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Published online by Cambridge University Press: 12 April 2017
It has been the peculiar glory of the United States in history to be a great neutral Power and the champion of neutral rights. From the earliest days of the republic, the sentiments of her statesmen, of Washington and Hamilton no less than of Jefferson and Franklin, were whole-heartedly for peace and neutrality, for the protection of the merchant against the soldier. And throughout the nineteenth century, the world acclaimed neutrality with her, and regarded the United States as the standing exemplar of a Peace Power. It was recognized that there might indeed be excusable wars, just wars, necessary wars. But the ideal of the nineteenth century was peace. Just and necessary as his cause might be, the belligerent was an ipso facto nuisance. He must be allowed to interfere as little as possible with the peaceful affairs of the world. On any doubtful question of interference with neutral commerce, the presumption was against him. He had always been a nuisance, and he was coming to be an anachronism. As an anachronistic nuisance, the scales were heavily poised against a belligerent.
1 But see, as to railroad transit, infra, note 20 and the very valuable workbyMoore, Dr. John Bassett,International Law and Some Current Illusions, pp.27-28.Google Scholar
2 The writer ventures to refer to the preface to Prize Law and Continuous Voyage(London,1915),for statistics.
3 “ No proceedings can be more unlike.” See per Story, quoted 2 Halleck, Int. Law, c. 32,§20, and in The Dos Hermanos, 2 Wheat. 76 (1817); and per Phillimore, 3 Int. Law, § 473,p.716. “ It is a great mistake to admit the Common Law notions in respect to evidence to prevail in proceedings which have no analogy to those in Common Law.” (Italics ours.)
4 See 3 Phillimore, Int. Law, § 440, p.667; also the writer's Prize Law and Continuous Voyage (London,1915).
5 byParkman, v.Captain Allen, 1 Stair 502, 529, 559: Gosford MS. No. 27, p.10. Dirleton,No.152, p.55; No.153, p.61.Google Scholar
6 Mémoire justificatif de la conduite de la Gde. Bretagne en arritant les navires étrangers et les munitions de guerre destinées aux insurgens de I’ Amerique. Londres,1779.
7 4 C. Rob. 65, 66 (1801).
8 Edw., 190 (1810).
9 Bellot (Pitt-Cobbett's Cases in International Law, II, 639) makes the comment:>“ But see The Zelden Rust, 6 C. Rob. 93, where Lord Stowell condemned a cargo destined to the port of Corufia because it was contiguous to the naval port of Ferrol.” But that case only reinforces the Luna; it had nothing to do with the sanctity of neutral ports; and it shows that Scott was quite alive to the possibilities anddangers of geographical proximity, and was fully prepared to guard against them by legitimate means consistent with principle.
10 Cf. The Jonge Pieter, 4 C. Rob. 79 (1801).
11 The Luna, supra, note 8.
12 The Maria (Paulsen), 1 C. Rob. 340, 362 (1799). Italics ours.
13 Supra, note 7.
14 The Portland, 3 C. Rob. 42, 46 (1800).
15 See on the prosecution of the claims and the attitude of the British Government:Gessner, Louis, A Juridical Review of the Case of the British Barque “ Springbok.” London, Wilson , Effingham (1875);Google Scholar Berlin,Heymann, Carl(1875).Google Scholar
16 Russell, Earl , Foreign Minister, stated distinctly, in answer to Lord Derby, that contraband could not be seized in transit to a neutral port. He had been understood to imply that it might, and he explained that he had only meant that a simulated destination to a neutral place would not save the adventure, if the true port of approach was clear on the proper evidence. (Hansard's Reports, House of Lords, 18 May, 1863.) In the memorandum presented at the London Naval Conference of 1908-9 [Pari. Pap. (1909), Cd. 4555,p. 37], the British Government, with some want of ingenuousness, while they admit there are no British prize decisions applying the doctrine of continuous voyage to contraband,refer to a case in which some countenance was given to the doctrine on a point of insurancein the Common Pleas, without stating the express disapproval with which the doctrine was viewed in the Exchequer; and they urge that H. M. Govt, raised no objection to the condemnation of cargoes as contraband on the allegation of continuous voyage. If in fact they raised no objection, it was contrary to all their pleas and speeches in Parliament! Their law officers held that there was a miscarriage of justice in the condemnations. [Twiss,Continuous Voyages (1877), p. 33.]Google Scholar
