With respect to colonial trade, there was a further reason. Colonies were often dependent for their existence on supplies from without; if they could not be supplied and defended by their owner, they fell of necessity to the belligerent who had incapacitated him from holding the necessary communication with them. What right had a third party to step in and prevent the belligerent from gathering the fruit of his exertions? These arguments, taken alone, would be equally valid against any trade in innocent commodities, the possession of which might be accidentally valuable to a belligerent; but they were really rooted in the assumption that a neutral is only entitled to carry on trade which is open to him before the war. Upon him lies the burden of proving that his new trade is harmless to the belligerent; and if he fails in this proof, the support which he affords to the enemy may be looked upon as intentionally given. The justice of this doctrine was strongly contested by the American Government; it has since remained a subject of lively debate in the writings of publicists; and it cannot be said to have been sanctioned by sufficient usage to render such debate unnecessary. Nor is it easy to see that the 1 See Wheaton, i. Append. Note iii. for a detailed history of the practice during the Seven Years' War, and those of the American and French Revolutions. Justice Story thought coasting trade to be too exclusively national for neutrals to be permitted to engage in it, and was 'as clearly satisfied that the colonial trade between the mothercountry and the colony, when that trade is thrown open merely in war, is liable in most instances to the same penalty;' but he objected to the further extension of the rule which forbade all intercourse with the colony. The English writers, Manning (195), Phillimore (iii. § 225), uphold the principle of the rule, and Heffter (§ 165), though clearly disliking the rule, treats it as fairly established; Wheaton (pt. iv. chap. iii. § 27), Kent (Lect. v.) and Ortolan (lib. iii. chap. v.) come to no definite conclusion; Bluntschli (§799–800), Gessner (266-77), Calvo (§ 1100) pronounce for the legality of the prohibited commerce. Heads of law. question has necessarily lost its importance to the degree which is sometimes thought. The more widely the doctrine is acted upon that enemy's goods are protected by a neutral vessel, the more necessary it is to determine whether it ought to be governed in a particular case by exceptional considerations. The arguments which may be urged on behalf of the right of neutrals to seize every occasion of extending their general commerce, do not seem to be susceptible of a ready answer. Neutrals are in no way privy to the reasons which may actuate a belligerent in throwing open a trade which he has previously been unwilling to share with them; they can be no more bound to inquire into his objects in offering it to them than they are bound to ask what it is proposed to do with the guns which are bought in their markets. The merchandise which they carry is in itself innocent, or is rendered so by being put into their ships; in the case of coasting trade they take it to ports into which they can carry like merchandise brought from a neutral harbour; and the obstructing belligerent is unable to justify his prohibition by any military strength which it confers upon him. On the one hand the neutral is free from all belligerent complicity with a party to the war; on the other the established restrictive usages afford no analogy which can be extended to cover the particular case. § 35. The above being the only exceptions from the general rule that permitted restraints upon neutral trade flow from a right conceded to the belligerent to prevent his military operations from being obstructed, it is evident that such differences as may exist in other matters between the practices and the doctrines on the subject which are in favour with various nations, arise not from disagreement as to the ground principles of law, but as to the extent or the mode of their application. It is admitted in a general sense that a belligerent may restrain neutral commerce, but it is disputed whether he may interfere at all with certain kinds of trade, and with respect to others how far his rights extend. In one or other of these ways each of the divisions of trade before mentioned has been, or still is, the subject of lively controversy; and in the following chapters it will therefore be necessary to examine each in more or less of detail. The law affecting them may be divided into the following heads i. That which deals with forbidden goods, viz., articles contraband of war. ii. That which deals with forbidden carriage in its subdivisions of 1. Carriage of analogues of contraband, viz., persons and despatches affected with a specially dangerous character. 2. Carriage of goods to forbidden places; i.e. to places under blockade. iii. That which deals with neutral goods entrusted to or under the protection of a belligerent. Together with the law belonging to the second head, must be mentioned the prohibition to carry goods belonging to a belligerent, which though no longer a dominant rule, is not yet so fully abandoned that it can be passed by in silence. Finally, it is convenient to treat separately the law of visit and seizure, or the means which a belligerent is authorised to take in order to establish that a neutral trader can be affected by penalties for any of the above reasons. H Uncertainty of usage as to what CHAPTER II. CONTRABAND. § 36. THE privilege has never been denied to a belligerent of intercepting the access to his enemy of such commodities as are capable of being immediately used in the prosecution of hostilities against himself. included in But at no time has opinion been unanimous as to what articles ought to be ranked as being of this nature, and no distinct and binding usage has hitherto been formed, except with regard to a very restricted class. objects are contra band. Views of Grotius placed all commodities under three heads. 'There are some objects,' he says, ' which are of use in war alone, as arms; there are others which are useless in war, and which serve only for purposes of luxury; and there are others which can be employed both in war and in peace, as money, provisions, ships, and articles of naval equipment. Of the first kind it is true, as Amalasuintha said to Justinian, that he is on the side of the enemy who supplies him with the necessaries of war. The second class of objects gives rise to no dispute. With regard to the third kind, the state of the war must be considered. If seizure is necessary for defence, the necessity confers a right of arresting the goods, under the condition however that they shall be restored unless some sufficient reason interferes.'1 The division which was made by Grotius still 1 Sunt res quæ in bello tantum usum habent, ut arma: sunt quæ in bello nullum habent usum, ut quæ voluptati inser remains the natural framework of the subject. seven teenth The United § 37. Of the treaties concluded by the United Practice in Provinces with England, France, Spain, and Sweden, the se between 1646 and the end of the seventeenth century, century: only three contained articles classing as contraband Provinces. any other commodities than munitions of war. In these three the addition of horses was made. In four treaties provisions, and in two naval stores, were expressly excluded.1 But in 1652, being at war viunt: sunt quæ et in bello et extra bellum usum habent, ut pecuniæ, commeatus, naves et quæ navibus adsunt. In primo genere verum est dictum Amalasuinthæ ad Justinianum, in hostium esse partibus qui ad bellum necessaria hosti administrat. Secundum genus querelam non habet. In tertio illo genere usus ancipitis distinguendus erit belli status. Nam si tueri me non possum nisi quæ mittun- 1 With France, 1646 (Du- |