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government ceased to issue the licenses and thereafter threw the trade open to the Dutch without restrictions. The British, however, continued to make prizes of the vessels and to condemn them on the ground that the trade was virtually French.
In the closing years of the eighteenth century the British prize courts announced the general rule that a trade not open to neutrals in time of peace cannot be pursued by them in time of war, and asserted that the principle had been applied as the basis for the condemnation of the Dutch ships during the war of 1756. It is more than probable that this famous doctrine was an afterthought and that it should be known as the rule of the war of 1793. Great Britain conceding that neutrals might continue their customary trade,' now denied their right to enter upon a traffic which she claimed was a direct interference with her maritime rights and which enabled the colonies to maintain themselves when they otherwise would have fallen into her possession as the natural result of successful belligerent operations. It was argued that neutrals could not properly claim the right to intrude into a commerce which had been uniformly closed to them and which had been forced open merely by the pressure of war. When an enemy under an entire inability to supply her colonies and carry their products, opened the trade to neutrals it was not an act of will but of necessity that changed the system; the change was the direct and unavoidable consequence of the compulsion of war. It was the measure not of the desires of the mother country but of the force of her enemies.
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 in at a French port: for it may be purchased of neutrals.”
3 Duer, Mar. Ins., vol. i, p. 762, n. 1; Madison's Examination of British Claims; Madison's Works, vol. 2, p. 226; Wheaton's Note on the Rule of the War of 1756, 1 Wheat. (U. S.) App., p. 507; Pinckney's review of the British proceedings in the Memorial of the Baltimore Merchants, Wheaton's Life of Pinckney, p. 372; 1 Wheat. (U. S.) App., 506. For the British view, see The Practice of the British Prize Courts with Reference to the Colonial Trade of the Enemy during the American War, 6 C. Rob. App. iii. Jenkinson (Lord Liverpool), Discourse on the Conduct of Great Britain with Respect to Neutral Nations. This work was published in 1757, soon after the close of the war, and is apparently the only contemporaneous assertion of the principle or rule of the war of 1756.
Duer contends that the rule was not enforced in any form by the English admiralty prior to 1756, that as then enforced it was founded on a different principle from that subsequently adopted and that during and after the American war it was explicitly abandoned and over-ruled by the Lords of Appeal and by the House of Lords.
* The claim of a right to prohibit all trade with an enemy had been definitely abandoned. See generally, Ward, Rights and Duties of Belligerents, p. 3; Jenkinson, Discourse, etc., p. 36; War with America, Edinburgh Review (Nov., 1812), vol. xx, p. 453; Hennebicg, Principes de Droit Maritime Comparé; Speech of Erskine on the Orders in Council, 10 Cobbett, Parl. Deb. 935. In the Immanuel, 2 C. Rob. 198, Scott's Cases, 845, Sir William Scott said:“The general rule is that the neutral has the right to carry on, in time of war, his accustomed trade to the utmost extent of which that accustomed trade is capable.”
"It is,” said Sir William Scott, s'an indubitable right of a 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 at sea. 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; 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 to 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.'
This rule, which was asserted to be the converse of the general principle that a neutral is entitled to continue his customary trade with the enemy during the war, was enforced by England throughout the period of the Napoleonic wars. Its soundness was denied by neutrals and the right to carry on a trade which had been closed during peace, formed one of the principles of the Armed Neutrality League of 1780. During the war between England and her colonies the so-called rule of the war of 1756 was not asserted by England and the Americans now claimed that if it had ever existed as a principle of international law, it had, through the acquiescence of the maritime powers ceased to have any vital force. But it is probable that Great Britain never consciously abandoned the principle as it appears to have been occasionally asserted and enforced.
During the same period France announced that she had abandoned the system of monopoly and meant thereafter to throw open her entire colonial trade to the world. It is impossible to determine how far
"The Immanuel, 2 C. Rob. 186, Scott's Cas. 845.
this action of France and the apparent acquiescence of Great Britain during the American war was due to the prevalence of new ideas as to the proper policy of nations. It is certain that the public mind was undergoing change. Adam Smith was earnestly advocating the policy of entire freedom for the colonial trade and his views were accepted by many persons high in official life. In France similar sentiments were sedulously cultivated by Mirabeau and the Economists. The inference that the change was due to the acceptance of the new ideas which were prevalent, is strengthened by the fact that numerous treaties were entered into about this time which threw open the colonial trade generally to all nations. But Great Britain chose to regard the action of France as having been taken in contemplation of approaching war and refused to relax the rule or abandon what she claimed to be her belligerent rights. These rights, as she defined them, were enforced with great strictness and numerous extensions against American commerce. The American merchantmen bitterly complained that they had been encouraged to engage in the trade and their ships then suddenly seized and condemned through the unfair revival of an ancient and obsolete rule. There followed a period of fierce belligerency during which Great Britain and France struck blindly at each other in utter disregard of the rights of neutrals. No attempt will now be made by anyone to justify the prohibitions and restrictions which were during this period imposed upon neutral commerce. Both belligerents presumed to dictate the trade in which neutrals might engage. The Americans claimed that the so-called rule of the war of 1756 had been abandoned; that France no longer claimed a monopoly of her colonial trade; and that with the consent of Great Britain they had built up a trade with the French colonies which they were entitled to continue during the war under the principles which had long been accepted by maritime powers. They denied that the rule had ever been established as a principle of international law, and asserted the right to trade to and from all ports not blockaded and in all articles not contraband, although the trade had not been open to them in time
• See the treaties in Manning, Law of Nations, p. 198.
