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AN EXAMINATION OF THE BRITISH DOCTRINE, WHICH SUBJECTS TO CAPTURE A NEUTRAL TRADE, NOT OPEN IN TIME OF PEACE. 1 - James Madison, The Writings, vol. 7 (1803-1807) 
The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 7.
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AN EXAMINATION OF THE BRITISH DOCTRINE,
In times of peace among all nations, their commercial intercourse is under no other restrictions than what may be imposed by their respective laws, or their mutual compacts. No one or more nations can justly control the commerce between any two or more of the others.
When war happens between any two or more nations, a question arises, in what respect it can affect the commerce of nations not engaged in the war?
Between the nations not engaged in the war, it is evident that the commerce cannot be affected at all by a war between others.
As a nation not engaged in the war remains in the same relations of amity and of commercial pursuits, with each of the belligerent nations, as existed prior to the war, it would seem that the war could not affect the intercourse between the neutral and either of the belligerent nations; and that the neutral nation might treat and trade with either, or both the belligerent nations, with the same freedom as if no war had arisen between them. This, as the general rule, is sufficiently established.
But inasmuch as the trade of a neutral nation with a belligerent nation might, in certain special cases, affect the safety of its antagonist, usage, founded on the principal of necessity, has admitted a few exceptions to the general rule.
Thus, all instruments of war, going into the hands of one belligerent nation, may be intercepted, on the high seas, by its adversary.
In like manner, a neutral trade with a place actually besieged is liable to be interrupted by the besiegers.
It is maintained also on one side, though strongly contested on the other, that the property of a nation at war, in a neutral ship, may be seized and condemned by the enemy of that nation.
To these exceptions, Great Britain has undertaken to add another, as important as it is new. She asserts a right to intercept the trade of neutrals with her enemies, in all cases, where the trade, as it respects the ship, the cargo, or even the individual port of destination, was not as free before the war, as it is made during the war.
In applying this doctrine, the British government and courts have not, as yet, extended it beyond the trade of neutrals on the coasts, and with the colonies of enemies. But it is manifest, that this limitation is founded in considerations of expediency only; and that the doctrine is necessarily applicable to every other branch of neutral commerce with a belligerent nation, which was not open to the same nation in time of peace. It might indeed with equal reason be extended farther. It might be applied to the case of a trade legally permitted to foreign nations in time of peace, but not actually carried on by them in time of peace; because in time of peace actually carried on by the nation itself; and which is taken up by foreign nations in time of war only, in consequence of the war, which, by increasing the risk or by finding other employment for the vessels and seamen of the nation itself, invites neutral traders into the deserted channels. In both cases, the neutral intervention may be said to result from the pressure of the war; and in both cases, the effect is the same to the belligerent; since in both, neutrals carry on for him, a trade auxiliary to his prosperity and his revenue, which he could no longer carry on for himself; and which at the same time, by liberating his naval faculties for the purposes of war, enables him to carry on the war, with more vigor and effect. These inferences cannot be impaired by any sound distinction, between a trade of foreigners with colonies, and a trade of foreigners with the ports of the mother country. Colonies, more especially when they are altogether subject to the same authority which governs the parent state, are integral parts of the same dominion or empire. A trade, therefore, between a colonial port and a port of the parent or principal State, is precisely of the same nature with a trade between one and another port of the latter: and a trade between a colony and a foreign port is, in like manner, precisely the same with the trade between a foreign port and the parent country; which is only a more considerable, as a colony may be a less considerable, part of the same country or empire. Previous to the late political union of Ireland with Great Britain, the relation between those two islands was strictly analogous to the relation between Great Britain and the West Indies. Was any difference ever entertained between a coasting trade from a British to a British port, and a trade from a British to an Irish port? or between a trade from a foreign port to an Irish port, and a trade from a foreign to a British port? In the nature of things, and in the eye of foreign nations, the cases were the same. If any difference existed, it was merely circumstantial, such as may be incident to all cases essentially the same; or merely municipal, such as may result from those regulations of trade, which all sovereigns have an acknowledged right to make. It would not be unfair, therefore, in examining the doctrine asserted by Great Britain, to view it in the whole extent of which it is susceptible. But the latitude in which it is avowed, and carried into operation, sufficiently demands the serious attention of all nations; but more than any, that of the United States, whose commerce more than any is the victim to this belligerent pretension. To prepare the way for this examination, several remarks are to be premised.
First. The general rule being, that the trade between a neutral and belligerent nation is as free as if the latter were at peace with all nations, and the cases in which it is not as free being exceptions to the general rule, the exceptions, according to a received maxim of interpretation, are to be taken strictly, against those claiming the benefit of the exceptions, and favorably for those claiming the benefit of the general rule.
Secondly. The exceptions being founded on a principle of necessity, in opposition to ordinary right, the necessity ought to be evident and urgent. In proportion as the necessity may be doubtful, and still more, in proportion as the sacrifice of neutral interests would exceed the advantage to the belligerent, the exception fails.
Thirdly. The progress of the law of nations, under the influence of science and humanity, is mitigating the evils of war, and diminishing the motives to it, by favoring the rights of those remaining at peace, rather than of those who enter into war. Not only are the laws of war tempered between the parties at war, but much also in relation to those at peace.
Repeating then, that every belligerent right to controul neutral commerce must, as an exception to the general freedom of commerce, be positively and strictly proved, and the more strictly, as the exceptions are in a course of restriction rather than extension, the question is ready for examination, whether it be a part of the law of nations, that a trade ordinarily shut in time of peace, and opened to neutrals in time of war, on account of the war, is liable, as much as a trade in contraband of war or with a blockaded port, to capture and condemnation.
It will not be overlooked, that the principle, as thus laid down, does not extend to any of the cases, where a new trade, though opened during a war, is not opened on account of the war, but on considerations which would produce the same measure, if no war existed: from which follows another important observation, that taking into view the probable occurrence of such considerations, the still greater probability of a mixture of such with considerations derived from the war, the impossibility of distinguishing the proportion of these different ingredients in the mixture, with the evident disadvantage of rendering more complicated, instead of simplifying, a rule of conduct between independent nations, to be expounded and enforced by one of the parties themselves, it would seem to require no great effort of candor, to acknowledge the powerful objection in practice, to such a principle, were it really embraced by the most specious theory.
But without dwelling on this view of the subject, however just in itself, the principle in question will be tried:
First—by the writings most generally received as the depositaries and oracles of the law of nations;
Secondly—by the evidence of treaties;
Thirdly—by the judgment of nations, other than Great Britain;
Fourthly—by the conduct of Great Britain herself;
Fifthly—by the reasoning employed in favor of the principle.
