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tants; roads are broken up, the price of provisions is raised, the sick are quartered on individuals and a general uneasiness and terror is excited; but the passage of two or three vessels or of a fleet over external waters may be neither felt nor perceived. For this reason the act of inoffensively passing over such portions of water, without any violence committed there, is not considered as any violation of territory belonging to a neutral state-permission is not usually required; such waters are considered as the common thoroughfare of nations, though they may be so far territory as that any actual exercise of hostility is prohibited therein. Fourthly, it is to be observed, that the right of refusal of passage, even upon land, is supposed to depend more on the inconvenience falling on the neutral state, than on any injustice committed to the third party who is to be affected by the permission. Grotius and Vattel both agree that it is no ground of complaint, nor cause of war against the intermediate neutral state, if it grants passage to the troops of a belligerent, though inconvenience may ensne to the state beyond ; the ground of the right of refusal being the inconvenience that such passages bring with them to the neutral state itself. This being the general state of the fact and of the law, it would be a proposition which could not be maintained in a full universal extent, that the passing over water claimed as neutral territory would vitiate any ulterior capture made on a third party. Suppose the case of a war between England and Russia, and that the Sound was the pass in question, over which Denmark claims and exercises imperial rights, on stronger grounds than can be maintained in support of this claim, or sup
pose a war between France and Russia, and the Dardanelles to be the pass in question; or suppose any two powers exercising hostilities in the Mediterranean, after having passed through the straights of Gibraltar, occupied by an English fortress on one side and by Tangier on the other, formerly in possession of this country ;--could it be said in any of these cases, that captures made beyond this point of passage over neutral water territory, would be invalidated on any principle of the law of nations. Where a free passage is generally enjoyed, notwithstanding a claim of territory may exist for certain purposes, no vinlation of territory is committed, if the party, after an inoffensive passage, conducted in the usual manner, begins an act of hostility in open ground. In order to have an invalidating effect, it must at least be either an unpermitted passage, over territory where permission is regularly requested, or a passage under permission obtained on false representation and suggestions of the purpose designed. In either of these cases there might be an original misfeasance and trespass, that travelled throughout and contaminated the whole; but if nothing of this sort can be objected, I am of opinion, that a capture otherwise legal, is in no degree affected by a passage over territory in itself otherwise legal and permitted. (The Tree Gebroeders, 3 Rob. 336.)
Interior countries may import and export through an enemy's ports, but in such cases strict proof of property is required. In the Magnus (1 Rob. 31), a ship laden with coffee and sugars, and taken on a voyage from Havre to Genoa, the ship having been restored as Danish property, the cargo was claimed as belonging to a merchant at Basle. After admitting further proof, by plea and proof, Lord Stowell condemned the cargo, on the ground that the owner at Basle, baving been trading in articles of France, without special reference to any wants of his own country, appeared before the court only in the character of a general merchant interposing to carry on the trade between France and Genoa with security.
Perhaps,” remarked the learned judge, “it would not be going too far to say, that in Swiss cases it would not be unreasonable to require proof rather of a stricter nature than what is usually deemed sufficient in ordinary cases between maritime nations; and I say
this only in reference to the situation in which the Swiss stand in being obliged to trade chiefly through other countries, and often, as in this case, through the ports of the enemy. The privilege of carrying on trade in this manner, in time of war, has been allowed to them in common with some of the interior countries of Germany, in consideration of the hardship that they would sustain were they to be altogether restricted frorn becoming merchants for the supply of their own wants, or for the export of the manufactures and native produce of their own country. It must, however, on all sides be conceded, that on the fairest terms, such a trade would be exposed to great suspicion, and therefore we may be justified in requiring more than ordinary proof-not merely a test affidavit, but the correspondence of the parties, the orders for purchase, and the mode of payment, satisfactorily making out the claimant's case up to the origin of the transaction.” The condemnation of The Active, on the same principle, was confirmed by the House of Lords (March 10, 1798).
Blockade is not to be evaded by the ships of less civilized powers, though in some instances, and to a certain extent, they may be entitled to a relaxation of the laws of nations. In condemning (3 Rob. 324) the cargo of The Hurtige Hane, shipped from Saffee, in Barbary, for Amsterdam (then blockaded), under a false destination to Hamburg, Lord Stowell said : “ It has been argued that it would be extremely hard on persons residing in the kingdom of Morocco, if they should be held bound by all the rules of the law of nations, as it is practised amongst European states. On many accounts, undoubtedly, they are not to be strictly considered on the same footing as European merchants; they may on some points of the law of nations be entitled to a very relaxed application of the principles established by long usage between the states of Europe, holding an intimate and constant intercourse with each other. It is a law made up of a good deal of complex reasoning, though derived from very simple rules, and altogether composing a pretty artificial system which is not familiar either to their knowledge or their observance. Upon such considerations, the court has, on some occasions, laid it down that the European law of nations is not to be applied in its full rigour to the transactions of persons of the description of the present claimants, and residing in that part of the world. But on a point like this, the breach of a blockade, one of the most universal and simple operations of war in all ages and countries, excepting such as were merely savage, no such indulgence can be shown. It must not be understood by them that if an European army or fleet is blockading a town or port, they are at liberty
to trade with that port. If that could be maintained, it would render the operations of a blockade perfectly nugatory. They, in common with all other nations, must be subject to this first and elementary principle of blockade, that persons are not to carry into the blockaded port supplies of any kind. It is not a new operation of war; it is almost as old and as general as war itself.”
Neutral merchants cannot be allowed to cover enemy's property with other goods belonging to them in the same ship. In condemning The Eenrom, a Danish ship which had sailed from Copenhagen to Batavia, with a cargo of tar, sheathing copper, sail cloth, and other articles contraband under treaty between England and Denmark, and captured on the return voyage
of which half at least was proved to be Dutch property, though collusively alleged to be Danish, Lord Stowell said (2 Rob. 9): “ The regular penalty of such a proceeding must be confiscation; for it is a rule of this court which I shall ever hold, till I am better instructed by the superior court, that if a neutral will weave a web of fraud of this sort, this court will not take the trouble of picking out the threads for him in order to distinguish the sound from the unsound; if he is detected in fraud, he will be involved in toto. A neutral surely cannot be permitted to say, 'I have endeavoured to protect the whole, but this part is really my property ; take the rest, and let me go with my own.' If he will engage in fraudulent concerns ith other persons, they must all stand or fall together.” (See also The Betsey and George, 2 Gallison, 377; The St. Nicholas, 1 Wheaton, 417; The Fortuna, 3 Wheaton, 236.)