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§ 21. The distinction between the rule of the war of 1756, and that contended for by Great Britain, generally known as

basis of its ordinary establishment. In consequence of representations made by the American Government to this effect, new instructions to the British cruisers were issued on January 8, 1794, apparently designed to exempt American ships trading between their own country and the colonies of France. The directions were 'to bring in all vessels laden with goods, the produce of the French West India Islands, and coming directly from any port of the said islands to any port of Europe.'

In consequence of this relaxation of the general principle, in favour of American vessels, a similar liberty of resorting to the colonial market for the supply of their own consumption was conceded to the neutral States of Europe. To this effect a third set of public instructions was issued by Great Britain on January 25, 1798, which recited, as the special cause of further alteration, 'the present state of the commerce of this country, as well as that of neutral countries,' and directed cruisers 'to bring in all vessels coming with cargoes, the produce of any island or settlement belonging to France, Spain, or Holland, and coming directly from any port of the said islands or settlements to any port of Europe, not being a port of this kingdom, nor a port of the country to which such ships, being neutral ships, belonged.'

Neutral vessels were, by this relaxation, allowed to carry on a direct commerce between the colony of the enemy and their own country; a concession rendered more reasonable by the events of war, which, by annihilating the trade of France, Spain, and Holland, had entirely deprived the States of Europe of the opportunity of supplying themselves with the articles of colonial produce in those markets. This is the sum of the general rule, and of the relaxations in the order in which they have occurred. On the effect and extent of the law, to be extracted from the rule and the exceptions taken together, much argument has been displayed and several important judgments have been delivered (4 Rob., app.).

Pritchard's Admiralty Digest contains most of these decisions, but the following principal cases may be of interest to the reader, viz :—

A ship going from the mother country of the enemy to their colony under false papers and a false character, and coming back again to the mother country, was to be subject to confiscation by the other belligerent taking her, notwithstanding the clearest evidence of neutral property.The Calypso,' 2 Rob., 154; the 'Phœnix,' 3 Rob., 186; the 'Star,' Ibid. 193, n.

Neutral property, passing in direct voyages between the mother country of one enemy and the colony of another enemy, was to be liable to condemnation.-The 'Rose,' 2 Rob., 206.

And this whether the trade was opened to the neutral by the enemy or not. The 'Immanuel,' Ibid. 205.

A neutral ship and cargo, taken trading between the settlement of one enemy and the colonial possession of an allied enemy, was condemned, as included under the principle of a trade, between the colony of the enemy and the parent State, which was illegal.-The 'New Adventure,' and also the Oxolen' (Lords of Appeals), 4 Rob., App. A., p. 4, note.

Cargo on board a neutral ship, seized on a voyage from a colony of the enemy to the mother country, notwithstanding an asserted deviation from such destination, but under compulsion of a vis major, condemned. Ship restored, but without freight.-The Minerva,' 3 Rob., 229, and the 'Anna Dorothea,' Ibid. 229, n. But the illegality of such voyages was subsequently held by the Lords of Appeal, to attach as strongly on the

the rule of 1793, is quite obvious. It is thus pointed out by Mr. Wheaton: 'There is,' he says, 'all the difference between ship as on the cargo, and the ship was condemned accordingly.-The 'Yonge Thomas,' 3 Rob., 232, n.

A neutral ship and cargo, taken going from a colony of the enemy to a port of Europe, not being a British port nor a port of the country to which either the ship and cargo belonged (which trade, though suggested by the claimant to have been, during peace, an open trade, the court held itself bound, under the general rule of maritime States, and in the absence of proof to the contrary by the claimant, to consider as an exclusive trade monopolised by the parent State), condemned on the ground of such trade being a breach of the general law of nations, and not within the limits of the relaxations of the general law allowed by the government of Great Britain.-The 'Wilhelmina' (Lords of Appeal), 4 Rob., App.

A neutral ship might lawfully go from her own port in Europe to the colony of an enemy, and there lade a cargo, and return with it to her own port. The 'Providentia,' 2 Rob., 142; the Immanuel,' Ibid. 197; the Margaretha Magdalena,' Ibid. 138.

