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The duties of neutrals are clearly expressed by Lord Herrick's letter to Mr. Rist in the following words:
“Neutrality, properly considered, does not consist in taking advantage of every situation between belligerent states, by which emolument may accrue to the neutral, whatever may be the consequences to either belligerent party; but in observing a strict and honest impartiality, so as not to afford advantage in the war, to either; and particularly, in so far restraining its trade to the accustomed course, which is held in time of peace, as not to render assistance to one belligerent in escaping the effect of the other's hostilities. The duty of a neutral is 'non interponere se bello, non hoste imminente hostem eripere, and yet, it is manifest, that lending a neutral navigation to carry on the coasting trade of the enemy, is in direct contradiction to this definition of neutral obligations, as it is, in effect, to rescue the commerce of the enemy from the distress to which it is reduced by the superior ity of the British navy; to assist his resources, and to prevent Great Britain from bringing him to reasonable terms of peace.
A violation of the rule of exclusion of neutrals tion, and mod- from the coasting trade of the enemy, was formerly er relaxation visited with the penalty of confiscation of the neurule of confis- tral property.
In modern times, and by special ordinances, the penalty for such violation has been limited to the forfeiture of the freight, which, we have seen (when
considering the general subject of captures), would be payable, under ordinary circumstances, by the captor to the neutral ship-owner. This relaxation of the former rule, is regarded as a great leniency to the neutral, detected in interfering with a trade not legally permitted to him, which formerly subjected his vessel to confiscation as well as his freight to forfeiture,
The ancient law upon this subject, and its modern modification, are admirably collated and digested by the king's advocate, in an important case in the British admiralty, to which case as well as to another, Dr. Robinson, the reporter, has appended a valuable note.?
The relaxation, however, of the ancient penalty Ancient rule is not permitted to be applied, where there are cases of specicircumstances of specific fraud on the part of the fic fraud. neutral, in addition to the illicit character of the trade in which he is engaged--such as the carrying of false papers. In such cases the ancient rule of confiscation is applied in all its rigor.?
Analogous in principle to the rule which ex- Rule of exclucludes neutrals from the coasting trade of a belli- from the cologerent, is that which excludes them from the colonial nial the same trade. In a case already cited, Lord Stowell, with coasting trade
of belligerents his usual learning and clearness of statement, discusses the policy and reasons of the rule of pro
1 The Johanna Tholen, 6 Rob., 72; The Edward, 4 Rob., 58; The Huffnung, 2 Rob., 68; vide also Dr. Robinson's note to that case, and also another note to case in 6 Rob., 250.
The Ebenezer, 6 Rob., 252; The Carolina, 3 Rob., 75; The Phønix, 3 Rob., 191.
hibition of neutrals from the colonial trade of bel. ligerents, as follows:
Upon the breaking out of a war, it is the right of neutrals to carry on their accustomed trade, with the exception of the particular cases of a trade to blockaded ports, or in contraband articles (in both which cases their property is liable to be condemned), and of their ships being liable to visitation and search, in which case, however, they are entitled to freight and expenses.
“I do not mean to say, that in the accidents of war, the property of neutrals may not be entangled and endangered. In the nature of human connections, it is hardly possible that inconveniences of this kind should be altogether avoided. Some neutrals will be unjustly engaged in covering goods of the enemy, and others will be unjustly suspected of doing it. These inconveniences are more than fully balanced by the enlargement of their commerce,
“ The trade of the belligerents is usually inter rupted, in a great degree, and falls in the same degree, into the lap of neutrals. But, without reference to accidents of the one kind or the other, the general rule is, that the neutral has a right to carry on, in time of war, his accustomed trade, to the utmost extent of which that accustomed trade is capable. Very different is the case of a trade which the neutral has never possessed, which he holds by no title of use or habit, in times of peace, and which, in fact, can obtain in war by no other
' The Emanuel, 2 Rob., 197; vide also Lord Erskine's speech on the Orders in Council, March 8th, 1808.
title than by the success of the one belligerent against the other, and at the expense of that very belligerent under whose success he sets up
his title. And
such I take to be the colonial trade, generally speaking
“What is the colonial trade, generally speaking ? It is a trade generally shut up to the exclusive use of the mother country to which the colony belongs; and this is a double use—that of supplying a market for the consumption of native commodities, and that of furnishing to the mother country the peculiar commodities of the colonial regions. Upon the interruption of a war, what are the rights of belligerents and neutrals, respectively, with regard to colonial territories? It is an indubitable right of a belligerent to possess himself of such places, as of any other possession of the enemy. This is his common right; but he has the certain means of carrying such 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; you have, in effect, and by lawful means, turned the
enemy out of the possession which he had exclu. sively maintained against the whole world, and with whom we had never presumed to interfere, but we will interpose to prevent his absolute surrender by the means of that very opening which the prevalence of your arms has effected. Supplies shall be sent, and their products be exported. You have lawfully destroyed his monopoly, but you shall not be permitted to possess it yourself; we insist to share the fruits of your victories, and your blood and treasure—not for your own interest, for the common benefit of others. Upon these grounds, it cannot be contended to be a right of neutrals to intrude into a commerce which had been uniformly shut against them, and which is now forced open merely by the pressure of war; for when the enemy, under an entire inability to supply his colonies and to export their products, affects to open them to neutrals, it is not his will, but his necessity, that changes his system; that change is the direct and unavoidable consequence of the compulsion of war; it is a measure, not of French counsels, but of British force." Upon these grounds, sentence of condemnation was ordered in the case under consideration. And in a subsequent case, the doctrines thus enunciated by Lord Stowell, were fully confirmed by the Court of Appeal
, in which the Lord Chancellor pronounces the opinion thus decisively:
“It has already been pronounced to be the opiu. ion of this court, that by the general law of nations, it is not competent in neutrals to assume in time of war, a trade with the colony of the enemy which was not permitted in time of peace;