First. The written authorities on this subject.
It cannot be necessary to examine the historical fragments which have been gleaned by modern authors, as evidence of the usage and tenets of the civilized nations of antiquity. The great change which has taken place in the state of manners, in the maxims of war, and in the course of commerce, make it pretty certain, that either nothing would be found relating to the question, or nothing sufficiently applicable, to deserve attention in deciding it. There is but little hazard in saying, that in none of the learned collections, is a single fact presented, which countenances the British pretension; or even shews, that a single ancient nation asserted or acted on it.
On a cursory review of the naval laws of Rhodes, of Oleron, of Wisbuy, and of the Hanse Towns, they appear to be perfectly barren of information. They are confined to subjects within the law-merchant, taking no notice of questions between nations; and are no further binding on particular nations, than [as] they may be respectively adopted into their municipal codes.
The ancient compilation under the title of Consolato del Mare, a work of great authority with British jurists, has two chapters which treat particularly of captures and recaptures. They do not, however, touch any cases but those where either the ship or the cargo, in whole or in part, might be enemy’s property; and consequently are inapplicable to the case under examination.*
Descending to more modern times, the first authority which offers itself, is the work of Albericus Gentilis.
He was the immediate precursor of Grotius, and has the merit of preparing the way for the great work supplied by the genius and erudition of the latter. Gentilis being so soon eclipsed by a superior authority, is but little known beyond a few occasional citations, which, as far as they may not coincide with the doctrines of Grotius, are, for the most part, superseded by them.
Grotius is not unjustly considered, as in some respects, the father of the modern code of nations. Great, however, as his authority deservedly may be, it yields, in a variety of instances, to that of later jurists; who, to all the lights furnished by this luminary, have added those derived from their own sources, and from the improvements made in the intercourse and happiness of nations.
On the relations between belligerent and neutral nations, Grotius has but a single, and that a short chapter, (B. III, Ch. 17,) with three short sections, Ch. 1, sec. 5, of the same book with a note, and B. II, Ch. 2, sec. 10, and B. III, Ch. 6, sec. 6, with a note.* The chapter begins with following paragraph:
“It may seem needless for us to treat of those that are not engaged in war, when it is manifest that the right of war cannot affect them: but because upon occasion of war, many things are done against them on pretence of necessity; it may be proper here briefly to repeat what we have already mentioned† before, that the necessity must be really extreme, to give any right to another’s goods: that it is requisite that the proprietor be not himself in the like necessity. When real necessity urges us to take, we should then take no more than what it requires; that is, if the bare keeping of it be enough, we ought to leave the use of it to the proprietor; and if the use be necessary, we ought not to consume it; and if we cannot help consuming it, we ought to return the full value of it.”
Having illustrated this exemption of neutral property from the effect of war between others, with the sole exception of cases of extreme necessity, by a train of examples, he proceeds to lay down the duty of neutrals towards the belligerent parties, as follows:
“On the other side it is the duty of those who are not engaged in the war, to sit still and do nothing that may strengthen him that prosecutes an ill cause or to hinder the motions of him that hath justice on his side, as we have said before. [Ch. 1, of this B., sec. 5.] But in a dubious cause to behave themselves alike to both parties; as in suffering them to pass through their country, in supplying them with provisions, and in not relieving the besieged.” In illustration of the impartiality here enjoined, a number of instances are specified in the sequel of the chapter and the notes.
The 5th section of chapter 1, above referred to, makes up the whole of what Grotius teaches on this branch of the subject. As it is more definite and particular than the other extracts, the insertion of it, though of greater length, will be proper.
* “Here also there uses to arise another question, what we may lawfully do to those who are not our enemies, nor are willing to be thought so, and yet supply our enemies with certain things. There have been formerly, and still are great disputes about this matter, some contending for the rigors [* of the laws] of war, and others for a freedom of commerce.
“But first we must distinguish between the things themselves. For there are some things which are of use only in war, as arms, &c. Some that are of no use in war, as those that serve only for pleasure; and lastly, there are some things that are useful both in peace and war, as money, provisions, ships, and naval stores. Concerning the first (things useful only in war) it is true what Amalasuintha said to the Emperor Justinian, he is to be reputed as siding with the enemy, who supplies him with things necessary for war. As to the second sort of things [for pleasure only, of which sort he gives examples from Seneca] there is no just cause of complaint.
“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 interrupting 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 designs, 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 custody that was committed for a just debt, or helps him to make his escape, in order to cheat me; and proportionably to my loss I may seize on his goods and take them as my own, for recovering what he owes me. If he did not actually do me any damage, but only designed it, then have, a right by detaining those supplies, to oblige him to give me security for the future, by pledges, hostages, or the like. But further, if the wrongs, done to me by the enemy, be openly unjust, and he, by those supplies, puts him in a condition to maintain his unjust war, then shall he not only be obliged to repair my loss, but also be treated as a criminal, as one that rescues a notorious convict out of the hands of justice; and in this case it shall be lawful for me to deal with him agreeably to his offence, according to those rules which we have set down for punishments; and for that purpose I may deprive him even of his goods.”
The following extracts explain the principles of Grotius on the cases, where the property of an enemy is found in a neutral ship, or neutral property in a belligerent ship.
In a note to B. III, Ch. 1, sec. 5, Grotius cites the Consolato del Mare for the doctrine that enemy’s property might be taken in neutral ships, but that the ship of an enemy did not affect the neutral cargo, nor the cargo of an enemy, the neutral ship. The residue of this long note recites and disapproves the attempts of Great Britain, France and other nations, to prohibit altogether the trade of neutrals with their enemies.
* B. III, Ch. 6, sec. 6: “Wherefore the common saying that goods found in our enemies’ ships are reputed theirs, is not so to be understood, as if it were a constant and invariable law of the right of nations; but a maxim, the sense of which amounts only to this, that it is commonly presumed, in such a case, the whole belongs to one and the same master; a presumption, however, which, by evident proofs to the contrary, may be taken off. And so it was formerly adjudged in Holland, in a full assembly of the sovereign court during the war with the Hanse Towns in 1338, and from thence hath passed into a law.”
In a note to this section, Grotius adds:† “Neither do the ships of friends become lawful prize on the account of the enemies’ goods; unless it is done by the consent of the owner of the ship;” referring in this case to the authority of several writers, and the practice of several nations.
The spirit of these passages, taken altogether, can leave no doubt, as to the side on which the authority of Grotius is to be placed.
