The general right of neutrals modified by usage.

or passive in time of peace, without its being considered in any manner, as a violation of neutrality, provided it be done without any hostile design, and without a marked preference and partiality.(46)

7. Though these principles are generally adopted without opposition, they are, in some degree, modified in practice by the various events of war. They give to a certain extent, to the belligerent powers the right of limiting and restraining, in some sort, the commerce of neutral nations. But this right, not yet settled by a stable and permanent

(46) It may be said, on the same principles, that if a nation trade in arms, ship-timber, vessels, or warlike stores, I cannot find fault with her for selling such things to my enemy, provided she does not refuse to sell them to me, at a reasonable price. She carries on her trade without any intention to injure me, and by continuing it, as if I were not at war, she gives me no ground of complaint. Vattel, Droit des Gens, liv. 3. ch. 7. Bynkershoek has also adopted this maxim, De his quæritur quid facere aut non facere possint inter duos kostes. Omnia, forte inquies, quæ potuerunt cum pax esset inter eos, quos inter nunc bellum est; belli enim conditio non videbitur porrigenda ultra eos qui invicem bellum gerunt. Quastiones Jur. Publ. lib. 1, cap. 9. Every man, at the present day, is so well convinced of this truth, that nothing can better show the general disposition of the human mind, than the following reply of a Dutch merchant to a magistrate of Amsterdam, who reproached him for carrying warlike stores to the Spaniards, then at war with France: "As a citizen of this place, I have a right to trade every where; and if, for gain, it were necessary to go to hell, I would willingly run the risk of burning the sails of my ship."` Hist. de la Puiss. Navale de l'Angleterre, tom. 1, page 225.

The active commerce of neutrals.

system which would fix its laws and true limits, is, in all wars, a source of complaint and controversy. This matter will be the subject of the next article.

ARTICLE II.

Of the Right of Belligerents to limit the active commerce of Neutrals.

§ 1. THE freedom of navigation and commerce has been, at all times, a principal cause of the disputes between the neutral nations who claim its enjoyment, and the belligerents who endeavour to restrain it. The latter suppose, that they have a right to stop merchant vessels on the high seas, and to visit them in order to discover whether they are laden with arms or warlike stores destined to an enemy, or with goods belonging to an enemy; in either case they sieze the vessel and her cargo.

2. If the first part of this work(47) has been read with attention, it will be admitted, that navigation on the high sea ought to be common and free to the nations of the world, all of whom have an equal right to the use of that element.

3. The right of command, and of punishing offences, supposes that of promulgating laws, and

(47) Vol. I. art. 1, Of the High Sea. p. 1.

The right of belligerents as to places conquered, besieged, or blockaded.

causing them to be executed. In war, a nation has, unquestionably, a right to attack, and take possession of the territory of its enemy. It ought, consequently, to be regarded as the temporary sovereign, throughout the whole extent of the places occupied, during the time they remain under its power. Hence arises the rule of universal reason, that gives to a belligerent nation, wherever it has acquired this legislative and executive power, in all places occupied, besieged, or blockaded, the right of prohibiting strangers from all commerce or communication with the places besieged or blockaded, and to prevent, both by land and sea, the introduction of every species of merchandise, which may retard the capture, or render it more difficult.

4. From the acknowledged certainty of these principles, it follows as a necessary consequence, that this is the only case which authorises a belligerent power to prohibit the merchants of neutral nations from transporting certain commodities, or even any kind of goods, to places occupied by its troops: but it cannot assume this right in any other place, where its authority is not established and acknowledged as lawful, much less on the high sea, which being common to all nations, cannot justly be subjected to any, not even a temporary, law of a particular nation. The rights of war, therefore, do not authorise belligerents to stop neutral vessels on the high sea, or to visit and confiscate them.

The rights of one belligerent in regard to another.

5. Publicists lay it down as an invariable principle, that a nation has a full and perfect right to di minish indefinitely the forces of its enemy, to oppose every means which may be employed to preserve or augment his power, and even to prevent another nation from carrying on a commerce with him, which may increase his resources, or his means of attack and defence, or may destroy the effect of a military operation, which, if not disconcerted, would lead to victory, or compel the enemy to sue for peace.(48)

(48) These writers explain themselves, on this subject, in the following manner: Est æquo æquius, et favorabili favorabilius, et utili utilius. Lucrum illi commerciorum sibi perire nolunt. Angli nolunt quid fieri contra salutem suum est. Jus commerciorum æquum est, at hoc æquius tuendæ salutis; est illud gentium jus, hoc naturæ est; est illud privatorum, hoc est regnorum. Albericus Gentilis, de Jure Belli, loc. cit. Interea, quæ, et si pace illicita, tamen in bello in pacatos jure gentium permissu sunt, primum est quod nonnunquam in eos exercere potest, qui commercia cum hoste nostro agunt. Id vero quale sit maximis inter gentes et populos contentionibus et adeo probabilius utrinque rationibus disceptatum fuit, ut ipsum proprie jus gentium collidere videatur. Ab eorum enim parte qui commercia exercent cnm hoste, ratio manifesta est; nam indubie jure gentium domini res suas vendere, cui velint possunt. A parte vero eorum qui commercia hæc sibi noxia impediunt, ratio non minus evidens est ; nam cum cuique a naturâ se jura que sua tueri ea non potest, uti si non possit nisi impeditis cum hoste commerciis." Hen. Cocc. De Jure Belli inter Amicos, § 6. Quamvis enim alter populus forsan suo jure utatur dum talia hosti alterius subministrat, nec minus tamen jure suo utitur qui se adversùs illos defendit, qui hostem reddere potentiorem non dubitant. Heineccius, de Navibus ob vect. vetit, merc. commissis, § 14.

Belligerents extend their rights beyond the bounds of justice.

6. Belligerents founding on these principles a pretended right of necessity, transgress the bounds of equity and moderation, so far as to presume, in their manifestoes at the commencement of a war, to impose restrictions on the liberty of the maritime commerce of neutrals. They except from the ordinary articles of trade, arms and warlike stores, as well as goods belonging to an enemy, which they declare contraband, and good prize. They afterwards stop neutral vessels wherever they are found, and if complaints are made to them of the injustice of such conduct, they return no other answer, than that it is the fault of the neutral merchants, who by transgressing the law published in the very case provided, expose their goods to con fiscation. If the theories which have been before presented to the reader be recollected, it will, at once, be seen, that such claims are at best specious, and wholly destitute of any real foundation.

7. The limits which belligerents presume to asşign to the commerce of pacific and neutral nations as a rule for their guidance during the continuance of war, are, properly speaking, comminatory laws, since they threaten the offenders with the confiscation of their goods and vessels. Now, the essential quality in a legislator is to have a sovereign power or authority over the persons on whom he intends to impose laws, or over the places in which they are to be executed, or within which the delinquent may be found. But the universal law of nations denies