England; (1) and thus it is shewn that the Prussian attempt at innovation was not supported even by the pretext of a misunderstanding. The British reply to the claim of Prussia is found in two passages in the memorial. It is asserted, that when two powers are at war they have a right to capture each other's ships, merchandize, and effects, found at sea; every thing belonging to an enemy being lawful prize, while the goods of a neutral are exempt from capture. It is consequently determined by the Law of Nations, that the goods of an enemy may be seized, although on board the ship of a friend; and that the goods of a friend ought to be given up to him, although found on board the ship of an enemy. It is stated, in a subsequent passage expressly noticing the Prussian proposition, that the converse of this doctrine is too notoriously received, and everywhere acknowledged to be the subject of dispute; as is proved by all the authors who have written on the Law of Nations, (to whose works references are given,) and by constant usage, both ancient and modern; and that there is no proof more strong of the general rule than is afforded by the exceptions made by particular treaties. (2) Such is a sketch of the first attempt to introduce an innovation in the Law of Europe, with regard to neutral commerce. It may be confidently affirmed, that the Prusian attempt benefitted the cause which it proposed to injure, from the combined effect of the inability to produce arguments of weight on one side, and of the sound reasoning which the opposite party produced in favour of the ancient system. No further discussion on the points at issue took place between the two governments until 1780, when Prussia joined the league of the Armed Opinion of Neutrality, and endeavoured to obtain by force what she had so signally failed to establish by reason. Far superior to the reasoners in the Prussian memorial, is the next champion of the rights of neutrals, Martin Hübner, who published his work in 1759. (1) Much of his work is valuable, and all of it is interesting: he possessed great acuteness, and a power of making all his resources available, and a happiness in treating his subject that made a dry question engaging. He was the first professed writer, in point of time, excepting the government memorial above noticed, and is the first writer, in point of merit, that has ever advocated the cause that he espouses. The failure of such an author is a strong presumption against his cause. The weakness of his cause is indeed demonstrable from his own assertions, for he frequently lays down sound principles, expressed with a remarkable clearness and nicety, and it is curious that he could escape perceiving that his conclusions entangled him in self-contradictions. No champion of the principles held good in this country would desire a more lucid statement of his positions than the following: "Il seroit absurde d'accorder à quelqu'un le droit de faire une chose, sans lui accorder en même tems celui de se servir des moyens nécessaires pour en venir à bout; et que par consequent, comme c'est une action juste de faire la guerre, tout ce qui a une connexion exactement necessaire avec le but légitime de cette guerre, doit être permis et accordé aux parties belligerantes: bien entendu cependant, que les droits d'un tiers n'en souffrent pas plus qu'il ne peut être censé raisonnablement vouloir bien souffrir pour le bien commun de l'humanité." (2) Take also the following section, when, speaking of the right of neutrals to the respect of (1) De la Saisie des Bâtimens neutres, ou du droit qu'ont les nations belligérantes d'arrêter les navires des peuples amis. La Haye, 1759. (2) Id, vol. I. ch. 1. § 4. belligerents, he says, "Cette régle générale n'empêche pas que les nations belligerantes ne puissent mettre tout en œuvre pour empêcher que les sujets des etats neutres ne fortifient leurs ennemies, pourvu qui'ls n'empietent point sur les droits parfaits qu'ont ces etats, de pourvoir à leur prosperité et à leur conservation." I know of no author by whom the general principles regulating the mutual rights and duties of neutrals and belligerents, are laid down more satisfactorily than in these quotations. It is curious that, starting from such principles, Hübner should have arrived at such conclusions. He says, that it is absurb to contend that belligerents have not a right to do every thing that has a necessary connexion with the lawful end of war, and yet claims for neutrals a power to reinstate the exhausted resources and carry on the paralysed commerce of a beaten enemy. He lays it down that belligerents may do every thing to prevent neutral subjects from assisting their enemies, and yet argues that neutrals may step in and reinforce a weakened navy by enabling a state to draw all its seamen from the merchant-service. Hübner's