In the first place he expressly limits the general right of war against the property of neutrals, to cases of that evident and extreme necessity, which must always make a law for itself whenever it exists, but which can never be applied to the cases falling within the belligerent claim asserted by Great Britain.
In the next place he particularly limits to the case of a necessity of self-defence, the right of intercepting neutral supplies, even to a blockaded or besieged place; and makes it a condition, moreover, that a surrender of the place, or a peace, be quickly expected as the effect of the blockade.
In the third place it is to be observed, that as in these passages, Grotius has taken express notice of the several questions of contraband, of blockades, and of the carriage of enemy’s property, which formed all his exceptions to the freedom of neutral commerce; his silence with respect to the British exception is an abundant proof, that this last had either never been then asserted, or that he considered it so manifestly groundless as not to merit notice.
This is, in fact, the material inference to be drawn from the review here taken of this celebrated jurist: and for the sake of this inference principally, the review has been made thus full and minute; for it must be admitted, that in general his ideas are much less precise and satisfactory than those which are to be found in succeeding authorities. In distinguishing wars, by their justice or injustice, on which neutrals have no right to decide; in not distinguishing supplies, as they may be sold only or sent; or as they may be sent by a government, or by private persons; nor sufficiently distinguishing between the right of a belligerent to prevent supplies by intercepting them, and the right to do so, by punishing the offenders; he gives a proof that his work is more to be admired for the novelty and magnitude of the undertaking, than for the accuracy of its doctrines and definitions.
Pufendorf, who may next be consulted, contents himself with a simple reference to Grotius on the question—“How they are to be dealt with, who supply the enemy with what he wants.”
In a note by Barbeyrac on this reference to Grotius, he himself refers to a letter from Pufendorf to Groningius, as conveying the judgment of Pufendorf with respect to the question “whether we may hinder neutral nations from trading during the war with the enemy.” Groningius, it seems, having consulted Pufendorf on a treatise he had planned upon “free navigation,” received the following answer; which, having undergone much discussion, and as found in the English translation, seeming to glance at the British principle of intercepting a commerce opened to neutrals in time of war, is copied at full length, and receives an attention which would not otherwise be bestowed on it:
“The work, sir, that you have in view, relating to the liberty of navigation, excites my curiosity. It is a curious subject, and what no person as yet, that I know of, has particularly handled. I very much however fear, if I may judge from your letter, that you will find people who will dispute your notions. The question is, certainly, one of those which have not yet been settled upon any clear or undeniable principles; so far as to afford a general rule to mankind. In all the examples brought upon this subject, there is a mixture of right and fact. Each nation usually allows or forbids the maritime commerce of neutral people with its enemy, either according as it is its interest to preserve the friendship of those people, or it finds itself strong enough to obtain from them what it requires. For example, the English and Dutch may say, without absurdity, that it is lawful for them to do all the ill they can to the French, with whom they are at war; and consequently to employ the method the most proper to weaken them, which is to traverse and ruin their trade. They say it is not reasonable that neutral nations should enrich themselves at their expence; and by engrossing to themselves a commerce which the English and Dutch want, furnish the French with money to continue the war. This seems the rather just, because England and Holland commonly favor the trade of neutral nations, by suffering them to transport and sell in foreign markets merchandizes of their own growth and manufacture. In short, they say that they are willing to leave them the trade they usually carry on in time of peace; but they cannot see them take advantage of the war, to extend their commerce to the prejudice of England and Holland. But as this matter of trade and navigation does not so much depend upon rules founded on a general law, as upon conventions made between particular nations; so in order to form a solid judgment of the point in question, we ought previously to examine what treaties subsist between the northern crowns and England and Holland; and whether these last powers have offered the former just and reasonable conditions. On the other hand, nevertheless, if the northern princes can maintain their trade with France, by sending strong convoys with their fleets, I see nothing to blame in it, provided their vessels do not carry contraband goods. The laws of humanity and equity between nations do not extend so far as to require, without any apparent necessity, that one people should give up its profit in favour of another. But as the avarice of merchants is so great that for the smallest gain they make no scruple of exceeding the just bounds of commerce; so nations that are at war may certainly visit neutral ships, and, if they find prohibited goods on board, have a full right to confiscate them. Besides I am no way surprised that the northern crowns have a greater regard to the general interest of Europe, than to the complaints of some greedy merchants who care not how matters go, provided they can satisfy their thirst of gain. These princes wisely judge that it is not at all convenient for them to take precipitate measures, while other nations unite all their forces to reduce within bounds an insolent and exorbitant power, which threatens Europe with slavery, and the Protesant religion with destruction. This being the interest of the northern crowns, it is neither just nor necessary, that for a present advantage, they should interrupt so salutary a design, especially as they are at no expence in the affair and run no hazard,” &c.
Without knowing more of the plan of “free navigation” espoused by Groningius, it is not easy to understand precisely the sentiments of Pufendorf on the subject. It deserves to be remarked, however, that, in the argument on the belligerent side, he states not what he thought, but what they said. On the neutral side he expresses his own opinion: “On the other hand, nevertheless, if the northern princes can maintain their trade by sending strong convoys with their fleets, I see nothing to blame in it, provided their vessels do not carry contraband goods.”
But what is most material to be observed is, that the expression, “that they (the belligerent nations) are willing to leave them (the neutrals) the trade they usually carry on in time of peace: but that they cannot see them take advantage of the war to extend their commerce to the prejudice of England and Holland,” cannot possibly refer to the British distinction between a trade usually permitted in peace, and a trade permitted only in war. Such a construction, by no means countenanced either by the general tenor of the letter, or the commercial history of the period, is absolutely precluded by the preceding sentence. “They say, qu’il n’est pas just que les peuples neutres s’enrichissent à leurs depens, et en attirant â eux un commerce interrompu pour l’Angleterre et la Holland, fournissent à la France des secours, &c.” The English translation of this sentence is equivocal, if not false. The true meaning of it is, that it was not deemed just that neutrals should enrich themselves by entering into a commerce interrupted, for England and Holland, by the war. The commerce in question, therefore, was not a commerce opened to neutrals during the war; but a commerce which England and Holland had carried on with France previous to the war, which the war had shut against them, and which they did not like to see transferred to commercial competitors remaining at peace.*
Pufendorf, then, not derogating in this explanation of his sentiments, from his reference to Grotius for the law of nations concerning neutral rights and duties, but rather strengthening the neutral rights asserted by Grotius, must be placed in the same scale in which Grotius has been placed.
