open to the
French, or at least the French could not accept of it; and if the
Dutch should, they would be opposed by France as well as by
us; an opposition they would not, I believe, chuse to struggle
with."[112]
Through the whole of the debate the subject is taken up, not
on the ground of a belligerent right, or of a neutral duty, but
merely on that of commercial jealousy and policy. Had the
distinction between a trade allowed in peace as well as war, and
a trade allowed in war only, been maintained by British statesmen
then, as it is maintained by them now, the same ready
answer would have been given then, as in a like discussion,
would be given now, viz: that neither France nor Holland
could enter into a trade with the Spanish colonies, because,
being a trade not open in time of peace, it could not be laid
open in time of war.
In the debates also, which took place in the House of Lords,
concerning the Spanish captures in America, and the war which
followed, several of the Lords in their speeches lay down in detail,
the cases in which belligerent nations may search, capture,
and confiscate neutral vessels in time of war; yet, although colonial
trade was the immediate subject of discussion, the distinction
now employed, seems never to have entered into the
thoughts of the speakers.
Again, in the course of this war to which France became a
party on the side of Spain in 1744, it appears that the tribunals
of Great Britain proceeded on the same principle, that the
trade of neutrals with the colonies of her enemies, though not
open in time of peace, might be a lawful trade in time of war.
it is stated, that ships taken on a voyage from the French
colonies, were released before the Lords of Appeal.[113]
We find then, that prior to the war of 1756, this belligerent
claim of attacking all neutral commerce not permitted in time
of peace, a claim so broad in its principle and so baneful in its
operation, never had a place among the multiplied pretensions
enforced by power, or suggested by avarice. At some times
nations have been seen engaged in attempts to prevent all commerce
whatever with their enemies; at others to extend the list
of contraband to the most innocent and necessary articles of
common interchange; at others to subject to condemnation
both vessel and cargo, where either the one or the other was the
property of an enemy; at others to make the hostility of the
country producing the cargo, a cause of its confiscation. But
at no time, as seems to be admitted by Sir William Scott himself,[114]
was this encroachment on the rights of neutrality devised
by any nation until the war of 1756. Then it was that
the naval resources of Great Britain augmented by her prosperous
commerce, more especially that of her then colonies,
now the United States of America, gave her an ascendancy
over all her rivals and enemies, and prompted those abuses
which raised the voice of all Europe against her.
The first effect of this overgrown power was seen in the bold
enterprise of seizing on the whole trade of France within her
grasp, in contempt of all forms of commencing hostilities, required
by the usage of nations. It was next seen in the extensive
depredations on the trade of neutrals, particularly of the
Dutch, in defiance not only of the law of nations, but of the
most explicit stipulations of treaty. The losses of that single
nation, within the first two years of the war, amounted to
several millions sterling.[115]
The Dutch, by their ambassador
at London, remonstrated. The British ambassador at the
these it came out,[116] for the first time, that Great Britain meant,
notwithstanding the admonitions of prudence as well as of
justice, to deny the right of neutrals to carry on with her
enemies any trade beyond the precise trade usually carried
on in time of peace.
The origin of this novel principle deserves a more particular
development. The English Government had no sooner made
war on the French commerce, than the Dutch began to avail
themselves of their neutral and stipulated rights to enter into
it; particularly the commerce of the colonies, both to their own
ports, and to French ports. The English immediately made
war on this commerce, as indeed they did on the commerce to
Spain, Portugal, and other countries. The Dutch vessels were
even pillaged on the high seas, and their seamen very badly
treated. In the years 1757 and 1758 alone, the number of vessels
captured and pillaged amounted to no less than three hundred;
and the damages were estimated at eleven millions of
florins, between five and six millions of dollars. The Dutch
appealed to their treaties with England [those in 1674 and
1675] which made enemy's goods free in their ships, contraband
only excepted, and the Dutch trade free from and to the
enemy's ports, and from one enemy's port to another. The
English were driven to the pretext, that the treaty of 1674
said only that the liberty of trade should extend to all merchandizes
which were transported in time of peace, those of
contraband excepted; and was, therefore, not applicable to the
colonial trade in time of war. Besides that the time of peace,
if it had been any thing more than a mode of expressing the
entire freedom of commerce, could refer only to the kind of
merchandizes, not to the ports or channels of trade, the Dutch
were able to appeal to the declaratory treaty of 1675, which
stipulated an unlimited freedom of trade from and to ports
of enemies, without saying any thing as to times of peace.
the pretext, that the Dutch vessels, being engaged in the
colonial trade, were to be considered as French vessels. This
lucky thought eluded the stipulation that free ships make
free goods, as well as that which embraced the right of trade
on the coasts and with the colonies of enemies. It was alledged
also, but with little seeming reliance on such an argument,
that the commerce with the French islands was not
known in 1674, and therefore could not be comprised in that
treaty. These pretexts being very little satisfactory to the
Dutch, the Province of Holland, the chief sufferer, talked of
reprisals. The English answer is in Tindal's Cont., vol. 9,
P. 577–8. Undertaking to decide on a constitutional question
within an independent nation, they said, if the Province
of Holland, which had no authority, should fit out ships, they
would be treated as pirates; and if the States General should
do it, it would be taken as a declaration of war. Such was the
birth of this spurious principle.
Being avowed, however, on the part of the Government, it
was to be expected that it would have its effect on the courts
of admirality. As the decisions of these, during that period,
were never reported, the best knowledge of them is to be gathered
from references incidentally made to them, in the proceedings
of other British courts, and in the proceedings of the high
court of admiralty, since the reports of them have been published.
The most precise information which has been obtained
through the first channel, appears in the case of Berens vs.
Rucker, before the court of King's bench, reported in 1 Blackstone,
p. 313. This was the case of a Dutch ship which had
taken in sugars at sea, off the Island of St. Eustatius, brought
along side of her by French boats from a French island; which
ship was captured in 1758, on her return with that cargo to
Amsterdam. Lord Mansfield in pronouncing on the case in
1760, expressed himself as follows:
"This capture was certainly unjust. The pretence was that
"part of this cargo was put on board off Saint Eustatius by
"point by the lords of appeals to be the same thing as if they
"had been landed on the Dutch shore, and then put on board
"afterwards, in which case there is no color for seizure. The
"rule is, that if a neutral ship trades to a French colony with
"all the privileges of a French ship, and is thus adopted and
"naturalized, it must be looked upon as a French ship, and is
"liable to be taken—not so, if she has only French produce on
"board, without taking it at a French port, for it may be pur"chased'
of neutrals."
Here the ground of capture must be distinctly noted. It
is not that the trade, as a trade allowed in war only, was unlawful,
and thence incurred a forfeiture of both ship and
cargo; the ground and measure of forfeiture, which are now
alleged. The vessel is condemned on the ground, or presumption,
that it had, by adoption, been made the property of the
enemy; whilst the cargo is not liable to condemnation, if not
proved to be enemy's property. In other words, the vessel
is, in spite of the fact, presumed from the mere circumstance
of navigating in a French channel, to be French property; and
the cargo, although of French production, and found in a
vessel looked upon as French, is notwithstanding these considerations,
open to the presumption that it might be neutral
property.
This shews only that the Herculean principle was at that
time in its cradle; and that neither the extent of its powers, nor
the wonders which it was to be called to perform, were at first
understood. Its capacities were to be learnt and applied, as
they might be unfolded by time and occasions. At that time,
neutral vessels being admitted into new channels of French
trade by grants of special licences to the vessels, the occasion
was thought to be best answered with respect to the vessels,
by the presumption, or rather the fiction, that they were
French vessels; and with respect to the neutral cargo, as it
did not fall precisely under the presumption applied to the
vessels, it was left to escape until further time and occasions
was susceptible.
These shapes and uses soon began to disclose themselves: for
it appears from the references made in the case of the Providentia,[117]
tried before Sir W. Scott in 1799, that French West
India produce, conveyed by neutrals from Monte Christi, a
Spanish neutral port, was, in the progress of the war of 1756,
condemned, on the pretext that the intervention of a neutral
port, was a fraudulent evasion of the rule which condemned the
trade with a French port; notwithstanding the previous rule of
the Lords of appeal, according to which the landing or even
trans-shipment of such produce, at a neutral port, neutralized
the trade, and made it lawful.
There is some obscurity, it must be owned, as to the principle
on which a neutral trade with the French colonies was condemned,
after the discontinuance of special licences; it being
sometimes stated in the arguments referring to that period,
that the condemnation was founded on the principle, that
the trade was virtually or adoptively, a French trade; and
sometimes, that it was founded on the general principle
that it was a trade not open in time of peace. Certain it is,
that the original principle was that of a virtual adoption, this
principle being commensurate with the original occasion;
and that, as soon as this original principle was found insufficient
to reach the new occasions, a strong tendency was seen
towards a variation of the principle, in order to bring the
new occasions within its reach.
It is remakarble that, notwithstanding the broad principle
asserted by the cabinet through its diplomatic organ at the
Hague, which interdicted to neutrals every trade not allowed
to them in time of peace, the courts of Admiralty not only
limited the principle at first, and hesitated afterwards to
extend it, in the manner which has been seen; but never
undertook to apply it to the coasting trade; though so strongly
the range of the principle; nor does it appear, even, that the
principle was applied to the trade with the Spanish colonies,
after Spain joined in the war, notwithstanding the rigorous
monopoly under which they are known to be generally kept,
in time of peace.
It is still more important to remark, as a proof of the
inconsistency always resulting from false principles, and the
indulgence of unjustifiable views, that the English themselves,
if the Annual Register is to be believed, were acutally trading
by means of flags of truce equivalent to licences, both directly
with the French islands, and indirectly through Monte Christi,
during the very period when they were confiscating the property
of neutrals carrying on precisely the same trade, in
the same manner.
Such is the state of the question as presented during the
war of 1756. The next enquiry relates to the war of the
American Revolution, or the French war of 1778.
Here it is conceded on the British side, that the new principle
was, throughout that period, entirely suspended. On
the other side, it may be affirmed, that it was absolutely
abandoned.
One proof is drawn from the course of decisions, in the
British high court of Admiralty, by Sir James Marriott, the
predecessor of Sir Wm. Scott.
The first volume only of his decisions has yet found its way
to this country. In that are contained the cases referred to
below;[118]
all of which are adjudged on the principle, that the
coasting trade, and of course every other branch of trade, not
allowed to foreigners by a nation at peace, and which may be
lawful trades.
Although some of the ships, in these cases, were Danish, and
others Dutch, and consequently within the stipulations of
treaties which have been heretofore cited; yet there is no
appearance that the Judge was guided in his decisions by that
authority; nor is it in the least probable, that they will now
be explained by a resort to it. But should such an attempt be
made, it could be of no avail; because, among the cases, there
are two, one of a Lubeck and the other of a Prussian vessel,
which could be decided by no other rule than the general
law of nations; there being no British treaty, with either
Prussia or Lubeck, applicable to the question. There is
another case, a colonial one too, decided 21st January, 1779,
in which the law of nations must of necessity have been the
sole guide. It was that of a French ship, bound from St.
Domingo to Nantz. The general cargo, as well as the vessel,
were condemned as enemies' property; reserving the question
concerning the claims of considerable value, made by two
passengers as neutrals, the one asserting himself to be a
subject of Bohemia, the other of Tuscany. The articles
claimed were ultimately condemned as enemies' property;
without the slightest allusion to the illegality of a neutral
trade between a belligerent country and its colonies; which,
if then maintained, as it is now, would at once have put
an end to the claims.
It is strictly and incontrovertibly just, then, to say, that
these decisions maintain the law of nations as asserted in
this investigation; and abandon and renounce it, as asserted
in the decisions of the same court, under its present Judge.
During the war of 1778, the Judge had no guide whatever in
prize cases, turning on this question, but the law of nations.
Neither treaties, nor acts of parliament, nor any known orders
of council, interposed any special rule controuling the operation
of that law. That law, consequently, was the sole rule
of the decisions; and these decisions, consequently, complete
the court: and let it be repeated, that if such was the law
in the case of the coasting trade, it was equally the law as to
every other channel of trade, shut in peace, and laid open
in war.
These decisions were, indeed, made by the high court of
Admiralty, and not by the Lords Commissioners of Appeal,
the authority in the last resort, on such subjects. But this
consideration does not impeach the inference drawn from the
decisions; which having not been reversed, nor appealed from,
are fair evidence for the purpose to which they are applied.
It is impossible to account for an omission to enter appeals,
where the captors were in their own country, and must have
had the best counsel, without supposing that the appeals
afforded not the smallest chance of a more favorable decision.
But as a further and more unexceptionable proof that the
principle was abandoned, it is stated by Sir Wm. Scott himself,
that "in the case of the Verwagtig,[119]
(a vessel trading between
France and Martinique during the war of 1778) and in many
other succeeding cases, the Lords of Appeal decreed payment
of freight to the neutral ship owner." This, it must be observed,
is a case of colonial trade; and a colonial trade of the
most exclusive kind in time of peace; a trade between the
colony and the parent country.
To these authorities, an explanation equally singular and
unsatisfactory is opposed. It was understood, says Sir
William Scott, that "France in opening her colonies, during
"the war [of 1778] declared that this was not done with a
"temporary view relative to the war, but on a general and
"permanent purpose of altering her colonial system, and
"of admitting foreign vessels, universally and at all times,
"to a participation of that commerce. Taking that to be
"the fact, (however suspicious its commencement might be,
"during the actual existence of the war,) there was no ground
"ordinary as any other in which they could be engaged;
"and therefore, in the case of the Verwagtig, and many other
"succeeding cases, the lords decreed payment of freight to
"the neutral ship owner."
At what particular time, and in what particular terms, this
important declaration by France was made, is not mentioned;
nor has any such declaration been discovered by a search
which has been carried through all the French codes, and
such of the annals of the time, as were most likely to contain
it; and without some further account of this "declaration,"
or this "profession" on the part of France, as it is elsewhere
called in Rob. Reports, it is impossible to decide on the
precise character and import of it.
But supposing the fact, as it was taken to be, how account
for so unexampled an instance of blind confidence by Great
Britain, in the sincerity of an enemy, always reproached by
her with the want of sincerity; and on an occasion too, so
peculiarly suspicious, as that of a profession at the commencement
of war, calculated to disarm Great Britain of a most
precious branch of her rights of war?
If her suspension of the new principle is not to be explained
by an intentional return to the established law of nations;
and the explanation of the fact lies in the alternative between
her respect for a suspicious declaration of France, made in the
suspicious crisis of a war, more than any other charged by her
on the perfidious ambition of France; and her respect for those
prudential motives which her own situation may have suggested
for abandoning, rather than renewing, the attempt
to maintain such a principle; it will not be easy to avoid preferring
the explanation drawn from the following review of
her situation.
However bold it may have been in Great Britain to advance
and act upon the new principle in the war of 1756, it has been
seen that she went but a small part of the length of it; and
with an evident desire to make the innovation as little conspicious
this caution she was probably influenced by a regard, not only
to the progress of opinion in Europe in favor of neutral rights;
but particularly to the King of Prussia, whose friendship she
courted, and who was known to be a patron of those rights.
His dispute with Great Britain, produced by her seizure of
Prussian vessels in the preceding war, and by his seizing
in return, the Silesian funds mortgaged to Great Britain, is
well known. The issue of this dispute has been represented
as a complete triumph of the belligerent claims of Great
Britain, over the pretensions of the neutral flag. The fact,
however, is, that she was obliged to redeem the Silesian debt
from the attachment laid on it, by paying to Prussia the sum
of 20,000 pounds sterling, as an indemnity for the prizes
made of Prussian ships.[120]
At the commencement of the war of 1778, the public opinion
had become still more enlightened and animated on the
subject of neutral rights. The maritime success of Great
Britain in the war of 1756, had alarmed, and the abuses of her
power had sharpened the feelings of every commercial nation.
Champions had started up all over Europe, maintaining with
great learning and strong reasoning, the freedom of the seas,
and the rights of the neutral flag. The principle that free
ships make free goods, more especially employed a variety
of very able pens; and had made a rapid progress. Other
principles, the offspring or auxiliaries of this, and equally
adverse to the maritime claims of Great Britain, were also
gaining partizans. In a word, that state of fermentation
in the public mind was prepared, which being nourished
by the example and the policy of France, enabled Russia,
in concert with France, to unite and arm all the maritime
nations of Europe, against the principles maintained by Great
Britain. To these discouraging circumstances in the situation
of Great Britain, it must be added, that the cause in which
her, was unpopular; that their coalition with her enemies, weakening
her and strengthening them, had a double effect in depressing
her; and that it happened, as was to be foreseen,
that the fleets and cruisers brought against her, and the
distress to which her own West Indies were reduced by her
inability to supply their wants, made it questionable, whether
she might not lose, rather than gain, by renewing the principle
which she had formerly asserted. Early in that war, Mr.
Burke, in the House of Commons, exclaimed, "we are masters
of the sea, no farther than it pleases the house of Bourbon
to permit."
The effect of this state of things, in tempering the policy
and pretensions of Great Britain during the war of 1778, is
attested by a series of her public acts too tedious to be here
inserted, but which may be seen in Hennings' collection.
But to whatever causes, the relinquishment by Great Britain
of the new principle, is to be ascribed, the fact of the relinquishment
remains the same; and that it did not proceed
from any declaration made by France, that she had permanently
abolished her colonial monopoly, is fully demonstrated
by the following considerations.
The fact is, that such a declaration, or such an abolition by
France, however satisfactory the evidence of it might be to
the British Cabinet, could have no legal effect on the decisions
of a Court, without some notification of instruction which
is not pretended; and which is sufficiently contradicted, by
the guarded terms used by Sir William Scott in speaking
of the declaration. And that the then judge of the court, Sir
James Mariott, was not in fact influenced in his decisions,
either by the declaration of France itself, or by any instruction
of his own government founded on such a declaration, is
put beyond the possibility of doubt, not only by the want of
reference thereto in the decisions, but by an acknowledgment
made by Sir William Scott, in the case of the Emanuel
in 1799, (1 Rob., p. 253;) the case of a neutral vessel carrying
Spain, then at war with Great Britain. "With respect to
authorities (says he) it has been much urged, that in three
cases, this war, the Court of Admiralty has decreed payment
of freight to vessels so employed: and I believe that such
cases did pass, under an intimation of the opinion of the
very learned person who preceded me, in which the parties
acquiesced, without resorting to the authority of a higher
tribunal." If the decisions of Sir James Mariott in the war
of 1778, had been guided by the declaration of France, and
not by the law of nations, it is evident, as that delcaration
was inapplicable to the war of 1793, and had even been falsified
on the return of peace in 1783, as stated by Sir William Scott
himself, that the opinion intimated by Sir James Mariott
with respect to cases, Spanish too, and not French cases, in the
beginning of the war of 1793, could have no other basis than the
principle, that according to the law of nations taken by itself,
the trade of neutrals on belligerent coasts was a rightful trade.
Secondly. Were it admitted that a declaration by France
had been so made and communicated, as to become a rule
binding on the admiralty court, it is clear that the rule must
have been restricted to cases of trade with the French colonies,
and could have no effect on those of a trade with Spanish or
Dutch colonies, whose governments had made no such declaration
as is attributed to France: yet it is not pretended, nor is
it known, that any distinction was made by the British courts,
between the former and latter cases. The principle in question
seems to have been equally renounced in all.[121]
Thirdly. The alleged change in the system of France was restricted
to her colonies. It is not pretended that any permanent
change was either made, or declared in the system of her
coasting trade. But the decisions of the British court above
cited, relate principally to the coasting trade. The principle
then must have been drawn, not from the alleged change of
France, but from the law of nations: and if the law of nations
authorized in the judgment of the court, a coasting trade shut
in peace and opened in war, it must have authorized, in the
same judgment, the colonial and any other trade shut in peace
and opened in war.
It is an inevitable conclusion, therefore, not only that the
trade of neutrals to belligerent coasts and colonies, was sanctioned
by the British courts, throughout the war of 1778, but
that the sanction was derived from the law of nations; and,
consequently, that the new principle, condemning such a
trade, was not merely suspended under the influence of a
particular consideration which ceased with that war, but was,
in pursuance of the true principle of the law of nations, judicially
abandoned and renounced.
