Coasting trade.

It has long been the policy of almost all nations to preserve, exclusively in the hands of their own subjects, all the traffic carried on between the ports of their own coast; and nothing, except the accidental and insuperable necessities of war, has been usually thought sufficient to justify the slightest deviation from that policy. When a neutral, therefore, presents himself in the character of a trader engaged in the coasting trade of the enemy, does he not present himself in the character rather of the enemy's ally than of a neutral properly so called? Is he not the willing and active instrument of relieving one belligerent from the extremities to which the other has lawfully reduced him? "Is there nothing," to use the words of Sir William Scott (1), "like a departure from the strict duties, imposed by a neutral character and situation, in stepping in to the aid of the depressed party, and taking up a commerce, which so peculiarly belonged to himself, and to extinguish which was one of the principal objects and proposed fruits of victory? Is not this, by a new act, and by an interposition neither known nor permitted by that enemy in the ordinary state of his affairs, to give a direct opposition to the efforts of the conqueror, and to take off that which is the pressure of war to inflict, very purpose in order to compel the conquered to a due sense and observance of justice?"

66

"As to the coasting trade," continues the learned judge, supposing it to be a trade not usually open to foreign vessels, can there be described a more effective accommodation that can be given to an enemy during a war, than to undertake it for him during his own disability? Is it nothing that the commodities of an extensive empire are conveyed from the parts where they grow and are manufactured, to other parts where they are wanted for use? It is said, that this is not importing any thing new into the country, and it certainly is not: but has it not all the effects of such an importation? Suppose that the French navy had a decided ascendant, and had cut off all British communication between the northern and southern parts of this island; and that neutrals interposed, to bring the coals of the north for the supply of the manufactures, and for the necessities of domestic life in this metropolis, is it possible to describe a more direct and more effectual opposition to the success of

(1) The Emanuel, 1 Rob. Rep. 296. The Ebenezer, 6 Rob. Rep. 252.

French hostility, short of an actual military assistance in the war? The duties of neutrality are clearly expressed in Lord Howick's letter to Mr. Rist (1) in the following words: “Neutrality, properly considered, does not consist in taking advantage of every situation between belligerent states, by which emolument may accrue to the neutral, whatever may be the consequences to either belligerent party; but in observing a strict and honest impartiality, so as not to afford advantage, in the war, to either; and particularly in so far restraining its trade to the accustomed course, which is held in time of peace, as not to render assistance to one belligerent in escaping the effect of the other's hostilities. The duty of a neutral is "non interponere se bello, non hoste imminente hostem eripere;" and yet it is manifest that lending a neutral navigation to carry on the coasting trade of the enemy, is in direct contradiction to this definition of neutral obligations, as it is in effect to rescue the commerce of the enemy from the distress to which it is reduced by the superiority of the British navy, to assist his resources, and to prevent Great Britain from bringing him to reasonable terms of peace."

Formerly the courts of admiralty in Great Britain were so strict in the enforcement of the prohibition against the interference of neutrals in the coasting trade of the enemy, that all neutral vessels found engaged in that trade were subjected to the penalty of confiscation. In later times, and until the late orders in council, that penalty was alleviated, and the neutral was considered subject only to the forfeiture of the freight : which, as we have before seen (2), is in other cases usually paid by the captor to the neutral owner, whenever he takes from that neutral any cargo belonging to the enemy. For though it be perfectly fair that we seize on the property of an enemy, wheresoever we find it, yet it is also necessary, in point of justice, that we indemnify the neutral for the loss which we thus occasion him to undergo; his trade, in carrying innocent merchandize for the enemy, being a trade completely legitimate as to him, and in no way affected in its legitimacy by the hostility of the belligerents; but when he is detected in the act of interfering with a trade which is not legally permitted to him, a trade which the hostility of the belligerents is the sole cause of throwing into his

(1) 10 Cobbett's Parl. Deb. 406.

(2) Ante, 444. But see Orders in Council, 7 Jan. 1807.

Colonial Trade.

power (1), then he is no longer entitled to the same indemnity; and he is treated with very ample indulgence, in being suffered to escape without the confiscation of his ships, in addition to the forfeiture of his freight. The strict ancient law, and the modern relaxations, are collected and digested in the reply of the King's Advocate upon the case of the Johanna Tholen. (2)

But the relaxation of the ancient penalty was not suffered to take effect, when, in addition to the generally obnoxious nature of the trade itself, there appeared to be circumstances of specific fraud in the individual instance. Therefore, in the case of the Johanna Tholen (3), the Court held, that the carrying on of the enemy's trade with false papers subjected the ship to confiscation; and in the case of the Ebenezer (4), the same sentence was pronounced, with respect to the cargo, which happened in that instance to be the property, not of an enemy, but of the neutral himself. For it is impossible not to feel that the fabrication of false papers (5), which are intended to deceive the captors respecting the vessel's real destination, is a gross aggravation of the guilt originally incurred, by the simple act of illegal traffic.