Bynkershoeck is the authority next in order of time. He treats the subject of belligerent and neutral relations with more attention, and explains his ideas with more precision, than any of his predecessors.
His 9th chapter is professedly on the question,† “what neutrals may or may not do, during a war between other nations.” After stating, hypothetically, an unlimited claim, on the neutral side, to trade with belligerents, in every thing, as if there was no war; rejecting the distinction made by Grotius between a just and unjust war; and urging the duty of impartiality towards those engaged in it, he proceeds to observe,‡ “that the enemies of our friends are to be viewed in a two-fold character; either as our friends, or the enemies of our friends. If you consider them as friends, it would be lawful to aid them with our counsel, and to succor them with military forces, with arms, and with all other things whatsoever useful in war. But, inasmuch as they are the enemies of our friends, that cannot lawfully be done by us; because we should in so doing, prefer one to another in the war, contrary to the equality of friendship, which is of primary obligation. It is better to preserve friendship with both, than, by favoring one in the war, to renounce tacitly the friendship of the other.
“And, indeed, what I have just said is taught not only by reason, but also by the usage received among almost all nations. For although the commerce with the enemy of our friends be free, it is agreeable to usage, as in the next chapter I shall shew more at large, that we should assist neither one nor another, with those things which may furnish and foment the war against our friends. It is not lawful, therefore, to carry to either, those things which are needful in making war; as are cannon, arms, and what are of principal use in war, soldiers; who are also excepted by various treaties between nations: materials for ships are also sometimes excepted, where an enemy is in absolute want of them for building ships to be employed against our friends. Provisions even, are often excepted, when an enemy is pressed by the siege of our friends, or is otherwise labouring under the want of food. On the best ground, therefore, are we interdicted to supply any of these things to belligerents; because by these things we should, in a manner, appear to make war ourselves on our friends. If, therefore, we consider belligerents, simply, in the light of friends, we may rightfully carry on commerce with them, and send them merchandises of whatever kind; if we consider them as the enemies of our friends, merchandizes are to be excepted, which, in war, might annoy our friends; and this consideration prevails over the former one; for in whatever manner we succour one against the other, we take part in the war, which would be incompatible with the preservation of friendship.”
Thus far the doctrine of this jurist cannot be mistaken. He lays it down as a general rule, that the trade of neutrals with the nations at war, provided it be impartial, is as if there were no war; but that certain articles, as instruments of war, form an exception to this general rule; to which he suggests as a further exception, the case of a siege, or of a similar pressure of famine. It cannot be pretended that there is either a single general expression, or particular allusion, that can be tortured into an exception of any trade, merely for the British reason, that it was not open to neutrals before, as well as during, the war.
The residue of the chapter is chiefly employed in discussing the legality and construction of treaties of succour and subsidy, between a nation at peace and nations at war; after which he proceeds to the tenth chapter, in which he treats of the list of contraband, with several questions incident to it. His doctrine here, the same precisely as in the preceding chapter, is laid down in the following words:* “The rule, confirmed almost invariably by treaties is, that neutrals are not to carry contraband articles to our enemies. If they carry them and are intercepted, they incur a forfeiture. But with the exception of these articles, they trade freely both backward and forward; and carry with impunity, all other articles whatever to the enemy.”
That under the term contraband, he could mean to class so vague and novel a description of trade, as that which distinguishes between commercial regulations, as existing before the war, and as made in the course of the war, is rendered the more impossible, by the definition given of contraband:† “Hence by contraband, are to be understood, things which in their actual state are adapted to war; without considering whether apart from war, they may also be of use; there being few instruments of war, which may not be used for other purposes.” For this he gives as a just reason, that‡ “if you prohibit every material out of which anything may be formed for warlike use, great would be the catalogue of prohibited articles; since there is scarcely any material, out of which something at least, adapted to war may not be fabricated.”
In the ensuing chapter, he treats of the case of sieges and blockades, as an exception to the freedom of neutral character.
In the 11th chapter, he examines the question, “whether the contraband character of a part of the cargo, can affect the residue of the cargo or the ship;” with several other questions incident to such mixed cases.
Chapter 13th relates to neutral property in the ships of an enemy; which he exempts from confiscation. His position son this subject shew how much the turn of his judgment must have been adverse to any such restrictions on neutral commerce, as that instituted by Great Britain.* “According to reason, a right of that sort [to confiscate neutral property in a belligerent vessel] cannot be defended; for why may I not be allowed to use the ship of my friend, though your enemy, in transporting my merchandize? When treaties do not prohibit, I have a right, as I said above, to carry on commerce with your enemy; and if this be lawful, it is also lawful to enter into any contracts whatever with him; to buy, to sell, to let, to hire, &c. Wherefore, if I shall have engaged his ship and his service to transport my effects by sea, it was a transaction on every principle lawful. You, as his enemy, may take his ship; but with what right can you take what belongs to me, that is, to your friend? If, indeed, I prove them to be mine; otherwise I agree with Grotius, that there is some room for presuming things found in the ship of an enemy, to be enemy’s property.”
Finally, in his 14th chapter, he treats the case of enemy’s effects in neutral vessels; deciding with Grotius and others, that the neutrality of the ship does not protect the cargo from capture and condemnation. He consequently makes this case also an exception to the general freedom of neutral commerce, in favor of belligerent privileges.
From this distinct and full view of the sentiments of Bynkershoeck, it is clear, that the whole weight of his authority is opposed to the principle advanced by Great Britain. He is the first writer who seems to have entered into a critical and systematic exposition of the law of nations, on the subject of maritime commerce between neutral and belligerent nations; and the plan which he adopted was well calculated to do justice to the subject. Instead of undertaking, after the example of Grotius and Pufendorf, an entire code of public law, he selected for a more thorough discussion, the particular questions which were deemed most important, and most frequent in the transactions and intercourse of modern nations. Among these, he very properly classed the question of neutral commerce, and bestowed on it, the formal investigation which we have seen. He begins with the general question, how far a war between two nations can affect the rights, particularly the commercial rights, of a nation at peace with both, deciding in favor of neutral nations, that their commerce remains free as a general rule; and in favor of belligerent nations, that in certain cases, exceptions to that general freedom are prescribed by the principle of self-defence. He goes on then to examine the several cases which had been allowed or claimed, as exceptions. He establishes the belligerent right to intercept articles on the list of contraband. He establishes also the right to controul supplies to places besieged or blockaded. He concurs in the doctrine, that the flag of a friend does not protect the property of an enemy. He discusses the claim, maintained by some, to confiscate the property of a friend under the flag of an enemy, which he disproves. He discusses, moreover, several other minor questions, which were incident to the main subject. He appears, in short, to have taken a comprehensive view of the commercial relations between neutral and belligerent nations; and to have omitted no question, belonging to those relations, which was of sufficient importance to deserve his attention. And yet, it appears, that he has not even glanced at the question, “whether a neutral commerce, in articles not contraband, nor going to a besieged or blockaded place, was unlawful, for the reason that the belligerent party had been induced by the war, to new-model its commercial regulations.” Does it not necessarily and undeniably follow, either that no such pretension had, at that period, ever been started, or that it had received no countenance, which could entitle it to notice? It is impossible to conceive that a question of such magnitude could be otherwise passed over, by a pen which dwelt with such minute attention on questions less nearly allied to the main subject.