Passing on to the war of 1793, it appears, however, that the
policy of the British government, yielding to the temptations
of the crisis, relapsed into the spirit and principle of her conduct
towards neutral commerce, which had been introduced,
in the war of 1756.
The French revolution which began to unfold itself in 1789,
had spread alarm through the monarchies and hierarchies of
Europe. Forgetting former animosities, and rival interests, all
the great powers on the continent were united, either in arms
or in enmity, against its principles and its examples: some of
them, doubtless were stimulated, also, by hopes of acquisition
and aggrandizement. It was not long before the British government
began to calculate the influence of such a revolution,
on her own political institutions; as well as the advantages to
which the disposition of Europe, and the difficult situation of
her ancient rival and enemy might be turned. War was, indeed,
government was, certainly, the first that wished it, and never
perhaps entered into a war against France, with greater eagerness,
or more sanguine hopes. With all Europe on her side,
against an enemy in the pangs of a revolution, no measure
seemed too bold to be tried; no success, too great to be
expected.
One of her earliest measures was accordingly that of interdicting
all neutral supplies of provisions to France, with a
view to produce submission by famine.[122]
The project, however, had little other effect, than to disgust
those most interested in neutral commerce, and least hostile
to France. This was particularly the case with the United
States, who did not fail to make the most strenuous remonstrances
against so extraordinary a proceeding. The correspondence
of their Secretary of State with the British
plenipotentiary, (Mr. Hammond), and of Mr. Pinckney the
American plenipotentiary with Lord Grenville, the British
Secretary of State, are proofs of the energy with which the
innovation was combated, and of the feebleness and fallacy
with which it was defended. The defence was rested on a
loose expression of Vattel. Bynkershoeck, who had not altogether
got rid of the ideas of the former century, and by
whom Vattel probably was misled, could have furnished a still
stronger authority.[123]
The next experiment of depredation on neutral commerce
was directed, notwithstanding the former abandonment of
the principle, and the continuance of the abandonment into the
early cases of the war[124]
of 1793, against that carried on with the
too fell with peculiar weight on the United States. For some
time the irregularities went on, without any known instructions
from the government reviving the abandoned principle; but
without the licentious excesses which followed.
As early, however, as November 6, 1793, instructions were
issued, which struck generally at the neutral commerce with
the French West Indies. That of the United States was the
principal victim. The havoc was the greater, because the instructions
being carried into operation before they were promulged,
took the commerce by surprize.
This instruction of November 6th, 1793, was addressed
to the commanders of ships of war, and to privateers
having letters of Marque against France, in the following
terms:
"That they shall stop and detain all ships laden with goods
the produce of any colony belonging to France, or carrying provisions
or other supplies for the use of any such colony, and
in our courts of admiralty."
In some respects this instruction went farther than the new
principle asserted by Great Britain; in others it fell short of
that principle.
It exceeded the principle in making the produce of a French
colony, although owned by neutrals, and going from a neutral
port where it might have been regularly naturalized, the criterion
of the trade. The principle would have extended only to
produce exported immediately from the colony, in a trade not
permitted in time of peace.
Again, the principle was not applicable to an immediate
trade from certain ports[125]
and places in the colonies, authorized
by permanent regulations antecedent to the war. The instruction
extends to any colony, and consequently violates a trade
where it was permitted and customary before the war.
On the other hand it falls short of the principle, in as much—
1, as it spares articles directly exported from, though not the
produce of, the colonies—2, as it does not affect the coasting
trade of France, and other branches of French trade, laid open
in time of war, on account of the war.
With these mitigations, however, the instruction had a
sweeping operation on the neutral commerce with the French
colonies, carried on chiefly from the United States.
The resentment produced by it, and which was doubled by
the ensnaring concealment of the instruction, appeared not only
in the outcry of the suffering merchants, but in the discussions
and proceedings of the government. Important restrictions
on the commerce of Great Britain were agreed to by one branch
of the Congress, and negatived by a single vote in the other.
A sequestration of British funds and effects in the United
States was proposed and strongly supported. And an embargo
withholding supplies essential to the subsistence of
the British West Indies, actually passed into a law, and remained
gave way to the mission of a plenipotentiary extraordinary
to the British court, which terminated in the treaty of 1794.
The British government, in the mean time, aware of the
powerful tendency of such depredations, to drive the United
States into a commercial, if no other warfare, against her,
prudently retreated from the ground taken by this instruction,
as early as the 8th of January, 1794, when she revoked the
instruction to her cruisers, of November 6th, 1793, and subtituted
the following:
That they shall bring in for lawful adjudication all
vessels with their cargoes, that are loaded 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."That they shall bring in for lawful adjudication, all
ships with their cargoes, that are loaded with goods the
produce of the said islands, the property of which goods shall
belong to subjects of France, to whatsoever ports the same
may be bound."That they shall seize all ships that shall be found attempting
to enter any port of the said islands that is, or shall
be, blockaded by the arms of his majesty or his allies, and shall
send them in with their cargoes for adjudication, according to
the terms of the 2d article of the former instructions, bearing
date the 8th day of June, 1793."That they shall seize all vessels laden wholly or in
part with naval or military stores, bound to any port of the
said islands, and shall send them into some convenient port
belonging to his majesty, in order that they, together with
their cargoes, may be proceeded against according to the rules
of the law of nations."
"1.
"2.
"3d.
"4th.
As the three last articles cannot be regarded as any relaxation
or re-modification of the instructions of November, 1793,
since they relate only to principles well known to have been
long enforced by Great Britain, as a part of the law of nations,
it is not easy to discern the motive to them. The only effect
rights, in certain branches of trade, seems to be, to beget perplexing
questions with respect to these rights, in the branches
of trade pretermitted.
The material article is the first. It varies the preceding
instructions in three respects: 1st, in substituting "the French
West India islands" for "any colony of France;" of which
there are some not islands, and others not West India islands:
2d, in limiting the seizure, to produce "coming directly" from
any port of the said islands: 3d, in the very important limitation
of the seizure, to vessels bound from those islands to any
port in Europe.
By these limitations it was, apparently, intended to take the
direct trade from the French West Indies to the United States,
out of the operation of the order of 1793: and, probably also,
the trade from the United States to the West Indies; leaving
the trade to Europe, from the French West Indies, a prey to
British cruisers. Whether it was also meant, as seems to be
implied, that the neutral trade from Europe to the French
West Indies was to be undisturbed, is a distinct question.
This question was actually raised under the ambiguity of the
instruction, and decided, not without some marks of self
distrust, by Sir Wm. Scott, in the case of a trade from France
herself to a West India colony.[126]
The explanation of this change in the instructions of the
British Government is given, by the Reporter of Sir Wm.
Scott's decisions, in the following passage extracted from the
appendix to 4 Rob., p. 4: "The relaxations that have since
[the instructions of November 6, 1793] 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,
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 right generally
ascribed to neutral trade in time of war, that it may be
continued with particular exceptions, on the basis of its ordinary
establishment. In consequence of representations made
by the American Government, to this effect, new instructions
to our cruizers were issued, 8th January, 1794, apparently
designed to exempt American ships trading between their own
country and the colonies of France."
One remark suggested by this explanation is, that if it be
a just defence of the orders of January, 1794, it is a severe
imputation on those of November, 1793; for tne sole reason
which is stated, as requiring this revocation of the orders of
1793, was in existence at the date of those rigorous orders; and
ought, therefore, to have prevented them. Yet they were
not only not prevented, but were permitted to have a secret
and extensive operation on the American commerce. Nor
does it appear, that in any of the decisions on the captures
made within that period, conformably to the instructions, but
contrary, as is here admitted, to the law of nations, which, on
the British principle, authorized the American commerce, at
least as far as it had been actually enjoyed with the French,
in time of peace, the court ever undertook to modify the
instructions; as is alleged to have been done, in the war of
1778, in consequence of the professions of France that she
had opened her colonial ports, generally, to the permanent
trade of other nations.
The explanation calls for two other remarks. The first is,
that the instruction goes beyond the reason assigned for it.
The reason assigned is, that the trade between the United
States and the French islands had, by the permission of France,
become "the ordinary state of their trade in time of peace."
Now so far as this was the fact, the trade is expressly and
to "some articles," and "on certain conditions." But the
instruction is admitted to have been designed to exempt,
without any such limitations, American ships trading between
their own country and the colonies of France.
The second remark is, that it is not a fact, that the representations
of the American Government were made to the effect
here stated; namely, that the instructions of 1793 debarred
them of the right of trading with the French colonies in time
of war, according to the ordinary state of the trade permitted to
them in time of peace. The representations of the American Government
recognized no such principle, nor included any such
complaint; as is proved by official documents[127]
on the subject.
A third remark might be added. If the ordinary permissions
of France to trade with her colonies, was a good reason
for exempting the trade of the United States from the order
of November, 1793, the exemption ought to have been coextensive
with the permissions; and, consequently, to have
embraced the neutrals of Europe, who enjoyed the same permissions
as the United States; instead of being restricted to
the latter.
careless facility with which orders proceed from the Government
of a great and an enlightened nation, laying prostrate
the commerce and rights of its friends; or the defective and
preposterous explanations given of such orders, by those who
undertake to vindicate or apologize for them.
But whatever may have been the origin, or the intention of
the second orders of 1794, revoking the restraints imposed by
those of 1793, on the United States; whilst they suffered those
restraints to continue, in great part at least, on other nations;
two consequences resulted, which seem not to have been taken
sufficiently into foresight.
One of them was, that the nations of Europe, excluded from
the trade not forbidden to the United States, were not a little
soured by the distinction; and which, very possibly, may have
contributed to the revival of the sympathies which brought
about the armed neutrality of 1800.
The other was, the vast growth of the carrying trade of the
United States, which supplied all parts of Europe, with the produce
of the West Indies, and without affording to Great Britain
any of the profits of an entrepot.
The development of these consequences could not fail to
awaken the attention of the British Government, and is the
best key to the instruction which was issued January 25, 1798;
and which was extended to the possessions of Spain and Holland,
then united with France against Great Britain.
It revoked the instructions of January, 1794, reciting as the
consideration which rendered the alteration expedient, "the
present state of the commerce of Great Britain, as well as that
of neutral countries;" and in lieu thereof, the following was
issued:
"That they should bring in for lawful adjudication, all vessels
with their cargoes, that are laden with goods, the produce
of any island or settlement belonging to France, Spain, or the
United Provinces, and coming directly from any port of the
said islands or settlements, to any port in Europe, not being a
ships, being neutral ships, shall belong." The residue of the articles
merely extend to the islands and settlements of France,
Spain, and Holland, the three last articles in the instructions
of January, 1794.
The effect of this new change in the instructions was, to
sanction a direct trade from all the French islands, as well as
from those in the West Indies, and also from the French settlements
which were not islands, with a like sanction, to a like
trade, from the islands and settlements of the other enemies of
Great Britain; to extend to neutrals in Europe, the enjoyment
of this trade, with a refusal to the American States, of the
direct trade, from those islands and settlements to such European
neutrals; and finally, to permit to these States, as well as
to the neutrals of Europe, a direct trade from the hostile
islands and settlements to Great Britain herself.
The explanation attempted by the reporter, Dr. Robinson,
in his appendix to the 4th vol., p. 4–5, is, that "In consequence
of the relaxation [in 1794] of the general principle in favor of
American vessels; a similar liberty of resorting to the colonial
market, for the supply of their own consumption, was conceded
to the neutral States of Europe, a concession rendered
more reasonable by the events of war, which, by annihilating
the trade of France, Spain, and Holland, had entirely deprived
the States of Europe of the opportunity of supplying themselves
with the articles of colonial produce in those markets."
With regard to the permission to all neutrals to convey the produce
of the enemies' colonies, directly to British ports, he is silent.
From a summary, however, of the discussions which had
taken place on cases before the Lords of Appeal, as it is given
in the appendix to 4 Rob., p. 6, an explanation of this part
of the regulation, might be easily collected, if it were not otherwise
sufficiently obvious. Among the arguments used for
so construing the last order of 1798, as to justify a Danish
vessel in trading from a Spanish colony, to a neutral country,
to which the vessel did not belong; it is observed, "that, originally,
on the part of the belligerent; by which the effect of
reducing such settlements for want of supplies, became a
probable issue of the war; now, since the relaxations have conceded
to neutral merchants the liberty of carrying thither
cargoes of innoxious articles, and also of withdrawing the
produce of the colony, for the purpose of carrying it to their
own ports; now, to restrict them from carrying such cargoes
directly to the ports of other neutral States, becomes a rule apparently
capricious in its operation, and one, of which the
policy is not evident. From the northern nations of Europe,
no apprehensions are to be entertained of a competition injurious
to the commercial interests of our own country. To exclude
them for this mode of traffic [that is of trafficking directly
from such colonies to other neutral countries] in the produce of
the enemy's colonies, is to throw a farther advantage into the
hands of American merchants, who can, with greater ease,
import it first into their own country, and then, by re-exportation,
send it on to the neutral nations of Europe."
No other key is wanted to let us into the real policy of the
orders of 1798; which placed the neutral nations of Europe, and
the United States on the same footing, by extending the rights
of the former, and thereby abridging the advantages of the latter.
This change of "the actual state of the commerce of this
country (G. B.) as well as that of neutral countries" was expedient
for two purposes: It conciliated the Northern nations,
then perhaps listening to a revival of the armed neutrality, and
from whom "no apprehensions were to be entertained" of an
injurious competition with the commercial interests of Great
Britain; and at the same time, it so far took the advantages of
re-exportation out of the hands of the American merchants,
from whom such a competition, probably was apprehended.
But a mere adjustment of the balance between neutrals in
their advantageous trade with the enemy colonies, did not
answer all the purposes which were to be consulted. It gave
Great Britain herself, no share of the forbidden fruit. She
permit none of the neutral merchants of any country to
carry on this colonial trade of her enemies with another
neutral country, to authorize them all to carry it on with
herself; disguising, as well as she could, the policy of making
herself the centre and thoroughfare of so extensive a branch
of profit, under the general expediency of changing "the state
of commerce both British and neutral" as it had resulted
from her regulations of 1794; and avoiding, as much as she
could, to present to notice, the palpable inconsistency of
making herself a party to a trade with her colonial enemies,
at the very moment when she was exerting a belligerent
pretension, having no other basis, than the probable reduction
of them, by suppressing all trade whatever with them.
This subject is too important not to be a little further pursued.
Unpleasant as the task is, to trace into consequences,
so selfish and so abounding in contradictions, the use made
by Great Britain of the principle assumed by her, the development
is due to truth and to the occasion. It will have the important
effect, at the same time, of throwing further light
on the checkered scene exhibited by the admiralty jurisprudence
of Great Britain.
It must be added then, that the commercial policy for which
she employs her new belligerent principle, is the more apparent
from two subsidiary pretensions, as new, as they are at variance
with the maritime rights of neutral nations.
The object of drawing through her own warehouses and
counting-houses, the colonial trade of her enemies, on its way
from the West Indies to the other countries of Europe, being
counteracted by the extensive intercourse between the United
States and those colonies, and by the re-exportation from the
United States, of the imported surplus of colonial produce, the
project was adopted, of forcing this trade directly from the
West Indies to, and through Great Britain; 1st, by checking
the West India importations into the United States, and thereby
lessening the surplus for re-exportation; 2d, by embarrassing
considerations seconded, no doubt, by the avidity of her cruizers
and by the public interest, supposed to be incorporated
with their success in making prizes; and the first consideration,
seconded also, perhaps, by a desire to give an indirect
check to the exportation of contraband of war from the
United States.
In order to check importations, the principle is advanced,
that the outward and the return voyage are to be regarded, as
forming but a single voyage; and consequently, if a vessel is
found with an innocent cargo on board, but on her return
from a hostile port, her outward cargo to which, was as contraband
of war subject to capture, the vessel is thereby rendered
liable to capture, and the chance for capture, by that means,
doubled.
That this principle is of modern date, can be shewn by
more than negative evidence; and from a source highly respectable.
When Sir L. Jenkins was judge of the high court of
admiralty, in the latter period of the 17th century, it was the
practice, sometimes for the king, at others for the commissioners
of appeal, to call for his official opinions in writing, on
cases depending in other courts, or diplomatically represented
to the government. These rescripts are valuable, not only
as one of the scattered and scanty materials composing the
printed stock of admiralty precedents in Great Britain; but
as the testimony of a man, who appears to have been not
undeservedly regarded as an oracle in his department
of law; and to have delivered his opinions with a candor
and rectitude, the more meritorious as he served a sovereign
who gave little encouragement to these virtues, and as
he was himself of a temper and principles sufficiently courtly.
The case of a Swedish vessel, which had conveyed enemy's
goods, having been seized on her return, with neutral goods,
was represented to the government by the Swedish Resident;
and by the Government referred to Sir L. Jenkins, the judge
of the high court of admiralty. His report is so interesting
that it shall be given in his own words:
"The question which I am (in obedience to his Majesty's
most gracious pleasure) to answer unto, being a matter of fact,
I thought it my duty not to rely wholly on my own memory
or observation, but further to inquire of Sir Robert Wiseman,
his majesty's advocate general; Sir William Turner, his
royal highness, the lord high admiral's advocate; Mr. Alexander
Check, his majesty's proctor; Mr. Roger How, principal
actuary and register in the high court of admiralty in England;
whether they, or any of them, had observed, or could call to
mind, that in the late war against the Dutch, any one ship
otherwise free, (as belonging to some of his majesty's allies,)
having carried goods belonging to his majesty's enemies,
from one enemy's port to another, and being seized (after it had
discharged the said goods) laden with the proceeds of that freight
which it had carried and received of the enemy upon the
account of the ship's owners, had been adjudged prize to his
majesty; they all unanimously resolved that they had not
observed, nor could call to mind that any such judgment or
condemnation ever passed in the said court; and to this
their testimony I must (as far as my experience reaches)
concur: and if my opinion be (as it seems to be) required, I
do not (with submission to better judgment) know any thing,
either in the statutes of this realm, or in his majesty's declarations
upon occasion of the late war, nor yet in the laws and
customs of the seas, that can (supposing the property of the
said proceed to be bona fide vested in the ship owners his majesty's
allies) give sufficient ground for a condemnation in this
case. And the said advocates (upon the debate I had with
them) did declare themselves positively of the same opinion.
Written with my hand this 6th day of February, 1667."[128]
Sir L. Jenkins' works, 2 vol., p. 741.
Here the point is clearly established, that a vessel found
with a lawful cargo, on a return voyage, cannot be affected by
the unlawfulness of the cargo immediately preceding it; and,
consequently, that an outward and return voyage, cannot be
considered as but one voyage, or the character of one as transfused
into the other.
It is true that, in this case, the cargo in question was not
contraband of war, but enemy's property. But there is no
room for a distinction in the principle applicable to the two
cases. If the two voyages in fact make one and the same
voyage in law, an outward cargo of enemy's property must
authorize capture in the returned voyage as much as an
outward cargo of contraband would authorize it. If the two
voyages do not make one and the same; the contraband of war
in one voyage, can no more affect another voyage, than enemy's
property, in one voyage, can effect another voyage.
It will not have escaped attention that, in the case stated in
the report of Jenkins, the voyage in which enemy's property
vitiated the return voyage, was a coasting voyage from one
enemy's port to another. Yet so immaterial was that circumstance,
at that time, that it appears not even to have been taken
into his consideration, much less to have influenced his opinion.
Had it been otherwise, it would indeed have made his decision
so much the stronger against the amalgamation of two voyages,
on account of the unlawfulness of one of them: for on that supposition
the first of the two voyages would have been doubly
unlawful, as engaged both in carrying enemy's property, and
in carrying it from one enemy's port to another.
But this particular principle is not only of modern date, but
of very recent date indeed. Its history, like that of many
other belligerent innovations by Great Britain, is not unworthy
of attention.