The strict rigour of the prohibition of the interference of neutrals in the coasting trade of a belligerent, was renewed by the order in council of the 7th January, A. D. 1807, which directs, that if any vessel shall be found proceeding from one port in possession of France to another such port, she shall be captured and brought in, and, together with her cargo, shall be condemned as lawful prize. (6)

Precisely analogous in its principle is the rule which prohibits the neutral from engaging in the enemy's colonial trade. "Upon the breaking out of a war," said Sir Wm. Scott, in the case of the Immanuel (7), " it is the right of neutrals to carry

(1) See the French Navigation Act, which prohibits the coasting trade of France being carried on except in French-built ships, 1 Acton, 277.

(2) 6 Rob. Rep. 72. See also Dr. Robinson's note to that case; and see also another note, 6 Rob. Rep. 250.

(3) 6 Rob. Rep. 72. The Ebe

nezer, 6 Rob. Rep. 252.

(4) 6 Rob. Rep. 250. See also Carolina, 3 Rob. Rep. 75.

(5) Phoenix, 3 Rob. Rep. 191.

(6) See observations on this Order, in Lord Erskine's speech, 8th March 1808, on the Orders in Council, 10 Cobbett's Parl. Deb. 945, 6.

(7) 2 Rob. Rep. 197, 8, and

on their accustomed trade, with the exception of the particular cases of a trade to blockaded places, or in contraband articles, (in both which cases their property is liable to be condemned), and of their ships being liable to visitation and search, in which case, however, they are entitled to freight and expences. I do not mean to say, that in the accidents of a war, the property of neutrals may not be variously entangled and endangered. In the nature of human connections, it is hardly possible that inconveniencies of this kind should be altogether avoided. Some neutrals will be unjustly engaged in covering the goods of the enemy, and others will be unjustly suspected of doing it. These inconveniencies are more than fully balanced by the enlargement of their commerce. The trade of the belligerents is usually interrupted, in a great degree, and falls, in the same degree, into the lap of neutrals. But, without reference to accidents of the one kind or other, the general rule is, that the neutral has a right to carry on, in time of war, his accustomed trade, to the utmost extent of which that accustomed trade is capable. Very different is the case of a trade which the neutral has never possessed, which he holds by no title of use and habit in times of peace, and which, in fact, can obtain in war by no other title than by the success of the one belligerent against the other, and at the expence of that very belligerent under whose success he sets up his title. And such I take to be the colonial trade, generally speaking. What is the colonial trade generally speaking? It is a trade generally shut up to the exclusive use of the mother country to which the colony belongs; and this to a double use ;-that of supplying a market for the consumption of native commodities, and that of furnishing to the mother country the peculiar commodities of the colonial regions (1). Upon the interruption of a war, what are the rights of belligerents and neutrals respectively, with regard to colonial territories? It is an indubitable right of the belligerent to possess himself of such places as of any other possession of his enemy. This is his common right; but he has the certain means of carrying such a right into effect, if he has a decided superiority at sea. Such colonies are dependent for their existence, as colonies, on foreign supplies; if they cannot be supplied and defended, they must

see Lord Erskine's speech, 8th March 1808, on the Orders in Council, 10 Cobbett's Parl. Deb.

936.

(1) See the French Navigation Act, 1 Acton, 277, which prohibits the importation of the produce from their colonies in any ships

fall to the belligerent of course; and if the belligerent chooses to apply his means to such an object, what right has a third party, perfectly neutral, to step in and prevent the execution? No existing interest of his is affected by it. He can have no right to apply to his own use the beneficial consequences of the mere act of the belligerent, and to say-True it is, you have, by force of arms, forced such places out of the exclusive possession of the enemy, but I will share the benefit of the conquest, and, by sharing its benefits, prevent its progress. You have, in effect, and by lawful means, turned the enemy out of the posse ssion which he had exclusively maintained against the whole world, and with whom we had never presumed to interfere; but we will interpose to prevent his absolute surrender, by the means of that very opening which the prevalence of your arms alone has effected. Supplies shall be sent, and their products shall be exported. You have lawfully destroyed his monopoly, but you shall not be permitted to possess it yourself; we insist to share the fruits of your victories; and your blood and treasure have been expended, not for your own interest, but for the common benefit of others. Upon these grounds, it cannot be contended to be a right of neutrals to intrude into a commerce which had been uniformly shut against them, and which is now forced open merely by the pressure of war; for when the enemy, under an entire inability to supply his colonies, and to export their products, affects to open them to neutrals, it is not his will, but his necessity, that changes his system; that change is the direct and unavoidable consequence of the compulsion of war; it is a measure not of French counsels but of British force."

Sir William Scott proceeds, in the same case, to observe upon certain other instances of relaxation, afforded by belligerents to neutrals during war, which do not, like the relaxations of the coasting and colonial trades, subject the neutral to any penalty for availing himself of them. "The admission of foreigners," continues he," into the merchant service, as well as into the military service of this country, the permission given to vessels to import commodities not the growth, produce, and manufacture of the country to which they belong, and other relaxations of the act of navigation, and other regulations founded thereon; these, it is true, take place in war, and arise out of the state of war: but then they do not arise out of the predominance of the enemy's force, or out of any necessity resulting therefrom; and that I take to be the true foundation of the principle. It is not every