INTRODUCTION. RIGHTS OF COMMERCE IN TIME OF PEACE AND WAR. countries. Commerce a natural law. It is impossible to contemplate the wise distribution of the Mutual deproduce of the earth, and the variety of skill and industry of pendence of its multitudinous inhabitants, without being led to the conviction that it was the gracious design of Providence to constitute of the different communities or states into which mankind is divided one vast family and one entire commonwealth, supplying each other's wants and administering to each other's comforts. Mutual dependence is the very fulcrum of society. The world is not divided into departments, each possessing all that may be required for the existence and welfare of its own inhabitants. It was never meant that China and Japan should be segregated from the rest of mankind, or that the United States should be so self-sufficient as to be quite independent of Europe. The meteorological peculiarities of different countries cause a wonderful adaptation of climate and soil to numerous and varied productions. The physical and geological properties of the earth render some countries rich in mineral produce, and other countries totally destitute of it. And men widely differ among themselves in capacity for labour, genius, and skill. External circumstances act directly on the industrial and intellectual faculties of man. It is clearly, therefore, the teaching of nature that, instead of trying to force productions under uncongenial climes and physical difficulties, we should, in order to satisfy our wants and procure our comforts, seek those articles which are not obtainable within our borders in those countries where they are produced freely and almost spontaneously. In other words, commerce is a law of nature, and the right of trading is a natural right (a). But it is only an imperfect Right of trading a natural (a) Vattel, b. 1, ch. 8, § 88. હૈં 2 right, perfect right. Treaties. Customs legis lation not an right of trading. right, inasmuch as each nation is the sole judge of what is advantageous or disadvantageous to itself; and whether or not it be convenient for her to cultivate any branch of trade, or to open trading intercourse with any one country. Hence it is, that no nation has a right to compel another nation to enter into trading intercourse with herself, or to pass laws for the benefit of trading and traders. Yet the refusal of this natural right, whether as against one nation only, or as against all nations, would constitute an offence against International Law; and it was this refusal to trade, and the exclusion of British traders from her cities and towns, that led to the war with China. Treaties of commerce and navigation are, however, formed to perfect this imperfect right (a); whilst the municipal laws of most countries secure for foreign traders not only a safe asylum and perfect protection, but also those facilities for trading and other business which the natives themselves enjoy. But though an arbitrary or total prohibition to trade with infringement any country might be deemed a just cause of complaint, each of the natural nation is quite at liberty to settle its own financial policy, and to impose any import or export duties without regard to the effects of the same on the industry of other countries. For a considerable time the commercial policy of this and other countries, built as it was upon the most pernicious economical errors, nearly excluded altogether foreign products and manufactures. Happily, a better policy now obtains; and we have learnt at last that all customs duties, except for purposes of revenue, and these at the lowest possible limits, are injurious and vexatious. Truly the strength and advancement of empires in peace and wealth depend materially on their following the dictates of natural law, in permitting commerce to be free and untrammelled with all nations. Consuls and their duties and immunities. It is of the nature of commerce to draw private traders to most distant countries and often among communities where municipal laws are either imperfect or do not possess sufficient sway. To shield such merchants with the protection of the states to which they belong, it has been the practice of nations as far back as during the Italian republics of the (a) Vattel, b. 1, ch. 8, § 93. middle ages to appoint consuls, or officers, who shall vindicate their rights, and keep the home government informed of all facts bearing on the commercial interests of the country. The consul is not a political, but a commercial agent. The general duties of a British consul consist in protecting. his countrymen in the lawful exercise of their trade, in quieting their differences, in obtaining redress of injuries done to them, failing which, to report the matter to the English ambassador at the court of that nation, and in forwarding to the secretary of state for foreign affairs an annual return of the trade carried on within his consulate. The consul must afford relief to British seamen or other subjects wrecked on the coast, and endeavour to procure them the means of returning to England. The consul may act, moreover, as a notary public, and he has many duties assigned to him by the laws of navigation. The consul, unlike the ambassador, is not exempt from the civil jurisdiction of the state to which he is accredited (a). In the East and China, the British consuls have also a jurisdiction over British subjects (b). A consulate is held to be the territory of the country which the consul represents, and therefore all deeds and acts done within it, or under the seal of the consulate, are held as done in England. on commerce. But commerce can only be