17 See 88 Brit. State Papers, passim,.
18 See jRev. de Droit Maritime, XII, 602.
19 See the writer's Britain and Sea Law, 75; Atherley-Jones, Commerce in War, 83.so
20 That the doctrine is peculiarly favorable to Britain or to strong naval island Powers,may be seriously doubted. As belligerents in preponderant force, of course it favors such Powers. But it is correspondingly unfavorable to them as neutrals. And in the contingency of their finding themselves in inferior naval force to a coalition, it may easily be fatal to them. It must be remembered that the doctrine was introduced, during the Civil War,not so much to bar land transit from Mexico as to bar short sea transit from Nassau or Bermuda. Railways are expensive, easily congested, and subject to breakdown. Sea transit is far more reliable. Suppose Britain faced by a coalition of Germany, the United States, and Italy: it might be vital to her to obtain supplies by short sea transit from neutral France and Holland. But the supposed coalition, acting on “ modern” principles, would undoubtedly “ ration” Prance and Holland, thus making it impossible or very difficult for the Island Kingdom to carry on the contest.
21 Instructions to the British delegates at the London Naval Conference (Brit. Pari. Pap.,Misc. 4 (1909), Cd. 4554, p. 23, par. 10.
22 Ibid., p. 25, par. 18.
23 Ibid., p. 27, par. 26.
24 Commerce in War.
25 See The Charlotte, 5 C. Rob. 275 (1804).
26 See Hammond to Jefferson, 12 Sept.1793, apud 1 Am. State Pap. (For. Rel.), 240. Reference may also be made to Moore's Arb. 299 et seq., 3856 et passim.
27 See 4 De Martens, Causes C&ebres du Droit des Gens, 55.
28 Life of Pinkney, 26; cited,Moore,J. B. ut supra, 319.
29 Moore's Arb. 3856, 3864.
30 Ibid.,3866.
31 Cf, Sir A. Hopkinson, The Blockade, apvd Scieniia. Vol. 24, p. 127. “ This use of the term … has given rise to much confusion of thought and misapprehension… . This is not the sense in which the term ‘ blockade’ is correctly used in international law.”
32 Nelson blockaded Toulon at 100 miles distance.
33 Int. Law (Baker's ed.), c. 25, § 7.
34 Continuous Voyages (London, 1877), p. 34.
35 The Start, 4 C. Rob. 65, 67 (1801).
36 Ibid.
37 It is not quite clear whether even such a process was competent to the court. The property seized was “ a sacred trust” ; and Croke, LL.D., in the Curlew and Magnet speaks as if not even the court had authority to break bulk, except in cases where that was necessary for the preservation of the goods. (Stewart, Yice-Adm. Cas., Nova Scotia, 312.)
38 The Maria, Anna , 2 Wheat. 327 (1817): “ Before the Captain of the Nonsuch left the Anna Maria, he ought to have decided either to seize her as a prize or to restore her” (per Marshall, C. J.); The Wilhelmsborg, 5 C. Bob. 143 (1804).Google Scholar
39 The Jonge Pieter, supra, note 10.
40 See The Sally (Griffiths), 3 C. Rob. 300 n. (1795).
41 See e.g., the Eliza and Katy, 6 C. Rob. 185, 192 (1805), where the papers are said to “ disclose the most disgusting preparations of fraud,” et passim.
42 Imitating Russia, which used similar expedients in 1904, and energetically insisted at the Naval Conference of 1909 at London on her right to do so.
43 The Recrudescence of Belligerent Pretensions: Transactions of the Int. Law Assoc.,Christiania Conference, 1905.
44 Apud Prize Law and Continuous Voyage, by the present writer (Stevens and Haynes,London); or see Arguments and Speeches of William Maxwell Evarts, I, 665.
45 Law Magazine and Review, 1877, pp. 1, 31.
46 Cf. Houten Van in 3 Recueil des Rapports (Organization pour une Paix Durable), p. 59