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ib., 89; the Franklin, 3 Rob., 217.) This general rule, however, is occasionally modified by treaties, as in those of the United States of America with the new republics of South America.—(Kent's Com., vol. 3, p. 267).
Contraband trade, in the proper sense of the word, can only be carried on by neutrals in time of war. Hence, where a clause contained in the commercial treaty, between this country and Portugal, of 1810, excepted from the reciprocal liberty of commerce announced by the treaty all articles contraband of war, this was held to apply only to importation in time of war; and a policy effected in this country on arms and ammunition exported from Great Britain to Madeira, in the dominions of Portugal, in times of peace, was held valid, notwithstanding the clause, (Wilbraham v. Wartnaby, 1 L. & Wels, 144.)
The rights of a belligerent nation against the delinquencies of neutrals, would exist to no purpose if she were not clothed with the practical power of enforcing them : such a power, by the law of nations, exists. We cannot prevent the consequence of contraband goods, says Vattel (338), without searching neutral vessels that we meet at sea. We have, therefore, a right to search them; a neutral ship refusing to be searched, would, from that proceeding alone, be condemned as lawful prize.
The whole international law upon this subject is admirably summed up by Sir William Scott, in his judgment on the case of the Maria (1 Rob. 340), where he establishes three important points :—1st, That the right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is the incontestable right of the lawfully commissioned cruisers of a belligerent nation. 2ndly, That the authority of the sovereign of the neutral country being interposed in any manner of mere force, cannot legally vary the rights of a lawfully commissioned belligerent cruiser. 3rdly, That the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search. enforced in the courts of the belligerent country; aliter in the courts of a neutral state, provided the underwriter has had notice of the nature of the articles.-(Marsh on Insurance, 75.)
Azuni, in the treatise already referred to, has collected and commented on the various and conflicting provisions of the different treaties and conventions which illustrated the positive law of Europe on the rights and liabilities of neutrals upon the sea, from the earliest times of European history down to the commencement of the great French revolutionary war. Since that time various treaties and conventions, as occasion has arisen, have been entered into, by which those rights and liabilities have been affected. Thus, during the late Russian war, the United States of America entered into a convention' with Russia, to the effect, “that free ships make free goods;" in other words, that the goods belonging to subjects of a power at war, are free from capture when found on board of neutral vessels, with the exception of articles contraband of war; and further, “that the property of neutrals on board an enemy's vessel is not subject to confiscation unless the same be contraband of war.” The contracting parties likewise engaged to apply these principles to the commerce and navigation of all such powers as should consent to adopt them. Shortly afterwards, a convention, in precisely the same terms, was entered into between Naples and the United States.*
Again, at the conclusion of the late Russian war, a declaration was signed by the plenipotentiaries of Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey, which is of so weighty a character with reference to modern civilisation, and has so materially affected maritime law in times of war, that we shall here insert it at length :
DECLARATION. The plenipotentiaries who signed the treaty of Paris of the 30th of March, 1856, assembled in conference, considering
That maritime law, in time of war, has long been the subject of deplorable disputes ;
That the uncertainty of the law and of the duties in such a matter, gives rise to differences of opinion between neutrals and belligerents, which may occasion serious difficulties, and even conflicts;
1 Signed at Washington 22nd July, 1854; ratified 31st October, 1854. *Signed at Naples 13th January, 1855 ; ratified 14th July, 1855.
That it is, consequently, advantageous to establish a uniform doctrine on so important a point;
That the plenipotentiaries assembled in congress at Paris, cannot better respond to the intentions by which their governments are animated, than by seeking to introduce into internationa relations fixed principles in this respect ;
The above-mentioned plenipotentiaries being duly authorised, resolved to concert among themselves as to the means of attaining this object; and, having come to an agreement, have adopted the following solemn declaration :
1. Privateering is, and remains, abolished ;
2. The neutral flag covers enemy's goods, with the exception of contraband of war;
3. Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag ;
4. Blockades, in order to be binding, must be effective ; that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.
The governments of the undersigned plenipotentiaries engage to bring the present declaration to the knowledge of the states which have not taken part in the congress of Paris, and to invite them to accede to it. Convinced that the maxims which they now proclaim cannot but be received with gratitude by the whole world, the undersigned plenipotentiaries doubt not that the efforts of their governments to obtain the general adoption thereof will be crowned with full success.
