benefit from the furrender. The nation which is the most powerful at fea, must always be the most vulnerable.-Maritime greatnefs is founded upon extended commerce: a great navy can only grow out of a great trade: and if it should feem unjust that the power which is most able to make captures fhould be restrained from its exercife, it can only be neceffary to reflect that it muft, for this very reafon, be also more liable to capture; and that though it may protect its merchantmen more effectually than its enemy, ftill, from their greater number, the total amount of its loffes may be more than equal to the value of its captures from the scantier ftock of its enemy. The power, on the other hand, which has little to lofe in this way, muft feel that it is proportionally weak in the means, either of defence or an

noyance.

The wars which have afflicted Europe for the last fifteen years, have not been of a character favourable to the developement of fuch liberal principles; but we ftill entertain the hope of feeing them univerfally established; and willingly perfuade ourselves that there is nothing chimerical in the idea of confining our maritime wars within the same limits with those which are waged on land, and completing, all over the civilized world, the diftinction between an armed enemy and a pacific trader. The only treaty, we believe, in which this principle was mutually guaranteed, was that between Pruffia and America in 1785. The bitterness of the revolutionary wars came too foon after, to let the example have its proper effect; yet the direct trade which has since been carried on with the enemy, either under the troublesome and partial protection of royal license, or, in a ftill more precarious manner, by the connivance of the hoftile governments, ferves to demonstrate the impolicy of a fyftem which requires fo many awkward exceptions, and which feems to have produced little to either of the belligerents, but loffes and complaints from the very commencement of hoftilities.

With these sentiments as to the policy of capturing the merchant ships of an enemy, it may be fuppofed that we will not be eafily fatisfied as to the juftice of making prize of the property of neutrals; yet the queftion difcuffed by the author before us, is far from being determined by the principles to which we have just been alluding. Thofe principles can only be brought into action by a regular treaty and convention. One belligerent cannot afford to fet the example of them to the other; they must be fimultaneously adopted by both, or by neither. While France continues, therefore, to capture our merchantmen, we must make reprisals upon hers; and while the feizes upon the private property of our traders wherever the can find it, we mult, of ne

ceility,

ceffity, follow her example. While the prefent fyftem of maritime warfare continues, no other courfe can be adopted. If it be lawfu! to feize on the property of an enemy in his own fhips, we amprehend that there can be no good ground for faving it from

zure because it is in the fhip of a neutral. The mere contract ø affreightment can have no conceivable effect in neutralizing the property to be tranfported; and as the neutral fuffers no da mare if he receive freight and charges from the captors, it does not appear that there is any foundation whatsoever for the claim fi often made by neutrals, for exempting from capture the atkuwiedged property of the enemy if found on board their veffels. There feems to us to be nothing in the prefent fyftem of interactional law with regard to maritime captures, that affords any analoge in favour of fuch an exemption, or that can even be reconciled to the fuppofition of its allowance.

1: fill remains a queftion, however, whether the feizure of neutral veñïèls employed in a trade to the colonies of the enemy, or in any other trade that was not open to them in time of peace, be huftfable on the principles of the law, or upon thofe generał news of equity which ferve for its foundation. This question, if appears to us, can only be refolved by inquiring, fir, whether fich captures have been actually recognized as legal by the flas

edge of modern Europe; and, 2d, whether they can be res conciled to the admitted principles of international law, by a fair Investigation of the equity and expediency of the practice.

The first branch of inveftigation will not lead us, we are afraid, to any very fatisfactory conclufion. The rule of the war 1756 certainly cannot be faid to have been recognized as a part of the law of nations by any general or long eftablished ufage. It has never been affected or fupported at all, by any nation but Greaf Britain. It is admitted to have been afferted, for the first time; in the year 1756; and it is not demod, that, Ence 1763, it has never been afted again in abfolate and unqualified terms. སཱཊསྶསོཝཾ, prefumption, therefore, appears to be again its engmised reVival at pretent, in to far as the question is to be decided by Blage.

The

The author before us contends, indeed, that the whole princi ple is admitted in the qualified rettet ons that are bren, and dre till tubinitted in and that thote die seksoridgette juice of what we do now, cannot confitertle o, pite our to do a good deal more be in plain, however, at the peat premiul vanons have at leall ga praod a right in coluend Pans, des grea on eva Pe mp by ile limitation, as we have to tay ch permanen linded exert 2 of a right jan gidinary subspeak of comproming a depase zzer:

right itself in the abftract. The neutrals contend that we have no right to exclude them from any part of the enemy's colonial trade: we maintain that we have a right to exclude them from it entirely. The matter is adjusted in practice, by our allowing them a part of the trade, and by their fubmitting to be excluded from another part of it. It is evident that this compromife does not fettle the general queftion of right in favour of either party: on the contrary, it is adopted in order to avoid fettling it; and if either party fhall become diffatisfied with the arrangement, he may certainly return to his original pretenfions, without being charged with inconfiftency. In common fairness, at least, we muft allow this privilege to our competitors, when we claim it for ourselves. If we may affert our right to fhut up the whole colonial trade, in spite of our long continued permiffion of a part of it, the neutrals may surely affert their right to the whole trade, in fpite of their long acquiefcence in a confiderable limitation. The practice was founded avowedly upon mutual conceffions from what the refpective parties claimed as their rights. If these conceffions are withdrawn upon one fide, it is to be expected that they will be withdrawn, in like manner, on the other; and the practice cannot be pleaded in favour of either of the rights, as afferted without these conceffions.

