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only in cases in which the tribunal found that there had been an absence of such diligence-an absence of due diligence within the neutral jurisdiction-that Great Britain was held liable to make compensation for the consequent injuries.
It may further be observed that in the discussions of neutral obligations no distinction appears to have been drawn between the protection due to merchant vessels and that due to men-of-war in neutral waters against belligerent attack. In either case the subject has been approached from the simple point of view of the duty of the neutral to enforce the law within its territory.
XI. RIGHTS OF NEUTRAL TRADE.
"The policy of the United States is to maintain neutral immunities for the following reasons:-(1) The probabilities of war are far less with us than with the great European states. From the nature of things, points of friction between the United States and foreign nations are comparatively few. We have an ocean between us and the great armed camps of the Old World; and, while there are innumerable questions as to which one European state may come into collision with another, the only points as to which we would be likely to come into collision with a European state are those concerned in the maintenance of neutral rights. It was to maintain such rights that we went to war in 1812; and, except during the abnormal and exceptional spasm of the late civil war, our national life has heretofore been the life of a neutral and a vindicator of neutral rights. And neutrality, when our system took shape, was arduous. (2) Although the richest country in the world, our traditions and temper are averse to large naval and military establishments. (3) The idea of pacific settlement of disputed international questions is one of growing power among us; the horror of war has not been diminished by the experience of the civil war; there is no country in the world where love of order is so great, and in which public peace is kept by an army and navy so small; it would be hard to convince the people of the United States that the immense and exhausting armaments of the great European states are not in part caused by the assigning of undue power to belligerents, and that one of the best ways of inducing a gradual lessening of these armaments would be the reduction of these powers. (4) It is impossible to overcome the feeling that the sea, like the air, should be free, and that no power, no matter how great its resources, should be permitted to dominate it, so as to enable it, in case of war, to ransack all ships which may be met for the discovery of an enemy's goods.
(5) It is not
right to offer such a premium to preponderance of naval strength as is offered by the theory of belligerent rights as maintained in Great Britain."
Wharton, Com. Am. Law, § 242.
The last reason above stated refers to the rule, abandoned by Great Britain at the time of the Crimean war, of seizing enemies' property in neutral ships.
"With respect to the general principle which disallows to neutral nations, in time of war, a trade not allowed to them in time of peace, it may be observed:
"First. That the principle is of modern date; that it is maintained, as is believed, by no other nation but Great Britain, and that it was assumed by her under the auspices of a maritime ascendency, which rendered such a principle subservient to her particular interest. The history of her regulations on this subject shows that they have been constantly modified under the influence of that consideration. The course of these modifications will be seen in an appendix to the fourth volume of Robinson's Admiralty Reports.
"Secondly. That the prinicple is manifestly contrary to the general interest of commercial nations, as well as to the law of nations, settled by the most approved authorities, which recognizes no restraints on the trade of nations not at war, with nations at war, other than that it shall be impartial between the latter; that it shall not extend to certain military articles, nor to the transportation of persons in military service, nor to places actually blockaded or besieged.
"Thirdly. That the principle is the more contrary to reason and to right, inasmuch as the admission of neutrals into a colonial trade shut against them in times of peace, may, and often does, result from considerations which open to neutrals direct channels of trade with the parent state, shut to them in times of peace, the legality of which latter relaxation is not known to have been contested; and inasmuch as commerce may be, and frequently is, opened in time of war, between a colony and other countries, from considerations which are not incident to the war, and which would produce the same effect in a time of peace; such, for example, as a failure or diminution of the ordinary sources of necessary supplies, or new turns in the course of profitable interchanges.
"Fourthly. That it is not only contrary to the principles and practice of other nations, but to the practice of Great Britain herself. It is well known to be her invariable practice in time of war, by relaxations in her navigation laws, to admit neutrals to trade in channels forbidden to them in times of peace, and particularly to open her colonial trade, both to neutral vessels and supplies, to which it is shut in times of peace; and that one at least of their objects in these relaxa
tions is to give to her trade an immunity from capture, to which, in her own hands, it would be subjected by the war.
"Fifthly. The practice, which has prevailed in the British dominions, sanctioned by orders of council and an act of Parliament (39) Geo. III. c. 98) authorizing for British subjects a direct trade with the enemy still further diminishes the force of her pretensions for depriving us of the colonial trade. Thus we see in Robinson's Admiralty Reports, passim, that during the last war a licensed commercial intercourse prevailed between Great Britain and her enemies, France, Spain, and Holland, because it comprehended articles necessary for her manufactures and agriculture, notwithstanding the effect it had in opening a vent to the surplus productions of the others. In this manner she assumes to suspend the war itself, as to particular objects of trade beneficial to herself, while she denies the right of the other belligerents to suspend their accustomed commercial restrictions in favor of neutrals. But the injustice and inconsistency of her attempt to press a strict rule on neutrals, is more forcibly displayed by the nature of the trade which is openly carried on between the colonies of Great Britain and Spain, in the West Indies. The mode of it is detailed in the inclosed copy of a letter from wherein it will be seen that American vessels and cargoes, after being condemned in British courts, under pretense of illicit commerce, are sent on British account to the enemies of Great Britain, if not to the very port of the destination interrupted when they were American property. What respect can be claimed from others to a doctrine, not only of so recent an origin, and enforced with so little uniformity, but which is so conspicuously disregarded in practice by the nation itself, which stands alone in contending for it?
