§ 27. Rule of the war of 1756.

It had been contended in argument in the above case, that the exportation of grain from Ireland being gene

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that citizens of the United States have been engaged in a commerce by which Texas, an enemy of Mexico, has been supplied with arms and munitions of war, the government of the United States, nevertheless, was not bound to prevent it, could not have prevented it without a manifest departure from the principles of neutrality, and is in no way answerable for the consequences. 18th article (of the treaty between the United States and Mexico) enumerates those commodities which shall be regarded as contraband of war; but neither that article nor any other imposes on either nation any duty of preventing, by previous regulation, commerce in such articles. Such commerce is left to its ordinary fate, according to the law of nations." Mr. Webster to Mr. Thompson, July 8, 1842. Webster's Works, vol. vi. p. 452.

"As the law has been declared by the decisions of courts of admiralty and elementary writers, it allows belligerents to search neutral vessels for articles contraband of war and for enemy's goods. If the doctrine is so modified as to except from seizure and confiscation enemy's property under a neutral flag, still the right to seize articles contraband of war, on board of neutral vessels, implies the right to ascertain the character of the cargo. . . . A persistent resistance by a neutral vessel to submit to a search renders it confiscable, according to the settled determinations of the English admiralty." Mr. Marcy to Mr. Buchanan, April 13, 1854. Cong. Doc. 33 Cong. 1 Sess. H. R., Doc. 103, p. 21.

Such is the law of nations, as hitherto understood, but as, by the adoption of the principle that neutral vessels give immunity even to enemy's goods, there is no longer a pretence for the existence of the right of search, unless, as connected with contraband, it may well become the interest of neutrals, if this exception is to remain the rule, not only that the extent to which it is to be applied should be defined, but that their own governments should themselves undertake to enforce the prohibition, and thus remove from belligerents the only apology for violating that nationality which should attach to the ship, in common with the territory of the country to which it belongs. This has been done in the present war by Austria, whose decree of 25th May, 1854, prohibits Austrian vessels from transporting troops belonging to the belligerent powers and from carrying articles contraband of war. Paris Moniteur, June 9, 1854. By a Swedish ordinance, bearing date the 8th of April, 1854, Swedish sea captains are forbidden, unless under actual force, and in that case after formal protest-to carry despatches, troops, or articles contraband of war, for any belligerent power. See Cong. Doc. 33 Cong. 1 Sess. H. R. No. 103, p. 21. It is indeed already established by many treaties that, in the case of vessels under convoy, the declaration of the commander that there is no contraband on board vessels destined for an enemy's port shall suffice. Vide infra, note to § 29.

It is to be remembered as a further inducement for getting rid of the right of search on account of contraband, now that it is no longer applicable for enemy's goods, that it has never been claimed that British men of war could enter a merchant ship for the purpose of searching for seamen, but the Prince Regent, in

rally prohibited, a neutral could not lawfully engage in that trade during war, upon the principle of what has been called the "Rule of the War of 1756," in its application to the colonial and coasting trade of an enemy not generally open in time of peace. The court deemed it unnecessary to consider the principles on which that rule is rested by the British prize courts, not regarding them as applicable to the case in judgment. But the legality of the rule itself has always been contested by the American government, and it appears in its origin to have been founded upon very different principles from those which have more recently been urged in its defence. During the war of 1756, the French government, finding the trade with their colonies almost entirely cut off by the maritime superiority of Great Britain, relaxed their monopoly of that trade, and allowed the Dutch, then neutral, to carry on the commerce between the mother country and her colonies, under special licenses or passes, granted for this particular purpose, excluding, at the same time, all other neutrals from the same trade. Many Dutch vessels so employed were captured by the British cruisers, and, together with their cargoes, were condemned by the prize courts, upon the principle, that by such employment they were, in effect, incorporated into the French navigation, having adopted the commerce and character of the enemy, and identified themselves with his interests

his declaration, in reference to the causes of the war of 1812, puts the exercise of the right of impressment, as incidental to that of search for enemy's goods and contraband. He says, that he can never admit that, "in the exercise of the undoubted and hitherto undisputed right of searching neutral merchant vessels in time of war," the impressment of British seamen, when found therein, can be deemed any violation of a neutral flag; nor that taking such seamen from on board such vessels, can be considered a hostile measure or a justifiable cause of war. Annual Register, 1813, p. 2.

The Russian declaration differs from the English and French, inasmuch as by it the vessel carrying contraband, as well as the article itself is confiscated; whereas the cruisers of the latter seize the contraband only. "Il s'entend de soi-même que le pavillon neutre ne pourra couvrir les cargaisons et objets qui d'après le droit des gens sont reconnus contrebande de guerre. En conséquence les navires à bord desquels il sera trouvé de la contrebande de cette nature ⚫ seront saisis par nos croiseurs et reconnus de bonne prise, conformément à l'avis déjà publié par le ministère des finances le 27 Novembre, de l'année dernière." Avis du 19 Avril, 1854, Annuaire, &c., 1853-4, App. p. 928.]