Goods were shipped at a neutral port for the colony of the enemy, but afterwards entered at a port of the enemy, where the ship had stopped, and where part of the cargo was taken out and sent back to the neutral port, similar goods being placed on board in lieu thereof. It was held (but as to that part only of the goods originally shipped) to be entitled, under the general prize law of nations, to be considered as exported direct from the neutral port, the original place of their shipment.-The 'Immanuel,' 2 Rob., 197.

An American vessel taken bringing a cargo of produce from the Havannah to Hamburg, merely touching in America for fresh papers. without landing the cargo or paying duties, condemned, as also the cargo, the touching in America being held to be a colourable and collusive, and not a bona fide importation, and the voyage direct from the Havannah to Hamburg being illegal under the general law of nations.-The Mercury' (Lords of Appeal), 4 Rob., App.

The mere touching at an intermediate port, whether of the country to which the vessel belonged or any other, without importing the cargo into the common stock of that country, did not alter the nature of the voyage, which continued the same in all respects, and was considered as a voyage to the country to which the vessel was actually going for the purpose of delivering the cargo at the ultimate port.—The Maria,' 5 Rob., 365, and see also p. 336.

Perishable commodities, carried from the enemy's country to a neutral port, with a bona fide intention of disposing of them in that port, were permitted to be exported to the enemy's colonies, in consequence of their being unable to be sold as intended. Restitution of ship and cargo, with captor's expenses, decreed, reversing the decision of the ViceAdmiralty Court of New Providence, condemning ship and cargo by reason of such trading. The 'John,' i Acton, 39.

A plea of distress, set up to account for a neutral, trading from the colony of the enemy, putting into a port of the mother country, was held on the facts not to amount to a sufficient excuse for so doing. Ship and cargo condemned accordingly.-The 'Star,' 3 Rob., 193, n.

The general principle was not so strictly applied to trade with the European settlements in the East, as in the New World, as the trade of the East had been generally open to neutrals.-The 'Juliana,' 4 Rob., 328.

Trade with the French colony of Senegal was held to have been suffciently opened by the French to neutrals before the war, to exempt a vessel so trading from the operation of the principle applied to the colonial

this principle and the more modern doctrine which interdicts to neutrals, during war, all trade not open to them in time of peace, that there is between the granting by the enemy of special licences to the subjects of the opposite belligerent, protecting their property from capture in a particular trade which the policy of the enemy induces him to tolerate, and a general exemption of such trade from capture. The former is clearly cause of confiscation, whilst the latter has never been deemed to have such an effect. The rule of the war of 1756 was originally founded upon the former principle; it was suffered to lie dormant during the war of the American revolution, and, when revived at the commencement of the war against France, in 1793, was applied with various relaxations and modifications to the prohibition of all neutral traffic with the colonies, and upon the coasts of the enemy.' This distinction is also clearly pointed out by Mr. Duer, who has most conclusively answered the arguments of Sir William Scott.1

trade of the enemy, under which property taken in trade between the mother country and colony of the enemy was held liable to confiscation. Restitution; captor's expenses allowed.-Ibid.

Neutrals were not to trade on freight between the ports of the enemy. Freight and expenses to a neutral ship engaged in the coasting trade of the enemy refused.—The 'Immanuel, 1 Rob., 302.

In England and most other European countries, the coasting trade had not to the date of this case been open to foreign vessels. Habitual employment in the coasting trade of the enemy would stamp a neutral vessel with a hostile character, but pursuing one voyage in such trade would not be sufficient.-The 'Welvaart,' 1 Rob., 124.

Carrying on the coasting trade of the enemy with false papers was a cause of condemnation. So held, notwithstanding the asserted declarations of France, holding out an assurance that foreign vessels should be admitted into the coasting trade of that country as a permanent regulation. The 'Ebenezer,' 6 Rob., 252.

The privilege of free ships free goods' under the Dutch treaty was held to apply to coasting voyages.-The 'Yonge Jan,' and other ships, 6 Rob., 42, n.

For cases of condemnation of ships and cargoes on the ground of a trading, in violation of the prohibitory Act, with the American States, then colonies of, but in a state of revolt from, Great Britain, see the ‘William and Grace,' and cases therein cited, Hay and Marriott, 76, the 'Belle Savage,' cited in the 'Friendship,' Ibid. 79, the 'Sally,' Ibid. 83.