In December, 1798, in the case of the Frederick Molke, a
Danish vessel that had got into Havre, then deemed in a state
of blockade, and was taken on her way out, August 18th, 1798,
it was urged to be like the case of a return voyage, where the
cargo of the outward voyage had been contraband. Sir William
Scott admitted that, in the latter case, "the penalty does
not attach on the returned voyage" but denied the affinity between
the cases: "there is this essential difference," said he,
"that in contraband the offence is deposited with the cargo
whilst in such a case as this, it is continued and renewed in the
subsequent conduct of the ship;"[129]
the act of egress being, according
to him, as culpable as the act of ingress.
In August, 1799, in the case of the Margaretha Magdalena;
a vessel returning to Copenhagen from Batavia, her outward
cargo having consisted of contraband goods, was seized at St.
Helena, September, 1798. On the ground, however, that the
ship and cargo were neutral, and that the outward shipment
from Copenhagen was contingent and not absolutely for Batavia,
but sent under the management of the master to invest the
proceeds in the produce of Batavia, restitution was decreed by
"articles were actually s.ld at Batavia," with a remark
only, that there was great reason to bring this case to adjudication,
as a case very proper for enquiry. On this occasion the
judge made the following observations: "It is certainly an
alarming circumstance in this case, that although the outward
cargo appears to have consisted of contraband goods, yet the
principal owner appears publicly at Copenhagen, and makes
oath, "that there were no prohibited goods on board, destined
to the ports of any party now at war." The master himself
describes the cargo that he carried out as naval stores, and in
looking into the invoice I find that they are there represented
as goods to be sold. That being so, I must hold that it was a
most noxious exportation, and an act of very hostile character,
to send out articles of this description to the enemy, in direct
violation of public treaties, and of the duty which the owners
owe to their own government. I should consider it as an
act that would affect the neutral in some degree on this returned
voyage, for although a ship on her return is not liable to confiscation
for having carried a cargo of contraband on her outward
voyage, yet it would be a little too much to say, that all
impression is done away; because if it appears that the owner
had sent such a cargo, under a certificate obtained on a false
oath, that there was no contraband on board, it could not but
affect his credit at least, and induce the court to look very
scrupulously into all the actions and representations of such
a person."[130]
That the judge was beginning to be a little unquiet under
the rule imposed on himself, not to consider a ship on her
return voyage as liable to confiscation for having carried a
cargo of contraband on her outward voyage, is sufficiently
visible. He is found, nevertheless, still submitting to the
restriction.
The case of the Immanuel succeeded November 7th, 1799.
It is the case of a Hamburg ship, taken 14th August, 1799, on
touched at Bordeaux, where she sold part of her cargo, and
took a quantity of other articles for St. Domingo. The question
was started, whether the stores which had been discharged
at Bordeaux, though originally destined for St. Domingo, were
contraband or not. The inference of the judge was, that they
were not of a contraband nature, at least that they were left
ambiguous, and without any particular means remaining of
affording a certainty upon the matter. "If so," said he, "it is
useless to imagine what the effect of contraband, in such circumstances,
would have been. I shall say no more, than that
I incline to think that the discharge of the goods at Bordeaux
would have extinguished their powers of infection. It would
be an extension of this rule of infection, not justified by any
former application of it, to say, that after the contraband was
actually withdrawn, a mortal taint stuck to the goods, with
which it had once travelled, and rendered them liable to confiscation,
even after the contraband itself was out of its reach."[131]
This was not indeed a return voyage, but one link of an outward
voyage. The reason, however, given why contraband,
after being discharged, could not leave a confiscating taint on
the expedition, namely, because itself was out of the reach of
confiscation, is precisely common to the two cases; yet it would
seem that the judge is becoming not a little languid in maintaining
the opinion, "that the offence of contraband is deposited
with the cargo." He now "inclines to think that such
would be the effect."
February 5, 1800, the case of the Rosalie and Betsey, was
that of a ship taken May 31, 1799, on a voyage from the Isle
of France, asserted to be to Hamburg. It was made a question
of property, turning on a question of fraud; the fraud in the
returned voyage was held to be reinforced by the fraud in the
outward voyage; and that fraud is stated by Sir William
Scott, "as more noxious on account of the contraband nature
of several of the articles of the outward cargo."
Here contraband in an outward voyage was, in spite of the
maxim that its offence was deposited with the cargo, allowed
to have an influence on the character of the returned voyage.
Still it was but an indirect and partial influence. It was held
to be an aggravation only of the fraud, the fraud being the
gist of the offence.
In 1800, June 24, occurs the case of the Nancy, Knudson
master, a ship taken on a voyage to Copenhagen from Batavia,
whither she had carried contraband of war. The cargo appears
to have been condemned, on the ground of fraud in the papers
and destination, combined with the contraband quality of the
outward cargo. The complexion and weight, however, which
the last ingredient had assumed in the mind of the judge, are
seen in the following extract from the judgment pronounced
by him:
"But it is said, this is a past transaction, and that in case of
contraband, the returned voyage has not usually been deemed
connected with the outward. In European voyages of no great
extent, where the master goes out on one adventure, and
receives at his delivering ports, new instructions and further
orders, in consequence of advice obtained of the state of
the markets, and other contingent circumstances, that rule has
prevailed; but I do not think, in distant voyages to the East
Indies, conducted in the manner this has been, the same rule
is fit to be applied. In such a transaction, the different parts
are not to be considered as two voyages, but as one entire
transaction, formed upon one original plan, conducted by
the same persons, and under one set of instructions, ab ovo
usque ad mala."[132]
This condemnation of the cargo was
confirmed by the lords of appeal, and the indulgence even
allowed with respect to the ship, by the high court of admiralty,
reversed by that superior tribunal.
The existence of contraband in an outward voyage, not
only figures more considerably in this, than in any preceding
case; but the judge gets hold of a new implement of judicial
of the alleged continuity of fraud from the outward into the
returned voyage, and of the aggravation given to fraud by the
ingredient of contraband in the outward voyage; in aid of all
these, the distance of the voyage, makes for the first time,
its appearance. In the case of the Margaretha Magdalena,
the voyage, like this, was a voyage to Batavia. In the case
of the Rosalie and Betsey, the voyage was also into the
East Indian seas. In neither of these cases, the slightest
allusion is made to that criterion of right and wrong. The
discovery then may fairly be dated with the case of the Nancy,
of no older date than June, 1800.
But mark the reason, why distant voyages to the East
Indies are distinguished from European voyages of no great
extent. It is, because in the latter the master "receives at
his delivering ports, new instructions and further orders, in
consequence of advice obtained of the state of the markets, and
other contingent circumstances;" whereas, in distant voyages
to the East Indies, conducted in the manner this has been, the
two voyages are to be considered as one entire transaction,
formed upon one original plan, conducted by the same persons,
and under one set of instructions.
If the reason here given for the distinction between distant
voyages and voyages of no great extent, be a good one, it is
not easy to see the reason for requiring, in addition to the
distance of the voyage to the East Indies, that it should be
conducted in the manner of this particular voyage; unless
indeed it be, as there is too much room to remark in the
decisions of the Judge, with a view to rest every case, as
much as possible, on its own particular circumstances; and
thereby avoid the judicial fetters formed by a chain of
definite precedents.
Certain it is, that if the outward and returned voyages are
to be taken as one, where the distance of them is such, that
new orders cannot be given, in consequence of new advices
from the foreign ports of delivery, as may be done in voyages
under one original set of instructions; every voyage
to the East Indies, in whatever manner conducted, must fall
within the rule which determines the outward and returned
voyage to be but one voyage; in other words, that in that
extensive branch of neutral commerce, the outward and
returned voyage, making but one, contraband in the outward
cargo, though deposited at its place of destination, is to have the
same effect on the returned voyage, as it would have had on
the outward voyage, if actually intercepted on the outward
voyage.
Nay more; the rule must be applicable to every European
voyage, of great extent; an extent so great as to require that
the sale of the outward cargo at the ports of delivery, and the
purchase of a return cargo, should be provided for, in the
same original instructions.
In no view can the rule be less applicable to distant voyages
between Europe and the West Indies, than between Europe
and the East Indies; nor more to European voyages than to
American voyages to the West Indies, where these are of so
great extent as to require that the returned voyage should
be provided for in the same set of instructions with the outward
voyage.
Whether these analogies and inferences entered into the contemplation
of the Judge on this occasion, is an enquiry which
may be waived. Nor is it known to the public, whether any
intermediate steps were taken by him, or by the superior tribunal,
between that date and the 24th June, 1803, conducting the
policy or opinion of the cabinet, towards the instructions of
this last date. These form, however, a very natural result of
those preliminary ideas, as appears by the tenor of the instructions,
which is as follows:
"In consideration of the present state of commerce, we are
pleased hereby to direct the commanders of our ships of war
and privateers, not to seize any neutral vessel which shall be
carrying on trade directly between the colonies of enemies and
with the property of inhabitants of such neutral country:
Provided, that such neutral vessel shall not be supplying, nor
shall have, on the outward voyage supplied, the enemy with
any articles of contraband of war; and shall not be trading
with any blockaded port."
In these instructions we find the principle formally adopted,
and the returned cargoes of West India produce actually obstructed,
on their way to the United States, by the application
of the principle, wherever the outward cargo had included contraband.
We find, of course, the West India trade so far
forced out of the channel to Europe through the United
States, into such channels to and through Great Britain, as she
may chuse to prescribe.
This being necessarily and obviously the commercial effect
of the instructions, it may fairly be supposed that it corresponds
with the intentions of a nation so clear-sighted in
whatever affects her commerce; and, consequently, that
the principle on which this instruction is founded, was assumed
as subsidiary to the commercial policy on which was
founded the main principle under investigation.
Another observation, with respect to this instruction, forces
itself upon us. It was a heavy reproach against the instruction
of November 6th, 1793, that it was not promulged until
it had for some time been ensnaring, and laying waste, the
commerce of neutral nations with the West Indies. The
instruction of June 24, 1803, first found its way (probably
by chance) to public notice in the United States, from the obscure
island of Tortola, in the summer of 1805. It must, then,
have been in the pockets of cruisers, ensnaring and destroying
the commerce of this country, as far as that degree of innovation
could have that effect, for a period of about two years
The reproach is heightened, too, by the consideration that the
snare, in this case, was successful in proportion to the respect
observed towards former instructions, the faith of which
was violated by the ex post facto operation of that in question.
and wise nation can wish to make, for such a trespass on all
the maxims of public morality, as well as of national honor.
The second pretension subsidiary to the commercial policy
of instructions, clothed with the language of belligerent rights,
is that of subjecting to capture, colonial produce, re-exported
from a neutral country to countries to which a direct transportation
from the colonies by vessels of the re-exporting country,
has been disallowed by British regulations. The effect of this
pretension evidently is, to check neutral nations, particularly
the United States, in the circuitous transportation of West
India produce; and in the same proportion, to force the trade
into channels terminating in British ports. And the effect is
the more particularly in her favor, as the re-exportation of
the surplus carried into her ports can be regulated by her own
laws, for her own interests; whilst she will not permit the
laws of other countries to regulate the re-exportation of the
surplus carried into their respective ports.
That this pretension, also, is as new as it is arbitrary, will be
best seen by a review of its rise and progress; which will at the
same time, as in the other instance, illustrate the inconstancy
and inconsistency of the maritime proceedings of Great Britain
toward other nations.
Prior to the war of 1756, no trace of any such pretension is
discovered; and it is testified by the authority of Lord Mansfield,
as already seen, that a principle was, during that war,
judicially settled in opposition to it. A neutral vessel, off the
neutral island of St. Eustatius, had received on board a part of
her cargo from French boats, from a French colony. "This,"
says his lordship, "is now a settled point by the lords of appeals,
to be the same thing as if they had been landed on the Dutch
shore, and then put on board afterwards; in which case there
is no color for seizure."
Here the rule was solemnly settled by the highest admiralty
tribunal in Great Britain, that the trans-shipment, off a
neutral port, of colonial goods from an enemy's vessel, protected
had been landed and reladen, there was not even a color for
seizure.
Notwithstanding this solemn recognition of the neutral
right, it was found, as also has been seen, that French produce
exported by neutrals from the neutral port of Monte
Christi, during the war of 1756, was not protected by the rule.
During the war of 1778, the whole claim of disturbing neutral
commerce on the ground of its not being open in peace
as well as in war, having been relinquished, the question could
not occur until the war of 1793. And what is not to pass
unnoticed, the first case in which the point fell under judicial
observation, appears to have been that of the Immanuel in
November, 1799. During the six preceding years, as may
be inferred from what then fell from the judge, no doubt had
existed, that an importation of colonial produce into a neutral
country, converted it into the commercial stock of the country,
with all the rights, especially those of exportation, incident
to the produce or manufactures of the country itself.
It will be most satisfactory to present the opinion of Sir
William Scott on that occasion, in the words of his reporter.
"It is argued that the neutral can import the manufactures of
France to his own country, and from thence directly to the
French colony; why not immediately from France, since the
same purpose is effected? It is answered, that it is effected
in a manner more consistent with the general rights of neutrals,
and less subservient to the special convenience of the enemy.
If a Hamburg merchant imports the manufactures of France
into his own country (which he will rarely do if he has like
manufactures of his own, but which in all cases he has an incontrovertible
right to do) and exports them afterwards to
the French colony, which he does not in their original French
character, but as goods which, by importation had become
part of the national stock of his own neutral country, they
come to that colony with all the inconvenience of aggravated
delay and expense; so if he imports from the colony to Hamburg,
colony, they come to the mother country under a proportional
disadvantage; in short, the rule presses on the supply at
both extremities, and, therefore, if any considerations of
advantage may influence the judgment of a belligerent country
in the enforcement of the right, which upon principle it
possesses, to interfere with its enemy's colonial trade, it
is in that shape of this trade, that considerations of this nature
have their chief and most effective operation."[133]
Although the judge is somewhat guarded in his terms, more
consistent with the general rights, and less subservient to the
special convenience of the enemy; and somewhat vague, if not
obscure, in his reasoning; yet he admits that an importation
of goods from a belligerent country, into a neutral country,
had the effect of making them a part of the national stock
of the neutral country, equally entitled with the national
stock itself, to be exported to a belligerent country. What
circumstances would constitute an importation are not specified;
nor does it appear in what light a mere trans-shipment,
at a neutral port, would have been regarded.
The next occasion, on which the judge delivered an opinion
on this subject, occurred in a case before the court, February
5, 1800, and which came before it again on farther proof,
April 29, 1800. It was the case of an American ship taken
October 16, 1799, on a voyage from Marblehead to Bilboa,
with a mixed cargo of fish, sugar and cocoa. The fish, which
made the principal part of the cargo, could not enter into
the question. The sugar was part of a whole cargo brought
from the Havanna in the same ship, had been warehoused
from some time in June till some time in August, during the
repair of the ship, and was then reshipped. The cocoa, small
in quantity, was originally from a Spanish settlement, and had
been trans-shipped from another vessel, lying at Marblehead,
after having been entered at the custom-house. The ship
had been restored by the captors. The property of the cargo
On this question, Sir William Scott pronounced the following
judgment:
"There remains then only the question of law, which has
been raised, whether this is not such a trade as will fall under
the principle that has been applied to the interposition of
neutrals in the colonial trade of the enemy. On which it is
said that if an American is not allowed to carry on this trade
directly, neither can it [he?] be allowed to do it circuitously.
An American has undoubtedly a right to import the produce of
the Spanish colonies for his own use; and after it is imported
bona fide into his own country, he would be at liberty to carry
them on to the general commerce of Europe: Very different
would such a case be from the Dutch cases, in which there was
an original contract from the beginning, and under a special
Dutch licence to go from Holland to Surinam, and to return
again to Holland with a cargo of colonial produce. It is not
my business to say what is universally the test of a bona fide
importation. It is argued that it would not be sufficient that
the duties should be paid, and that the cargo should be landed.
If these criteria are not to be resorted to, I should be at a loss to
know what should be the test; and I am strongly disposed to
hold, that it would be sufficient that the goods should be landed
and the duties paid. If it appears to have been landed and
warehoused for a considerable time, it does, I think, raise a
forcible presumption on that side; and it throws it on the other
party to shew how this could be merely insidious and colorable.
There is, I think, reason to believe that the sugar was a part
and parcel of a cargo said to have been brought from a Spanish
colony in this vessel; and if so, the very distribution of the
remainder is some proof that they were not brought with an
intention only of sending them on. But I have besides positive
proof in the affidavit of Mr. Asa Hooper, who swears
that the duties had been paid for them. Then the only difficulty
remains as to the cocoa, and it is said by one of the witnesses,
and by one only, that it was trans-shipped from another vessel,
but although there is something of a difficulty arising on this
small part of the cargo, yet upon the whole I cannot think it
weighty enough to induce me to send the case across the
Atlantic for still further proof, as to the facts of this recent
importation and trans-shipment, or of its having been transferred
to the present proprietors, or of having been exported
without a previous payment of import duties. If it had composed
a larger part of the cargo, I might have deemed it
reasonable to have had somewhat more of satisfaction on some
of these points, which do not appear with sufficient certainty
to found any legal conclusion against it. It appears by the
collector's certificate that it had been entered and imported, and
I think that these words are sufficient to answer the fair demands
of the court."
It must be confessed that we perceive, in this opinion of the
judge, somewhat of that customary forecast, which in tying a
knot to bind himself, avoids drawing it too close to be loosened
a little, if there should be occasion. It is, nevertheless, established
by the precedent, that the landing of the goods and paying
the duties, is a sufficient test of the importation; and that
the certificate of the collector that "they have been entered
and imported, is all the evidence of the fact, that can fairly
be demanded by the court."
It might indeed have been expected that the rule stated by
Lord Mansfield to have been settled by the lords of appeals,
[which makes the trans-shipment to be equivalent to the landing
and reshipment of goods, and this last procedure to take
away all color for seizure,] would have found its way into the
notice of the judge. That rule, however, cannot be impaired
by any thing in his decision for two reasons. One is, that the
further satisfaction, which, if the part of the cargo transshipped
had been more considerable, he might have deemed
reasonable on some of the questions; might refer not to the
legality of the voyage, but to the question of property; and it
is certainly agreeable to all the just rules of interpretation so
court, to decide in direct opposition to a rule settled
by the superior court. The other reason is still more conclusive;
it is, that on the supposition of such a purpose in an
inferior court, it could have no legal effect in controuling the
rule settled by the superior court, the rule by which alone the
conduct of individuals could be governed.
Such has been the judicial exposition of the neutral right,
even under the British restrictions. The acknowledgment by
the cabinet itself, was officially disclosed on the following occasion,
and to the following effect:
The cruisers of Great Britain having seized, and the vice
admiralty courts having condemned, American vessels bound
from the United States to the Spanish West Indies, on the
pretext that their cargoes consisted of articles the growth of
Spain, then at war with Great Britain; the American Minister
in London, in March, 1801, represented to the British Government
the iniquity of the proceeding, with the indignation
which it inspired: and required that precise instructions
should be dispatched to the proper officers in the West Indies
and Nova Scotia, to put an end to the depredations. The subject
was referred to the king's advocate general, an extract
from whose report was communicated by the British Secretary
of State to the American minister, with information that
the king had ordered the doctrine laid down in the report, to
be immediately transmitted to the several inferior judges,
as the law for their future guidance and direction.
The extract containing this doctrine shall be literally
recited:
"I have the honor to report, that the sentence of the vice admiralty
court appears to be erroneous, and to be founded in a
misapprehension or misapplication of the principles laid down
in the decision of the court of admiralty referred to, without
attending to the limitations therein contained.
"The general principle respecting the colonial trade has in
the course of the present war been to a certain degree relaxed
distinctly understood, and has been repeatedly so decided by
the high court of appeals, that the produce of the colonies of
the enemy may be imported by a neutral into his own country,
and may be re-exported from thence, even to the mother country
of such colony; and in like manner the produce and manufactures
of the mother country may, in this circuitous mode,
legally find their way to the colonies. The direct trade, however,
between the mother country and its colonies has not, I
apprehend, been recognized as legal, either by his majesty's
Government or by his tribunals.