and purposes. They were, in the judgment of these courts, to be considered like transports in the enemy's service, and hence liable to capture and condemnation, upon the same principle with property condemned for carrying military persons or des patches. In these cases, the property was considered, pro hâc vice, as enemy's property, as so completely identified with his interests as to acquire a hostile character. So, where a neutral is engaged in a trade, which is exclusively confined to the subjects of any country, in peace and in war, and is interdicted to all others, and cannot at any time be avowedly carried on in the name of a foreigner, such a trade is considered so entirely national, that it must follow the hostile situation of the country.1 There is all the difference between this principle and the more modern doctrine which interdicts to neutrals, during war, all trade not open to them in time of peace, that there is between the granting by the enemy of special licenses to the subjects of the opposite belligerent, protecting their property from capture in a particular trade which the policy of the enemy induces him to tolerate, and a general exemption of such trade from capture. The former is clearly cause of confiscation, whilst the latter has never been deemed to have such an effect. The Rule of the War of 1756 was originally founded upon the former principle: it was suffered to lay dormant during the war of the American Revolution; and when revived at the commencement of the war against France in 1793, was applied, with various relaxations and modifications, to the prohibition of all neutral traffic with the colonies and upon the coasts of the enemy. The principle of the rule was frequently vindicated by Sir W. Scott, in his masterly judgments in the High Court of Admiralty and in the writings of other British public jurists of great learning and ability. But the conclusiveness of their reasonings was ably con. tested by different American statesmen, and failed to procure the acquiescence of neutral powers in this prohibition of their trade with the enemy's colonies. The question continued a fruitful source of contention between Great Britain and those powers,

1 Robinson's Adm. Rep. vol. ii. p. 52. The Princessa. Ibid. vol. iv. p. 118. The Anna Catharina. Ibid. 121. The Rendsborg. Ibid. vol. v. p. 150. The Vrow Anna Catharina. Wheaton's Rep. vol. ii. Appendix, p. 29.

until they became her allies or enemies at the close of the war; but its practical importance will probably be hereafter much diminished by the revolution which has since taken place in the colonial system of Europe.1 (a)

§ 28. Breach of blockade.

Another exception to the general freedom of neutral commerce in time of war, is to be found in the trade to ports or places besieged or blockaded by one of the belligerent powers.

The more ancient text writers all require that the siege or blockade should actually exist, and be carried on by an adequate force, and not merely declared by proclamation, in order to render commercial intercourse with the port or place unlawful on the part of neutrals. Thus Grotius forbids the carrying any thing to besieged or blockaded places, " if it might impede the execution of the belligerent's lawful designs, and if the carriers might have known of the siege or blockade; as in the case of a town actually invested, or a port closely blockaded, and when a surrender or peace is already expected to take place."2 And Bynkershoek, in commenting upon this passage, holds it to be "unlawful to carry any thing, whether contraband or not, to a

1 Wheaton's Rep. vol. i. Appendix, Note III. See Madison's " Examination of the British doctrine which subjects to capture a neutral trade not open in time of peace."

(a) [The rule of 1756 is, of course, wholly superseded during the present war by the provision in the Order in Council of the 15th of April, allowing neutrals to trade to all ports and places wheresoever situated, that are not in a state of blockade. But, it is on other accounts, also, obsolete. The free trade which England has proffered to the navigation of all the world, including a participation in her colonial and coasting trade, on an equality with her own vessels, does not admit of rules, which governed in a period of monopoly, and when any relaxation, which a belligerent accorded to neutrals, might be deemed not a permanent regulation of trade, but strictly a measure to evade those advantages which a superior military marine placed within the control of its enemy. The Edinburgh Review says: "In the case of Russia, as she has no colonies, the rule of 1756 is inapplicable; and, indeed, since the colonial trade of England and Spain has become free, the theory on which that restriction was based falls to the ground." Edinburgh Review, No. 203, art. 6.]

2 "Si juris mei executionem rerum subvectio impediret, idque scire potuerit qui advexit, ut si OPPIDUM OBSESSUM TENEBAM, si PORTUS CLAUSOs, et jam deditio aut pax expectabatur," &c. Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 1, § 5, note 3.

place thus circumstanced; since those who are within may be compelled to surrender, not merely by the direct application of force, but also by the want of provisions and other necessaries. If, therefore, it should be lawful to carry to them what they are in need of, the belligerent might thereby be compelled to raise the siege or blockade, which would be doing him an injury, and therefore unjust. And because it cannot be known what articles the besieged may want, the law forbids, in general terms, carrying any thing to them; otherwise disputes and altercations would arise to which there would be no end." 1

Bynkershoek appears to have mistaken the true sense of the above-cited passage from Grotius, in supposing that the latter meant to require, as a necessary ingredient in a strict blockade, that there should be an expectation of peace or of a surrender, when, in fact, he merely mentions that as an example, by way of putting the strongest possible case. But that he concurred with Grotius in requiring a strict and actual siege or blockade, such as where a town is actually invested with troops, or a port closely blockaded by ships of war, (oppidum obsessum, portus clausos,) is evident from his subsequent remarks in the same chapter, upon the decrees of the States-General against those who should carry any thing to the Spanish camp, the same not being then actually besieged. He holds the decrees to be perfectly justifiable, so far as they prohibited the carrying of contraband of war to the enemy's camp; "but, as to other things, whether they were or were not lawfully prohibited, depends entirely upon the circumstance of the place being besieged or

1 "Sola obsidio in causâ est, car nihil obsessis subvehere liceat, sive contrabandum sit, sive non sit, nam obsessi non tantam vi coguntur ad deditionem, sed et fame, et aliâ aliarum rerum penuriâ. Si quid eorum, quibus indigeat, tibi adferre liceret, ego fortè cogerer obsidionem solvere, et sic facto tuo mihi noceres, quod iniquum est. Quia autem scire nequit, quibus rebus obsessi indigeant, quibus abundent, omnis subvectio vetita est, alioquin altercationum nullus omnino esset modus vel finis. Hactenus Grotii sententiæ accedo, sed vellem ne ibidem addidisset, tunc demum id verum esse, si jam deditio aut pax expectabatur, .. nam nec rationi conveniunt, nec pactis Gentium, quæ mihi succurrerunt. Quæ ratio me arbitrum constituit de futurâ deditione aut pace? et, si neutra exspectetur, jam licebit obsessis quælibet advehere? imo nunquam licet, durante obsidione, et amici non est causam amici perdere, vel quoque modo deteriorem facere.” Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 11.