The present declaration is not and shall not be binding, except between those powers who have acceded, or shall accede to it.
Done at Paris, the 16th of April, 1856."
It will be observed that, although the above important declaration does not in the least define what is or what is not contraband of war, leaving this question in its former position, yet it is a remarkable step taken by the leading powers of Europe, evincing an advance in enlightenment amongst them, and progress in general civilisation; and it is much to be regretted that the
1 In 1780, and again in 1801, the principles enunciated in articles 2, 3, and 4, were endeavoured to be enforced by the “ Armed Neutrality;" but Great Britain then strenuously, and in the end effectually, resisted their intro.. duction into international law. Sir Archibald Alison, in his “History of Europe from 1789 to 1815” (c, 33, vol. 7, p. 336, et seq. 7th ed.), gives an interesting account of the “Armed Neutrality," and of the causes which led to it.
United States of Americal should have declined to join the European powers in settling these very important points of international law.
Whether the great nations, which have been wise enough to see their common interest in regulations of this kind expressed as above, will also be wise and consistent enough to abide thereby honestly, by giving a liberal interpretation to the terms employed, remains to be seen. Austria, in the war which is just concluded, declared, without consulting the neutral powers, parties to the Paris declaration, that she would consider coal contraband of war. Now, it is obvious that, if it lie in the power of any one state thus to declare any particular kind of merchandise contraband of war, the effect of articles 2 and 3 of the Paris declaration may, at any time, be entirely neutralized.
That the governments of civilized countries may be led to see the mutual advantages derived from acting upon principles recognized as morally right, may at the present day be well expected. The sagacity which should induce them so to act, would give a promise that wars themselves should be, hereafter, less likely entered upon, or at least speedily and rationally concluded.
ART. VII.-Literary Remains (consisting of Lectures and Tracts
on Political Economy) of the late Rev. Richard Jones, formerly Professor of Political Economy at the East India College, Haileybury, and Member of the Tithe and Charity Commissions. Edited, with a Prefatory Note, by the Rev. WILLIAM WHEWELL, D.D., Master of Trinity College, Cambridge. London: John Murray, 1859. OME apology may seem at first sight to be required for the
discussion of political economy (albeit connected with the name of an eminent jurist) in a legal review. The extensive
The Americans were unwilling to accede to the first article of the declaration with respect to privateering, which, after all, can be considered as little better than piracy.
basis, however, of legal science, connects it closely with that science which explains the rise of those rights of person and property wbich it is the object of the law to conserve, side, indeed, the subject of wealth bas outlets into the science of jurisprudence. In law, as in political economy, no system can long hold its ground which is at variance with social conditions. In either case social conditions are the mould, recasting into its own shape the most rigid and ancient conventions; and thus even in its prohibitive relations, as well as in those in which it throws its ægis over rights, the law must take notice of the gradual upheaving of new strata of opinion: must forego the obsolete, while it recognizes the binding enactment; and thus, by the force of her decisions and the tempered wisdom of her judges, illumine the path of the legal reformer.
The Rev. Richard Jones, whose literary remains head our article, was happy in being the main instrument in carrying out a great social and legal improvement, and also in throwing a broad light on some yet untrodden ground in political economy. The character of his mind happily blended the finer qualities of the man of thought and the man of action; though the equilibrium of his mind seemed finally to rest in practical and proximate ends, rather than in the more distant horizon of ultimate and universal conditions ; and here a certain impatience of longcontinued analysis, a geniality of temper sympathizing with the actual and the visible, and the enormous facility with which he brought into action his large faculty of observation, must be pleaded as a reason, and perhaps as an excuse, for certain errors into which this very eminent man seems to us to have now and then tripped, in the more speculative routes of political economy; and this at the very moment when, in the doniain of practical use and of proximate arrangements, in those combinations of concrete facts which tend to the prudential management of the national resources, he was a thinker, perhaps only surpassed by John Stuart Mill, that unrivalled master at once of the science of living and of the art of life.
The natural function of Professor Jones was that of a great