benefit from the surrender. The nation which is the most powerful at sea must always be the most vulnerable.-Maritime greatness is founded upon extended commerce; a great navy can orly grow out of a great trade; and if it should seem unjust that the power which is most able to make captures should be restrained from its exercise, it can only be necessary to reflect that it must, for this very reason, be also more liable to capture; and that, though it may protect its merchantmen more effectually than its enemy, still, from their greater number, the total amount of its losses may be more than equal to the value of its captures, from the scantier stock of its enemy. The power, on the other hand, which has little to lose in this way, must feel that it is proportionally weak in the means, either of defence or an

noyance.

The wars which have afflicted Europe for the last fifteen years, have not been of a character favourable to the development of such liberal principles; but we still entertain the hope of seeing them universally established; and willingly persuade ourselves that there is nothing chimerical in the idea of confining our maritime wars within the same limits with those which are waged on land, and completing, all over the civilized world, the distinction between an armed enemy and a pacific trader. pacific trader. The only treaty, we believe, in which this principle was mutually guaranteed, was that between Prussia and America in 1785. The bitterness of the revolutionary wars came too soon after, to let the example have its proper effect; yet the direct trade which has since been carried on with the enemy, either under the troublesome and partial protection of royal license, or, in a still more precarious manner, by the connivance of the hostile governments, serves to demonstrate the impolicy of a system which requires so many awkward exceptions, and which seems to have produced little to either of the belligerents, but losses and complaints from the very commencement of hostilities.

With these sentiments as to the policy of capturing the merchant ships of an enemy, it may be supposed that we will not be easily satisfied as to the justice of making prize of the property of neutrals; yet the question discussed by the author before us, is far from being determined by the principles to which we have just been alluding. Those principles can only be brought into action by a regular treaty and convention. One belligerent cannot afford to set the example of them to the other; they must be simultaneously adopted by both, or by neither. While France continues, therefore, to capture our merchantinen, we must make reprisals upon hers; and while she seizes upon the private pro perty of our traders wherever she can find it, we must, of ne

cessity,

cessity, follow her example. While the present system of maritime warfare continues, no other course can be adopted. If it be lawful to seize on the property of an enemy in his own ships, we apprehend that there can be no good ground for saving it from seizure because it is in the ship of a neutral. The mere contract of affreightment can have no conceivable effect in neutralizing the property to be transported; and as the neutral suffers no da mage if he receive freight and charges from the captors, it does not appear that there is any foundation whatsoever for the claim so often made by neutrals, for exempting from capture the acknowledged property of the enemy, if found on board their vessels. There seems to us to be nothing in the present system of international law with regard to maritime captures, that affords any analogy in favour of such an exemption, or that can even be reconciled to the supposition of its allowance.

or in

It still remains a question, however, whether the seizure of neutral vessels employed in a trade to the colonies of the enemy, any other trade that was not open to them in time of peace, be justifiable on the principles of the law, or upon those general views of equity which serve for its foundation. This question, it appears to us, can only be resolved by inquiring, first, whether such captures have been actually recognized as legal by the established usage of modern Europe; and, 2dly, whether they can be reconciled to the admitted principles of international law, by a fair investigation of the equity and expediency of the practice.

The first branch of investigation will not lead us, we are afraid, to any very satisfactory conclusion. The rule of the war 1756 certainly cannot be said to have been recognized as a part of the law of nations by any general or long established usage. It has never been asserted or supported at all, by any nation but Great Britain. It is admitted to have been asserted, for the first time, in the year 1756; and it is not denied, that, since 1763, it has never been asserted again in absolute and unqualified terms. The presumption, therefore, appears to be against its unqualified revival at present, in so far as the question is to be decided by usage.

The author before us contends, indeed, that the whole principle is admitted in the qualified restrictions that have been, and are still submitted to; and that those who acknowledge the justice of what we do now, cannot consistently dispute our right to do a good deal more. It is plain, however, that the neutral nations have at least as good a right to contend, that the principle is given up by the limitations, as we have to say that it remains unimpaired in spite of them. A qualified or limited exercise of a right is an ordinary consequence of compromising a dispute about the

right

right itself in the abstract. The neutrals contend that we have no right to exclude them from any part of the enemy's colonial trade: we maintain that we have a right to exclude them from it. entirely. The matter is adjusted, in practice, by our allowing them a part of the trade, and by their submitting to be excluded from another part of it. It is evident that this compromise does not settle the general question of right in favour of either party : on the contrary, it is adopted in order to avoid settling it; and if either party shall become dissatisfied with the arrangement, he may certainly return to his original pretensions, without being charged with inconsistency. In common fairness, at least, we must allow this privilege to our competitors, when we claim it for ourselves. If we may assert our right to shut up the whole colonial trade, in spite of our long continued permission of a part of it, the neutrals may surely assert their right to the whole trade, in spite of their long acquiescence in a considerable limitation. The practice was founded avowedly upon mutual concessions from what the respective parties claimed as their rights. If these concessions are withdrawn upon one side, it is to be expected that they will be withdrawn, in like manner, on the other; and the practice cannot be pleaded in favour of either of the rights, as asserted, without these concessions.