Sixthly. It is particularly worthy of attention, that the Board of Commissioners, jointly constituted by the British and American Governments, under the seventh article of the treaty of 1794, by reversing condemnations of the British courts, founded on the British instructions of November, 1793, condemned the principle, that a trade forbidden to neutrals in time of peace could not be opened to them in time of war; on which precise principle these instructions were founded. And, as the reversal could be justified by no other authority than the law of nations, by which they were to be guided, the law of nations, according to that joint tribunal, condemns the principle here combatted. Whether the British commissioners concurred in these reversals, does not appear; but whether they did or not, the decision was equally binding, and affords a precedent which could not be disrespected by a like succeeding tribunal, and ought not to be without great weight with both nations, in like questions recurring between them.
"On these grounds the United States may justly regard the British captures and condemnations of neutral trade, with colonies of the enemies of Great Britain, as violations of right; and if reason, consistency, or that sound policy which cannot be at variance with either, be allowed the weight which they ought to have, the British Government will feel sufficient motives to repair the wrongs done in such cases by its cruisers and courts."
Mr. Madison, Sec. of State, to Mr. Monroe, min. to England, Apr. 12, 1805, 3 Am. St. Papers, For. Rel. 101.
The principle that a trade opened to neutrals by a nation at war, on account of the war, is unlawful," has no foundation in the law of nations. (Mr. Madison, Sec. of State, report of Jan. 25, 1806, MS. Dom. Let.)
Mr. Monroe, in a dispatch to Mr. Madison, August 20, 1805, states that the British position is declared by Lord Mulgrave to be "that a neutral power had no right to a commerce with the colonies of an enemy in time of war which it had not in time of peace, and that every extension of it in the former state, beyond the limit of the latter, was due to the concession of Great Britain, not to the right of the neutral power." (3 Am. St. Papers, 105. For a conference with Mr. Fox on this subject, see Mr. Monroe to Mr. Madison, April 28, 1806, 3 Am. St. Papers, For. Rel. 118.)
For the proceedings of the board of commissioners under Art. VII. of the treaty of 1794, referred to by Mr. Madison, supra, see Moore, Int. Arbitrations.
have been interpolated into the law of nations, founded neither in justice nor the usage or acknowledgment of nations. According to these a belligerent takes to himself a commerce with his own enemy which he denies to a neutral on the ground of its aiding that enemy in the war; but reason revolts at such an inconsistency, and the neutral having equal right with the belligerent to decide the question, the interests of our constituents and the duty of maintaining the authority of reason, the only umpire between just nations, impose on us the obligation of providing an effectual and determined opposition to a doctrine so injurious to the rights of peaceable nations." (President Jefferson, annual message, Dec. 3, 1805, Richardson's Messages, I. 384.)
"The rights of a neutral to carry on a commercial intercourse with every part of the dominions of a belligerent permitted by the laws of the country (with the exception of blockaded ports and contraband of war) was believed to have been decided between Great Britain and the United States by the sentence of their commissioners mutually appointed to decide on that and other questions of difference between the two nations, and by the actual payment of the damages awarded by them against Great Britain for the infractions of that right. When, therefore, it was perceived that the same principle was revived with others more novel and extending the injury, instructions were given to the minister plenipotentiary of the United States at the court of London, and remonstrances duly made by him on this subject, as will appear by documents transmitted herewith. These were followed by a partial and temporary suspension only, without any disavowal of the principle. He has, therefore, been instructed to
urge this subject anew, to bring it more fully to the bar of reason,
The correspondence of Mr. Pinkney, United States minister at London.
"The declaration which Her Britannic Majesty's Government proposes to issue is distinct in interdicting to neutrals the coasting and colonial trade with the belligerent, if not enjoyed by them previous to the war. In regard to this trade, you are aware that Great Britain asserted principles, in the wars resulting from the French revolution, before she issued her obnoxious orders in council, which this country held to be in violation of the law of nations. Should she still adhere to those principles in the coming conflict in Europe, and have occasion to apply them to our commerce, they will be seriously controverted by the United States, and may disturb our friendly relations with her and her allied belligerents. The liberal spirit she has indicated in respect to the cargoes under a neutral flag, and neutral property which may be found on board of enemies' ships, gives an implied assurance that she will not attempt again to assert belligerent rights, which are not well sustained by the well-settled principles of international law."
Mr. Marcy, Sec. of State, to Mr. Buchanan, Apr. 13, 1854, H. Ex. Doc. 103, 33 Cong, 1 sess. 12, 13.
Neutrals, in their own country, may sell to belligerents whatever belligerents choose to buy. The principal exceptions to this rule are, that neutrals must not sell to one belligerent what they refuse to sell to the other, and must not furnish soldiers or sailors to either; nor prepare, nor suffer to be prepared within their territory, armed ships or military or naval expeditions against either. Neutrals also may convey to belligerent ports not under blockade whatever bellig