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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.' 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.2 The only apparent difference 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 Avithin 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 tie 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
1 The Hector, 4 Rob., A pp.; The Sally, ib.
2 The Lucy, 4 Rob., App.
3 The Margaratha Magdalena, 2 Rob., 138.
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.1
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 traffic.2
Rule prohibit- It is an established rule, and a very important
1 The Providenlia, 2 Rob., 248.
* The Polly, 2 Rob., 361; 1 Acton, 171 ; vide also The Mari*. 5 Rob., n65.
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 1801,2 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 \he 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.
1 TheWilliam, 5 Rob., 387.
* Vide also 1 Kent's Com., 90; Mr. Monroe's Letter to Lord Mulgravc; and Mr. Madison's Letter to Messrs. Monroe and Pincknoy.
"The direct trade, however, between the mother country and her colonies, has not, I apprehend, been recognized as legal, either by his majesty's government, or by his tribunals.
"What amounts to a direct trade, and what amounts to an immediate importation into a neutral country, may sometimes be a question of some difficulty. A general definition of either, applicable to all cases, cannot well be laid down. The question must depend upon the particular circumstances of each case. Perhaps the mere touching in the neutral country, to take fresh clearances, may prop erly be regarded as a fraudulent evasion; and is, in effect, a direct trade; but the high Court of Admiralty has expressly decided (and I see no reason to expect that the Court of Appeal will vary the rides) that landing the goods, and paying the duties in the neutral country, breaks the continuity of the voyage, and is such an importation as legalizes the trade; although the goods be reshipped in the same vessel, and on account of the same neutral proprietors, and forwarded for sale to the mother country or the colony."1 Penalty for in cases of illegal colonial trade by neutrals, as
violation of . ° rf ,
rule. well as in other cases or illegal commerce conducted
by them, the penalty, in case of capture, is confiscation. It was formerly the rule in such cases, that the neutral ship should be restored, and the cargo only confiscated; but the strict rule of confiscation of both ship and cargo is now well established.8
1 Vide Kent's Com., 92, note.
'Jonge Thomas, in a note to the report of The Minerva, 2 Rob., 229; The Volant, note to the report of The Wilhelmina, i Rob. App.; 1 Aotou's R., 171.
There are some other commercial transactions which are frequently entered into by neutrals, of a nature so subject to abuse, that belligerents have considered themselves justified in discountenancing them.
Thus, where a neutral put in a claim upon a hostile ship which had been captured, averring that it had been purchased from him, and not paid for, and that he retained a lien on the property for the payment of the purchase-money, the court rejected the claim, saying: "Such an interest cannot be deemed sufficient to support a claim of property in a court of prize. Captors are supposed to lay their hands on the gross tangible property, on which there may be many just outstanding claims between other parties, which can have no operation as to them."1
Silver was shipped by a hostile merchant, to his agent in Hamburg, as it was asserted, for the payment of an American neutral. The claim of the neutral wras disallowed against the captors.* "For," said the court, "even if the asserted intention on the enemy's part were ever so sincere, it always remained revocable. The hostile merchant retained the power of converting it to any purpose of his own, and the neutral merchant had no document whatever, giving him any control over it. Under these circumstances, the hostile merchant must be taken to be the legal proprietor, and as his property, this silver must be condemned."
The right to capture enemy's property on board The question
° r T . I j -i of free goods
Bl neutral ship, has been greatly contested by na- free Bhips.
1 The Afarianna, 6 Rob., 24. * The Josephine, 4 Rob., 25.