« ElőzőTovább »
But it is unnecessary to speculate upon the feelings, which we may imagine to arise. It is already matter of history. The right to a free navigation of the Mississippi was guaranteed by the treaty of Spain, of 1795; and also the privilege of deposit in the island of New Orleans, it being further provided, that in case of a suspension of the privilege at New Orleans, an equivalent establishment should be assigned at some other place upon the bank of the Mississippi. But very unexpectedly the Spanish Intendant of New Orleans in October 1802 issued a proclamation, prohibiting the citizens of the United States from depositing their merchandize, and without assigning any other suitable place. There was but one opinion, one feeling. The subject immediately came before Congress; and it was very evident from the tone there assumed, that such a proceedure could never be submitted to. Public sentiment demanded an egress into the ocean, right or wrong, treaty or no treaty. Nothing but a favorable turn of circumstances, which brought the whole of Louisiana under American jurisdiction by means of negociation, saved Spain and the United States from a speedy collision and war. *
Such will always, until men are brought more fully under the principles of the Gospel, be the feelings and the results. No logic whatever can convince the nations bordering on the upper parts of great rivers, that they can be rightfully excluded from the ocean. And so far at least, they are correct. They look upon such rivers as, in some important respects, common property to their entrance into the ocean; and will be found determined to act upon that view. There can be no doubt, that in this case the principles they maintain are conformed to
* See on this subject Lyman's Diplomacy, Ch. VII, Vol. I,-Report of the Am. Secretary of State in 1791, &c.
what is right, and to the suggestions and intentions of nature. And it is exceedingly desirable, that they should be sustained fully, powerfully, and unequivocally, by the Law of nations. Those nations, that in the confidence of their maritime and military strength, have committed usurpations on the natural rights of others, will be likely to set themselves in opposition to what they will probably call innovations in the established law. But they cannot sustain their pretensions for any length of time against the united sentiment of other nations, when it is aided by the luminous views and sound reasonings of those, to whom Nature has given the intellectual' ability of publishing and enforcing her decrees. And this is especially true at the present time; truth and reason possess a power over the conduct of men, which they never had before; injustice and usurpation cannot possibly stand before it.These suggestions are obviously of importance, in connection with the great cause of Peace, because the origin of multitudes of wars is connected with the previous violation by one of the contending parties of rights, founded on the obvious intentions of nature. The more fully justice is understood, and the more generally the claims of justice are enforced by the pacific methods of discussion and reasoning, the more of peace there will be on the earth.
OF A NEUTRAL TRADE NOT OPEN IN TIME OF PEACE.
THERE is another subject of the very highest importance, where there seems to be a great difference of opinion. It is this "whether it be a part of the law of nations, that a trade, ordinarily shut in time of peace, and opened to neutrals in time of war, on account of the war, is liable, as much as a trade in contraband of war or with a blockaded port, to capture and condemnation?" -The British government answer in the affirmative. They have pronounced, by their instructions to their armed vessels and by their judicial decrees, the trade in question to be in contravention of international law, and legally and justly liable to be condemned. This is a doctrine, however, which cannot be said to have the authority of antiquity in its favor, for no nation whatever seems to have proposed and acted upon it, until the war of 1756.* But since that period, it has been asserted and maintained on grounds concisely these. The doctrine is understood to have reference especially, and perhaps exclusively, to the colonial trade. The colonial trade is ordinarily confined to the exclusive use of the mother country, to which the colony belongs; furnishing * Robinson's Admiralty Rep. Vol. II, p. 186, Lond. Ed. Case of the Im
the various commodities of its own regions, and taking back those of the parent country in return. On the breaking out of a war, the right of neutrals cannot certainly be admitted as extending further than the carrying on their customary trade; that is to say, the trade which they had previously enjoyed in the time of peace. The colonies, according to the ordinary arrangements of the colonial policy, are entirely dependent on the mother country for their supplies, and of course for their existence. It is, therefore, a great object with the belligerent to cut off this trade entirely, as a means of reducing the colonies; but this attempt would be likely to prove fruitless, if the colonial trade, under the heavy pressure of an adverse belligerent action, should be thrown open to neutrals, who were excluded from it in time of peace. Accordingly such neutral trade is forbidden and condemned. "It is an indubitable right of the belligerent, (says Sir Wm. Scott, speaking of the colonies,) 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 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 ?”*
But on the other hand, much has been said in opposition to this view. The authorities, which are generally received as the depositories of the law of nations, do not appear to support this doctrine. In the remarks of Grotius on the relations existing between belligerent and
Case of the Immanuel, p. 199.-See also Life and Writings of Wm. Pinkney, pp. 47, 8, and particularly the Memorial on the Rule of War of
neutral nations, he begins with limiting the general rights of war against the trade of neutrals to cases of plain and very great necessity. As not inconsistent with that general view, he would admit the right of excluding neutral property from blockaded places, and of confiscating articles evidently contraband. But he is entirely silent, for what reason we do not pretend to say, on the right of interrupting and destroying in war such neutral commerce, as is not open and permitted in time of peace. Puffendorf and Barbeyrac appear to be equally silent, with the unimportant exception, that in a private letter of Puffendorf to Groningius, who had consulted him concerning a proposed treatise on free navigation, he indistinctly alludes to it.* Bynkershoek, an authority subsequent in the order of time, who fully discusses the rights of neutrals in the restrictions upon them during a war among other nations, takes a view, different in some unimportant respects, from that of Grotius; but in pointing out the restrictions incident to the prosecution of a neutral trade, he no where asserts or intimates the liability of such trade to interruption, merely on the ground of its having been closed to the neutral in time of peace. Vattel and Martens take similar ground with their predecessors, both of them maintaining the general freedom of neutral commerce from interruption excepting in the generally acknowledged cases of carrying enemy's property, of trading with besieged or blockaded places, and supplying the enemy with contraband, or goods hav. ing relation to war. Neither of them includes, in their exceptions to the general freedom of neutral commerce, the prohibitory principle of Great Britain in relation to neutral trade not open previous to the commencement of a
This is the letter, referred to and quoted, though not given at length, by Sir Wm. Scott in the celebrated case of the Swedish convoy.