* See the statement of the Lord Chancellor in the Whilemina in the Court of Appeals (1801), 4 C. Rob., App. xi.
• Henry Adams, History of the United States, vol. iii, p. 47.
of peace. In this they were vigorously and consistently supported by the government of the United States. It was insisted that the right of an independent power to treat in times of peace with every other nation for leave to trade with its colonies and to enter into any trade whether old or new was not in itself a violation of neutrality; that one state had nothing to do with the circumstances which induced another state to open its ports; and that the trade must have a direct reference to the hostile efforts of the belligerents like dealing in contraband in order to render it a breach of neutrality.'
The force of the British argument in favor of the rule of the war of 1756, especially as applied to the colonial trade, seems to have appealed very strongly to many Americans. Chief Justice Marshall declined to express an opinion as to the correctness of the principle.10 Chancellor Kent thought that it might be fairly considered open to discussion, but that it was possible that if the United States should attain great maritime power and influence her people might be induced to feel more sensibly the weight of the arguments of foreign jurists and of the policy and equity of the rule.11 Judge Story expressed himself as clearly satisfied that the colonial trade between the mother country and the colonies cannot be thrown open merely in time of war. 12 Wheaton expresses no definite opinion as to the soundness of the principle. 13 It never met with the approval of continental writers,"
Monroe to Lord Mulgrave, Sept. 23, 1805, Madison's Examination of British Doctrine, etc.; Pinckney's Memorial to Congress from the Merchants of Baltimore, 1 Wheat. (U. S.), App., p. 507; Wheaton's Life of Pinckney, p. 72; Monroe to Madison, Aug. 20, 1805; State Papers, vol. iii, 105.
10 The Commercen, 1 Wheaton (U. S.) 398. " Kent's Commentaries, vol. i (12th ed.), p. 84. Story, Life and Letters of Joseph Story, vol. i, p. 287. 13 Wheaton, Elements Int. Law (Dana's ed.), pt. iv, chap. 3, $27. " Bluntschli, Le Droit Int. Codifié, $8799, 800. See Calvo, Le Droit Int., tom iv, 82410.
“La règle de 1756 a été déclarée contraire aux principes internationaux par tous les publicistes modernes de quelque autoritié en Allemagne et en France, Bluntschli
, Gessner, Geffcken, Kalterborn, Perels, De Boeck, Hautefeuille, Ortolan, par Calvo, par Wheaton, etc.” Bonfils, Man. de Droit Int. Pub. (4 ed. Fauchille). $1534, p. 822 (1905).
"Néanmoins, cette prétention est purement arbitraire; se livrer à un commerce inoffensif qu'un des belligérants permit, n'est pas un manque d'impartialité, et c'est tout aussi peu une inmixtion dans les hostilités. C'est ce commerce des colonies qui a donné naissance à la théorie de la continuité de voyage.” (Geffcken's Heffter, Le Droit Int., $166 note.)
although Hübner, the especial champion of neutral rights, hesitated to claim the right to engage during a war in the colonial trade of a belligerent.
“This trade," says he,15 "may perhaps be considered unlawful, contrary to neutrality and constituting a direct interference in the war since neutral nations are not permitted to carry it on in times of peace. It is only open to them in time of war and on account of the war. On the establishment of peace they are again excluded from it so that the commerce of neutrals with the colonies of a state at war appears to be subject to the rigorous law of war.” Nevertheless he ingenuously adds, “I do not perceive why neutral states ought to refuse themselves so considerable an advantage provided they abstain from furnishing the enemy's colonies with articles prohibited in times of war.'
Gessner says that it has been declared contrary to international principles by every jurist of repute in France and Germany." English jurists almost without exception asserted that the rule was an established principle of international law, and Manning considered it one of the most reasonable that a belligerent could assert.18 Hall, however, admits that it cannot be said to have been sanctioned by sufficient usage to render further debate unnecessary and that it is not easy to find a satisfactory answer to the arguments which may be urged on behalf of the right of neutrals to seize an occasion for extending their general commerce.19
The change in the colonial system and the provision of the declaration of Paris of 1856 that enemy's goods not contraband are not subject to capture under a neutral flag, has deprived the rule of the war of 1756 of much of its former importance. But no reason is apparent why it may not be revived at any time should conditions arise which in the opinion of a maritime belligerent would justify such action. All
15 De La Saisie des Batiments Neutres, tom. i, chap. 4, $6 (1759). The author of this work was sent by the Danish government to protest against the condemnation of the Dutch ships engaged in the trade with the French colonies. This book was the result of his mission. As to the author's attitude toward the claims of neutrals and belligerents, see Valin, Traité des Prises, chap. v, $5.
16 For comments upon this passage, see Phillimore, Int. Law, vol. iii, $221; Manning, Law of Nations, 199, 200.
17 Gessner, Le Droit des Neutres, pp. 266, 275. See Rivier, Principes du Droit des Gens., tom. 2, p. 411.
Manning, Law of Nations, p. 198. 19 Hall, Int. Law (4th ed.), p. 642.