that the instructions were not meant to protect these adventures, but merely to exempt that trade which was generally open to all neutrals. But the court thought it proper to put a more liberal interpretation on the instructions: "If," said Sir William Scott, "a distinction was intended between cases of trade generally open, and cases in which a special licence or pass is necessary, that distinction ought to have been expressly inserted in the instructions, as an exception. There is nothing in the general terms to direct neutrals to such interpretation. It would be, therefore, to operate with surprize upon them, and to mislead them into a trade to their own undoing, to put such an interpretation upon the King's instructions. Unless it can be shewn that it was the particular meaning of the instructions to except vessels under this licence, I must hold, that it is not in the terms of them to enquire whether they are going with a pass or not. So I understand them, and till I am instructed to the contrary by the superior court, I shall so interpret them, as importing a general permission, and as not affected by the special licence; the law being simple and universal in its language, and there being nothing to lead me to think that there was any such reserve in the mind of the legislature."

But it is not possible, consistently with the justice which a belligerent nation owes herself, to exercise this liberality of interpretation towards neutrals in all cases. In that of the Rendsborg (1), a contract had been made between a neutral merchant and the Dutch East India company, with the avowed object of securing the Dutch property from English hostility. The adventure, it is true, was to Copenhagen, the port of the neutral merchant himself, and therefore, by the letter of the instructions, appeared to be legal: but the Court were of opinion, that a commerce, formed with such express views, facilitated as it was by the enemy with peculiar privileges, and conducted on so immense a scale, was not to be considered as a neutral traffic, though the property did really belong to the neutral merchants who claimed it. "It is a possible thing,” said Sir William Scott, "that the commerce may not be neutral although the property is; and, if that is the case, the mere neutral ownership will not be a sufficient title to restitution: with respect to the avowed object of the enemy in entering into

(1) 4 Rob. Rep. 121.

the contract, namely, the view of preserving his property from British capture;" the learned judge proceeded to speak in the following terms: "It has been argued that the motivè does not concern the buyers: that the motive of the sellers is nothing to the buyers, is laid down as a position, true in the most unlimited extent. I think that is advanced a little too largely; because if the motive is disclosed, it is possible that the duties of neutrality may, on the disclosure of such a motive, create some new obligations on the neutral purchaser, arising from his relation to the other belligerent; the grand fundamental duty of neutrality being, that he is not to relieve one belligerent from the infliction of his adversary's force, knowing the situation of affairs upon which the interposition of his act would have such a consequence. Neutrals may not be bound to enquire very accurately; but if it is clearly declared, either by the fact itself or à fortiori by express acknowledgments, they are bound to take notice of it and regulate their conduct accordingly. If one belligerent is in a state of distress, created by the superiority of his enemy, and on that account gives invitations to neutrals, for other pretended reasons, it is not necessary for me to say how far the neutral is bound to scrutinize the truth of those reasons, and to decline, in all cases, a beneficial invitation upon his own private surmises. But if a belligerent come and say, I am in the utmost distress; my enemy is all powerful; without your assistance, I am a lost man: in such a case, it is an invitation which he is manifestly not at liberty to accept. He cannot afford such assistance, without being guilty of a direct interposition in the war. Nor does it affect the justice of the case at all, that such assistance is not given gratuitously; though done lucrandi causâ, it is not less an unlawful interposition; a man does not send contraband out of pure love of the enemy, but with a view of obtaining advantage to himself, from the relief of the enemy's distress. If it is a sound principle of the law of nations, that you are not to relieve the distress of one belligerent to the prejudice of another, any advantage that you may derive from such an act will not make it lawful. The adversary has a full right to destroy his commerce. By his own confession the adversary is effecting this; he has the power, as well as the right, and you are not, from a prospect of advantage to yourself, or from any other motive, to step in, on every outcry for help, to rescue him from the gripe of his adver

