Restrictions on neutral commerce arise from the conventional law. commerce on the same footing as it stood before the war; and that the restrictions which have been laid on the independence and freedom of commercial intercourse, depend solely on those conventions, express or tacit, which constitute the conventional law of Europe. If, as Galliani affirms, neutrals be permitted to transport and sell to nations at war, every kind of merchandise, for a stronger reason, are they permitted to sell them with impartiality in their own territories, according to the opinion above given, and the doctrine of Lampredi.(62) ARTICLE IV. Of the Conventional Law of Europe, in regard to the commerce of Neutrals in time of war. 1. THE restrictions imposed by the conventional law of Europe on the commerce of neutrals in time of war, have never had in view, properly speaking, the exact nature of the goods called, at the present day, contraband of war, but rather the concurrence of two circumstances which give them that character, one of which results from the positive fact of the neutral's carrying the goods to an enemy. with evident partiality on his part, or the direct means taken to secure their transportation; the other circumstance consists in the sending the goods (62) See note (57), ante, Circumstances make goods contraband, not the nature of the articles. out of the neutral territory with all the specific directions which mark their destination to the enemy. In that case only, if they should be met with on the point of entering the possessions of the enemy, they become contraband and good prize ;(63) not because they are warlike instruments or military stores, but because they belong to the enemy, or it is sufficiently evident, that they are destined to pass into the hands and augment the forces of the enemy. The flag, whatever it may be, cannot protect them.(64) 2. The emperor of Russia adheres to this luminous principle; and to prevent arbitrary interpretations, and to fix in a positive manner what constituted a state of blockade, he determined that it should be precisely defined in the 3d article of the treaty of the of June, 1801, made with the court of (63) Res non hostium non bene capiuntur alibi. Albericus Gentilis, de Jure Belli, lib. 2, cap. 22. n. " ........ (64) Hutchinson's Moral Philosophy, Vol. 2, book 3, chap. 10, 2, page 360. Military stores... ordinarily are to be sent to neither." See Wolfius, de Jure Gentium, cap. 6, § 184 et 678. Vattel, Droit des Gens, liv. 3, ch. 7. The maxim on this point established in the regulation concerning the armed neutrality, published, in 1780, by the empress of Russia, to which all the maritime powers of Europe, and the United States of America, acceded, is worthy of attention. The 3d article declares, “that, in order to determine what constitutes a blockaded port, that only shall be so denominated, where, by the disposition of the attacking power, with vessels stationed and so near, that there is evident danger in entering the port." Treaty of 1801, between England and Russia.-Spain and Austria. London, agreeably to the law of the armed neutrality in 1780. The spirit of these two treaties is, that, under the general denomination of goods furnished to an enemy, provisions ought not to be comprehended, unless destined for a place actually besieged or blockaded, as in that case it would enable the enemy to prolong, and even to raise the siege, to the great prejudice of the besiegers. For this reason, the transportation of provisions was very strictly prohibited by the treaty between Spain and the emperor, in 1725. In that treaty is specified the case when a place or port is to be considered as in a state of blockade: it is, when the port is so shut by two ships of war at least, or when the place is so incommoded by a battery of the enemy, that it cannot be entered without a manifest exposure to the fire of the besiegers. Such is the spirit of the 12th article of the convention between the French republic and the United States of America, of the 30th of September, 1800, in which the contracting parties have fully determined the point, by the following expressions, " unless these ports or places be actually blockaded, besieged, or invested."(65) (65) England was never pleased with this rule concerning blockaded places; she has always rejected it, because it opposed the principles of her own system. Her court of admiralty, in its decree, in 1778, on the capture of several Dutch ships, which were bound to Rochfort, a port not blockaded, laid down this principle, that every vessel sailing towards a port blockaded, was liable to confiscation; consequently, the ports of France, by their natural An article is not contraband, merely because it is fit for war. 3. From this incontestible principle is derived another equally certain; that because an article is specifically suited for war, we are not to conclude from that circumstance, without further examination, that it ought to be considered as contraband, and that belligerents have a right to pursue and sieze it wherever it can be found. The natural law, which is the basis of the universal law of nations, does not give to a belligerent the right of entering with an armed force, into the territories of pacific nations, and, to imagine that he can become, by that means, the lawful master of all the warlike stores deposited in public or private magazines, without regard to the property, liberty, and independence position, being in a state of blockade by the English, the seizure of those vessels was lawful. According to this law, as absurd as it is atrocious, the British government, whenever it sent a fleet to sea, pretended to have blockaded the whole kingdom of France. On a similar pretext, it supposed that it might prohibit neutrals from all commerce with the country which it thus pronounced to be in a state of blockade, though no blockade, in fact, was intended. What folly !* * For the English law on the subject of blockade, as laid down by Sir Wm. Scott, in the British High Court of Admiralty, see Robinson's Ad. miralty Reports, Vol. I, p. 87, 94, 152, 171, 332, Vol. II. p. 112, 129, 130; 298, Vol. III. p. 296, 336, Vol. IV. 64, 83, 89, 94. Brown's Civil and Admiralty Law, Vol. II. p. 314–319. In cases of insurance, where the ques tion of blockade has arisen, our courts have decided, that nothing but an actual blockade, existing in fact at the time, can lawfully prevent neutrals from entering a belligerent port. See Cases in the Court of Errors in the State of New-York, by G. Caines, p. viii, and Cases in the Supreme Court of New-York, Vol. II. p. 1......T.. Military stores are not contraband while on the neutral territory. of nations, or to the supreme authority of the sovereign. As long as the articles of powder, shot, or cannon, or any other military stores remain on neutral and peaceful ground, they differ, in no respect, from any other articles of commerce. They may be sold, exchanged, and purchased, at pleasure, without violating the rights of any person. The prohibition, therefore, of commerce in goods reputed contraband of war, by the conventional law of Europe, extends to the precise case only of their direct and immediate transportation to the enemy's country, and not to the case of an impartial sale of them within the territory and ports of pacific and neutral nations, since, while there, they neither are, nor can be deemed, contraband. 4. These principles escaped the attention of the celebrated Galliani. In the course of his controversies concerning the doctrine of Lampredi, he boldly affirms the opinion of this publicist to be an innovation, contrary to the letter and spirit of every treaty, and to the universal practice and opinion of the world.(66) Lampredi has so successfully criticised this answer, (67) that it would be useless, in this place, to point out the confusion in the reasoning of Galliani, and the error into which he has (66) Galliani, in the work cited, p. 388 and 389. (67) See Lampredi, del Commercio de Popoli Neutrali in tempo di guerra, § 6. |