We cannot cut short the queftion of right, therefore, in this cafe, by an appeal to established ufage: the question upon the rule of 1756 is ftill an open question, under the existing system of international law; and can only be determined by a fair confideration of those reasons of juftice or expediency, upon the faith of which it has been proposed to add it to this fyftem.

Now, in entering upon this confideration, we will confefs, that, in fpite of the ill name they have in civil wars, and the diflike manifefted for them by the author of this publication, we have a great love and affection for neutrals, and are not difpofed, for light reafons, to subject them to any material difcouragement. By their pacific and industrious exertions, the difaftrous confequences of extended hoftility are mitigated and repreffed, and that great progress of civilization and profperity is maintained, to which war might otherwife give fo fatal an interruption. If their commerce be enlarged during the fubfiftence of hoftilities, it fhould be remembered that it is enlarged by the demands of thofe whofe comforts and enjoyments would be otherwife inevitably abridged; and that their profits are derived from fupplying the demands of those who would be deftitute but for their interference. Statesmen and jurists are too apt, in a commercial age, to forget that the chief benefits of trade are not enjoyed by those who carry it on, but by those who confume the VOL. VIII. NO. 15. commodities

B

commodities which it ferves to diftribute. If the produce of the French colonies were to be fhut up, or to cease to be raised, from want of the means of bringing it to market, the ceffation of the mercantile profit on its tranfportation would be but a fmall part of the lofs which the world would fuftain by the deprivation; and when neutrals interpofe to carry on this trade, it is but a narrow and imperfect view of the question to look only to their commercial emoluments, and to fet up against them the profits which we might have made by capture, or the advantages we might have obtained by impoverishing an enemy. Against these profits and advantages, we ought to take into account the inconveniences and diftreffes, the diminution of comfort and of enjoyment, which the annihilation. of this commerce muft produce among all those who confume or deal in the commodities which form the subject of it. The law of nations is a law which relates to all who can be affected by the acts it permits or prohibits; and it is formed upon an impartial view of the interests of the whole. It takes into calculation the relative magnitude of the good that is gained by one, and the evils that muft confequently be fuffered by all the reft; and according to the refult of that equation, it promulgates its final decrees. It is not enough, therefore, in a queftion of this nature, to balance the pretenfions of the belligerents and the trading neutral, whofe rights are immediately under confideration. The whole neutrals who confume or deal in the commodity, in every quarter of the world, are entitled to a voice in the decifion; and the inconveniences and fufferings of China or Japan, may form an effential element in that calculation which is to fettle the true proportion between the whole good and evil of the oppofite pretenfions in this very controversy. We can by no means agree with Sir William Scott, that the inhabitants of Saxony or Ruffia have no intereft in the fate of Guadaloupe or Jamaica, except as a fubject of history. In an age like the prefent, there is scarcely a country on the globe that is not interested in the decisions of that great tribunal which judges of the law of nations; and whereever there is an intereft, there ought to be a fuffrage in the decifion. A true verdict can only be found, in fuch a question, by a jury de medietate lingua, compofed of all the civilized nations of

the world.

It is upon this general principle, of a balance and comparative estimate of the whole good and evil likely to be produced by the measure in contemplation, that we think this queftion must be ultimately decided: but, before attempting to apply it to the circumstances of the prefent cafe, it is neceflary to confider the grounds upon which this author and the English government and courts of prize have defended the rule which it is now proposed to reeftablish.

Both

Both parties are agreed in their general definition of the rights and duties of neutrals: But this is merely a new fource of per. plexity, fince they differ very widely in the meaning they affign to the terms of this admitted definition. In point of right, it is agreed, the neutral should suffer no prejudice from the war, but fhould be protected in the enjoyment of every privilege which he poffeffed in his intercourse with either of the belligerents in time of peace, except only when the exercise of such privilege would interfere with the specific measures of hoftility actually and immediately pursued by the other belligerent. In point of duty, the neutral should refrain from taking any fhare in the war, and from giving aid or affiftance to either party, for offence or defence. So far all parties are agreed; but there is matter enough for contention remaining.

The author before us contends, that, by these definitions, neutrals are plainly excluded from the colonial trade of a belligerent; they are only to retain in war what they enjoyed in peace; but as they were entirely excluded from this trade in peace, they can have no claim to any fhare of it in war, upon the footing of mere neutrality. Their rights are fufficiently refpected, if they are left during the war in as good a condition as before it began; and they have no cause to complain if a belligerent follows out his own hoftile interest, by restraining them from ufurping what he has difabled the enemy from retaining. In point of fact, it is added, that this ufurpation of a new trade tends directly to aid and affift one of the parties in the war, and to defeat and obftruct the lawful hoftilities of the other: it is therefore a clear violation of the duties of neutrality.

We confefs that we cannot agree with any part of this interpretation. The general principle is, that a neutral fhall fuffer no prejudice from the war, but fhall remain, in point of right, on the fame footing as if peace had never been violated. Now, it was the right of a neutral, in time of peace, to trade with every country in the world, from the fovereign or proprietors of which he had received permiffion, and to be free from all challenge or interruption from any other party. That right and that freedom, however, is utterly deftroyed in time of war, if a belligerent may interfere with his trade to any quarter of the world over which it has no dominion, and with the fovereigns of which it is admitted that the rights of the neutral were to remain as free and ample as ever. It was his undoubted right, in time of peace, to treat with every other nation for leave to trade with its colonies; and if this right is loft by the war, it is in vain to fay that he has not fuffered prejudice by that occurrence. It is plain, indeed, that the advocates for the exclufion are fenfible

B 2

of