The authority of Bynkershoeck, in this case, ought to have the greater weight with Great Britain, because, in other cases, so much weight is claimed for it, by the champions of her favorite doctrines.
The reputation which Vattel enjoys in Great Britain, greater perhaps than he enjoys any where else, requires that he should be particularly consulted on this subject. The work of Vattel unquestionably possesses great merit; not so much, indeed, for the originality of his plan, or his matter, which he admits to have been derived from Wolf; as for the agreeable dress which he has given to the dry treatise of his prototype, and for the liberal spirit which has, in many instances, improved the doctrines of all his predecessors. Vattel is, however, justly charged with failing too much in the merit of a careful discrimination; and sometimes with delivering maxims, which he either could not reconcile, or does not take pains to explain. In the chapter on neutrality (B. III, Ch. 7,) he might perhaps have been more exact in his definitions, and more lucid in the order of his ideas. His meaning, nevertheless, is, on the whole, sufficiently clear, and arranges him beyond all controversy, with Grotius, Pufendorf, and Bynkershoeck, in opposition to the doctrine under consideration.
As the basis of the true doctrine, on the subject of neutral commerce, he lays down these principles:
That a neutral nation is bound to an exact impartiality;
That this impartiality relates solely to the war;
That it includes two obligations: the first forbidding succours in troops, not stipulated before the war, arms, ammunition, or any thing of direct use in the war; the second, requiring that in whatever does not relate to the war, one of the parties must not be refused, on account of its present quarrel, what is granted to the other. He observes “that this does not trespass on the liberty of the neutral nation, in negotiations, connexions of friendship, or its trade, to govern itself by what is most advantageous to the State. When this consideration induces it to preferences in things of which every one has the free disposal, it only makes use of its right, and is not chargeable with partiality. But to refuse any one of these things, to one of the parties, purely as being at war with the other, and for favoring the latter, would be departing from an exact neutrality.”
Having laid this foundation, and recommended to nations, intending, as they have a right, to remain neutral, that they should secure their neutrality by treaties for the purpose, he proceeds to state more particularly—
1st. “That whatever a nation does in use of its own rights, and solely with a view to its own good, without partiality, without a design of favoring one power to the prejudice of another, cannot, in general, be considered as contrary to neutrality; and becomes such, only upon particular occasions, when it cannot take place without injury to one of the parties, who has then a particular right to oppose it. Thus, the besieger has a right to prohibit access to the place besieged. Exclusively of this kind of cases, the quarrels of another cannot deprive me of the free disposal of my rights in the pursuit of measures which I judge advantageous to my country.” Hence he infers a right to permit, in certain cases, levies of troops to one of the parties, and to deny it to the other, where there may be good reason for the distinction; and where it is the custom, as among the Swiss, to grant levies; and, consequently, where the custom would of itself be a proof that the grant was not the effect of partiality in relation to the war. He asserts, in like manner, for the sovereign, as well as private citizens, in the habit of lending money at interest, the right to lend it to one of the parties at war, “who may possess their confidence, without lending it to the other;” observing, that “whilst it appears that this nation lends out its money purposely for improving it by interest, it is at liberty to dispose of it according to its own discretion, and I have no reason to complain. But if the loan be manifestly for enabling the enemy to attack me, this would be concurring in the war against me.” He applies the same remark to the case of troops furnished to an enemy, by the State itself, at its own expence; and of money lent without interest: adding, at the same time, as a further instance of neutral rights, that if a nation trades in arms, timber, ships, military stores, &c., I cannot take it amiss that it sells such things to my enemy, provided it does not refuse to sell them to me also. It carries on its trade without any design of injuring me, and in continuing it, the same as if I was not engaged in war, that nation gives me no just cause of complaint.
Making, thus, impartiality the test of lawfulness in the conduct of neutrals, and the mere pursuit of their own interest, without a design to injure any of the belligerents, the test of impartiality, he enters more particularly on the discussion of the active trade which neutral nations carry on with those at war.
“It is certain,” he says, “that, as they [neutrals] have no part in my quarrel, they are under no obligation to abandon their trade that they may avoid furnishing my enemy with the means of making war. Should they make it a point* not to sell to me any of these articles, whilst they take measures for transporting great quantities of them to my enemy, with a manifest intention of favouring him, such a partiality would exclude them from the neutrality they enjoyed. But if they simply pursue their commerce* [suivre tout uniment leur commerce] they do not thereby declare themselves against my interest; they only exercise a right, which they are under no obligation of sacrificing to me.”
The general freedom of neutral commerce, being thus asserted, the writer goes on to lay down the exceptions which war makes to it.
“On the other hand, whenever I am at war with a nation, both my safety and welfare prompt me to deprive it as much as possible of every thing which may enable it to resist or hurt me. Here the law of necessity shews its force. If this law warrants me on occasion to seize what belongs to another, shall it not likewise warrant me to stop every thing relative to war, which neutral nations are carrying to my enemy? Even if I should, by taking such measures, render all these neutral nations my enemies, I had better run the hazard than suffer him who is actually at war to be thus freely supplied to the great increase of his power. It is therefore very proper and very suitable to the law of nations which disapproves of multiplying the causes of war, not to consider those seizures of the goods of neutral nations as acts of hostility. When I have notified to them my declaration of war against such or such a people, if they will afterwards run the risk of supplying them with things relative to war, let them not complain if their goods fall into my hands, for I do not declare war against them, because they attempted to carry such goods. They suffer indeed by a war in which they have no concern, but it is accidentally. I do not oppose their right, I only make use of my own, and if our rights clash, and reciprocally injure each other, it flows from the effect of inevitable necessity,” &c.