own words may assist us to discover the process by which he becomes involved in such contradictions. In speaking of commerce with a belligerent's colonies, which has been elsewhere considered, (2) he says that such intercourse "paroit être un objet du droit rigoureux de la guerre." But he proceeds, "cependant je ne vois pas pourquoi les sociétés souveraines qui sont neutres, devroient se refuser un bénéfice considerable qui se presente; pourvu qu'elles s'abstiennent de fournir à ces colonies aucune denrée prohibée en tems de guerre." (1) It is in this case, as in the question of "free ships free goods," that he lays down a position of which the undeniable truth would not admit of contradiction, and yet concludes by saying, that he cannot see why neutrals should refuse themselves so considerable a benefit, which he yet admits (1) De la Saisie, &c. I. ch. iv. § 6. (2) Ante, ch. v. is an infringement of the rights of belligerents. Such an avowal it must be owned deprives a writer of any weight as an authority, and places him on the level of advocates anxious not for justice, but a verdict. Still arguments may be sound, although proceeding from a suspected source; let us examine the arguments of M. Hübner. Hübner differs from almost every writer on his side of the question, and from every single treaty whatever in which it has been agreed that "free ships shall make free goods," in contending at once that the goods of neutrals found on board an enemy shall be free from capture, (1) and that the goods of an enemy on board the ship of a neutral shall likewise be screened from capture. He could see that there existed no right, apart from express convention, to capture the former class of property; but he was unable to perceive that there also existed no right, apart from express convention, to interfere with a third party's rights with regard to the latter class of property; for this latter right, as a general principle, he admits in its fullest extent, stating expressly, that "le premier droit de la guerre consiste en ce qu'elles (les parties belligerantes) peuvent légitimement nuire à leur ennemis par mer comme par terre."(2) His arguments, that "free ships make free goods," are comprised in the two propositions—that neutral ships are part of the neutral territory, from whence, therefore, no enemy's property can be taken,-and that commerce is free to neutrals as in times of peace; because the effects of war ought not to injure those who are not parties in the contest. The former proposition has already been fully discussed; (3) and it is the more singular that Hübner should have relied on this fiction, because he himself treats of search as a right incontestable. (4) Now this (1) De la Saisie, &c. II. I. ch. IV. § 5. (2) Id. I. 11. ch. 111. § 4. (3) Ante, p. 209. (4) De la Saisie, &c. I. 11. ch. 111. § 1. right cannot be exercised on neutral territory: the fiction is therefore destroyed by his own admission; for if the imaginary sanctity is admitted not to be conclusive against one class of rights, how can it extend to the frustration. of another class of rights, at least equally important to the party who claims their exercise? In the same manner with regard to his second position, that neutrals, not being parties in the contest, ought to be free from the effects of war, and to be allowed to trade as in times of peace. Hübner contradicts this unlimited freedom in his own treatise. He allows confiscation of contraband, and the right of blockade; but does not see that the right to seize enemies' goods is a consequence of exactly the same principle, namely, that acts which were incontrovertible rights in time of peace, when they do harm to nobody, cease to be rights under the altered influences of war, when what was before innocent becomes a direct injury to a third party. Belligerents by paying freight on the cargoes, or part of cargoes, taken from the ships of neutrals, exercise their right with the greatest tenderness of the interests of others. An exact contrast to this treatment is afforded by the demand of neutrals to pursue a systematic mischief against a belligerent,-a demand at variance with Hübner's own definition of the duties of neutrality, which he well describes as "une inaction entière par rapport à la guerre et à ses operations." (1) Hübner, having the example of the Prussian memorial before him, does not fall into the fallacy, which had been exposed in the British reply, of asserting that all authors and all treaties were in favour of his opinions. Knowing that all authority was against him, he boldly denies that the least value is to be attached to preceding authority. The decisions of the Consolato are, he says, "good for nothing" as regards practice, and are only useful to satisfy curiosity, and to teach from the mouths of (1) De la Saisie, &c. I. 11. ch. 11. § 6. |