Although some confusion and contradiction exists in the language of the British prize courts, whether instructions of this nature are binding on the tribunals of the nation by whom they are issued, as a positive law, or merely as declaratory of the preexisting law of nations, Sir William Scott appearing, at one time, to regard the text of the king's instructions as binding on his judicial conscience, and, at another, holding it indecorous to anticipate the possibility of their conflicting with the law of nations, whilst Sir James Mackintosh declared that, if he saw in such instructions, any attempt to extend the law to the prejudice of neutrals, he should not obey them, but regulate his decisions by the known and recognised law of nationsdd yet, the instructions of 1793, might properly be considered as evidence of what the British government deemed to be law, if this inference were not somewhat weakened by the circumstances that they were secretly issued, precipitately repealed, and full indemnification was made for the captures under them. On the 8th January, 1794, the following instruction was substituted: "That they shall bring in, for lawful adjudication, all vessels, with their cargoes, that are loaded with goods, the produce of the French West-India islands, and coming directly from any port of the said islands, to any port in Europe." And, on the 25th of January, 1798, this order was also revoked, and the following was issued: "That they should bring in, for lawful adjudication, all vessels, with their cargoes, that are laden with goods the produce of any island, or settlement, belonging to France, Spain, or the United Provinces, and coming directly from any port of the said islands, or settlements, to any port in Europe, not being a port of this kingdom, nor a port of that country to which such ships, being neutral ships, shall belong."

We have seen that, up to the time when this last order was issued, the prize courts had never, of their own authority, revived the rule which they had invented in the war of 1756, and laid aside in that of the American revolution. But when it was once more called into life, by the instructions of the execu tive government, they gradually enlarged the sphere of its ac

dd The Minerva. 1 Hall's American Law Journal, 217.

tivity beyond the text of those instructions, either upon the principle of affecting the return voyage, with the penalty of contraband, contrary to Sir William Scott's own previous opinions, ee or, upon the principle of a continuity of the voyage which had been repudiated by the lords of appeal, in the war of 1756, even where the colonial produce was transhipped in a neutral port, from barks, in which it was brought from enemy's ports, and not from the shore. Upon one or the other of these assumptions, the rule was applied to cut off the exportation of the produce of the enemy's colonies from neutral countries, where it had been imported, unless it had become incorporated into the general stock of national commoditiesff according to the fluctuating rules prescribed to break the continuity of voyage. On the renewal of the war, after the peace of Amiens, the following order was issued, dated on the 24th of June, 1803: "In consideration of the present state of commerce, we are pleased hereby to direct the commanders of our ships of war, and privateers, not to seize any neutral vessel which shall be carrying on trade directly between the colonies of the enemy, and the neutral country to which the vessel belongs, and laden with the property of the inhabitants of such neutral country; provided, that such neutral vessel shall not be supplying, nor shall, on the outward voyage, have supplied the enemy with any articles contraband of war, and shall not be trading with any blockaded port." This instruction is substantially the same with that of 1798, except that it adopts the innovation of the prize courts, affecting the return voyage, with the penalty of contraband carried outward. Under it, the same course of decisions took place, by which the noxious qualities of the rule were much enlarged, and its wide-spreading desolation threatened to interrupt the amicable relations between the United States and Great Britain: when the order in council, of the 16th of May, 1806, was issued, blockading the coasts from the river Elbe to Brest, inclusive, except that neutral

ee 1 Rob. 87. The Frederick Molke. 2 Rob. 140. The Margaretta Magdalina.

ff See 5 Rob. 349. (The William;) and Ib. 325. (The Maria.,) where all the cases on the subject of continuity of voyage, are cited.

vessels, coming directly from the ports of their own country, were allowed to enter, and depart, from the blockaded ports, with cargoes not enemy's property, nor contraband, but were not permitted to trade from port to port. This order was supposed to have been drawn up with a view to the colonial trade; but it does not appear to have been considered by the prize courts as containing any relaxation of the principles they had established respecting that trade, and the whole question was, at length merged in the orders in council of the 7th of January, and the 11th of November, 1807; by the first of which, all neutral trade, from one enemy's port, or from a port where the British flag was excluded, to another such port, and by the latter (among other provisions) the exportation of the produce of the enemy's colonies, from a neutral country, to any other country than Great Britain, was prohibited. These orders were issued in retaliation of the Berlin decree of the French emperor, and on the 26th of April, 1809, they were relaxed as to the European blockade, but extended to the total prohibition of all neutral trade with the colonies of France and Holland.

It would unreasonably swell this note to enlarge upon this part of the subject. These edicts were condemned by the universal voice of the impartial world; they were condemned by the past example of the powers who issued them; they were condemned by the authority of the jurists whom Europe revered in better times as the oracles of public law. It is pretended, by a superficial writer on the law of nations, that Sir William Scott decided the case of the Nayaile, (4 Rob. 251.,) upon the principle of retaliating the injustice of an ene my on a neutral power, who passively submits to that injus

gg Bynkershoek, speaking of the edicts of the States General of Holland, retaliating upon neutrals, certain illegal orders of France and of England, denies that these edicts could be founded upon the law of retortion, which is only applicable to him who has inflicted

the injury. Retorsio non est nisi adversus cum, qui ipse damni quið dedit, ac deindè patitur, non verò adversus communem amicum. (Q. J. Pub. c. 4.) See, also, Sir William Scott's remarks, in the case of the Flad Oyen. (1 Rob. 142.)

tice.hh Sir William Scott did no such thing; all that he aetermined, in that case, was, that Portugal and Great Britain, being allied by ancient treaties, the casus fœderis between them had arisen by the passive submission of Portugal to the hostile attacks of France, which involved Portugal, nolens volens, as an ally, in the war against France, and, consequently, rendered the property of a Portugeuse merchant, taken in trade with the common enemy, liable to condemnation in the British prize courts. It cannot be pretended that the neutral states, whose commerce was affected by the Berlin decree, had participated in the injustice of France, by passively submitting to that measure; since the orders in council were issued before sufficient time had elapsed to ascertain what would be the conduct either of France, or of those states, in respect to the de cree. Nor can the order of the 7th of January, 1807, be justified as an original and abstract measure; because the trade from the port of one enemy, to the port of another, was always held lawful by the British tribunals. “This sort of traffick, from one of his (the enemy's) ports to the ports of another country, has always been open, and is, in its own nature, subject to the uses of all mankind, who are not in a state of hostility with him. The Dane has a perfect right, in time of profound peace, to trade between Holland and France, to the utmost advantage he can make of such a navigation; and there is no ground upon which any of its advantages can be withheld from him in time of war." It is needless, however, to enlarge upon the topicks which might be urged against this train of innovations, by which first the trade from neutral countries to the colonies, and from port to port, of the enemy, and then, all neutral traffick whatever, with him, was prohibited. It deserves notice, however, that Great Britain and France appropriated to themselves, by means of free ports or licenses, the very commerce they were prohibiting to neutrals, and to their allies, under the pretext of its aiding their enemy in the war.

hh Chitty's Law of Nations, 152.

ii See Lord Erskine's Speech in Parliament on the Orders in Couns ́d, Cobbett's Parl. Debates, vol. 10., p. 945.

*k 2 Rob. 101. The Wilhelmina, in note to the Rebeccah.