“But that limits may be set to these inconveniences; that the commerce of neutral nations may subsist in all the freedom which the laws of war will admit, there are rules to be observed, and on which Europe seems to be generally agreed.”
What are the rules which fix these limits?
“The first is carefully to distinguish common goods which have no relation to war, from those peculiarly subservient to it. In the trade of the former neutral nations are to enjoy an entire liberty, the parties at war cannot with any reason deny it, or hinder the importation of such goods into the enemy’s country,” &c. He observes that the good she referred to, as having relation to war, are those called contraband, of which he gives a description; proceeding thence to shew how far they are subject to confiscation, and to infer from the right of confiscation the right of search on the high seas.
He next mentions, as a limit to the freedom of neutral commerce, that the effects of an enemy found in a neutral ship are subject to capture; deciding otherwise as to neutral effects on board an enemy’s ship, which some nations had been in the practice of capturing.
He specifies, as his last limit or exception to the general freedom of neutral commerce, the belligerent right to prohibit all commerce with a place besieged or blockaded; closing the discussion of this particular subject with an emphatic deduction in these words—“A neutral nation continues with the two parties at war, in the several relations which nature has placed between nations. It is ready to perform towards them both all the duties of humanity reciprocally due from nation to nation. It is in every thing not directly relating to war to give them all the assistance in its power, and of which they may stand in need. But this assistance is to be given with impartiality, that is, in not refusing to one of the parties any thing on account of his being at war with the other. This does not hinder a neutral State having particular connections of friendship and good neighborhood with one of the parties at war, from granting him in whatever does not relate to military transactions the preference due to friends: much more may he without giving offence continue to him, for instance in commerce, such indulgencies as have been stipulated in their treaties, &c.”
We see then that the authority of Vattel coincides perfectly with the preceding authorities, more especially that of Bynkershoeck, in establishing the general freedom of neutral commerce, with the exception of things relating to the war, and in limiting this exception to the several cases of supplying the enemy with military contraband, of trading with places besieged or blockaded, and of carrying enemy’s property.
Perhaps this author, not remarkable as already intimated for well-defined ideas, has in no particular branch of his work left less room for mistaking or perverting his meaning.
It would be improper not to add Martens to the authorities, who ought to be heard on this question. Martens was a professor of law in a Hanoverian University, with a salary from the King of Great Britain as Elector of Hanover, and has distinguished himself by several publications, which demonstrate his critical judgment of the law of nations, and the extent of his researches in order to verify and elucidate it. His summary of this law is a work which was received by the public with a due portion of that respect which constituted his predecessors authentic depositaries and expositors of the code, by which the society of nations ought to be governed. We find him accordingly on the same shelf already with Grotius, Pufendorf, Bynkershoeck, and Vattel. In Great Britain indeed, notwithstanding his being a subject of her sovereign, and a professor under his patronage, the doctrine he teaches on the question whether free ships make free cargoes, has drawn on him the censure of the zealous advocates for the side taken by Great Britain on that question. In opposing, however, a favorite doctrine of that nation, under the relation in which he stood to it, he gave a proof of integrity and independence, which justly inspire the greater esteem for his character, at the same time that they give the greater weight to his opinions. Even there, however, his censors have done justice to his eminent talents, and been ready to avail themselves of his authority, in cases where it supported British principles and interests.
On the present subject the authority of Martens is clear and full.
He first speaks of neutral commerce according to the universal law of nations, and next of the modern law of nations with respect to neutral commerce, and its freedom, as acknowledged by the powers of Europe.
The first he lays down as follows: “The right that a nation enjoys in time of peace of selling and carrying all sorts of merchandize to every nation who chooses to trade with it, it enjoys also in time of war, provided that it remains neuter.” He admits at the same time that necessity may authorize a power at war to hinder the conveyance of warlike stores to its enemies, so far as to sequester them till the end of the war, or to take them at their full value for his own use.* He admits again that the power at war may prohibit all commerce with such places “as he is able to keep so blocked up as to prevent any foreigner from entering.” But he maintains that “since a belligerent power cannot exercise hostilities in a neutral place, nor confiscate property belonging to neutral subjects, such power ought not to confiscate the goods of an enemy found in a neutral vessel navigating on a free or neutral sea, nor neutral goods found in the vessel of an enemy: provided, however, in both cases that these goods are not warlike stores.”
In explaining what he styles the modern law of nations with respect to neutral commerce, and its liberty as acknowledged by the powers of Europe, he states it “as generally acknowledged that a neutral power ought not to transport to either of the belligerent powers merchandizes unequivocally intended for warlike purposes, that treaties have at some times swelled out this list with articles not evidently and unequivocally intended for such purposes; at others have expressly declared these not to be contraband, and that this last ought to be presumed to be the case between powers having no treaties on the subject.”
“With respect to merchandizes which are not contraband” he says, “it is generally acknowledged by the powers of Europe, that neutral powers have a right to transport them to the enemy,*except it be to places blockaded, with which all commerce is prohibited.”
These two exceptions, namely contraband of war, and the case of blockaded or besieged places, are the only ones which he allows against the freedom of neutral commerce. For with respect to enemy’s property in neutral ships, he considers the new principle which identifies the cargo with the vessel, and thereby avoids the disputes and embarrassments arising from the old principle, as having been sufficiently established to take the place of the old one in the law of nations.
The authority of Martens, then, unequivocally and undeniably concurs with that of his great predecessors, in deciding that the commerce between neutral and belligerent nations, with a very few exceptions, is entirely free, and that these exceptions do not include any such pretension as that of Great Britain, to prohibit a trade otherwise lawful, merely because it might have been laid open to neutrals in consequence of the war.
It would have been easy to add to the authorities here selected, other respectable jurists within the same period; as well as a phalanx of authorities of later date, both in the South and the North of Europe; but the testimony of Grotius, of Pufendorf, of Bynkershoeck, of Vattel, and of Martens, is more than sufficient for the occasion. They are the luminaries and oracles, to whom the appeal is generally made by nations, who prefer an appeal to law, rather than to power; an appeal which is made by no nation more readily than by Great Britain, when she has sufficient confidence in the justice of her cause.
Two feeble objections may be thought to claim attention, on this branch of the investigation.
