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CHAPTER V.

Of The Effect Of Wah Upon The Commerce
Of NeutralsAnd Herein Of BlockadeOf
Contraband Of "wab, And Of The Right Of
Visitation And Search

Neutral nations are those which, in time of war, who are noutake no part in the contest, but, maintaining a stricttraU' impartiality between the belligerents, render assistance to neither.

The general commercial rights of neutrals have Their general been thus stated by Lord Erskine in his speech of ^Ma.erdal March 8th, 1808, upon the orders in council: "The public law establishes, that countries not engaged in war, nor interposing in it, shall not be affected by the differences of contending nations; but, to use the very words of the eminent judge who now presides with so much learning in the Court of Admiralty (Sir Wm. Scott—Lord Stowell), 'upon the breaking out of war, it is the right of neutrals to carry on their accustomed trade, with an exception of the particular cases of a trade to blockaded ports, or in contraband articles, and of their ships being liable to visitation and search.'"

Under this succinct but comprehensive statement of the general commercial rights of neutrals, the subjects for consideration in this chapter are clearly indicated. It is the right of neutrals to carry on their accustomed trade, which suggests the first topic for review.

It has ever been the policy of nations to preserve, Coasting and with jealous exclusiveness, for the benefit of their colooitl tradeown citizens, the traffic carried on between ports of their own coast, and, as far as practicable, that with their colonial possessions.

It has been the practice, in time of war, for the belligerent, to permit neutrals to enjoy this commerce.

The impossibility of determining whether such permission is granted in good faith and with honest designs, or whether it is, as it is well known to be, in the vast majority of cases, a permission allowed with the collusive and fraudulent design of protecting the enemy's property by a neutral shield, and the incessant liability to abuse, incident to such Neutrals ex- permission, has resulted in the establishment of the from. general principle of total exclusion of neutrals from

the enemy's coasting and colonial trade.

Under this general rule of exclusion, it is considered, that when a neutral presents himself in the capacity of a trader from port to port, or with the colonies of the enemy, he presents himself as an ally, as a willing and active instrument of the enemy, rather than as a neutral. He is regarded as departing from the line of impartiality which distinguishes a neutral, by engaging in the business of relieving one belligerent from the extremities to which he has been reduced by the lawful operations of the other—and being so regarded, is so accordingly dealt with, character and The character and the reasons for the rule of

reason for the i • /» , i <• •

rule of exciu- exclusion ot neutrals from a commerce in war, Km' which they have been unaccustomed to enjoy in

time of peace, are clearly and ably set forth by Lord Stowell in an early case involving the ques

"Is there nothing," said he, "like a departure from the strict duties imposed by a neutral character and situation, in stepping in to the aid of the depressed party, and taking up a commerce which so peculiarly belonged to himself, and to extinguish which was one of the principal objects and proposed fruits of victory \ Is not this, by a new act and by an interposition, neither known nor permitted by that enemy, in the ordinary state of his affairs, to give a direct opposition to the efforts of the conqueror, and to take off that pressure which it is the very purpose of war to inflict, in order to compel the conquered to a due sense and observance of justice?

"As to the coasting trade, supposing it to be a trade not usually open to foreign vessels, can there be described a more effective accommodation that can be given to an enemy during a war, than to undertake it for him during his own disability? Is it nothing that the commodities of an extensive empire are conveyed from the parts where they grow and are manufactured, to other parts where they are wanted for use? It is said, that this is not importing any thing new into the country, and it certainly is not: but has it not all the effects of such an importation? Suppose that the French navy had a decided ascendant, and had cut off all British communication between the northern and southern parts of this island, and that neutrals interposed to bring the coals of the north, for the supply of the manufacturers and for the necessities of domestic life in this metropolis, is it possible to describe a more direct and more effectual opposition to the success of French hostility, short of an actual military assistance in the war?"

The duties of neutrals are clearly expressed by Lord Herrick's letter to Mr. Bist in the following words:

"Neutrality, properly considered, does not consist in taking advantage of every situation between belligerent states, by which emolument may accrue to the neutral, whatever may be the consequences to either belligerent party; but in observing a strict and honest impartiality, so as not to afford advantage in the war, to either; and particularly, in so far restraining its trade to the accustomed course, which is held in time of peace, as not to render assistance to one belligerent in escaping the effect of the other's hostilities. The duty of a neutral is lnon interponere se beUo, non lwste imminente hostem eripere] and yet, it is manifest, that lending a neutral navigation to carry on the coasting trade of the enemy, is in direct contradiction to this definition of neutral obligations, as it is, in effect, to rescue the commerce of the enemy from the distress to which it is reduced by the superiority of the British navy; to assist his resources, and to prevent Great Britain from bringing him to reasonable terms of peace."1

Consequence A violation of the rule of exclusion of neutrals tion,' andmod- from the coasting trade of the enemy, was formerly em relaxation vjsfted with the penalty of confiscation of the neu

of the ancient * »

rule of oonfis- tral property.

In modern times, and by special ordinances, the penalty for such violation has been limited to the forfeiture of the freight, which, we have seen (when

1 The Emanuel, 1 Rep., 296.

considering the general subject of captures), would be payable, under ordinary circumstances, by {he captor to the neutral ship-owner. This relaxation of the former rule, is regarded as a great leniency to the neutral, detected in interfering with a trade not legally permitted to him, which formerly subjected his vessel to confiscation as well as his freight to forfeiture.

The ancient law upon this subject, and its modern modification, are admirably collated and digested by the king's advocate, in an important case in the British admiralty, to which case as well as to another, Dr. Robinson, the reporter, has appended a valuable note.1

The relaxation, however, of the ancient penalty Ancient rule is not permitted to be applied, where there are of'spec? circumstances of specific fraud on the part of the flc fraudneutral, iu addition to the illicit character of the trade in which he i§ engaged—such as the carrying of false papers. In such cases the ancient rule of confiscation is applied in all its rigor.'

Analogous in principle to the rule which ex- Rule of exciu

Ti iip j.i A- J_j p t It sion of neutrals

eludes neutrals from the coasting trade ot a belli- from the coiogerent,is that which excludes them from the colonial trade. In a case already cited, Lord Stowell, with trade his usual learning and clearness of statement, discusses the policy and reasons of the rule of pro

1 The Johanna Tholen, 6 Rob., 12; The Edward, 4 Rob., 58; The Huffnuvy, 2 Rob., 68; vide also Dr. Robinson's note to that case, and also another note to case in 6 Rob., 250.

* The Ebenezer, 6 Rob., 252; The Carolina, 3 Rob., 75; Tht Phoenix, 3 Rob., 191.

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