carried on safely and advan- Effects of war tageously in times of peace. When nations are at war with each other, all commerce is necessarily suspended between them; and it is almost impossible for any two nations of importance to be at war with each other without interfering materially with the general commerce of the world. At this moment two sections of the United States of America are at war with each other. No other nation has become party to the struggle, and yet the general commerce is seriously affected by it. An energetic and adventurous race, the Anglo-Saxon Americans have carried their trading and industry far and wide, not only through the American continent, but through Europe, Asia, Africa, and Oceania. With their produce they supplied the factories of the world, and (a) Phillimore's Intern. Law, vol. ii. p. 241. jesty's Order in Council for the regula- Effect of war on the trading between belligerents. Condition of alien enemies within the territory. with their ships they competed with Britain, Holland, and all maritime nations. Now all is changed: their misfortune is the common misfortune of all nations; and though other trades may be opened, and other industries may be commenced, this leading source of prosperity is for a time arrested. Commerce is the handmaid of peace. When war exists, attention is diverted from industrial to military pursuits, and no encouragement is afforded for the investment of capital. To supply the wants of the exchequer, taxes and tariffs are increased enormously. The principal marts of commerce are in danger of blockade. And the sea, instead of being the highway of peaceful industry, becomes the scene of blood and rapine. Nothing, indeed, is more fallacious than that war can be favourable to commerce. It may create an extraordinary demand of certain articles for military and naval purposes, and certain industries may be thereby temporarily benefited. But that is only a passing gleam of commercial activity. The permanent results are generally the destruction of property, the impoverishment of the masses, and the overturning of settled industries. Nor can any one nation benefit by the corresponding fall of another. At the present moment the United States are undergoing a trying crisis. Should we rejoice that our competitors are checked in their prosperous career? Are we likely to benefit from their fall? Far from it. The same community of interests exists between countries as obtains between different branches of trade. The commercial nations of the world form but one family, and each of them prospers or suffers just as all the other members of the same are advancing or declining. The primary effect of war is to interrupt all trading between the belligerents. War essentially alters the rights of alien enemies, whether they reside in the country declaring war, or in their own country. In consequence of the principle of the law of nations, that when a sovereign declares war, against another sovereign, it is to be understood that the nation declares war against the other nation; as soon as war is declared, all the subjects of the one necessarily become enemies to all the subjects of the other. And accordingly, wherever the enemy's subjects are found, whether in the country or elsewhere, they are regarded as alien enemies. But the municipal law of civilised states provides for the safety and protection of alien enemies living in the country. By the ancient law of England (a) it was provided "that merchant strangers, in case of war between their prince and the king of England, shall have convenient warning by forty days, by proclamation, to avoid the realm; and if they cannot do it by that time, by reason of some accident, they shall have forty days more, and in the meantime liberty to sell their merchandise. During these eighty days they have the king's protection." It is the practice, however, as regards traders, subjects of the enemy and domiciled in the country, to allow them to remain undisturbed. They came to this country in time of peace under the guarantee of public faith, and they have the right to expect, even in time of war, protection and liberty. The sovereign may order them to depart, but their fixed property, houses, lands, and factories, would remain theirs, although they should be obliged to leave the territory. Some writers on international law laid down that a state may confiscate debts due by its subjects to the enemy, but such a right cannot now be maintained (b); and although a sovereign might force a debtor to pay to him the debt due to the enemy, that would never discharge the debtor (c). on commercial It is, however, widely different as regards alien enemies domi- Effects of war ciled in their own country. As soon as war is declared, all com- contracts. merce with the enemy is prohibited, and in that state all treaties, civil contracts, and rights of property are put an end to. No trading can be carried on with the public enemy, direct or indirect, and the property so employed is liable to confiscation (d). The prohibition to trade with the enemy is also extended to the prohibition of withdrawing goods purchased in the enemy's country, after the declaration of war, without a licence, or an order in council; but provision is generally made, giving a specific time for such withdrawal. As a natural sequel to the interruption of intercourse and trading with the enemy, all contracts pending between the subjects of both nations are thereby avoided (e). If the performance of an (a) 27 Edw. 3, c. 17. (b) Brown v. United States, 8 Cranch, 140; Furtado v. Rodgers, 3 B. & P. 191; Ware v. Hylton, 3 Dallas, 199. (c) Wolffe v. Oxholm, 6 M. & S. 92. |