"What is a direct trade, or what amounts to an intermediate
importation into the neutral country, may sometimes be a
question o some difficulty. A general definition of either applicable
to all cases, cannot well be laid down. The question
must depend upon the particular circumstances of each case;
perhaps the mere touching in the neutral country, to take
fresh clearances, may fairly be considered as a fraudulent
evasion, and as in effect the direct trade; but the high court
of admiralty has expressly decided (and I see no reason
to expect that the court of appeal will vary the rule) that
landing the goods and paying the duties In the neutral country,
breaks the continuity of the voyage, and is such an
importation as legalizes the trade; altho' the goods be reshipped
in the same vessel, and on account of the same
neutral proprietors, and forwarded for sale to the mother
country."[134]
It is impossible to express the law meant to be here laid down
in clearer terms, so far as it determines "that landing the goods
and paying the duties" in a neutral country, legalizes the circuitous
trade, even between a belligerent country and its own
colonies. What inferior circumstances would have the same
effect are not specified. It is not decided without a "perhaps"
that the mere touching, &c., would be insufficient to legalize the
trade. Nor is the legality even of a direct trade between the
"I apprehend it has not been recognized."
Thus stood the admiralty in Great Britain, as announced by
British tribunals, and officially communicated by the British
Cabinet to the neutral world. So it had continued to stand, as
a pledge and safeguard to neutrals, conforming themselves to
it, from the dates of those authorities, the last of which is as
far back as the spring of the year 1801.
With what astonishment, then, must the neutral world now
learn, from the decision of Sir William Scott on the 23d July,
1805, that, according to the rule of law just laid down, after
much deliberation, by the lords of appeals, "the circumstances
of landing the goods or securing the duties, do not
furnish complete evidence of the termination of the voyage;"
and that without this complete evidence, derived from the
original intention of the importing voyage, the voyage from
the neutral port will be treated as the continuance of the
voyage from the colony to the mother country.
This political change in the judicial rules of condemnation,
admits no other satisfactory, than a commercial explanation;
for the loss of character, which it induces, is a greater sacrifice
than could be made to the cupidity of cruisers, or the value
of their prizes to the public.
The whole course, indeed, of modifications pursued by the instructions,
and by the decisions of the courts as they appear
from day to day, can leave no doubt that the primary object
with Great Britain has been to transfer to herself as large a
share as possible of the commercial advantages yielded by the
colonies of her enemies. An absolute monopoly was embarrassed
by the irresistible pretensions of neutral countries;
more especially of the United States, whose neighborhood and
habits of intercourse, together with other considerations, forbade
a perseverance in the original attempt to exclude them.
They were accordingly the first of the neutral nations towards
which a relaxation was afforded. The relaxation, after considerable
delay, was extended, by the instruction of 1798, to
on a compromise between the interest and the prudence of
Great Britain. It permitted neutral nations to trade directly
with the colonies of her enemies; without trading in colonial
productions with one another; and permitted all of them to
carry those productions directly to Great Britain. This arrangement
was manifestly calculated to limit the importations
of each neutral country to the amount of its own consumption;
and consequently to turn the immense residue of colonial
wealth, through neutral vessels, into her own market; whence
it might be dispensed, under her own regulations, to the neutral
countries of Europe having no direct commerce with the West
Indies, and even to the belligerent nations whose commerce
with their respective colonies she has as completely destroyed,
as she has their commerce with foreign countries. The arrangement
was specious, but proved to be deceptive. It was
expected that the expense and delay of a circuitous trade
through the United States would prevent importations and
re-exportations, interfering with the projected trade directly
from the West Indies to herself; and as long as this expectation
was in any degree indulged, the right of re-exportation was
admitted, though reluctantly, both by the Government and
the courts. Experience, however, finally shewed, that the
activity, the capital, and the economy employed by the American
traders, overpowered the disadvantages incident to the
circuit through the ports of the United States; and secured to
them the profits of supplying Europe with the colonial productions
of her enemies. In proportion as this unforeseen
operation disclosed itself, the commercial jealousy of Great
Britain began to take alarm. Obstructions were to be thrown
in the way of importations. Re-exportations were seen with
growing discontent. The idea of continuity, by which two
voyages were consolidated into one, came into vogue. The
Vice Admiralty courts, regardless of the superior decisions in
England, would not allow that the landing of a cargo, and
paying the duties, protected it against condemnation. At
carrying into effect the construction of the inferior courts, as
having been deliberately sanctioned by the Lords of Appeal.
The doctrine established by that decision has been followed
by other decisions and dicta, at first requiring the re-exportation,
in another ship, then a previous sale of the articles in
the neutral market, then other conditions, one after another,
as they were found necessary; till it is finally understood, that
no precautions whatever are to bar the cruisers from suspecting,
nor the courts from scrutinizing, the intention of the
original importer, and that the proof of this intention not to
re-export the articles, is to fall on the claimant. To fill up
the measure of judicial despotism, these wanton innovations
are now extended to vessels returning from the belligerent
mother countries, as well as to those going thither from the
United States; with the addition of demands of proof never
before heard of in prize courts, on points utterly unknown to
the law of nations.
These unexampled and vexatious proceedings manifestly
have in view the entire obstruction of colonial re-exports
from the United States; and it would be more candid in
Great Britain, if not more just, to give public notice, at once,
that in all such cases capture and condemnation would be
authorized.
Her present system, as subsidiary to the extension of her
commerce, will be still further seen in her concurrent measures,
of a type not less extraordinary than that of any which have
preceded them.
According to the instructions issued within the period of the
existing war, or to the received interpretation of them, the permission
given to neutrals by those of 1798, to carry the produce
of enemy's colonies, directly therefrom to Great Britain, has
not been continued. At first view this might appear to be inconsistent
with the policy ascribed to her, in obstructing reexportations
from the United States. The act of Parliament,
of June 27, 1805, however, which has been already noticed,
new proof, and even an extension of that policy. By the regulations
of that act a direct trade is opened between the British
colonies in the West Indies and those of her enemies; and her
enemies themselves are invited to enter into the trade. Whilst
neutrals, therefore, are excluded from carrying colonial
produce directly from the colonies to Great Britain, the commercial
views of Great Britain are answered by the substitution
of another channel through her own colonies; with the additional
advantage of a monopoly to her own ships, in the transportation
from her colonies across the Atlantic; and for the
sake of this advantage, or for that of repressing the growth of
neutral rivalship, or on both these accounts, she has been
willing to encounter all the reproach of cultivating an avowed
commerce with her enemies, in the very moment of laying
new restrictions on that of neutrals with them.
Further; the act of Parliament, of June 27, 1805, providing
for a trade between Great Britain and the colonies of her enemies,
through the medium of free ports in her own colonies,
was preceded by an act of April 10, 1805, authorizing licences
to British subjects, to import, during the war, into Great Britain,
in neutral vessels, for their own or neutral account, from the
American colonies of her enemies, most of their productions;
requiring, at the same time, that all sugar and coffee so imported
should be re-exported; and that the value of a certain
portion of the imports from such colonies should be returned
in goods and commodities from Great Britain.
Again; in concert with the act of June 27, instructions,
founded on another act of Parliament, were issued, June 29,
1805, authorizing British subjects to export in neutral vessels
to France, Spain, and Holland, a long list of articles, including
their respective colonial productions; and to import therefrom
a long list of such articles as suited her own wants.
To complete the arrangement, in all its forms, it has been
officially announced in the American Gazettes, conformably to
a resolution of the British privy council, of August 3, 1805,
the enemy, in America and the West Indies, is to be carried
on through the medium of the British free ports in the West
Indies, and not otherwise.
The system of Great Britain may, therefore, now be considered
as announced to all the world, without disguise, and by
the most solemn acts of her government. Her navy having destroyed
the trade of her enemies, as well between the mother
countries and their colonies, as between the former and neutral
countries; and her courts, by putting an end to re-exportations
from neutral countries, reducing the importations into these, to
the mere amount of their own consumption; the immense surplus
of productions accumulating in the American possessions
of her enemies can find no outlet but through the free ports provided
for it; nor any other market than the British market, and
those to which she finds it for her interest to distribute it; with
a view to which, she not only allows her enemies to trade
with her possessions, but allows her own subjects to trade
with her enemies. And thus, in defiance as well of her treason
laws and of her trade laws, as of the rights of neutrality, under
the law of nations, we find her, in the just and emphatic language
of the President, "taking to herself, by an inconsistency
at which reason revolts, a commerce with her own enemy, which
she denies to a neutral, on the ground of its aiding that enemy
in the war."[135]
But let us return for a moment to the series of instructions
of which an historical review has been taken; and advert
to some additional lights in which the judicial construction
and application of them present the conduct of Great
Britain.
Prior to the order of November 6, 1793, the general principle
forbidding to neutrals a trade opened to them during the
war, must, if it be a principle of the law of nations, as asserted
by Great Britain, have been the rule of Admiralty decisions.
Accordingly, it appears, by 4 Rob. Appendix, p. 12, that condemnations
made to rest on that principle.
The orders of November 6, 1793, designated for the operation
of the principle, the trade with the colonies of the enemy;
as well the trade to, as the trade from, them.
The orders of January, 1794, expressly revoking the orders
of November, 1793, designated for the capture, the trade only
from the West India Islands of the enemy, and bound directly
to Europe, only.
The orders of January, 1798, revoking expressly the orders
of January, 1794, designated for capture the trade from the
islands or settlements of the enemies, bound directly to any
port in Europe; excepting what might be bound to British
ports, or to the ports of the country to which the neutral vessels
should belong.
Without entering into a variety of minute questions growing
out of the varied and very inaccurate expressions in which the
orders are penned, several of very great importance occur, in
expounding and applying the rules laid down.
The first question is, whether the first order of 1793, which
made no express reference to the general principle, and which
was limited to the colonial branch of the enemy's trade, was to
be understood as merely a specification of certain cases, to
which the general principle was applicable, leaving the general
principle in force as to all unspecified cases; or whether this
specification of certain cases was to be understood as implying
a legalization of cases unspecified.
The question arises, also, under the successive orders, each
of them revoking the orders immediately preceding, whether it
was to be understood, that the specification of certain cases
did, or did not, legalize the cases omitted in the same order,
but specified in the orders preceding.
The more obvious construction of the original order, even,
seems to be, rather that it was meant to define the only cases
to which the general belligerent claim was to be applied, than
that it was meant merely to notify the claim in those particular
than in the cases not notified.
With respect to the orders of posterior dates, the fair construction
implies, that the belligerent claim was narrowed,
first, by all the difference between the orders of 1793 and those
of 1794; and finally, by all the difference between the orders
of 1794, and those of 1798.
Taking the whole together under these constructions, the
application of the general principle of capture was restricted
by these orders to the trade of neutrals from the colonies of enemies,
directly to ports, other than their own respective ports
and the British ports, and consequently there remained exempt
from capture:
- The coasting trade, and every branch of trade not
colonial. - The trade from any neutral country, to belligerent
colonies. - The trade by neutrals from any belligerent country to
its own colonies, and to the colonies of another belligerent
country. - The trade between belligerent colonies, whether
belonging to the same or to different belligerent countries.
1st.
2d.
3d.
4th.
Applying this rule of implication to the two orders only of
1794 and 1798; and admitting those of 1793 not to have superseded
by implication, the claims to capture in cases not therein
specified, there will be no other exception to the relations or
exemptions just enumerated in favor of neutral commerce, but
the coasting trade, and other trades not colonial, to which
Great Britain has applied, or may choose to apply, the general
principle.
In general the high court of admiralty seems, by applying
the assumed principle to the coasting trade, to have pursued
that construction of the original order of 1793, which left the
general principle in force as to cases not specified in it; and
to have considered the relaxations in the succeeding orders of
1794 and 1798, as referring solely to the colonial trade.
There appears, however, at no time to have been any clear
and fixed opinion in the court, with respect to the illegality
and penal consequences of the coasting trade.
Few cases are reported, perhaps few have occurred, of
discussions relative to this branch of trade. In 1 Rob., p. 104,
the subject is incidentally brought into view, in a case where
a French vessel had been purchased. The doctrine held by
the judge is expressed as follows: "We certainly do allow it,
"[the purchase,] but only to persons conducting themselves
"in a fair neutral manner, &c.; besides, this vessel appears
"to have been engaged in the coasting trade of France. The
"court has never gone so far as to say, that pursuing one
"voyage of that kind would be sufficient to fix a hostile char"acter:
but in my opinion, a habit of such trading would.
"Such a voyage however must raise a strong degree of suspicion
against a neutral claim; and the plunging at once into
"a trade so highly dangerous, creates a presumption that there
"is an enemy proprietor lurking behind the cover of a neutral
"name." Here, not the coasting trade itself, but the presumption
of enemy's property found in it, is made the ground
of animadversion.
In the case of the Speculation, the same idea presents itself.[136]
The Emanuel[137]
was itself the case of a coasting trade. In
this case the judge descanted with great energy and rigor, on
the manifest illegality of the coasting trade. "Can there be
"described, "says he, "a more effective accommodation that
"can be given to an enemy during war than to undertake it
"for him during his own inability?" He did not however
proceed further than to refuse freight on the principle settled
by ancient judgments, that "neutrals are not permitted to trade
on freight." He particularly refers to the case of the Mercurius
[Lords, March 7, 1795,] in which freight was refused. Why
were not the ships confiscated in these cases? that being laid
down in other cases as included in the penalty for illegal voyages,
and actually applied ultimately to cases of a trade between
trade is strictly analogous; both being trades from one port to
another port of the same nation. It is not even to be inferred
from the authorities here cited, that a coasting trade, in the
produce of the country, if carried not on freight, but as property
belonging to the neutral owner of the ship, is subject to
any penalty. This indulgence to the coasting, and rigor
towards the colonial trade, is it to be explained by the fertility
of the one, and the little value of the other, as a source of
captures and commercial profit, or in what other way?
With respect to the orders of '94 and '98, and the colonial
trade, it appears to have been in general understood,
that they were to be construed as successively enlarging the
trade of neutrals with the colonies of enemies, in the manner
and to the extent above explained.
The dilemma was indeed unavoidable; either the orders were
to be considered as relaxations, (and if relaxations at all, in that
extent,) or as leaving the general principle in force in cases not
specified in the orders, and therefore as no relaxations at all.
This latter decision would have given a character of mockery
to the profession and parade of making, in their orders,
so many sacrifices of belligerent rights to a spirit of moderation
and amity towards neutrals. The former side of the
dilemma, therefore, was necessarily taken. The orders, those
of '94 and '98 at least, were relaxations.
As relaxations however in the extent required by an obvious
and consistent interpretation, the door, opened to neutral
commerce with the belligerent colonies, was found to be wider
than was compatible either with the interests of British commerce,
and the avidity of British cruizers, or the probable
intentions of the British government.
What was to be the remedy? The first tried was that of
shutting the door gradually, by the dint of constructions,
as may be seen by tracing the colonial cases adjudged by Sir
William Scott, and reported by Robinson, and the decisions of
the Lords of Appeals referred to by the reporter.
The task was assuredly not a little difficult, of which there is
the strongest demonstration in the crooked and contradictory
reasonings and decrees, into which it forced the very eminent
talents of the judge who presides in the high court of admiralty.
In addition to the evidence already presented, take the
following comparison between his rule of construction in the
case of the Providentia,[138]
and the rule of construction in the
case of the Immanuel.[139]
In the former case, August 16, 1799, he observes, "the first
"instructions were to bring in all ships which had been trading
"with any colony of the enemy: but this country afterwards
"receded from these directions; and the second orders were to
"bring in all ships laden with produce of the West India
"islands coming directly from the ports of the said islands to
"any port in Europe. I cannot but consider this as an aban"donment
of the former law, [instruction,] and I cannot but
"think that a cruiser taking this instruction, in conjunction
"with those given before must have inferred that it was no longer
"the intention of government to bring in, and much less to con"fiscate,"
[was there room for this distinction?] "cargoes of
"West India produce, unless coming to some port in Europe:
"this was followed by instructions now in force, which direct
"the bringing in of all vessels laden with the produce of the
"French and Spanish settlements, coming from the ports of
"such settlements to any port of Europe, other than the ports
"of that country to which the vessel belongs. It is certainly
"not laid down in the negative that they shall not bring in such
"vessels as are coming from such settlements to their own
"ports; but looking at the former instruction, I think it was a
"strong admonition to cruisers not to bring in such ships,
"and I believe it has been generally so understood and acted
"upon by them; and in this court cargoes brought from Suri"nam
to ports in Europe to which the vessels belonged,
"have been uniformly restored on proof of the neutrality
"of the property."
The reasoning here is plain and just. The first instructions
designated for capture the colonial trade, without distinguishing
between Europe and America: the second designated the
trade to Europe only: therefore, by fair inference, the trade to
America was exempted from capture.
Again, the second orders designated for capture the trade to
Europe: the third orders designated the trade to ports of
Europe not being of Great Britain or of the country owning
the vessel: therefore by fair inference the trade to Great
Britain and to countries owning the vessels, was exempted
from capture.
In the Immanuel, November 7, 1799, the case was that of a
neutral ship taken on a voyage last from France to a French
colony. According to the reasoning of Sir William Scott, just
quoted, the inevitable inference ought to have been that the
voyage was legal.
The first instructions designated for capture the trade to and
from the colonies. Both the second and third designated for
capture the trade only from the colonies; therefore, according
to that reasoning, the trade to the colonies was exempted from
capture.
Hear nevertheless the reasoning employed by the judge himself
in this case.
After combating the neutral right to trade with the colonies
of an enemy, by arguments applicable, in principle, as well to a
trade between neutral ports and the colonies, as to a trade between
the mother country and its colonies; he proceeds to state,
in answer to all pleas for a neutral trade from the mother country
to its colonies, "that the true rule to this court is the text
"of the instructions; what is not found therein permitted, is
"understood to be prohibited, upon this plain principle, that
"the colony trade is generally prohibited, and that whatever
"is not specially relaxed, continues in a state of interdiction."
Now as what is not permitted, not specially relaxed, is by the
instruction to continue prohibited, the question to be decided
is, what it is that is permitted, or specially relaxed by the instructions.
relaxed? Then there is no permission or relaxation at all; for
every thing positive and express in the instruction is for the
capture, not for the permission or relaxation. Is it to be a permission
or relaxation implied and inferred from a positive and
specified prohibition in one order, and an omission of that or
of a part of that prohibition, in a succeeding order? Then the
neutral trade from a belligerent country to its colonies, which
was prohibited in the order of 1793, and omitted in the orders
of 1794 and 1798, was as much permitted, as specially relaxed,
as the trade from a neutral country to the colonies of an enemy,
is permitted or relaxed by the omission in the orders of 1794
and '98, to prohibit the trade to the colonies, which as well
as the trade from the colonies, was positively and specially
prohibited by the previous order of 1793; or to recur to the
reasoning of Sir William Scott, in the former case of the
Providentia, as much permitted or relaxed as the trade from
the colonies going not to Europe, was inferred to be so from the
order of 1794, taken in conjunction with the order of 1793; the
order of '93 having prohibited the trade from the colonies generally,
and the order of '94 having omitted to prohibit more of
the trade from the colonies than what was bound to some port
in Europe.
The judge concludes with declaring, "I see no favorable distinction
between an outward and return voyage. I consider
the intent of the instruction to apply equally to both communications,
though the return voyage is the only one specially
mentioned."
What favorable distinction, then, could the judge see between
the outward and the return voyage, in a trade between
a neutral country, and the colonies of an enemy, more than
between the two voyages to Spain, a mother country, and the
colonies? Is not the return voyage the only one specially
mentioned, whether the instruction be applied to the former
trade or to the latter trade? This is self evident. Either
then he must admit the distinction in both, and say that the
voyage is in both trades permitted; or he must reject the distinction
in both, and say, that the outward voyage, tho' the
return voyage only be specially mentioned, is prohibited in
both. A different course however was pursued. The instruction
was applied to the outward voyage in the neutral trade
from the mother country to the colony, without being considered
as applicable to the outward voyage in the trade
from the neutral country to a colony; which last has not as
yet been subjected to condemnation. Whether that is to
be its future destiny, as has happened to some other branches
of commerce, where it was equally precluded by legal decisions
and even official assurances, is among the arcana of the admiralty
cabinet of Great Britain.