First. In describing the general freedom of neutral commerce with a nation at war, the writers who have been reviewed, being strangers to the distinction now introduced between the legal regulations of the latter in time of war, and those in time of peace, have sometimes used expressions, which, though they do not favor, do not necessarily exclude, such a distinction. Thus Bynkershoeck, speaking of the neutral trade of the Belgians with the French, who were at war with the Spaniards, says that it was of right, as free as before the war.* The freedom of neutral commerce is laid down, in similar phrases, by other jurists, both before and after Bynkershoeck. Many of the more modern writers, not apprized of the misconstruction which might be attempted on their phraseology, have also described the general freedom of neutral commerce in time of war, by a reference to the freedom which it enjoyed in time of peace.
The obvious and decisive answer to these criticisms is, that the freedom of commerce between two nations in time of peace does not refer to the actual footing on which it happened to be placed by the mutual regulations of the parties, a continuance of which would, on a subject so fluctuating as that of commerce be often inconvenient, sometimes absurd; but to the right which the parties have to regulate their commerce, from time to time, as their mutual interest may suggest, or, to adopt the language of Vattel, to the relations in which nature has placed independent nations.
This construction is not only the most obvious and rational in itself, but is enforced by several additional reflections.
It is most consistent, and sometimes alone consistent, with other passages in the same authors. An example may be seen in Bynkershoeck, Lib. I, Ch. 9, where the expressions “ut ante bellum constabat,” and “ut cum pax esset inter eos, &c.,” are evidently meant to comprehend every right, as well as the existing state of commerce between the neutral and belligerent parties, previous to the war.
As there is no evidence that the distinction was known in the dates of the elder writers, it would be absurd to suppose them alluding to a state of things which had never existed; rather than to a state of things which was familiar in practice. And with respect to the more modern writers, to most of whom the distinction appears to have been equally unknown, the absurdity of the supposition is doubled by its inconsistency with the whole tenor and complexion of their doctrines and reasonings in behalf of neutral rights. Many of them are, in fact, champions for the principles of the armed neutrality; one of which is, that neutrals may trade freely with, and between any of, the ports of an enemy not blockaded.
Finally—As all the writers on the general subject of neutral commerce, discuss the several other exceptions to its rights, which have, at any time, been claimed by belligerent nations, it would be absurd to suppose that an exception, more extensive than any of them, should be pretermitted. Their silence alone, therefore, is an unanswerable proof, that the exception now contended for, could not be known, or could not be recognized by those writers.
A second objection may be that the practice of opening colonies to neutral trade, had not been introduced, at the dates of these publications, particularly the more early of them.
The fact on which this objection relies, might be disproved by a mass of historical testimony. Two authorities will be sufficient: the first shewing that Spain, represented as the most rigid in her colonial monopoly, began to relax it as early as 1669, even during peace: the second, that France had adopted the same policy, in time of war, as early as the year 1705.
The first is from Long’s History of Jamaica, vol. 1, p. 598.
“In 1669, Spain, for want of ships and sailors of her own, began openly to hire Dutch shipping to sail to the Indies, though formerly so careful to exclude all foreigners from thence. And so great was the supply of Dutch manufactures to Spain, &c., that all the merchandize brought from the Spanish West Indies was not sufficient to make returns for them; so that the Dutch carried home the balance in money.” The date of this Spanish relaxation of the colonial monopoly was prior to the work of Pufendorf, which was published in 1672; and two-thirds of the century prior to that of Bynkershoeck, which was published in 1737; and which entered so systematically into the question of neutral rights of commerce.
The other will be found in a Note of Robinson, in his Appendix to Vol. 4, page 17, of his Admiralty Reports. It is there stated, with his authority for the fact, that about the year 1705, it being then a time of war, friendly nations were admitted into the trade of the French colonies, as a better mode of supplying their wants, and getting away their productions, than that of convoys. It is added, that the first vessels thus introduced having been captured, the French minister returned to the old, as the only efficacious, expedient.
The reporter would conclude, from the capture of the neutral vessels, that a neutral trade with colonies was then held to be illegal. But it would be manifestly wrong to resort to an explanation not warranted by any ideas otherwise known to exist at that period; especially when it is so easy to suppose that the capture was directed against the French property on board the neutral vessels. That the property was French is the more to be presumed, as the Dutch, the only nation whose capital might have neutralized the property, were parties to the war. Had they indeed been neutral, their treaties with Great Britain would have protected the trade in their vessels, on the two-fold ground that it was lawful to trade, without restriction, with and between the ports of an enemy; and that the freedom of the ship protected the cargo. The true inference on the subject is, that the neutral carriers were Danes, or of some other nation who had no such treaties with Great Britain, and whose capitals did not neutralize the cargoes of French produce.
[1 ]This essay was written by Madison in 1806, and published anonymously in Washington towards the close of the year. There was no effort to conceal the authorship, however.
[* ]Azuni has given a very learned account of these ancient compilations, particularly of the Consolato del Mare, which he considers as a work of the Pisans, during the period of their maritime prosperity.
[* ]The extracts in the text are from the English edition and translation of Grotius, which is in general loose, and sometimes erroneous. It was inserted before there was an opportunity of comparing it with the original.
[† ]B. II, Ch. 2, sec. 10, in which the same precise sentiment is contained as is here repeated.
[* ]“Sed et questio incidere solet, quid liceat in eos qui hostes non sunt, aut dici non sunt, sed hostibus res aliquas subministrant. Nam et olim et nuper de ea re acriter certatum scimus, cum alii belli rigorem, allii commerciorum libertatem defenderent. Primum distinguendum inter res ipsas. Sunt enim quæ in bello tantum usum habent, ut arma: sunt quæ in bello nullum habent usum, at quæ voluptati inserviunt; sunt quæ et in bello et extra bellum usum habent, ut pecuniæ, commeatus, naves, et quæ navibus adsunt. In primo genere verum est dictum Amalasuinthæ ad Justininum, in hostium esse partibus qui ad bellum necessaria hosti administrat. Secundum genus querulam non habet.”
[* ]The orignal is “belli rigorem,” rigor of war.
[† ]The note here of Barbeyrac, himself a respectable authority, is interesting both as it corroborates the liberal spirit of Grotius in favor of neutral commerce, and as it explains the ideas not only of Barbeyrac but of Cocceius, another respectable jurist, in relation to blockades. The note is as follows, see p. 539, note 5: “Our author [Grotius] here supposes the case of being reduced to the last extremity, and then his decision is well founded, whatever Mr. Cocceius says, Dissert. de Jur. Bel. in Amicos, sect. 12, wherein he only criticises our author in regard to what he advances elsewhere, that in case of necessity, the effects become common. It is true, it suffices, that at such a time the goods of another may be used without even the proprietor’s consent. But as to the following cases, that lawyer has reason, in my opinion, to say, § 15, 17, that provided that in furnishing corn, for instance, to an enemy besieged and pressed by another, it is not done with design to deliver him from that unhappy extremity, and the party is ready to sell the same goods also to the other enemy, the state of neutrality and liberty of commerce leave the besieger no room for complaint. I add, that there is the more reason for this, if the seller had been accustomed to traffic in the same goods with the besieged before the war.” This last remark of Barbeyrac, as meant by him, is just. The primary duty of a neutral is impartiality; and the circumstance of an antecedent and habitual trade to the same place, would be the strongest, though not the only evidence, that the continuance of it, proceeded from the ordinary motives of mercantile gain, and not from an unlawful partiality towards one of the nations at war.