Colonial Trade

not to be carried

The colonial trade which a neutral may not carry on directly, on circuitously he may not carry on circuitously; "an American," said Sir by Neutrals. William Scott in the case of the Polly (1), "has undoubtedly right to import the produce of the Spanish colonies for his own use; and, after it is imported bonâ fide into his own country, he would be at liberty to carry it on to the general commerce of Europe.” But then arises the question, what shall be considered a fair importation for the use of the neutral, and what shall be considered only a colourable importation to protect the enemy's adventures? So many cases had occurred where the importation from the hostile colony into the neutral country had been merely fraudulent, the produce being, in truth, hostile property covered by a neutral name, and destined for the mother country of such hostile colony, that it had become very difficult for the Court to decide, what species of importation should be deemed a fair and honest importation, sufficient to break the continuity of the voyage, and relieve the neutral from the suspicion of hostile collusion (2). The question at length was discussed, upon an appeal before the Lords Commissioners, in the case of the William (3); and the Master of the Rolls, in giving judgment, expressed himself to the following effect: "What with reference to this subject, is to be considered a direct voyage from one place to another? Nobody has ever supposed that a mere deviation from the straightest and shortest course in which the voyage could be performed, would change its destination and make it cease to be a direct one within the intendment of the instructions. Nothing can depend on the degree, or the direction of the deviation, whether it be of more or fewer leagues; whether towards the coast of Africa, or towards that of America. Neither will it be contended that the point, from which the commencement of a voyage is to be reckoned, changes as often as the ship stops in the course of it. Nor will it the more change, because a party may choose arbitrarily, by the ship's papers, or otherwise, to give the name of a distinct voyage to each stage of a ship's progress. The act of shifting the cargo from the ship to the shore, and from the shore back again to the ship, does not necessarily amount to the termination of one voyage, and the commencement of another. It may be wholly unconnected with

(1) 2 Rob. Rep, 361. 1 Acton's Rep. 171.

(2) Polly, 2 Rob. Rep. 361. Maria, 5 Rob. 365.

(3) 5 Rob. Rep. 387.

any purpose of importation into the place where it is done. Supposing the landing to be merely for the purpose of airing or drying the goods, or of repairing the ship, would any man think of describing the voyage as beginning at the place where it happened to become necessary to go through such a process? Again, let it be supposed that the party has a motive for desiring to make the voyage appear to begin at some other place than that of the original lading, and that he therefore lands the cargo, purely and solely for the purpose of enabling himself to affirm, that it was at such other place that the goods were taken on board, would this contrivance at all alter the truth of the fact? Would not the real voyage still be from the place of the original shipment, notwithstanding the attempt to give it the appearance of having begun from a different place? The truth may not always be discernible; but when it is discovered, it is according to the truth, and not according to the fiction, that we are to give the transaction its character and denomination. If the voyage, from the place of lading be not really ended, it matters not by what acts the party may have evinced his desire of making it appear to have ended. That those acts have been attended with trouble and expense, cannot alter their quality or their effect. The trouble and expense may weigh as circumstances of evidence to shew the purpose for which the acts were done, but if the evasive purpose be admitted or proved, we can never be bound to accept, as a substitute for the observance of the law, the means, however operose, which have been employed to cover a breach of it. Between the actual importation by which a voyage is really ended, and the colourable importation which is to give it the appearance of being ended, there must necessarily be a great resemblance. The acts to be done must be almost entirely the same, but there is this difference between them the landing of the cargo, the entry at the custom-house, and the payment of such duties as the law of the place requires, are necessary ingredients in a genuine importation; the true purpose of the owner cannot be effected without them. But, in a fictitious importation, they are mere voluntary ceremonies which have no natural connection whatever with the purpose of sending on the cargo to another market, and which, therefore, would never be resorted to by a person entertaining that purpose, except with a view of giving to the voyage, which he has resolved to continue, the appearance of being broken by an importation

In consequence of some complaints of the conduct of our vice-admiralty court, on the part of America, an official correspondence took place between Lord Hawkesbury and Mr. King, in 1801, in the course of which the Advocate General, on the 16th of March in that year, in his official character, made the following report as to the law concerning the colonial trade: "The general principle respecting the colonial trade has, in the course of the present war, been relaxed to a certain degree in consideration of the present state of commerce. It is now distinctly understood, and has been repeatedly 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 direct trade, however, between the mother country and its colonies has not, I apprehend, been recognised as legal either by his Majesty's government or by his tribunals. What is a direct trade, or what amounts to an intermediate importation into the 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 properly be considered as a fraudulent evasion, and is, in effect, the direct trade (1); but the high court of admiralty has expressly decided, (and I see no reason to expect that the court of appeal will vary the rules) 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 be forwarded for sale to the mother country or the colony." It is said, that in case of the Essex, contrary to prior determinations, it was decided in the court of appeal, that if an American ship, which has exported goods from a French colony to America, and there only given bond for the payment of the duties instead of actually paying them, and then conveys the goods to France, this is decisively illegal, and subjects the cargo to capture and condemnation; a doctrine which it has been insisted, is contrary

(1) See 1 Acton's Rep. 171.