The judgment in this case, it is to be observed, did not go
beyond the condemnation of the goods. The vessel was
restored, but with a forfeiture of freight and expences.
By degrees, however, with the aid of alleged fraud, of false
destination, and of contraband in the outward voyages, the
ship as well as the cargo were brought within the rules of condemnation
in the high court of admiralty. The decision of
the lords of appeal has finally established, in the case of a voyage
from a Spanish colony to a neutral, but forbidden port in
Europe, that any illegal trade of neutrals with the colonies of
an enemy forfeits both ship and cargo.[140]
Other examples might be drawn from the proceedings in the
British courts of admiralty, to illustrate the constructive return
towards the general principle which had been mitigated
by successive instructions, and the anomalous and entangled
decisions, which have been employed for the purpose. These
illustrations cannot be here pursued, without too great an
addition to the prolixity which has already been incurred.
It will only therefore be remarked generally; first, that the
course of proceedings, as they relate to the coasting, and different
branches of the colonial trade; to the grounds on which
attached to breaches of the interdictions, compose a labyrinth
for which no concatenation of principles, no thread of reasoning
whatever, affords a clue: secondly, that constructive decisions,
as appears in the last volume of Robinson's reports,
have not only restored, in a great measure, the operation of
the general principle; but have introduced collateral principles,
greatly extending the mischiefs of its operation.
Whilst all the considerations therefore which originally led
to the examination of this principle, are acquiring additional
force, it is fortunate that so irresistible a testimony against its
legitimacy, should have been furnished by the conduct of
Great Britain herself.
Review of the reasons urged in defence of the British principle.
Although some of the reasons by which this belligerent claim
of Great Britain is defended, have incidentally fallen under consideration
in the course which the subject has taken, yet a
more particular notice of those most relied on, may be necessary
to complete the present examination.
The principal champions for the claim, are the judge of the
high court of admiralty himself, Sir William Scott; Mr. Ward,
now under Secretary of State in Great Britain, who is sufficiently
known by his treatises on the law of nations, one of
which embraces this precise subject; and Mr. Browne, a professor
of civil law in the University of Dublin, and author of a
work on civil and admiralty law.
Sir William Scott has, in every view, the first title to be
heard.
In the judgment delivered by him in the case of the Immanuel,
his eloquence has painted the belligerent claim in very
glowing colours. The passage shall be given in his own words:
"It is an indubitable right of the belligerent to possess himself
of such places, as of any other possession of his enemy.
This is his common right, but he has the certain means of carrying
such a right into effect, if he has a decided superiority
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
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 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 had 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 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
expendedxs, not for your own interests, 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 councils, but of British
force."
The first remark to be made is, that were the intrinsic
reasonableness of the claim admitted, it would not follow that
the claim is justified by the law of nations as actually established.
Reason is indeed the main source from which the law
is the only rule by which the decision ought to be made. But
the law of nations, as an established code, as an actual rule
of conduct among nations, includes, as already explained,
a variety of usages and regulations, founded in consent, either
tacit or express, and superadding to the precepts of reason,
rules of conduct of a kind altogether positive and mutable.
If reason and conveniency alone, without regard to usage and
authority, were to decide all questions of public law, not a few
of the received doctrines would at once be superseded; and
among the first, some to which Great Britain is most pertinaciously
attached. What would become of her favorite claim,
to seize and condemn all enemy's property, laden in neutral
vessels, if the claim were brought to the simple test of reason?
a claim which gives so much more vexation to the nations at
peace, than it contributes to any just advantage of those at
war. On this question, it is well known, that the appeal
has been constantly made by Great Britain from the reasoning
of her adversaries, to the authority of celebrated jurists,
and other testimonies of the established rules and practice
of nations. She must not expect to vary her test of right,
according to her individual interest: to appeal to authority
when reason is against her, and to reason, when authority is
against her.
In testing the British claim, then, by the law of nations,
recurrence must be had to other sources than the abstract
dictates of reason; to those very sources from which it has
been shewn that her claim is an unauthorized innovation on
the law of nations.
But let us examine this appeal of the eloquent Judge to
the reasonableness of his cause, and see what is gained
by it.
"It is an indubitable right of the belligerent to possess himself
of such places, viz: colonies, [but the argument extends to
all places shut against neutral commerce in time of peace,] as
of any other possession of his enemy." Without question he
enemy.
"But he has the certain means of carrying such a right into
effect if he has a decided superiority at sea." This is not so
universally true as is assumed. A land force will be also necessary;
unless both the superiority at sea and the situation
of the colony be such as to admit a complete interruption of
supplies; and then, a blockade must be the only legitimate
expedient.
"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." It is certainly
true that they must fall, if they can be neither fed nor defended.
But it is not so true that colonies, as such, are dependent
on foreign supplies. Some insular colonies are so
dependent; others are not. Few, if any, of the continental colonies
or settlements are dependent on foreign supplies.
"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 right at all to step in;
provided the belligerent does, in fact, apply his means to that
object, and, in the mode, conformable to the law of nations;
that is, by intercepting contraband of war, and availing himself
of his decided superiority at sea, to blockade the places,
which if deprived of foreign supplies, must fall into his hands
of course.
Take the argument under another aspect. Colonies must
fall without foreign supplies; therefore, it is said, a belligerent,
without invading or investing them, may prevent neutrals from
supplying them.
The argument has one tendency which ought not to have
escaped the penetration of its author. If the dependence of
a place for its existence and defence on foreign supplies, be the
ground of the belligerent right to intercept all neutral trade
whatever with it, it will not be very easy to find a reasonable
ground for the belligerent right to obstruct neutral supplies to
does not depend on foreign supplies for its existence and
defence.
Or the argument may take another turn, which ought not
to escape the attention of neutrals. If the applicability,
without an actual application of the means, to the legitimate
object of possessing himself of the colonies of enemies, can
justify the capture of netural trade with such places, the
mere existence of a force applicable to the purpose of a blockade
any where, will, without an actual blockade, equally authorize
the capture of a neutral trade with ports susceptible
of blockade; and thus the neutral trade becomes interdicted
with every part of the dominions of her enemy; on the same
principle as interdicts it with the colonial part of their dominions;
a blockade being as legitimate an object of war as
conquest; and a decided superiority at sea being at least as
applicable to the former, as to the latter object.
But an essential vice of the argument lies in the fallacy of
the inference. It no more follows from the dependence of
colonies on foreign supplies, that neutrals have no right to trade
with them, with the exceptions of contraband and of blockaded
ports, than it follows from the dependence of other countries
or parts of countries on foreign supplies, that neutrals
have no such right. Is not Holland, is not Portugal, is not
even Spain, at all times, dependent on foreign supplies for
their subsistence; not less perhaps than some of the insular
colonies in the West, and much more than some in the East
Indies? Yet since the usurped power of obstructing all neutral
trade with an enemy was abandoned by belligerent nations
has it ever been pretended that that dependence gave a right
to the enemies of those countries to prevent neutral supplies
to them?
The argument fails when brought to another test, If the
dependence on foreign necessaries constitutes the belligerent
claim against the neutral trade to colonies, the principle of
the claim limits it to such colonies as labour under this dependence.
within themselves resources, necessary for their existence, and
which therefore no decided superiority at sea can reduce into
the possession of a belligerent, are clearly not within the
utmost range of the principle. Yet no distinction is made in
the application of it, either in argument or practice, between
the most sterile and indefensible island, and the vast and
fertile provinces on the continent of South America.
Thus far, then, the judge has found no foothold for the belligerent
pretension which he endeavors to support.
But he must be heard further: "No existing interest of his
[the neutral] is affected by it," [an exclusion, &c.]
The interests of neutrals may be materially affected by the
loss of the customary supplies from belligerent colonies, as
must happen, if they can neither trade directly with the colonies,
nor receive supplies from them thro' the mother country.
This is the consideration expressly assigned, in the appendix
to 4 Rob., for the orders of 1798: "Neutral vessels were by
this relaxation allowed to carry on a direct commerce between
the colony of an enemy and their own country; a concession
rendered more reasonable by the events of war, which by
annihilating the trade of France, Spain, and Holland, had
entirely deprived the States of Europe, of the opportunity of
supplying themselves with the articles of colonial produce, in
those markets." This is a view of the subject very different
from that given by Sir William Scott here, and in another
paragraph; where he represents "Guadaloupe and Jamaica,
as no more to Germany, than if they were settlements in the
mountains of the moon, to commercial purposes, as not in
the same planet."
The judge proceeds, "He [the neutral] can have no right to
apply to his own use, the beneficial consequences of the mere
act of the belligerent."
Why not? In many respects, as will hereafter be seen, the
neutral suffers by war; is it unreasonable that in some respects,
he should profit by its effects?
Waiving this consideration, it does not follow that one belligerent
has a right to deprive a neutral of a colonial market
opened to him under the pressure of war, by another belligerent,
any more than of any new market or new channel of trade,
in relation to the mother country, opened under a like pressure.
As yet, however, the latter pretension has not appeared.[141]
It
is even disavowed in a succeeding passage of this very judgment.
Is it not the pressure of war, which at this time, obliges
the enemies of Great Britain, to abandon in great measure,
to neutral vessels, the trade between themselves and other
countries? Is it not the pressure of war, during which more
food is consumed, with fewer hands to raise it, that often compels
nations at war, to open their ports to the supplies
and ships of neutrals, contrary to their ordinary regulations
in time of peace? In a word, the whole commercial policy
of belligerent towards neutral nations, undergoes changes,
which the latter is in the constant practice of "applying to
their own use." And it is manifest that Great Britain is as
ready, as any of her enemies, to lay open her navigation and
her colonial markets, though so rigorously shut in time of
peace, whenever the pressure of war, makes it her interest,
that neutrals should apply the benefit of these changes to their
own use.
It is perfectly clear, then, that the mere circumstance of an
increase of profit to neutrals, from a participation in branches
of trade opened under the pressure of war, does not render
that participation unlawful.
The sequel of the argument assumes a very singular shape.
The neutral has no right to say to the belligerent,—"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
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 had 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."
Here let it be observed, the case first stated is, that the place
has been forced by one belligerent out of the possession of another
belligerent, and that the neutral is undertaking to share
the benefit of the conquest. Were that the real intention, as it
is the inevitable import of the statement, there could be no advocate
for a neutral pretension to interfere. But with an inaccuracy
(a harder term will not be applied) little to have been
looked for where it is found, this conquest, this turning of the
enemy out of exclusive possession, does not in the least mean,
as is quickly disclosed, a transfer of the place or colony to a
new sovereign. The colony remains precisely as it did; not
even attacked or threatened by a military operation. The conquest
really meant turns out to be nothing more than the creation
of a certain degree of difficulty and danger in the trade
between the colony and the mother country. With this
change in the statement of the fact, the inference with respect
to the intrusion of a neutral commerce must, unfortunately for
the argument, undergo a correspondent change. As the conquest
of the colony would have justified the conqueror stepping
into the exclusive possession, out of which his arms had forced.
his enemy, in prohibiting a neutral interference with its trade,
it is equally certain, that he is not justified in any such prohibition
by the mere obstruction thrown in the way of the
ordinary colonial trade; any more than he would be justified
by obstructions thrown equally in the way of other branches
of his enemy's trade, in prohibiting the entrance of neutrals
into them.
That the meaning of the judge is shifted from an expulsion
of the enemy from his colony, to an obstruction of his trade
this hypothetical address of the neutral to the belligerent,—
"Supplies shall be sent, and their products shall be exported;
you have lawfully destroyed his monopoly, but you shall not be
permitted to possess it yourself."
Thus the right of a belligerent to possess himself of the colonies
of his enemies depending on foreign supplies, which, in
the beginning of the argument, was the ground of the unlawfulness
of such neutral supplies, as might prevent the colonies
from falling into the hands of the belligerent, undergoes a
complete transformation in its progress, and ends in a right
of the belligerent to supply the colonies himself, in exclusion of
neutrals. The neutral is interdicted from sending supplies to
an enemy's colony, and exporting its produce; not because it
would interfere with the reduction of an enemy's possession;
but because it would interfere with a commercial monopoly.
This at least would be a new principle in the law of nations.
But it is worth while to enquire how the right of a belligerent
to subdue the colonies of his enemy, and for that purpose to
obstruct neutral supplies to them, can be reconciled with the
actual regulations of the British Government on this subject.
Whilst this claim is exercised, in general, so much to the disadvantage
and dissatisfaction of neutrals, it is relaxed in some
respects which are fatal to the very purpose of the belligerent
to subdue the colonies of his enemy; which purpose alone could
give a colour to any such obstruction of neutral commerce.
The orders both of 1794 and of 1798 limit their restrictions on
neutrals to the trade from colonies; leaving by implication,
unrestricted, the trade to the colonies; or they manifest, at
least, under every construction, a solicitude rather against
the trade from, than against the trade to the colonies. Now
if the object and the pretext, in controuling the trade with
the colonies, be the conquest of the colonies, is it not extraordinary
that whilst checks are opposed to the exports, which
can, at the most, have but a remote influence in preserving
them from the necessity of surrender, the channel should be
want of which, they might fall to the belligerent of course?
How is this to be explained? Not, certainly, by a belligerent
policy, which is completely defeated by the relaxation. There
is but one explanation that is satisfactory, and it must not be
deemed uncandid to resort to it. As the orders have endeavored
to give to the trade from the colonies such a course as
was most favorable to imports into Great Britain, the course
allowed to the conveyance of supplies to the colonies is
equally favorable to the export of manufactures from Great
Britain. British manufactures, it must have been supposed,
could find their way to hostile colonies, through no channel
so conveniently and certainly, as through that of neutrals
which conveys the means of subsistence. Whilst the regulation,
therefore, defeats the measure of conquest, it extends
the market for manufactures. Every fold of this belligerent
claim wraps up some commercial project.
In prosecuting his argument, the judge occupies another
ground for this belligerent pretension: "Different degrees of
relaxation," he observes, "have been expressed in different instructions
issued at various times during the war. It is admitted
that no such relaxation has gone the length of authorizing
a direct commerce of neutrals, between the mother country and
its colonies; because such a commerce could not be admitted
without a total surrender of the principle: for allow such a
commerce to neutrals, and the mother country of the enemy recovers,
with some increase of expence, the direct market of the
colonies, and the direct influx of their productions; it enjoys as
before, the duties of import and export, the same facilities of
sale and supply, and the mass of public inconvenience is very
slightly diminished."
It was lately the object of dispossessing the enemy of his colonies
altogether, that authorized the obstruction of neutral
supplies. It was next the object of securing to the belligerent
himself, the monopoly of the commerce with those colonies,
that gave him such an authority. Now the authority is derived
of the colony, the public conveniencies arising from the revenue
and from the commercial profits supplied by her direct intercourse
with her colonies.
It cannot be necessary to dwell on the hollowness of this
foundation, for the claim to make war on the participation of
neutrals in a colonial trade. It will be merely observed, or
rather repeated, that if neutrals have no right to trade with an
enemy, where the enemy in consequence of the pressure of the
war, would otherwise lose the revenues and other public advantages
flowing from the trade, the inference fairly is, that
Great Britain, by driving the ships of her enemies, as she does
at this moment, altogether from the sea, may renew with
effect the old and exploded tyranny of interdicitng all neutral
commerce whatever with her enemies.
This last argument only against the neutral trade to colonies,
was applicable to the coasting trade. There, neither conquest,
nor the substitution of the belligerent's own commerce, could
be the object. It will accordingly be seen in the case of the
Immanuel,[142]
that the belligerent claim is founded, as it is here,
on its general effect in cramping the revenues of the enemy, and
in inflicting a pressure which may compel a due sense and observance
of justice.
It only remains to advert to a reply, from the judge to the
counsel at the bar, with which he closes the argumentative
part of his judgment.
The inconsistency of Great Britain, in making, in time of
war, the same relaxations in her navigation and colonial monopolies,
which she denies the right of her enemies to make, is
so obvious that it could not possibly escape the notice of the
counsel for neutral claimants. The more striking the inconsistency,
however, the greater the delicacy which was to be
observed in pressing it on the court. It appears accordingly
to have been brought into view, in one instance only, in
Robinson's Admiralty Reports, which was in this case of the
seasoned, finally, with some material concessions to the known
opinions of the Bench and the government. In order to do
justice to Mr. Arnold and Mr. Sewell, charged on that occasion
with the defence of the neutral claimants, and for the sake of
some very judicious reflections of a more general nature, with
which they introduce their particular argument, no abridgment
will be made of the following passage:
"It is true that the general colonial law of Europe has cre"ated
a monopoly, from which other countries are generally
"precluded; at the same time laws respecting colonies, and laws
"respecting trade in general, have always undergone some
"change and relaxation after the breaking out of hostilities; it
"is necessary that it should be so, with regard to the rights of
"neutral nations; because as war cannot be carried on between
"the principal powers of Europe, in such a manner as to con"fine
the effects of it to themselves alone, it follows that there
"must be some changes and variation in the trade of Europe,
"and it cannot be said that neutrals many not take the benefit
"of any advantages that may offer from these changes—be"cause
if so, it would lead to a total destruction of neutral
"trade; if they were to suffer the obstructions in their old
"trade, which war always brings with it, and were not per"mitted
to engage in new channels, it would amount to a
"total extinction of neutral commerce: such a position, there"fore,
cannot be maintained, that they may not avail them"selves
of what is beneficial in these changes, in lieu of what
"they must necessarily suffer, in other parts of their trade, in
"time of war. It is not meant that they should be entirely
"set at liberty from all the restrictions of peace—that would
"be going too far. But that, as there has been a regular
"course of relaxations, as well in our navigation laws, as in
"the colonial trade, in admitting importations and exporta"tions
not allowed in time of peace; it seems not to be too
"much to say, that if they have been regularly relaxed in
"former wars, neutral merchants may think themselves at
"and it does justify a presumption, that as a belligerent country
"allows a change in its own system as necessary, and invites
"neutrals to trade in its colonies under relaxations, so it would
"allow them to trade in the same manner, with the colonies of
"the enemy."
In reply:—
"It is an argument," says the judge, "rather of a more legal
nature than any derived from those general topics of commercial
policy, that variations are made in the commercial 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, no
one belligerent country has a right to interfere with neutrals
for acting under variations of a like kind made for similar reasons
in the commercial policy of its enemy. And certainly if
this proposition could be maintained without any limitation,
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 colony trade of the enemy
is legalized; and the instructions which are directed against
any part are equally unjust and impertinent; for it is not
denied that some such variations may be found in the commercial
policy of this country itself; although some that have
been cited are not exactly of that nature. 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 necessities 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
commodities not the growth, produce, and manufacture of
the country to which they belong, and other relaxations of the
act of navigation, and other regulations founded thereon:
these, it is true, take place in war, and arise out of a state of
the enemies force, or out of any necessity resulting therefrom;
and this I take to be 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 admitted to produce such an effect. Thns, 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 those compelled
relaxations of the colonial monopoly; these are acts of
distress, signals of defeat and depression; they are no better
than partial surrenders to the force of the enemy, for the mere
purpose of preventing a total dispossession. I omit other
observations which have been urged and have their force:
it is sufficient that the variations alluded to stand upon
grounds of a most distinguishable nature."
On comparing the argument of the counsel with the discourse
of the judge, there is but too much room to remark, that there
are in the former a coolness and clearness not unworthy of the
Bench; and in the latter a florid and fervid stile, which might
have been less unsuitable to the zeal of the bar. But it is more
important to examine and weigh the effect which their respective
reasonings, so far as those of the judge can be extricated
from the general and somewhat obscure expressions employed
by him, ought to have on the point in question.
The reasoning at the bar is simply this—that as Great Britain
is herself in the practice of opening to neutrals, in time of
war, channels of navigation and colonial markets, which she
shuts to them in time of peace; she ought to allow, or might
war, a like relaxation of the colonial system of her enemies.
