Morlaix. But in that case the court observed only on the nature of the voyage between the enemy's ports with a false destination; and expressly noticed the distinction between an open and colourable destination, and the necessity of adhering to the more strict principle of condemnation, in cases aggravated by a falsification of the ship's papers. A doubt has been raised as to the competency of a Prize Court to apply confiscation, as it is termed, in the way of penalty. But that argument has more than once been rejected by the Court of Appeal; and in one case more particularly, when the late Lord Rosslyn distinctly observed upon it-"that it had at all times been the practice, and must, in some measure, always attend the questions which a Court of Prize is called upon to decide."

But the relaxation of the ancient penalty was not suffered to take effect, when, in addition to the generally obnoxious nature of the trade itself, there appeared to be circumstances of specific fraud in the individual instance. For example, in The Johanna Tholen, the court held, that the carrying on of the enemy's trade with false papers subjected the ship to confiscation; and in The Ebenezer (6 Rob. 250; and see The Carolina, 3 Rob. 75), the same sentence was pronounced with respect to the cargo, which happened in that instance to be the property, not of an enemy, but of the neutral himself. For it is impossible not to feel that the fabrication of false papers (The Phoenix, 3 Rob. 191), which are intended to deceive the captors respecting the vessel's real destination, is a gross aggravation of the guilt originally incurred, by the simple act of illegal traffic.

COLONIAL TRADE.

A neutral may not engage in the colonial trade of the enemy. "Upon the breaking out of a war," says Lord Stowell, in The Immanuel (2 Robinson, 197), "it is the right of neutrals to carry on their accustomed trade, with an exception of the particular cases of a trade to blockaded places, or in contraband articles (in both which cases their property is liable to be condemned), and of their ships being liable to visitation and search; in which case, however, they are entitled to freight and expenses. I do not mean to say that in the accidents of a war the property of neutrals may not be variously entangled and endangered: in the nature of human connections it is hardly possible that inconveniences of this kind should be altogether avoided. Some neutrals will be unjustly engaged in covering the goods of the enemy, and others will be unjustly suspected of doing it. These inconveniences are more than fully balanced by the enlargement of their commerce; the trade of the belligerents is usually interrupted in a great degree, and falls in the same degree into the lap of neutrals. But without reference to accidents of the one kind or the other, the general rule is, that the neutral has a right to carry on, in time of war, his accustomed trade to the utmost extent of which that accustomed trade is capable. Very different is the case of a trade which the neutral has never possessed, which he holds by no title of use and habit in times of peace, and which, in fact, can obtain in war by no other title than by the success of one belligerent against the other, and at the expense of that very belligerent under whose success he sets up his

title; and such I take to be the colonial trade, generally speaking.

"What is the colonial trade generally speaking? It is a trade generally shut up to the exclusive use of the mother country to which the colony belongs, and this to a double use-that of supplying a market for the consumption of native commodities, and the other of furnishing to the mother country the peculiar commodities of the colonial regions. To these two purposes of the mother country the general policy respecting colonies belonging to the states of Europe has restricted them. With respect to other countries, generally speaking, the colony has no existence; it is possible that indirectly and remotely such colonies may affect the commerce of other countries. The manufactures of Germany may find their way into Jamaica or Guadaloupe, and the sugar of Jamaica or Guadaloupe into the interior parts of Germany, but as to any direct communication or advantage resulting therefrom, Guadaloupe and Jamaica are no more to Germany than if they were settlements in the mountains of the moon; to commercial purposes they are not in the same planet. If they were annihilated it would make no chasm into the commercial map of Hamburg. If Guadaloupe could be sunk in the sea by the effect of hostility, at the beginning of a war, it would be a mighty loss to France, as Jamaica would be to England, if it could be made the subject of a similar act of violence. But such events would find their way into the chronicles of other countries, as events of disinterested curiosity, and nothing more.

"Upon the interruption of a war, what are the rights of belligerents and neutrals respectively re

188

at sea.

garding such places? It is an indubitable right of the belligerent to possess himself of such places, as of any other possession of his enemy. This is his common right, but he has the certain means of carrying such a right into effect if he has a decided superiority Such colonies are dependent for their existence, as colonies, on foreign supplies; if they cannot be supplied and defended, they must fall to the belligerent of course; and if the belligerent chooses to apply his means to such an object, what right has a third party, perfectly neutral, to step in and prevent the execution? No existing interest of his is affected by it; he can have no right to apply to his own use the beneficial consequences of the mere act of the belligerent; and to say, 'True it is, you have, by force of arms, forced such places out of the exclusive possession of the enemy, but I will share the benefit of the conquest, and by sharing its benefits prevent You have in effect, and by lawful its progress. means, turned the enemy out of the possession which he had exclusively maintained against the whole world, and with whom we had never presumed to interfere; but we will interpose to prevent his absolute surrender, by means of that very opening which the prevalence of your arms alone has effected; supplies shall be sent, and their products shall be exported; you have lawfully destroyed his monopoly, but you shall not be permitted to possess it yourself; we insist to share the fruits of your victories, and your your blood and treasure have been expended, not for own interest, but for the common benefit of others."

Upon these grounds, it cannot be contended to be a right of neutrals to intrude into a commerce which

had been uniformly shut against them, and which is now forced open merely by the pressure of war; for when the enemy, under an entire inability to supply his colonies, and to export their products, affects to open them to neutrals, it is not his will but his necessity that changes his system-that changes the direct and unavoidable consequence of the compulsion of war-it is a measure not of French councils, but of British force.

66

Upon these and other grounds, which I shall not at present enumerate, an instruction issued at an early period for the purpose of preventing the communication of neutrals with the colonies of the enemy, intended, I presume, to be carried into effect on the same footing on which the prohibition had been legally enforced in the war of 1756; a period when, Mr. Justice Blackstone observes, the decisions on the law of nations proceeding from the Court of Appeals were known and revered by every state in Europe.

"Upon further inquiry it turned out that one favoured nation, the Americans, had in times of peace been permitted, by special convention, to exercise a certain very limited commerce with those colonies of the French, and it consisted with justice that that case should be specially provided for; but no justice required that the provision should extend beyond the necessities of that case; whatever goes beyond is not given to the demands of strict justice, but is matter of relaxation and concession.

"Different degrees of relaxation have been expressed in different instructions issued at various times during the existence of the war. It is admitted that no such relaxation has gone the length of authorizing a direct