[* ]Quare quod dici solet, hostiles censeri res in hostium navibus repertas, non ita accipi debet quasi certa sit juris gentium lex, sed ut prœsumptionem quandam indicet, quæ tamen validis in contrarium probationibus possit elidi. Atque ita in Hollandia nostra jam olim, anno scilicet 1338, flagrante cum Ansiaticis bello, frequenti senatu judicatum, et ex judicato in legem transiisse comperi.
[† ]Sed neque amicorum naves in prædam veniunt ob res hostiles, nisi ex consensu id factum sit dominorum navis.
[* ]It is not amiss to remark, that the sentiments in this letter, so far as they favor the rights of neutral commerce, have the greater weight, as the writer, though a Saxon by birth, was a privy counsellor to the Elector of Brandenburg, and that the letter was written at Berlin, whilst Prussia was of the belligerent party against France.—Ompteda, p. 270.
[† ]De his [non hostibus], quæritur quid facere vel non facere possunt, inter duos hostes.
[‡ ]Amicorum nostrorum hostes bifariam considerandos esse, vel ut amicos nostros, vel ut amicorum nostrorum hostes. Si ut amicos consideres, recte nobis iis adesse liceret, ope, consilio, eosque juvare, milite auxiliari, armis, et quibus cunque aliis in bello opus habent. Quatenus autem amicorum nostrorum hostes sunt, id nobis facere non licet, quia sic alterum alteri in bello præferremus, quod vetat æqualitas amicitiæcui in primis studendum est. Prestat cum utroque amicitiam conservare, quam alteri in bello favere, et sic alterius amicitiæ tacite renunciare. Et sane id, quod modo dicebam, non tantum ratio docet, sed et usus inter omnes fere gentes receptus. Quamvis enim libera sint cum amicorum nostrorum hostibus commercia, usu tamen placuit, ut capite proximo latius ostendam, ne alterutrum his rebus juvemus, quibus bellum contra amicos nostros intruatur et foveatur. Non licet igitur alterutri advehere ea, quibus in bello gerando opus habet, ut sunt tormenta, arma et quorum præcipuus in bello usus, milites; quin et milites variis gentium pactis excepti sunt; excepta quandoque et navium materia, si quam maxime ea indigeat hostis ad extruendas naves, quibus contra amicos nostros uteretur. Excepta sæpe et cibaria, quando ab amicis nostris obsidione premuntur hostes, aut alias fame laborant. Optimo jure interdictum est, ne quid eorum hostibus subministremus, quia his rebus nos ipsi quodammodo vidiremur amicis nostris bellum facere. Igitur si hostes simpliciter consideremus ut amicos, recte cum iis commercia exercemus, et merces quascunque ad eos mittimus; Si consideremus ut amicorum nostrorum hostes, excipiuntur merces, quibus in bello amicis nostris noceatur, et hæc ratio priorem vincit; quomodocunque enim alteri contra alterum succurramus, bello nos interponimus, quod salva amicitia non licet.
[* ]Regula est, pactis fere perpetuis probata, ne non hostes, ad hostes nostros, vehant “contrabande goederen.” Si vehant, et deprehendantur, in commissum cadant, exceptis autem his, libere utrimque mercantur, et quaecunque alia ad hostes vehunt impune.
[† ]Ex his fere intelligo, contrabanda dici, quæ, uti sunt, bello apta esse possunt, nec quicquam interesse an et extra bellum usum præbeant. Paucissima sunt belli instrumenta, quæ non et extra bellum præbeant usum sui.
[‡ ]Si omne materiam prohibeas, ex qua quid bello aptari possit, ingens esset catalogus rerum prohibitarum, quia nulla fere materia est, ex qua not saltem aliquid, bello aptum, facile fabricemus.
[* ]Ex ratione, utique, ejusmodi jus defendi non poterit; nam cur mihi non liceat uti nave amici mei, quanquam tui hostis, ad transvehendas merces meas? Si pacta non intercedant licet mihi, ut supra dicebam, cum hoste tuo commercia frequentare; quod si liceat, licebit quoque cum eo quoscunque contractus celebrare, emere, vendere, locare, conducere, atque ita porro. Quare, si ejus navem operamque conduxerim, ut res meas trans mare vehat, versatus sum in re omni jure licita. Tibi, qua hosti licebit navem ejus occupare, sed quo jure res meas, id est amici tui, occupabis? Si nempe probem res meas esse; alioquin Grotio adsentior, ex prœsumptione quodam pro rebus hostilibus esse habenda quæ in navi hostili inveniuntur.
[* ]Si elles affectoient, &c.
[* ]The Translation, “continue their customary trade,” which might be construed to favor the British principle, is evidently erroneous. That which is substituted conveys the true meaning. It is curious that the two authors, Pufendorf and Vattel, who have alone appeared to speak a language any wise favorable to the doctrine in question, should owe the appearance to English mistranslations. It would be uncandid, nevertheless, to insinuate a design in the case; the more so as the translation of Pufendorf was prior to the origin of the British pretension: but the error of translations may have strengthened the pretensions which it countenances.
[* ]This rule corresponds with the sentiments of Grotius.
[* ]Martens in a note observes that “some powers have, but in vain, attempted to forbid neutral nations to carry on commerce with their enemies, of which he mentions the instance of the Dutch in 1666, and the joint instance of England and Holland in 1689. In both these instances, it is well known, the attempt was to intercept all trade with France, and not the trade only which was or might be opened by France during the war;” a distinction to which he was invited by the occasion either to have noticed, if he had thought it worthy of notice, as among the vain attempts of some powers to forbid neutral commerce, or to have inserted it in the text as an exception to the freedom of neutral commerce, if he had so viewed it, along with the other exceptions of contraband and blockaded places.
[* ]Liberum quarumcunque rerum commercium, quemadmodum, cum nondum bellum esset.—Lib. I, Ch. 10.