The judge does not deny the fact that Great Britain is in
the practice of relaxing in time of war her system of colonial
trade. He does not deny the inference that a like relaxation
would be equally lawful on the part of her enemies. It might
have been expected, therefore, that in his reply he would have
allowed to the enemies of Great Britain the same right to capture
neutrals trading with her colonies, as is exercised by
Great Britain against neutrals trading with the colonies of her
enemies; and have contented himself with the advantage enjoyed
by Great Britain in her superior means of intercepting
the neutral trade with her enemies, and of preventing her enemies
from intercepting the neutral trade with herself. This,
it would seem, was a more consistent, and also a more politic
ground to have taken. The judge was of a different opinion.
Unwilling to make even that degree of concession, he attempts
to retain the privilege claimed by Great Britain, and at the
same time withhold it from her enemies; by certain distinctions
between the two cases. With what success the distinctions
are made is now to be seen.
One of the distinctions is between a colonial trade which is
frequently opened in peace, as in the case of free ports, and a
colonial trade opened in war only.
The example of free ports was not very happily chosen; for it
has been seen that the trade from such ports in the French West
Indies to the United States, was not excepted in the British
orders on the subject of neutral trade with the colonies of
France; nor is it known that any such exception has been
made in the British courts of admiralty.
The distinction, however, fails in its essential point. It is
not an uncommon thing for relaxations to take place in time of
peace as well as in time of war, in the colonial monopolies of
all the European nations. The Spaniards, the French, and the
Dutch,[143]
never fail to open their colonies to foreign supplies,
supply them from European sources. Even on this ground
then, as admitted by the judge himself, a neutral trade with
enemy's colonies would be lawful in time of war.
Another distinction is intimated between the ordinary
measures of relaxation, to which every country has resort in
every war, whether prosperous or adverse, and unusual
measures of relaxation produced by a peculiar state of the
war.
Here again the distinction directly militates against the object
for which it is made, it being well known to be an ordinary
measure, with the enemies of Great Britain, in all modern wars
at least, to open their colonial ports to neutral supplies.
Prior to the American revolution, Great Britain had, in these
States, resources which rendered it unnecessary for her colonies
to invite supplies, if indeed they could have been obtained,
from any foreign sources. In her wars since that event,
she has followed the example of her enemies in relaxing her
colonial system, as far as was necessary to obtain supplies,
from the sources and through the channels which furnish her
enemies. At this moment, her islands are as open as the
colonies of her enemies to the supplies and the vessels of the
United States, with this difference, indeed, that her ports
are opened by regulations more temporizing and more special,
than those of some, if not all, of her enemies; and therefore
with pretensions to legality, according to her own standard,
inferior to those of her enemies.
The remaining distinction is the sole fortress on which the
defence of the principle maintained by the judge, must depend.
This distinction is so novel, and in its appearance so refined,
that in explaining it some difficulty was naturally felt, in the
selection of apposite expressions. A critic, tinctured with
want of candor, might be tempted to exclaim, that a distinc
necessity arising out of an impossibility, which impossibility
arises out of a state of war, was a subject less proper for
discussion, than for a less serious treatment.
The judge, however, cannot be justly charged with a want
of meaning, whatever may have been his difficulty or his caution
in expressing it. It may be collected, with sufficient
certainty, that he meant to establish the right of Britain, and
the want of right in her enemies to interrupt neutral commerce,
on the predominance of force, on the decided superiority
at sea, which she enjoys, and on the inferiority of force,
under which her enemies labour. When she opens her colonial
ports to neutrals, although it arises out of a state of war, it
does not arise, like theirs, out of the predominance of the
enemy's force. This predominance he frankly declares to be
the true foundation of the principle.
And thus we are arrived at the true foundation of the principle
which has so often varied its attitudes of defence, and when
driven from one stand, has been so ready to occupy another.
Finding no asylum elsewhere, it at length boldly asserts, as its
true foundation, a mere superiority of force. It is right in Great
Britain to capture and condemn a neutral trade with her
enemies, disallowed by her enemies in time of peace, for the
sole reason that her force is predominant at sea. And it is
wrong in her enemies to capture and condemn a neutral trade
with British colonies, because their maritime force is inferior
to hers. The question no longer is, whether the trade be right
or wrong in itself, but on which side the superiority of force
lies? The law of nations, the rights of neutrals, the freedom
of the seas, the commerce of the world, are to depend, not on
any fixt principle of justice, but on the comparative state
of naval armaments, which itself may change at every moment,
may depend on the event of a battle, on the skill of an
admiral, on the tack of the wind; on one of those thousand casualties
which verify the admonition, that the battle is not always
given to the strong, any more than the race to the swift.
A government, which avows such a principle of conduct
among nations, must feel great confidence in the permanence,
as well as the predominance of its own power.
It would nevertheless not be unwise in any nation, to reflect
on the vicissitudes of human affairs, and to ask herself the honest
question, how she would relish the application of the principle,
if in the course of events, a maritime superiority should
happen to change sides? Should Great Britain ever find the
state of things thus reversed, she might wish, in vain perhaps,
to let her claim pass silently into abeyance, as she alleges was
done in the war of 1778.
Nor would it be less unworthy of her wisdom to reflect, that
if a predominance of force on one element confers right, a
similar right might result from a predominance of force on
another element.
The supposition may be made to press more immediately on
her reflections. Great Britain as a maritime power is as dependent
on external commerce, as the insular dominions of her
enemies are, as colonies, dependent on external supplies. In
this general view, the principle which she employs against the
colonies of her enemies, may be turned by her enemies against
herself. But a more particular view demands her attention.
She has already beheld her principal enemy on a coast little
distant from her own, by a decided preponderance of force on
land, and a threatened co-operation of naval armaments
giving to the war an unexampled pressure on her faculties and
resources. The wheel of fortune may reproduce the crisis.
Her seamen may be taken from her merchant ships, to man
her fleets. Her fleets may be called home from the protection
of commerce, to the defence of the State. In this posture of
things, her harvest may fail, her existence may depend on
foreign food; its importation on neutral commerce; and the
successful use of this resource, on the right of neutral ships to
a navigation not open to them in times of peace. With such
monitory possibilities in view, ought an enlightened nation
by her own example, and her own language, to authorize her
a trade with our enemy, from which his monopoly of the
navigation excluded you in times of peace; you have no right
to import for him supplies which are absolutely necessary for
his support, and which the distress I am inflicting, renders
it impossible for him otherwise to obtain. Neither have you
any right by a trade, also forbidden in time of peace, to furnish
to his colonies the supplies which his command of the sea
no longer ensures to them, and without which they must fall
of course into our possession.
What reply could be made to such an expostulation, by a
neutral, who had not refused to recognise a like claim on the
part of Great Britain; and, by the refusal, consulted better
the interest of Great Britain, than she had consulted it herself
in advancing the claim?
Taking leave of the very distinguished judge, with these
observations, some notice is next due to Mr. Ward and Mr.
Browne.
A remark that soon occurs on opening the volumes of these
writers is, that both of them confound the principle here in
question, with the question whether free ships make free goods,
and under this confusion, bring the former within the arguments
and authorities belonging to the latter only. The
confusion results not only from the more general expressions
in which they describe the controversy between neutral and
belligerent nations, on the subject of commerce; but is promoted
by their frequent use of the terms "carrying trade,"
without distinguishing between the carriage of enemies property
in neutral vessels, and the neutral carriage of neutral
property in channels navigated in time of peace by domestic
carriers only. These questions are evidently and essentially
distinct; and the distinction answers, of itself, much of the
reasoning employed by those writers; and most, of the authorities
cited by them.
With respect to the consolato del mare, so much appealed
to by Mr. Ward, it has been already observed that however
property in neutral vessels is subject to confiscation, there
is not a sentence in that compilation which directly or indirectly
recognizes or favors a belligerent claim, to confiscate neutral
property, on the principle that it is found in channels of trade
not open at all to other than subjects or citizens of the belligerent,
in time of peace. The negative testimony of the consolato,
therefore, is completely in favor of the contrary principle.
In recurring to Grotius, Mr. Ward is led, by his own comment
on the passage which describes the rights of belligerents
against the trade of neutrals, to conclude that the real question
before Grotius, was that which Grotius said had been so much
and so sharply agitated, namely, whether a belligerent had a
right to interdict all neutral commerce with his antagonist;
and Mr. Ward accordingly takes the defensive ground of maintaining
that the neutral "claim to a carrying trade had never
entered the mind of Grotius."
If by the "carrying trade" Mr. Ward means the carriage of
enemy's property, it must have been within the view of Grotius;
because he has furnished Mr. Ward himself with an authority
against the lawfulness of such a trade. If by the "carrying
trade" he meant a trade carried on in war, where it was not
allowed in peace, it is strictly true, that it appears never to
have entered the mind of Grotius. It did not enter his mind,
because no such particular claim had ever been asserted or
exercised against neutrals. The general claim to intercept all
neutral commerce with an enemy, did enter into his mind and
into his discussion, as well as the other particular claims of
belligerents in the case of contraband and of blockades; because
as well that general claim, as those particular claims,
had, at different periods, been asserted and exercised against
neutrals. To suppose that the carrying trade could be unnoticed
by Grotius, for any other reason than that no belligerent
right to intercept that particular branch of trade, had
been asserted, would be the more preposterous, for the reason
suggested by Mr. Ward, "that Grotius lived in a time when his
by rendering their State the emporium of trade, and
becoming the carriers of the rest of the world;" carriers as well
of their own property as of the property of others, and in every
channel which might be opened to them with profit to the
carriers.
Notwithstanding this relinquishment of the authority of
Grotius, in relation to the carrying trade, Mr. Ward has
shewn a strong inclination to extract from certain terms employed
by Grotius, on the subject before him, some general
countenance to the British principle.
Grotius, it must be admitted, is less definite in explaining
himself in this particular instance, than he is in others; and
much less so, than other jurists who have succeeded him. It
is impossible at the same time to put on his words, any construction
that will avail Mr. Ward.
Although the passage has been heretofore analyzed, it will
not be improper to re-examine it with a particular reference to
the argument of this writer.
Grotius having made his distribution of the articles of neutral
commerce into three classes—1st, of such as are wholly
of pacific use—2d, such as are wholly military, and 3d, such
as are, usus ancipitis—of a doubtful or double use, enlarges
on this 3d class in the words following—"In tertio illo genere,
usûs ancipitis, distinguendus erit belli status. Nam si tueri
me non possum nisi quæ mittuntur intercipiam, necessitas ut
alibi exposuimus jus dabit sub onere restitutionis, nisi causa
alia accedat. Quod si juris mei executionem rerum subvectio
impedierit, id que sciri potuerit qui advexit, ut si oppidum
obessum tenebam, si portus clausos, et jam deditio aut pax
expectabatur, tenebitur ille mihi de damno culpa dato, ut qui
debitorem carceri eximit,"[144]
&c., &c. He proceeds next to
due to the neutral, according to certain distinctions since exploded,
particularly the distinction between a just and unjust
war, on which he founds a rule; "Quod si prœterea evidentissima
sit hostis mei in me injustitia, et ille eum in bello
iniquissimo confirmet, jam non tantum civiliter tenebitur de
damno sed et criminaliter, &c."
From this text, Mr. Ward makes the following deduction:
"The tenor of these words 'status belli' which is a general de"scription;
of 'juris executione' which is the very right to take
"arms; of 'pax expectabatur' which is a final termination of
"hostilities, not surrender of the besieged place; and lastly of
" 'bello confirmet' which is demonstrably applicable to the
"whole field of war: these (he says) prove him to be occupied
" with the general plan of operations, and the general exigen"
cies of a state of hostility."
The great importance attached to this passage in Grotius,
and the extensive consequences drawn from it by this learned
champion of the British principle, will be apologies for a more
critical attention to the passage, than it could be thought, of
itself, to require.
Whether Grotius did or did not limit his meaning to the
nature of contraband articles, and the case of blockades; it is
demonstrable that his words are inapplicable to the distinction
between a trade permitted, and a trade not permitted in
peace.
- According to Grotius, the articles in question are of the
third class only, the class of a doubtful or double use: the principle
of Great Britain makes no such distinction. Articles of
every class and kind found in the new channel of trade, are
352rendered unlawful by the channel itself, however inapplicable
they may be to the uses of war, - According to Grotius, it is one state of war compared to
another state of war, that is to be distinguished—" distinquendus
erit belli status:" According to Great Britain, the essence
of the distinction is, between the state of war, and the state of
peace; or rather between the state of the municipal laws of
commerce in time of war, and the state of those laws in time
of peace. - According to Grotius, the right to intercept the neutral
commerce accrues from its particular necessity, as a measure
of defence: according to Great Britain, the necessity is not the
criterion. If there be no such necessity, the trade is condemned,
in case the channel were unlawful before the war.
Be the necessity what it may, the trade is free, if the channel
was lawful before the war. - According to Grotius it must be such a necessity as he
had elsewhere pointed out—"ut alibi exposuimus." The
British advocates have not undertaken to show any other
passage of Grotius, giving the explanation which their principle
requires. No such passage exists. - According to Grotius, the articles intercepted, if no other
cause prevent, are to be restored. According to the British
decisions, no such restitution is due. Both vessel and cargo
are confiscated. - Finally—The war to which Grotius refers, when he uses
the expression "bello confirmet" is a war of the most evident
injustice—"evidentissima injustitia; bello INIQUISSIMO confirmet,"
not bello confirmet, as cited by Mr. Ward. The distinction
between just and unjust wars, does not enter into the
principle, on which Great Britain founds her belligerent claim.
It is, in fact, disclaimed by Bynkershoeck,[145] who succeeded
353Grotius; and tho' countenanced by Vattel, is generally understood
to be excluded from questions affecting belligerent and
neutral rights.
1.
2.
3.
4.
5.
6.
Whether the text of Grotius, therefore, is to be understood
as confined, or not confined to the case of contraband and
blockade, it cannot possibly be applied to the case of a trade
asserted to be unlawful in war, merely as being a trade not
permitted in peace.
It may be observed nevertheless, in justice to Grotius, that
his meaning, ought in fairness, not to be extended beyond the
cases of contraband and blockades: First, because it is the
only construction that can satisfy one part of the text; whilst
the terms used in the other part, are by no means, inconsistent
with that construction. The expression least apposite
to the case of a blockade, is that of "pax expectabatur" or
"the expectation of peace," as an event which might be frustrated
by the neutral commerce. But there may certainly
be wars, where peace itself might depend on a blockade. It
is obvious that a blockade of particular ports, such as that of
Amsterdam, the chief emporium of the country of Grotius,
might influence the question of peace, as well as the question
of capitulation. Or to state a case still more decisive: a state
at war, may consist of little more than the place actually
blockaded. Venice and Genoa, formerly, Hamburgh at present,
are examples. A close and continued blockade of such
places as these, would necessarily involve a question of
peace, with that of a surrender.
Again; the meaning of Grotius ought not to be extended,
as Mr. Ward extends it, beyond those two cases of contraband
and blockade "to the general plan of operations, and the general
exigencies of a state of hostility;" because this construction
is directly at variance with the principle heretofore cited
from Grotius; particularly in the note where he condemns
the practice of England and Holland, in their general prohibition
of neutral trade with their enemy.
But the construction attempted by Mr. Ward not only puts
with himself also; as well as with the limits affixed to
the principle by his own government. For if the belligerent
right laid down in the passage of Grotius be not restricted to
contraband and blockades, and cannot be applied to the British
distinction between a trade in war and a trade in peace;
but extends to the general exigency of hostilities; it is impossible
to deny to belligerents a right to intercept all neutral
trade with their enemy, whenever the state of the war, the
accomplishment of justice, or the expectation of peace, prescribe
it; or whenever a neutral trade may be calculated to
confirm an enemy in the war. The consequence is inevitable,
Yet Mr. "Ward, expressly,[146] in another place, disclaims any such
a latitude in the rights of war, with an exultation that his
country had once, and once only, attempted it; and, on seeing
its injustice, candidly renounced the attempt.
The observations which have been already made on Pufendorf,
and on his letter to Groningius, cited by Barbeyrac,
afford a conclusive reply to the use which Mr. Ward faintly
endeavors to make of that authority, on the point here in
question. He seems, indeed, in general, rather to combat it
as an authority claimed by an opponent, than to claim it as
of much weight in his own scale.
Bynkershoeck and Heineccius, though jointly cited as explicit
authority for the principle that free ships do not make
free goods, are neither of them appealed to by Mr. Ward as
supporting the principle that a trade not allowed in peace was
unlawful in war. This silence of Mr. Ward, considering his
spirit of research, and his zeal for this latter principle, may
reasonably be ascribed to his discovery that he could gain
nothing by bringing it to the test of those authorities.
The same inference may be drawn from his silence with
respect to the authority of Vattel, as to a trade of that
description.
In Hubner, whose authority it is a great object with Mr.
not fail to summon a marked attention. Hubner, it seems,
referring[147] to the case of a neutral trade with an enemy's colonies
opened on account of the war, admits that it is subject
to some uncertainty, "quelque incertitude." He immediately
subjoins, however, "that he does not see why neutral sover"eigns
should refuse themselves so considerable a benefit
"when it offers; provided they abstain from supplying those
"colonies with any merchandize which is prohibited in war.
"It is true," he adds, "if, besides that, they are careful not to
"carry provisions thither, by which I mean, articles of the
"first and second necessity, which, in time of war, are fully
"and more than equivalent to contraband of war properly
" so called; then it is evident that neutral nations may lawfully
" carry on that commerce, because the principal cause of its
"being opened to them during the war, will not have had the
"effect intended to be produced; by means of which that
"commerce will no longer have any thing that may directly
"influence the war, and which consequently may be an object
"of the right which belligerent nations have of opposing every
"thing which tends to the immediate assistance of their ene"mies."
In this ramble of Hubner, from the plain path in
which he commenced his answer to the uncertainty suggested
by himself, he bewilders both himself and his subject, and lays
a foundation for real uncertainties, in his attempt to remove
an imaginary one. How could distinctions be maintained,
in practice, between provisions of the first and those of the
second necessity, and between both and all other provisions?
What is meant by the right which belligerent nations have
of opposing every thing, which tends to the immediate assistance
of their enemies?
But were the concession free from these incumbrances, it
could not avail the advocates for the British doctrine: First.
because the concession is limited to the colonial trade, not
extending even to the coasting trade: Secondly, because it is
which were the object in opening the trade to neutrals; whereas
the British doctrine extends to all trade to and from the
colonies.
If any thing further be requisite to invalidate this fugitive
concession, or rather hesitation of Hubner, it is amply furnished
by Hubner himself, in sec. 5, of the same chap. and
book, in which he systematically establishes principles, by
which the rights of neutral commerce are to be determined.
"But let us suppose," says he, "that the commerce of a
"neutral nation with one of the belligerent parties, however
"innocent it may be, should indirectly strengthen the latter,
"does it follow, that his adversary has a right to hinder it,
"to the detriment of the neutral nation? who, in carrying it
"on, neither had nor could have that particular object in view;
"which merely exercises her industry as in time of peace;
"and which, besides, will be very glad to trade with that
"same adversary, upon the like terms, as far as his commercial
"laws will permit, and the nature and interest of its own
"commerce may require.
"To attempt to render a neutral State responsible for the
"increase of the strength of an enemy, because that increase
"arises from the commerce which that State carries on with
"him, is to impute to one, a thing which he has caused by
"mere accident."
Again—"Neutral nations by trading with those who are at
"war, merely avail themselves of their incontestible right.
"Now whoever makes use of his right, and merely does so,
"never can do an injury to another, which he can have a right
"to complain of. The possible consequences of just, innocent,
"and lawful acts, never can hinder us from doing them, at least
"there is no one who has a right to prohibit us, &c."
With such principles in his mind, it is not wonderful, that if
Hubner was startled, as Mr. Ward expresses it, by the terms
of his own premises, he should be more startled at his own concession;
and that finding himself at a loss to explain the ground
degree be reconciled with the rights of neutral commerce, he
should be in a hurry to resume his principle, "that there is no
reason why sovereign States who are neuter, should refuse the
advantage presenting itself, provided they abstain from supplying
colonies with contraband."