We cannot cut short the question of right, therefore, in this case, by an appeal to established usage: the question upon the rule of 1756 is still an open question, under the existing system of international law; and can only be determined by a fair consideration of those reasons of justice or expediency, upon the faith of which it has been proposed to add it to this system.

Now, in entering upon this consideration, we will confess, that, in spite of the ill name they have in civil wars, and the dislike manifested for them by the author of this publication, we have a great love and affection for neutrals, and are not disposed, for light reasons, to subject them to any material discouragement. By their pacific and industrious exertions, the disastrous consequences of extended hostility are mitigated and repressed, and that great progress of civilization and prosperity is maintained, to which war might otherwise give so fatal an interruption. If their commerce be enlarged during the subsistence of hostilities, it should be remembered that it is enlarged by the demands of those whose comforts and enjoyments would be otherwise inevitably abridged; and that their profits are derived from supplying the demands of those who would be destitute but for their interference. Statesmen and jurists are too apt, in a comage, to forget that the chief benefits of trade are not enjoyed by those who carry it on, but by those who consume the

mercial

VOL. VIII. NO. 15.

B

commodities

commodities which it serves to distribute. If the produce of the French colonies were to be shut up, or to cease to be raised, from want of the means of bringing it to market, the cessation of the mercantile profit on its transportation would be but a small part of the loss which the world would sustain by the deprivation; and when neutrals interpose to carry on this trade, it is but a narrow and imperfect view of the question to look only to their commercial emoluments, and to set up against them the profits which we might have made by capture, or the advantages we might have obtained by impoverishing an enemy. Against these profits and advantages, we ought to take into account the inconveniences and distresses, the diminution of comfort and of enjoyment, which the annihilation of this commerce must produce among all those who consume or deal in the commodities which form the subject of it. The law of nations is a law which relates to all who can be affected by the acts it permits or prohibits; and it is formed upon an impartial view of the interests of the whole. It takes into calculation the relative magnitude of the good that is gained by one, and the evils that must consequently be suffered by all the rest; and according to the result of that equation, it promulgates its final decrees. It is not enough, therefore, in a question of this nature, to balance the pretensions of the belligerents and the trading neutral, whose rights are immediately under consideration. The whole neutrals who consume or deal in the commodity, in every quarter of the world, are entitled to a voice in the decision; and the inconveniences and sufferings of China or Japan, may form an essential element in that calculation which is to settle the true proportion between the whole good and evil of the opposite pretensions in this very controversy. We can by no means agree with Sir William Scott, that the inhabitants of Saxony or Russia have no interest in the fate of Guadaloupe or Jamaica, except as a subject of history. In an age like the present, there is scarcely a country on the globe that is not interested in the decisions of that great tribunal which judges of the law of nations; and wherever there is an interest, their ought to be a suffrage in the decision. A true verdict can only be found, in such a question, by a jury de medietate lingua, composed of all the civilized nations of the world.

It is upon this general principle, of a balance and comparative estimate of the whole good and evil likely to be produced by the measure in contemplation, that we think this question must be ultimately decided: but, before attempting to apply it to the circumstances of the present case, it is necessary to consider the grounds upon which this author and the English government and courts of prize have defended the rule which it is now proposed to reestablish.

Both

Both parties are agreed in their general definition of the rights and duties of neutrals: But this is merely a new source of perplexity, since they differ very widely in the meaning they assign to the terms of this admitted definition. In point of right, it is agreed, the neutral should suffer no prejudice from the war, but should be protected in the enjoyment of every privilege which he possessed in his intercourse with either of the belligerents in time of peace, except only when the exercise of such privilege would -interfere with the specific measures of hostility actually and immediately pursued by the other belligerent. In point of duty, the neutral should refrain from taking any share in the war, and from giving aid or assistance to either party, for offence or defence. So far all parties are agreed; but there is matter enough for contention remaining.

The author before us contends, that, by these definitions, neutrals are plainly excluded from the colonial trade of a belligerent; they are only to retain in war what they enjoyed in peace; but as they were entirely excluded from this trade in peace, they can have no claim to any share of it in war, upon the footing of mere neutrality. Their rights are sufficiently respected, if they are left during the war in as good a condition as before it began; and they have no cause to complain if a belligerent follows out his own hostile interest, by restraining them from usurping what he has disabled the enemy from retaining. In point of fact, it is added, that this usurpation of a new trade tends directly to aid and assist one of the parties in the war, and to defeat and obstruct the lawful hostilities of the other: it is therefore a clear violation of the duties of neutrality.

We confess that we cannot agree with any part of this interpretation. The general principle is, that a neutral shall suffer no prejudice from the war, but shall remain, in point of right, on the same footing as if peace had never been violated. Now, it was the right of a neutral, in time of peace, to trade with every country in the world, from the sovereign or proprietors of which he had received permission, and to be free from all challenge or interruption from any other party. That right and that freedom, however, is utterly destroyed in time of war, if a belligerent may interfere with his trade to any quarter of the world over which it has no dominion, and with the sovereigns of which it is admitted that the rights of the neutral were to remain as free and ample as ever. It was his undoubted right, in time of peace, to treat with every other nation for leave to trade with its colonies ; and if this right is lost by the war, it is in vain to say that he has not suffered prejudice by that occurrence. plain, indeed, that the advocates for the exclusion are sensible

B 2

It is

of