CHAPTER II.

OF THE FREEDOM OF MARITIME COMMERCE IN TIME OF WAR.

ART. I.

Of the Commerce of Neutrals in general.

§ 1. WHOEVER reflects on the principles

which have been unfolded in the preliminary discourse to this work,(40) will be convinced that the first law which nature has engraven on the heart of man, is to do wrong to no one, that is, to do nothing which may injure another in his person, property, or rights, if, in his turn, he desire to be respected in the same social relations.

2. The application of this principle to the general relations of all states, has given rise to the origin and establishment of the universal law of nations, which imposes on each political society the obligation not to injure or disturb another in the peaceful enjoyment of its property and rights. On this supposition, we find established among nations, the incontestable right of trading with each other, of trans

(40) Vol. I, page xviii, &c.

The freedom of commerce is a natural right.

porting, and reciprocally exchanging, at all times and without exception, all kinds of wares and merchandise, from the commerce of which they expect to derive any certain advantage. If a third nation be in a state of peace or war, this cannot, in any degree, impair the right, nor the power of exercising it, which others derive from nature.(41) One nation cannot, in any case, hinder or limit the extent of the commerce of another nation with whom it is in peace.(42) By

(41)" If a nation wishes to continue its commerce with two friendly nations, it has full right to do so; neutrality being a continuance of its former state, and not a new state of things." Galliani, ch. 9, § 2, page 295.

(42) The celebrated Lampredi, in his work del Commercio de Popoli Neutrali, in tempo di guerra, par 1, § 1, gives great weight to my opinion. In page 20, he thus explains himself on this point: Exchange being the basis of commerce, it clearly follows, that "mankind, and nations in general, not only have a right to carry it

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on, but are bound to do so, by the law of nature, as the only "means of their preservation and improvement. I say, in general, “for if a nation is fortunate enough to be able to provide for its happiness and improvement, with the aid only of its own na"tural productions and industry, it would be under no obligation. "to become commercial; as this obligation is hypothetical and "conditional, that is, founded on its own wants of which it is the only proper judge. But, in every other case, the law exists in "its full force. It makes it my duty to labour, as much as my "strength and ability allow, for the preservation and perfection of my existence. For this purpose, it has been careful to give me "all the rights without which it could not be obeyed. Finding no other means of providing for my wants, but by the exchange "of my superfluities, that is, by commerce, it is necessary that "I should have the right to carry it on. It is, therefore, in ge

Neutrals may carry on the same trade in war and peace.

following this principle, it will be seen that the subjects of a neutral power may continue their commerce, active or passive, on the terms mentioned in the third article, with the same nations, without any lawful opposition on their part, though they be at war with each other.

3. These principles, on which rest all the obligations of neutral nations in time of war, being once established, it necessarily follows, that they ought, at at the same time, to be unrestrained in carrying on their commerce, and that they must retain the power of engaging in it in the same manner, and with the same freedom as in time of peace, observing merely a perfect impartiality during the war.

4. Commerce in all kinds of merchandise, commodities, and articles of manufacture, being allowed in time of peace to the subjects of a nation, so far as the laws of the state, or particular treaties with other powers create no exception, they ought to be permitted to do the same thing during the continuance of war, since neither of the belligerent parties has a right to impose any new obligations on the neutral, which did not exist in time of peace.(43)

"neral, a right perfectly natural, from the exercise of which I "cannot be prohibited without the most flagrant injustice."

(43) Wolfius, (Jus Gent. cap. 8, § 683,) lays down this principle with sufficient clearness. Qui neutrarum partium sunt, ça præstare utrique belligerantium parti debent, quæ jure gentium

By the universal law of nations, no goods are contraband.

5. The universal law of nations, founded on that of nature, in authorising nations to carry on commerce, has made no distinction as to goods which might be the object of trade in time of peace, and not in time of war. By this law, therefore, there can be no goods, commodities, or manufactured articles, which may not be sold or carried to the belligerents. Neutrals cannot be denied the privilege of letting to the powers at war their men, their ships, and every means of transportation, pursuant to their former practice, provided, that when they shall be requested to furnish things which they are in a situation to procure, they do not refuse to one what they grant to another.(44)

debentur extra bellum, nisi expresse de quibusdam aliter conventum, quæ respectum habent ad bellum... Qui neutrarum partium sunt, eorum respectu bellum non est, ipsi vero utrique belligerantium amici sunt. Quæ igitur extra bellum, seu pacis tempore, gentibus præstantur a gente, ea etiam præstanda sunt, utrique belligerantium parti. Quod uni præstatur, id præstandum quoque alteri est, si eodem indiget."

(44) An example of this natural equity is to be found in Livy, lib. 37, cap. 28.

The Teians had furnished a quantity of provisions to the fleet of the enemies of Rome. The prætor Emilius threatened to sack their city, if they did not furnish as much to the Roman fleet, "The demand," says Lampredi, "was just, so far as they could satisfy it without injury to themselves." Wolfius, also, in the passage of his work which furnished the last quotation, adds this conclusion. Ea enim fieri debent quæ facienda sunt, si bellum non est, ut diximus, Cavendum saltem est, nequid fiat, quod prodat majorem

Neutrals have a natural right to trade in all sorts of goods.

6. A great portion of the commerce of several European nations, as the Swedes, the Norwegians, and Russians, consists in articles necessary in maritime wars, for building and equipping fleets. They sell, in time of peace, to all who may want, iron, copper, masts, ship-timber, tar, pitch, turpentine, and cannon for ships of war. Why should these nations be deprived of their principal trade, and, consequently, of the means of subsistence, on account of a war in which they have no interest or concern?(45) There is. nothing in the Code of justice or equity, that authorises such a pretension on the part of the belligerents. It is necessary, therefore, to lay it down, as a fundamental maxim of every Code, that as neutral nations may lawfully continúe the commerce carried on by them in time of peace, no distinction ought to be made of the goods, commodities, or manufactures, though adapted for war; and, for this reason, the sale and transportation of them to the coasts of the belligerent countries is allowed, according as their commerce may be active

favorem ergà partem unam quàm alteram ne justa detur parti uni de. Reutralitate non exacta serrata, quærela."

(45) Neuter prohibere cel perturbare potest commercia pacati cum altero kostium: idque verum est, et si hostium vires inde auge, antur: uti si ferrum, armu, frumenta, aliaque quæ in bello usum habent, afferantur. Sam. Cocc. Dissert. Præm. §789. Galliani, though always opposed in opinion to Cocceius, could not help, on this point, repeating the same words, in § 3, page 312, which I shall cite, elsewhere, at length, in order to refute himself,