Hubner wrote in the war of 1756. Another Danish writer,
Hennings, published a treatise on "neutrality," in the interval
between the war of 1778 and the war of 1793. His authority
is precise and peremptory against Mr. Ward.
After the capture of Grenada, and the Grenadines by the
French, in the war of 1778, an act was passed by the British
parliament[148]
to "protect goods or merchandize of the growth,
produce, or manufacture of those islands, on board neutral
vessels bound to neutral ports during the present hostilities,"
with provisoes, that the protection should not extend to cargoes
from any other island, nor affect any sentence of any vice
admiralty court, which prior to a given day should have condemned
productions of the said islands.
There is some obscurity in the object and the text of this act.
To make it consistent, however, with itself, as well as with the
acknowledgment on all hands, that a neutral trade in neutral
property was free, during that period, with French colonies, it
must be understood, as intended either to exempt the trade of
those islands, which had become French, from the operation of
British laws, and to put them on the same footing with other
French islands; or to exempt from capture the property of the
inhabitants of the islands, become French property and French
subjects; an indulgence[149]
that might be thought due to those
be restored to that character by a peace.[150]
Hennings, however, conceiving the act to have been intended
to legalize a neutral trade with French colonies, which otherwise
might be subjected by the British courts to condemnation,
is led to the following assertion of the law of nations in opposition
to such a principle:
"An important subject which ought to be here noticed, is the
"trade with the colonies in America. Is there any principle
"on which the sugar islands in the West Indies ought to be
"considered as blockaded? And if there is no such principle,
"why is the permission of Great Britain required for neutral
"ships to take sugars from the islands of Grenada and the
"Grenadines, since those islands have fallen into the hands
"of the French, and the French had opened a free trade to
"Martinico, and to their other islands, &c.?"
"This law is evidently contrary to the rights of neutral
"powers, and they might refuse to acknowledge its obligation,
"as France alone has a right to permit or prohibit trading with
"her colonies, and as long as she permits it, no neutral ought
"to be molested therein."
Hubner and Hennings appear to be the only writers who
have taken notice of the principle in question. The former
having written at a period when the principle was in operation
was doubtless influenced by that consideration. The attention
of the latter seems to have been drawn to the subject by
the act of parliament concerning Grenada and the Grenadines,
which he was inserting in his collection of State papers, and by
the construction which he gave to the purport of that act.
The other numerous writers of most modern date, though
make no allusion to the British principle: For it would
be absurd to regard in the light of an allusion to, and consequently
a recognition of this particular principle, the language
they happen to use in stating the general principle, that when
war arises between some nations, the nations at peace with all,
are to proceed in their trade with all, on the same footing in
time of war as they did before the war broke out. The obvious
meaning of these phrases is, that with the particular
exceptions of contraband and blockades made by all of them,
the neutral right to trade with a nation at war remains the
same as if that nation was at peace; and consequently the right
to trade to whatever places, in whatever articles, and in whatever
vessels, their regulations might mutually permit. That
such must have been the intention of such writers as Galiani,
Azuni, and even Lampredi, as well as of Schlegel and the German
writers, cannot be questioned, without setting up a forced
construction of a particular phrase, in opposition to the whole
tenor of their publications; without supposing that whilst they
contend for the general system of the armed neutrality, of
which this is an essential principle, and have for their main
object the enlargement of neutral rights, they could, by a
loose stroke of the pen sacrifice a neutral right, far more important
than those which they took up their pens to maintain.
Such suppositions cannot for a moment be entertained. Nor
indeed have any of the partizans of Great Britain undertaken
to advance them.
With respect to the opinion of these very late writers, indeed,
it is impossible to doubt that their sentiments are in opposition
to the belligerent principle of Great Britain. If they
have not been more expressly so, their silence is readily explained
by the period when they wrote, that is, after the abandonment
of the principle during the war of 1778, and before
their attention could be called to the subject by the occurrences
of the war of 1793. As late even as the year 1799, it was affirmed
at the bar of the high court of admiralty, that "in the
variety of cases from the French and Dutch colonies, in which
the court has either ordered further proof, or restored in the
first instance."[151] And in a prior case, in the same year, Sir
William Scott in reply to an argument at the bar, that the illegality
of a trade between the mother countries and their West
Indies had been in a good measure abandoned in the decisions
of the lords of appeal, does not pretend that any contrary decisions
had taken place. He says only–" I am not acquainted
with any decision to that effect; and I doubt very much whether
any decision yet made has given even an indirect countenance
to this supposed dereliction of a principle rational in itself, and
conformable to all general reasoning on the subject."[152] Even
the orders of council, commencing in January, 1793, could not
have been known to these writers; and if they had, were so
loosely expressed, so frequently changed, and had their effects
at so great a distance from European jurists, that the innovation
could not be expected to become an immediate subject of
their attention and discussion.
To the incidental hesitation of Hubner, then, opposed by his
own deliberate explanation of his principles, are to be opposed
the direct authority of one of his countrymen, and the unanimous
authority of a host of modern writers, all of a date later
than Hubner, and many of them more distinguished for their
talents and their erudition on subjects of public law.
It will be found that Mr. Ward is not more successful in his
definitions and reasonings on this subject, than in his appeal to
the authority of Jurists.
That the obscurity and uncongruity into which this heresy
in public law betrays the votaries who engage in its defence,
may be the better seen, Mr. Ward shall be exhibited in his
own words:
"Let it be remembered, therefore, that the question on the
"part of the belligerent is not, as has been grossly supposed,
"whether he has a right to interfere with the neutral; but
with him? In other words, whether, when the former
extends the bounds of his trade not with but for a belligerent;
not only purchases what he wants for his own consumption,
or sells his usual peace supply of articles; but sells to him
articles which may be easily converted into the means of
annoyance; or even turns carrier for his oppressed friend
who uses the surplus strength which is thus afforded him
against his opponent; whether in such case the other belligerent
has no reason to be offended, and to reclaim those
rights which the pretended neutral is disposed to deny him?
"This is in fact the true state of the question."[153]
"In granting, therefore, the fair and reasonable enjoyment
of their privileges to neutral nations, there must always be
added the fair and reasonable caution that they use them so
as not to hurt the belligerent; and that I may not seem to entrench
myself in general 'ubi sœpe versatur error,' I would
add that they have certainly no right to use them in any one,
the smallest degree more than they did in times of peace, nor
even in so great a degree, if such augmented, or the ordinary
use of them, bears immediate mischief to either belligerent.
For example, they may increase their purchases to any
amount in the belligerent countries, provided their own
consumption required it, and provided they remain domiciled
in their own country. But if they persist in carrying,
much more, if they extend their faculty of carrying for the
belligerent, where the latter was in the habit of carrying
before; and if, in consequence, he is enabled to come to the
battle, and to stand the shock of war, with augmented
strength, which he never would nor could have possessed
without it, I see little or no difference between this and an
actual loan of military assistance. All the distinction is,
that he substitutes his own people in the place of taking
foreigners, for every man which the neutral lends to his
trade enables him to furnish a man to his own hostile fleets.
forces, and yet preserve entire his sources of
revenue; when, if it was not for this conduct of the neutral,
either the forces or the revenue of the belligerent must be
diminished.[154]
"According to our principles, the same reason which applies
to contraband, applies to all nocent cases whatsoever."
A complaint in general terms that a power, which had hitherto
stood by, should step in and do that for the belligerent
which he was no longer able to do himself, introduces the following
passage: "to come a little more into the detail and
application of this argument, let us suppose, as was the case
with France, a heavy duty on foreign freight had formed an
almost fundamental law of her own commercial code; which
in times of peace, was a kind of navigation act amounting to
an interdiction of foreign interference; and that of a sudden,
while engaged in war, wanting her sailors, perhaps her merchant
ships, for hostile expeditions, at the same time wanting
the pecuniary and other sources of her trade, which would
thus be extinguished, she applied to nations calling themselves
neutral, by taking off this duty, or even by bounties,
to carry on this trade. Here is a proof how necessary this
trade is to her exigencies, and how impossible it is to preserve
it, consistently with her warfare. But where is the
man of plain understanding, and uninterested in the question,
who would not determine, that if the neutral accepted
the offer, that instant he interfered in the war, &c.?"[155]
"These observations apply very generally to all the carrying
trade, but they more particularly apply to that specific
claim in the first article of the armed neutrality of 1780, to
navigate freely on the coasts, and from port to port of nations
at war. In so far as the coasting trade of a nation is
more valuable and more necessary to its existence than its
foreign commerce; in just so far is the interposition of neutrals
more powerful in its favor."[156]
These extracts cannot be charged with perverting or mutilating
the argumentative part of Mr. Ward's vindication of the
belligerent claim in question.
The views of this claim, which Mr. Ward here gives, are,
it must be confessed, so vague and so confused that it is difficult
to fix on the real meaning of the writer. As far as it
can be reduced to any thing like precision, he appears to be at
variance with himself; and what is perhaps, not less extraordinary,
at variance with Sir William Scott; sometimes going
beyond the belligerent claims of the judge, and sometimes relinquishing
a part of them.
Thus, on comparing him with himself, he first allows neutrals
to increase their purchases to any amount; provided their
own consumption require it. He next states, that the neutral
privilege is not only not to be used in the smallest degree
more than in peace, but not in the ordinary degree, if it bears
immediate mischief to either belligerent. Finally, he maintains,
that the same reason which applies to contraband, applies
to all nocent cases whatsoever.
On comparing him with Sir William Scott, Mr. Ward admits
that neutrals have a right to trade, so far as to purchase
and increase their purchases, to the amount of their own consumption.
It has been sufficiently seen that Sir William
Scott, and indeed his superiors both in the admiralty and
executive departments, consider the trade of neutrals, beyond
the permission to trade in peace, as merely a relaxation of the
rights of war. Here then he stops short of Sir William Scott.
If we are not to consider that, as his real meaning, but pass
on to his next position, which denies to neutrals a trade, even
in the ordinary degree, if it bears immediate mischief to a belligerent
(by which the context will not permit us to understand
any possible allusion to contraband) he here expressly
contradicts Sir William Scott, who lays it down with emphasis
"that 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."
If we recur to his last and most rigorous position, that
all nocent cases whatever are within the reason applicable to
contraband; he must be still more extensively at variance
with Sir William Scott.
In support of the claim, whatever be the extent in which he
means to give it, Mr. Ward urges the unlawfulness of a neutral
trade, which "is not with, but for an enemy." This has been
a very favorite phrase with the patrons of the British claim.
It probably was first used in expressing the fiction by which
neutral ships, licensed to trade with the French colonies,
were converted into French ships. In its application to the
subsequent pretext, which determines the channel of trade
itself to be unlawful, it is not easy to find any distinct signification:
If by trading for an enemy be meant, carrying in
neutral vessels enemy's property, the phrase has no connection
with the present question; which is not, whether enemy's property
in a neutral ship be liable to capture, but whether neutral
property in a neutral ship, in a particular channel, be a lawful
trade: If by trading for an enemy be meant, carrying to or
from his ports, neutral property, where he used to carry it himself;
then it cannot be any thing more than trading with, not
for him, during the war; as he traded with, not for the neutral
nation, before the war; and the case is nothing more than
a relaxation of a navigation act: If by trading with an enemy
be meant, carrying neutral articles of trade, which he would
neither carry himself nor permit to be carried by neutrals before
the war, but the carriage of which he permits both to
neutrals and to himself during the war; this can no more be
trading for, not with him, than it was trading for, not with
each other, for either to carry to the other during war or peace,
articles at one time prohibited, and then permitted by the other;
and the case is nothing more than a relaxation with respect to
the articles of commerce; as the former was a relaxation with
respect to the vessels transporting the articles. The same
distinctions and inferences are generally applicable where particular
ports shut, at one time, come to be opened, at another.
The essence of the argument supposed to be compressed
into this equivocal phrase, thus, evaporates altogether in the
analysis. It either means nothing that is true, or nothing
that is to the purpose.
But the real hinge on which the reasoning of Mr. Ward
turns, is, the injury resulting to one belligerent, from the advantage
given to another, by a neutral whose ships and mariners
carry on a trade previously carried on by the belligerent
himself, and which, consequently, enables the belligerent to
employ his own ships and mariners in the operations of war;
without even relinquishing the revenue which has its sources
in commerce. Between this and an actual loan of military
assistance by the neutral, Mr. Ward can see no difference;
and this is the most plausible consideration perhaps which
could be urged in the cause which he defends.
But unfortunately for this defence, it is completely subverted
by three other considerations:
The argument is just as applicable to cases where the vessels
of the nation, before it was at war, were actually employed,
without any legal exclusion of those of the neutral nation, as
to cases where there was a legal exclusion of foreign vessels
before, and a legal admission of them during, the war. In
both cases, the belligerent vessels and seamen, as far as they
are liberated by the substitution of foreign vessels and seamen,
may be added to his military strength, without any
diminution of his exports and imports, or of the revenues connected
with them. Either, therefore, the argument must be
extended (which will not be undertaken) to the latter case, or
it loses its force, as to the former.It has been shewn that Great Britain does herself, thus
relax her navigation act; and avowedly for the purposes of substituting
neutral vessels and mariners in place of those which
she finds it expedient to employ in the operations of war. Mr.
Ward must therefore either relinquish his argument, or condemn
the practice of his own government.This fundamental argument of Mr. Ward is expressly
366thrown out of the question by Sir William Scott, who admits
that Great Britain, like all countries, in all wars, relaxes her
navigation acts and other regulations founded thereon, in order
to obtain the service of foreigners with their vessels, where she
did without it in times of peace; but that these relaxations,
though they arise out of a state of war, do not arise from that
predominance of force which he takes to be the true foundation
of the principle.[157]
1.
2.
3.
When Mr. Ward then asks, "where is the man of plain understanding,
and uninterested in the question, who would not
determine, that if the neutral accepted the offer, [of a trade
from which the ships and seamen of the belligerent were withdrawn
for the purposes of war,] that instant he interfered in
the war?" A man may be named whose determination of the
question, Mr. Ward, as may be inferred from his eulogies on
Sir William Scott, would of all men be the last to contest.
On turning to the work of Mr. Browne, it does not appear
that he has presented any views of the subject, which require
particular examination. He has, in fact, done little more
than appeal to the authority of Sir William Scott, and praise
and repeat the arguments of Mr. Ward.
It may be thought, that some notice ought to be taken of a
discourse of the present Earl of Liverpool, prefixed to his collection
of treaties. It would be injustice to the distinguished
author of that defence of the maritime principles of Great
Britain, to deny it the merit of learning, ingenuity, and a vein
of candor more than is always found in such discussions. His
attention, however, was almost wholly directed to the question
whether free ships make free goods, a question not within the
limits of this investigation. He has, indeed, a few cursory
observations, such as could not be here noticed without going
into unnecessary repetitions, in favor of the doctrine that a
trade not customary in peace cannot be lawful in war. These
observations, he concludes, with one referred to by Mr. Ward
as of great force, on the general question between belligerent
it would be the interest of all commercial States "to promote
dissentions among their neighbors."
If there be any plausibility in this argument, it is certainly
all the merit that can be claimed for it. The wars which afflict
mankind, are not produced by the intrigues or cupidity of the
weaker nations, who wish to remain in peace, whilst their
neighbors are at war. They are the offspring of ambitious,
and not unfrequently commercial rivalships, among the more
powerful nations themselves. This is a fact attested by all
history. If maxims of public law are to be tested, therefore,
by their pacific tendency, such maxims, it is evident, must
be favored as circumscribing, not the rights and interests of
neutral nations, but the belligerent and commercial interests,
of their more powerful and warlike neighbors.
As a further answer to the observations of this noble author,
and as a final answer to all the arguments which are drawn
from the intrinsic equity or conveniency of this principle, the
following considerations must have weight with all candid and
competent judges.
In the first place it may be repeated, that on a question
which is to be decided, not by the abstract precepts of reason,
but by the rules of law positively in force, it is not sufficient
to show on which side an intrinsic reasonableness can be
traced. It is necessary to shew, on which side the law as in
force, is found to be. In the present case, it has been shewn
that this law is not for, but against, the British side of the
question.
But secondly, it is denied that if reason, equity, or conveniency,
were alone to decide the question, the decision would
be different from that which the law in force pronounces on it.
War imposes on neutral commerce a variety of privations
and embarrassments. It is reasonable, therefore, as well as
lawful, that neutrals should enjoy the advantages which may
happen to arise from war.
In the case of contraband, the articles of which, especially
368according to the British catalogue, may compose an important
branch of exports in time of peace, the commerce of particular
nations remaining at peace may suffer material defalcations
from the exercise of the rights of war.In the case of enemy's property carried by neutral ships,
(as Great Britain, at least, understands and enforces the law
of nations,) a branch of trade more or less important to all
commercial nations, and constituting the most profitable
branch of trade with some in times of peace, becomes an
object of belligerent interruption and confiscation.In the case of blockades the abridgment and embarrassment
to which the trade of neutrals, especially those at a distance,
is subjected by war, form other important items of loss
on either side. This is a belligerent claim, on which much
might be said, if the notoriety of its effects, to say nothing of
its extravagant abuses, did not render it unnecessary.The interruptions, proceeding from searches of neutral
vessels on the high seas, the erroneous suspicions and inferences
which send them into port for trial, the difficulty of
obtaining all the requisites proofs thereon by the claimant,
the delays and expences incident to the judicial proceedings,
more especially where the trial is at a great distance, and above
all when appeals still more distant become necessary, the
changes in the state of markets during all these delays, which
convert into loss the gains promised by the expedition, the
suspension of the mercantile funds, the heavy sacrifices, and
sometimes bankruptcies thence ensuing; all these injuries,
which war brings on neutral commerce, taken together, must
surely, during war, require a very great weight in the opposite
scale to balance them, and the weight of these injuries is sometimes
not a little increased by the piracies which a state of war
generates and emboldens.
1.
2.
3.
4.
The injuries, besides, which are here enumerated, are limited
to such proceedings as the laws of war may be thought to
authorize. To a fair estimate of the evils suffered by neutral
commerce, must be added all those abuses which never fail
high seas; the protracted interruptions, the personal insults,
the violent or furtive spoliations, with a thousand irregularities,
which are more or less inseparable from the proceeding,
and which can seldom be so far verified and prosecuted to
effect against the wrong-doers, as to amount to a reparation.
If the evils, brought on neutrals by a state of war, were to
be traced to their full extent, a long list of a distinct kind ought
moreover to be thrown into the same scale. How many condemnations
are made either directly contrary to the law
of nations, or by means of unjust presumptions, or abitrary
rules of evidence, against neutral claimants! How often and
how severely are the neutral appellants aggrieved by measuring
the restitution awarded to them, not according to the
actual loss, but according to the deficient estimates, or the
scanty proceeds of sales, decreed by ignorant or corrupt vice
admiralty courts,[158]
in places and under circumstances, which
reduce the price to a mere fraction of the value! Examples
of this sort might easily be multiplied; but they may be thought
of the less weight in the present case, as they furnish a just
ground of resort from the ordinary tribunals of justice, to
those ulterior remedies, which depend on negotiations and
arrangements between the belligerent and neutral governments.
But whatever may be the provisions for indemnity,
obtained in these modes, it remains an important truth on
the present subject, that besides the intermediate disadvantage
to neutral traders from the mere delay of diplomatic and
conventional remedies, the justice stipulated is always rendered
losses and damages sustained.
