under this general position, the court is of opinion that this ship and cargo are liable to confiscation."1

lonial trade is

time of peace,

prohibition

The rule which prohibits neutrals from engaging When the coin the colonial trade of belligerents, rests upon the permitted to assumption that their permission to do so by the neutrals in parent of the colony, results from a relaxation on the rule of its part of the rule of exclusion from such trade in does not opetime of peace. Where, therefore, previously existing commercial relations, resulting from treaty or otherwise, permitted such commerce in time of peace, the doctrine of prohibition in time of war does not apply

rate in time of

war.

ment of the re

So it was held, in the case of a neutral ship, sailing between France and Senegal, then a French colony-it having been ascertained, upon much investigation, that France had been accustomed to leave open the trade of Senegal to foreign ships, as well before as after the war-that the vessel should be restored to the neutral claimants. The rule of The establishprohibition of trade by neutrals with the colonies public of the of the enemy, was first established in a case which United States the origin of arose in 1756, and is therefore called "the rule of the relaxation 1756." The relaxations of the rule originated prohibition. chiefly in the great change which took place in the commerce of the world, by the permanent establishment of the independent republic of the United States on the continent of America.

By reason of that event, the ships of the United States were admitted to trade in some articles, and on certain conditions with the colonies both of England and France. Such were the established com

1 The Wilhelmina, 4 Rob., Appendix 4.

2 The Juliana, 4 Rob., 321.

of the rule of

The applica tion of the

mercial relations between the countries in time peace. The application of the strict rule of prohib ition would therefore have operated to abridge the acquired and customary commerce of Americans.

By reason of representations made by the United States government, orders were issued in 1794 by Great Britain during the then existing war with France, apparently designed to direct British cruis ers to exempt American ships from capture, which were trading between their own country and the French colonies. In consequence of this relaxation in favor of the United States, it was in 1798 further extended by concessions in favor of the neutral states of Europe.

By this relaxation of the rigid rule of prohibition, neutral vessels were allowed to carry on a direct commerce between the colony of the enemy and their own country.

This is the extent of the relaxation, and upon the rule, and the rule and the exceptions much discussion has arisen in many important cases.1

exceptions in particular

cases.

In a case before cited, it was determined that trade was unlawful carried on directly between the colony and the parent state of the enemy.

So, too, was held to be a trade between the country of the enemy and the colony of his ally. And a trade between the settlement of one enemy to the colony of another, was decided to fall within the same principle.

Under the judicial construction of the relaxation of the rule, it was held, that a neutral ship trading The Rose, 4 Rob., App. 3 The New Adventure, 4 Rob., App.; The Wilhelmina, 4 Rob.,

The Emanuel, 2 Rob., 186.

App. 4.

between a hostile colony and European port, which was neither a port of the neutral nor of the nation of the captor, was not within the terms of the exception, and a condemnation ensued.

But in two other cases of United States ships, captured on voyages from a hostile colony in the West Indies to a neutral West India colony, the exception was applied and the ships were released.1 This was rather upon the letter of the instructions to cruisers, than from the true spirit of the exception, which would seem to have justified their confiscation. But the instructions directed the capture only of ships coming from the hostile colonies to Europe.

In another case of a Swedish ship, captured on a voyage from a hostile colony to a neutral American port, the court refused to apply the exception, and the ship was condemned. The only apparent dif ference between this and the two preceding cases is, that they were American, and the latter was a Swedish ship. Certainly the one was not more than the other out of the letter of instruction, and not within the spirit of the exception to the rule of prohibition. In another case, in which a ship was captured on a voyage being made in good faith between a hostile colony and the port of the neutral, it was held to be the precisely excepted case, and the vessel was restored.

8

In another case, a capture was made of a vessel trading with a hostile colony, and it was urged against her restitution that the trade with that

The Hector, 4 Rob., App.; The Sally, ib.

The Lucy, 4 Rob., App.

The Margarutha Magdalena, 2 Rob., 138.

ing circuitous

the direct

trade is unlawful.

colony was not generally open in time of peace to neutral ships, but was only permitted by special licenses. A more liberal interpretation of the instructions incorporating the exception was adopted by the court, and the vessel was released.!

In another case, however, of very great importance, and which was very elaborately contested, the court refused to admit the application of the exception contained in the instruction, although the case was manifestly within the letter of the instructions. It was the case of a contract made between a neutral merchant of Denmark and the Dutch East India Company. The voyage was to Copenhagen, the port of the neutral merchant; but the evidence in the case satisfied the court that the object of the contract was, to secure Dutch property from British hostility; and further, that a commerce conducted with such views, and facilitated by the enemy with extraordinary privileges, and carried on upon a scale so immense, could not be considered a neutral traf fic 2

Rule prohibit It is an established rule, and a very important trade by neu- one, that the colonial trade which a neutral may trals, where not carry on directly, he is prohibited from conducting circuitously. "An American," says Lord Stowell, "has undoubtedly a right to import the prod uce of the Spanish colonies for his own use; and, after it is imported, bona fide, into his own country, he would be at liberty to carry it on to the general commerce of Europe." But the question, what

'The Providentia, 2 Rob., 248.

The Rendsberg, 4 Rob., 121.

The Polly, 2 Rob., 361; 1 Acton, 171; vide also The Maria, 5 Rob., 365.

shall be considered a fair importation for the use of the neutral, and what shall be regarded as a mere colorable importation to protect the enemy's property, is one of great nicety, and difficult of determination In various cases, this question has been very learnedly discussed; but in none, perhaps, more so than upon an appeal to the lords commissioners, in which the master of the rolls gave an elaborate judgment, in which the whole doctrine is illustrated with great ability.1

In an official correspondence between Lord Hawksbury and Mr. King, on the part of the United States, in 1801, the proceedings of the British court of admiralty upon this question was made the subject of complaint, in consequence of which the advocate-general of England, on the 16th of March of that year, made an official report as to the law concerning the colonial trade.

He says: "The general principle concerning the colonial trade has, in the course of the present war, been relaxed to a certain degree, in consequence of the present state of commerce. It is now distinctly understood, and has repeatedly been so decided by the high Court of Appeal, that the produce of the colony of an enemy may be imported by a neutral into his own country, and may be re-exported thence, even to the mother country of such colony; and, in like manner, the produce and manufacture of the mother country may, in this circuitous mode, legally find their way to the colony.

The William, 5 Rob., 387.

' Vide also 1 Kent's Com., 90; Mr. Monroe's Letter to Lord Mulgrave; and Mr. Madison's Letter to Messrs. Monroe and Pinck

ney.