For cases of restitution, notwithstanding such a trading and the statute, on the ground of peculiarly favourable circumstances applying to them, see the 'Friendship,' Ibid. 78, the 'Commerce,' Ibid. 80, the 'Rebecca,' Ibid. 197.

As to insurances on a colonial or coasting trade, see Berens v. Rucker, I Wm. Black., 314.

1 Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 27; Wheaton, Hist. Law of Nations, pp. 373, et seq.; Wheaton, Rep., vol. i. Appendix No. iii.

§ 22. The application of this rule of 1793, made by Great Britain, fully illustrates its objectionable character, even in its most modified form. As explained by the British courts of Admiralty, and relaxed by the Orders in Council, this rule permitted the importation of the produce of the enemy's colonies into a neutral country, and its exportation thence to other countries. A question, however, arose as to what constituted the evidence of importation and exportation by the neutral? An American vessel had imported goods from Havannah, which had been landed in the United States and duties on them paid to the American Government. They had afterwards been carried in the same vessel as a part of a cargo from a port of Massachusetts to Spain. The vessel was captured by British cruisers, and the captors insisted upon a condemnation on the ground of continuity of voyage; but Sir William Scott decreed the restoration of ship and cargo, on the ground, that the landing of the goods and the payment of duties in a neutral port were sufficient evidence of an importation in good faith. This decision was rendered in 1800; but in 1805 the Lords of Appeal discovered that these criteria of a bona fide importation might be fallacious, and therefore were not to be held as conclusive evidence of a breach in the voyage. If the circumstances of their re-exportation were such as to indicate that the original importation into the neutral port was intended for that purpose, the trade was declared illegal, and the vessels and cargoes condemned.'

§ 23. The effect of this application of the British rule to the continuity of the voyage from an enemy's colony to a neutral port, and thence to the mother country, or to a port of a belligerent, produced a most disastrous effect upon American commerce. The merchants of the United States, relying upon the rule, recognised by Sir William Scott, that the landing of the goods and the payment of the duties in the neutral port would be regarded as conclusive evidence that the continuity of the voyage had been broken so as to legalise a subsequent exportation (although perhaps the language of the judge did not fully warrant the inference),

p. 506; Duer, On Insurance, vol. i. pp. 707-717; Sir William Temple's Works, p. 313.

The Polly,' decided in 1800, 2 Rob., 361; the Essex,' decided in 1805, 5 Rob., 369; the 'William,' 5 Rob. 387.

had engaged largely in trade with the colonies of France and Spain, re-exporting the same goods to European ports. When this trade had existed without interruption for some years, the unexpected decision of the Lords of Appeal on the continuity of the voyage, caused the seizure and condemnation of a vast number of American ships and cargoes. If the doctrine of the illegality of neutral trade between the American colonies of the belligerents and European ports be admitted as correct, the decision of the Lords of Appeal, as rendered by Sir William Grant, on the continuity of the voyage will probably follow as a necessary consequence. But this very uncertainty in the application of the rule of 1793, and the disastrous results produced upon American commerce by a misconception of a single question growing out of that rule, furnish abundant proof of its vague and equivocal character, its tendency to entrap neutral merchants to their ruin, and the arbitrary power over neutral commerce conferred upon a belligerent's court of Admiralty by the uncertainty of its application.'

§ 24. Notwithstanding the very able and exceedingly plausible arguments advanced by British statesmen and jurists, in support of the rule of 1793, they failed to satisfy,, at the time, other countries of its justice or legality. And the discussions which have taken place between writers on public law, since party feelings and national prejudices arising out of the wars in which the rule was enforced by Great Britain have ceased, have greatly shaken, even British faith, in its correctness. Indeed, many of her ablest writers and jurists have now abandoned the extreme grounds taken at that time by her Government and courts of prize. Mr. Phillimore, her most recent writer on international law, whose work exhibits much ability and learning, and who certainly is not backward in defending British pretensions, fully adopts Mr. Justice Story's opinion with respect to the rules of 1756 and 1793. This opinion was as follows: Ist, That coasting trade being by its nature exclusively national, neutrals cannot engage in it, when thrown open during war; but that the British extension of this doctrine to cases where a neutral traded between ports of the enemy with a cargo taken in at

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Duer, On Insurance, vol. i. pp. 719-725; Kent, Com. on Am. Law, vol. i. p. 85, note; the Maria,' 5 Rob., 365.

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