The principle urged against a neutral trade in time of war,
not permitted in peace, is the more unreasonable, because it
gives to a tribunal established by the belligerent party only, a
latitude of judgment improper to be confided to courts of justice,
however constituted.[159]
In cases, even where the tribunal has an equal relation to
both the parties, it has ever been deemed proper, that the rules
of decision should be as plain and as determinate as possible;
in order not only, that they might be the surer guide to those
who are to observe them; but also a better guard against the
partialities and errors of those who are to apply them. Say,
then, whether it be not an abandonment of every reasonable
in the tenure of their official emoluments, and in their hopes of
personal advancements, an exclusive relation to one of the
parties; say whether it be not unreasonable to leave to the
opinion, perhaps to the conjectures of a tribunal so composed,
the questions whether in a distant quarter of the globe a particular
trade[160] was or was not allowed before the war, whether
proceeded from causes distinct from the war, or arising out
of the war; whether the allowance had or had not been
common to all wars; whether again, if resulting from the particular
pressure of the war, the pressure amounted to a necessity;
whether if amounting to a necessity, the necessity
resulted from an impossibility, imposed by a decided predominance
and superiority at sea, of the adverse party? These are
not questions of fancy or of unfairness. They are questions
which it has been seen, that the enlightened judge in the
British high court of admiralty has himself recognized as involved
in the principle for which he contends. But they are
questions in their nature improper to be decided by any judicial
authority whatever; and in their importance, they are
questions too great to be left even to the sovereign authority
of a country where the rights of other sovereigns are to be the
object of the decision.
Finally:—The belligerent claim, to intercept a neutral trade
in war not open in peace, is rendered still more extravagantly
preposterous and pernicious, by the latitude which it is now
assuming. According to late decisions in the British courts,
it is in future to be a rule, that produce of an enemy's colony,
lawfully imported into a neutral country, and incorporated
into its commercial stock, as far as the ordinary regulations of
a sovereign State can work such an effect, is to be subject on
re-exportation to capture and condemnation; unless it can
be shewn that it was imported in the proceeding voyage, with
a moment the indignity offered to a neutral sovereign in subjecting
the integrity of its internal regulations to the scrutiny
of foreign courts, and to the interested suspicions of belligerent
cruizers; consider the oppression on the individual traders,
inseparable from a trial in a distant court, and perhaps an appeal
to another court still more distant, where the intention
of an antecedent voyage is to be traced through all the labyrinth
of mercantile transactions. A neutral vessel goes to sea,
with a cargo consisting, in whole or in part, of colonial produce.
It may be the produce of a neutral colony. It may be the
produce of the country exporting it: The United States already
produce cotton, sugar, rice, &c., as well as the West Indies.
The cruizer does not forget, that the proof will probably be
thrown on the claimants; that besides the possibility that it
may be a licensed capture, the difficulty of proof may have
the same effect in producing condemnation. He recollects
also that in the event of an acquittal the costs[161] will,
where there is the least color for seizure, be thrown on the
claimants; and that, at the worst, he can only be put to
the inconvenience of giving up a few men to take charge of
the prize, in exchange for a few others, not unfrequently impressed
into the vacancy. In a word, his calculation is,
that he may gain, and cannot lose. Will not, under such
circumstances, every hogshead of sugar, or bale of cotton,
or barrel of rum, &c., be a signal for detention? Could
ingenuity devise a project holding out a more effectual
premium for the multiplication of vexations searches and
seizures, beyond even the ordinary proportion of condemnations?
A project, in fact, more unjust in itself, more disrespectful
interests of neutral commerce? Would Great Britain be patient
under such proceedings against her, if she held in her
hands, the means of controuling them? If she will not answer
for herself all the world will answer for her, that she
would not, and what is more, that she ought not.
"This is all that I have been able to collect, for illustrating the
rules laid down, in the act of navigation and of frauds, for the conduct
of the European trade. And having now taken a view of the policy
pursued for rendering the foreign trade of the whole world subservient
to the increase of our shipping and navigation, I shall draw the reader's
attention to another part of the subject; and present to him the instances
in which this spirit of prescribing the mode of carrying on
foreign trade has been compelled to yield, and the execution of our navigation
laws has been suspended, lest, in the attempt to enforce them,
our commerce might be extinguished, or greatly endangered.
"The laws of navigation, like other laws, have given way to necessity;
and have been suspended in time of war. During the dread of continual
danger from an enemy at sea, it is well if foreign trade can be
carried on at all; it is no time to be curious at to the build of the ship
that is employed in it, how it is navigated, or whence it comes. At
such conjunctures it has been usual, more or less, to suspend the act of
navigation: the first instance of this was in the Dutch war, in the
reign of Charles II.
"It was then done, as was common in those times, by the prerogative
exercised by the crown, of dispensing with laws upon urgent occasions.
On the 6th March, 1664, it was found necessary to issue an order of
council for suspending the act of navigation wholly, as far as regarded
the import and export of Norway, and the Baltic sea, and as far as
regarded Germany, Flanders, and France, provided the merchants and
the owners of the ships were natural born subjects: it was further permitted
to any one of a nation in amity to import from any parts, hemp,
pitch, tar, masts, saltpetre, and copper, and to pay duty only as natural-born
subjects. English merchants were permitted to employ foreign
ships in the coasting and plantation trade; but they were to comply
with the restriction of shipping in, and bringing their cargoes to England
or Ireland.
"This was letting loose at once most of the restrictions belonging to
our navigation system, and throwing it among the rest of Europe, to
make the best of it, during the time we were unable to follow up the plan
we had proposed to ourselves.
"In the war of 1740, when we had a war with both France and Spain,
it was again necessary to relax from the strictness of our navigation
laws; but it was endeavored to be done in such a way as would facilitate
the carrying on of our trade, without wholly giving up the favorite
object of British shipping; and this was, by permitting foreigners
to become owners of British ships, and to trade as British subjects.
"In the war with France, beginning in the year 1756, the like law was
passed to continue during that war; and again in the year 1779, during
the continuance of the then subsisting hostilities with France.
"In these temporary expedients, we may trace the progressive increase
of British shipping. In the Dutch war of 1664, the nation were
obliged at once to abandon the Baltic trade, and to admit foreign ships
into the coasting and plantation trade. But in the war of 1740 we
made no other concession than that of admitting foreigners into the
ownership of British-built ships, and to navigate with foreign seamen
for carrying the European commodities to this country and to the plantations.
This was also done in the war of 1756, and in the last war.
However, in the last war, pressed as our trade was on all sides, we were
compelled to yield a little further. Many articles of the trade of Asia,
Africa, and America, were permitted to be brought from any place, in
any ships belonging to a nation in amity. But in neither of these wars,
not even in the last, when we had the maritime powers of both worlds
to cope with, Spain, France, Holland, and America, did we allow foreign
ships to participate in the coasting or in the plantation trade.—
Reeves' Law of shipping and Navigation, part 2, chap. 3.
The reason for not then opening the plantation trade is obvious.
The only country furnishing the articles needed, was this country,
with which Great Britain was then at war.
In the wars of Great Britain, since the United States have been a
neutral country, her colonial trade has been opened to them.
It was overlooked by both sides In the discussion, that the neutral
right to trade with the coasts and colonies of an enemy, and even to
cover the property of an enemy, was stipulated by Great Britain to
France, in the treaty of Utrecht, 1713, then in force, and to the Dutch
in the treaty of 1674, then also in force. If it be said that the omission
to notice these treaties was deliberate, and proceeded from a construction
of the treaties which excluded from their purview, the colonial
trade of an enemy, this presumed accuracy and deliberation of the
speakers would strengthen the inference from the omission to cite the
principle in question, that the principle was unknown to or disclaimed
by them.
The Yonge Helena, a Dutch ship, p. 141.
La Prosperite, or Welfaren, claimed as a Lubecker, p. 170.
Les Quatres Freres, a Danish vessel, p. 180.
The Verenderen, or Le Changement, a Prussian vessel, p. 220.
The Zelden, a Dutch ship, p. 243.
The Dame Catherine de Workeem, a Dutch ship, p. 258.
The instrument containing this stipulation bears date January 16,
1756. It may be seen in Jenkinson's collection of treaties.
Hennings, a Danish writer, alluding to the period of the war of
1778, says, "But although in respect to the neutral trade to the colonies
in America, since France has permitted it to all nations, nothing has
been expressly conceded by Great Britain, yet the courts of admiralty
have released all prizes which had been brought in, as coming from
the French or Dutch possessions in America; and the commerce of
neutrals with the colonies, has been generally permitted. This permission,
therefore, may be considered as a settled point."—Treatise
on Neutrality, p. 58.
Frumentum scilicet etiam non hostis, ad hostem recte advehit,
excepta obsidionis famis-ve causa.—Lib. I, Cap. 9.
The Charlotte, Coffin, an American vessel, taken on a voyage from
Cayenne to Bordeaux, October, 1793, and reserved with a class of like
cases, prior to the instructions of November, 1793, was tried and
decided by the Lords of appeal in 1803. On the side of the claimants
it was argued, that considering the changeable ground on which the
principle, condemning a trade in war not permitted in peace, was first
established in 1756, and the apparent abandonment of it during the
war of 1778, neutral merchants were entitled to the benefit of a justifiable
ignorance, until the instructions of November, 1793, had conveyed
an admonition to them: on the other side it was contended that
the principle was sufficiently obvious as a principle of public law, without
any instructions, and that neutrals had no right to presume that relaxations
confined to circumstances of the war of 1778 [on which subject
by the way it was impossible they could have any knowledge] would
be continued. The court concurring in this view of the case, pronounced
the ship and cargo with the others in the like situation, subject
to condemnation. 4 Rob., Appendix, p. 12. As the state of appearances
had misled the "very learned person" who preceded Sir William
Scott, into an opinion that the neutral trade, though not permitted
in peace, was lawful in war, it was surely rather a hard sentence that
refused to unlearned traders a plea of ignorance, of which so very
learned an expositor of the law is obliged to avail himself. Besides, if
"the principle was sufficiently obvious," why were the cases depending
on it reserved, and above all, why were the parties kept in uncertainty
and expense for ten years, and till the war was over? These are
questions which it is more easy to ask than to answer.
Among the printed documents of that period is a letter of January
9, 1794, from Mr. T. Pinckney, the American Minister at London, to
Mr. Jefferson, then Secretary of State, in which, alluding to an interview
with Lord Grenville, he says, "I reminded him that our ideas
differed materially from theirs on this subject; and without repeating
the arguments I had before addressed to him, both verbally and in
writing, in support of our position, it was only necessary to say, that
we did not admit the right of the belligerent Powers to interfere further
in the commerce between neutral nations and their adversaries, than
to prevent their carrying to them articles, which, by common usage,
were established as contraband, and any articles to a place fairly
blockaded; that consequently the two first articles, though founded
upon their principles, of not suffering, in war, a traffic which was not admitted
by the same nations in time of peace, and of taking their enemy's
property when found on board of neutral vessels, were nevertheless
contrary to what we contended to be the just principles of the modern
law of nations."
The works of Jenkins have become so scarce, that it were to be
wished that the parts at least, which contain his admiralty opinions
and decisions, were republished. Considering the luminous character,
and the official weight belonging to them, it might have been expected
that this would long ago have been done; as well as that his authority
would have been more frequently consulted in admiralty proceedings.
Perhaps one cause of the neglect may lie in the difference which would
be exhibited between his testimony of the law of nations, and the expositions
of modern date, on some other points beside that in the text.
For example, in defining contraband, he limits it to things "directly
or immediately" subservient to the uses of war; and expressly decides
"pitch and tar" not to be contraband. By what authority has the
law of nations been changed in this particular? Certainly, not by an
unanimous consent of nations, as was required by Great Britain to
change the law subjecting enemy's property under a neutral flag, to
confiscation; the contrary being admitted by Sir William Scott, who
remarks that this was a point, though not the only point of British
difference from the tenets of Sweden. 4 Rob., 201. With respect to
tar and pitch, it cannot even be pretended, that any change in the uses
of these articles, since that date, can have changed the reason of the
rule, as it existed in the time of Jenkins; or that the change was merely
an adaptation of the same general principle to particular circumstances:
for tar and pitch had the same relation to ships, and ships the same
relation to war, then as they have now.
The pretension has not appeared in the courts in England, But
in a late case in the vice admiralty court at Halifax, it appears that the
judge was disposed to consider the introduction of certain regulations
at Bourdeaux, favorable to neutral commerce, as forming an unusual
trade, and, in that view, as a legal ground of capture.
It is well known that the Dutch island of Curacao as well as that
of St. Eustatius, has been constantly open in time of peace, to the trade
of foreigners. The orders, however, of Great Britain, extend equally
to those islands, with the other colonial possessions of her enemies.
This passage stands as follows in the English translation: "As to
the third sort of things that are useful at all times, we must distinguish
the present state of the war. For if I cannot defend myself without
intercepting those things that are sent to my enemy, necessity (as I
said before) will give me a good right to them, but upon condition of
restitution, unless I have just cause to the contrary. But if the supply
sent hinder the execution of my design, and the sender might have
known as much; as if I have besieged a town or blocked up a port, and
thereupon I quickly expect a surrender or a peace, that sender is obliged
to make me satisfaction for the damage that I suffer upon his account
as much as he that shall take a prisoner out of my custody."
The whole passage is criticized, and, in several particulars, censured,
by Bynkershoeck: whose comment, at the same time, shews that he
understood Grotius, not in the sense of Mr. Ward, but in that here
assumed.—Lib. 1, C. 11.
This act being temporary, is not found in D. Pickering's statutes
at large—but is inserted at full length in Hennings' collection of State
papers during the war of 1778—vol. 2, p. 114
So great was the disposition to assuage the misfortunes of these
islands, and perhaps to expiate the omission to defend them, that the
Dutch, their enemies, were permitted by an additional instruction to
trade with them, as also with St. Vincent and Dominica, freely as
neutrals, for four months.—2 Hen., p. 105.
If the act is to be construed as a proof that the parliament did not
think the general trade of neutrals with enemy colonies justified by the
law of nations, and therefore, as requiring a special legalization by this
act, it strengthens the proof that the courts thought otherwise; since
they continued to release neutrals taken in the general trade with enemy
colonies, in spite of the constructive denial of its legality by this
act of parliament.
The character of these courts may be estimated by a single fact
stated on the floor of the British House of Commons, 29th April, 1801,—
that out of three hundred and eighteen appeals, thirty-five only of the
condemnations were confirmed by the superior court. Notwithstanding
this enormity of abuses, and the strong remonstrances against them,
no change was made in the courts till about four months before the war
was over. They were then put on an establishment somewhat different,
but which still leaves them a scourge to the fairest commerce of
neutrals.
The English courts of municipal law are much celebrated for the
independent character of the Judges, and the uniformity of their decisions.
The same merit has been claimed for the prize courts. In answer
to the objection made in a Prussian remonstrance against the
condemnation of Prussian vessels during the war of 1739, viz: that the
Admiralty courts were ex part tribunals, and their decisions not binding
on other nations, the Duke of Newcastle, in his letter enclosing the
report of the four law officers, observes, "that these courts, both
inferior courts and courts of appeal, always decide according to the
"universal law of nations only; except in those cases where particular
"treaties between the powers concerned have altered the dispositions
"of the law of nations." In the Report itself it is declared, "that this
Superior court [Lords of Appeal] judges by the same rule which governs
the court of Admiralty, viz: the law of nations and the treaties subsisting
with that neutral power whose subject is a party before them:"
"that in England the crown never interferes with the course of justice.
No order or intimation is ever given to any judge;" that "had it been
intended, by agreement, to introduce between Prussia and England a
variation, in any particular, from the law of nations, and consequently
a new rule for the court of Admiralty to decide by, it could only be done
by solemn treaty in writing, properly authorized and authenticated. The
memory of it could not otherwise be preserved; the parties interested,
and the courts of admiralty, could not otherwise take notice of it." In the
judgment pronounced by Sir Wm. Scott, in the case of the Swedish
convoy, [i Rob., 295,] the independent and elevated attributes of his
judicial station are painted with his usual eloquence. "In forming
that judgment," says he, "I trust that it has not escaped my anxious
recollection for one moment, what it is that the duty of my station
calls for from me, namely, to consider myself as stationed here not to
deliver occasional and shifting opinions to serve present purposes of
particular national interest; but to administer with indifference that
justice which the law of nations holds out without distinction to
independent States, some happening to be neutral and some to be
belligerent. The seat of judicial authority is indeed locally here in the
belligerent country, according to the known law and practice of nations;
but the law itself has no locality. It is the duty of the person who sits
here to determine this question, exactly as he would determine the same
question if sitting at Stockholm; to assert no pretension on the part of
Great Britain, which he would not allow to Sweden in the same circumstances;
and to impose no duties on Sweden, as a neutral country,
which he would not admit to belong to Great Britain in the same
character. If, therefore, I mistake the law in this matter, I mistake
that which I consider, and which I mean should be considered, as the
universal law upon the question."
Does the judge either sustain these lofty pretensions, or justify the
declaration of his government to Prussia, when, a few months after, in
the case of the Immanuel, [2 Rob., 169,] he observes to the bar, "that
much argument has been employed on grounds of commercial analogy;
this trade is allowed; that trade is not more injurious; why not that
to be considered as equally permitted? The obvious answer is, that
the true rule to this court is, the text of the instructions. What is not
found therein permitted, is understood to be prohibited, upon this
general plain principle, that the colony trade is generally prohibited,
and whatever is not specially relaxed continues in a state of
interdiction."
He is not extricated from these inconsistencies by alleging that the
instructions, the text of which was taken as his rule, was a relaxation
of the law of nations within the prerogative of the crown, and favorable
to the interests of the netural parties.—1. Because it was incumbent
on him, if he meant to keep himself above all executive interference
with the course of justice, to have reserved to him the right to test the
instructions by the law of nations, instead of professing so ready and
so unqualified a submission to the text of them. 2. Because without
examining the extent of the royal prerogative, which depends on the
local constitution and laws, it has been shewn that, in some respects,
the instructions have extended the belligerent claims against neutral
commerce beyond the law of nations, as asserted on the part of Great
Britain.
How far the authority of this instructions has been pursued by the
Hight court of Admiralty, in opposition to precedents of the Superior
court settling the law of nations, is a fit subject of enquiry, for which
the adequate means are not possessed.
The opinion has long and generally prevailed, that the Admiralty
courts in England were not those independent and impartial expositors
of the law of nations which they have professed to be; but rather the
political organs of the government, so constituted as to deliver its occasional
and shifting views, with reference to the occasional and shifting
interests of the nation, belligerent and commercial. And it is to be
regretted that this opinion is but too much countenanced by the series
of royal orders and judicial decisions which the last and present war
have produced. It would be an unjustifiable sacrifice of truth to complaisance,
not to say, on the present occasion, that with all the merits
of the illustrious civilian who presides in the high court of Admiralty,
the Englishman at least is often discerned through the robes of the
judge.
This want of confidence in the impartiality of the admiralty courts
is the less surprizing, when it is considered that the Lords of Appeal,
who decide in the last resort, are frequently statesmen, not jurists;
that they not only hold their seats in that court at the most absolute
pleasure of the crown, but are members of the cabinet, and it may
be presumed, are, in that capacity, the original advisers and framers
of the very instructions, which in their judicial capacity they are to
carry into effect.
With respect to the inferior prize courts, orders directly addressed
to them are neither unusual nor concealed. As an example, take the
orders communicated to Mr. King by Lord Hawkesbury, above cited.
Another example is furnished by the orders communicated to this
government through Mr. Merry in 1804, as having been addressed to
the vice admiralty courts in the West Indies, as a rule on the subject
of blockades.
* See the case reported by Robinson, vol. 4, p. 267, of a vessel in the
trade to Senegal, and the difficulty, expence, and delay in ascertaining
whether the trade was or was not open before the war. A case (of
Coffin, an American citizen) is now depending, which involves the question,
whether the trade from the island of Java in the East Indies, to
Muscat in the Persian gulph, was or was not open before the war. This
question was decided in the first instance by a vice-admiralty court at
Ceylon; and will probably be removed to Great Britain for a re-examination.
The case, therefore, will have for its space three quarters of
the globe. Through what period of time it may extend is a problem
to be decided. There are precedents, as has been already seen, for
ten years at least.
It is well known to be the practice to favor the activity of cruizers
against the colonial trade. Sir William Scott in the case of the Providentia,
in which the ship and cargo were restored—2 Rob., 128, says,
"Cases respecting the trade of neutrals with the colonies of the enemy
are of considerable delicacy; and I therefore think it has been properly
brought before the court."
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