IT becomes important, in a maritime war, to determine with precision what relations and circumstances will impress a hostile character upon persons and property; and the modern international law of the commercial world is replete with refined and complicated distinctions on this subject. It is settled that there may be a hostile character merely as to commercial purposes, and hostility may attach only to the person as a temporary enemy, or it may attach only to property of a particular description. This hostile character, in a commercial view, or one limited to certain intents and purposes only, will attach in consequence of having possessions in the territory of the enemy, or by maintaining a commercial establishment there, or by a personal residence, or by particular modes of traffic, as by sailing under the enemy's flag or passport. This hostile relation, growing out of particular circumstances, assumes as valid the distinction which has been taken between a permanent and a temporary alien enemy. A man is said to be permanently an alien enemy when he owes a permanent allegiance to the adverse belligerent, and his hostility is commensurate in point of time with his country's quarrel. But he who does not owe a permanent allegiance to the enemy is an enemy only during the existence and continuance of certain circumstances. A neutral, for instance, said Ch. J. Eyre, (a) can be an alien enemy only with respect to his acts done under a local or temporary allegiance to a power at war, and when his temporary allegiance determines, his hostile character determines also.

It was considered by Sir William Scott, in the case of the Phœnix, (a) and again in the case of the Vrow Anna Catha-

(a) Sparenburgh v. Bannatyne, 1 Bos. & Pull. 163. (a) 5 C. Rob. 20.

rina, (b) to be a fixed principle of maritime law, that the possession of the soil impressed upon the owner the character of the country, so far as the produce of the soil was concerned, wherever the local residence of the owner might be. The produce of a hostile soil bears a hostile character for the purpose of capture, and is the subject of legitimate prize when taken in a course of transportation to any other country. The enemy's lands are supposed to be a great source of his wealth, and perhaps the most solid foundation of his power; and whoever owns or possesses land in the enemy's country, though he may in fact reside elsewhere, and be in every other respect a neutral or friend, must be taken to have incorporated himself with the nation, so far as he is a holder of the soil; and the produce of that soil is held to be enemy's property, independent of the personal residence or occupation of the owner. (x) The reasonableness of this principle will be acceded to by all maritime nations; and it was particularly recognized as a valid doctrine by the Supreme Court of the United States, in Bentzon v. Boyle. (c)1

1. Domicile in the Enemy's Country. — If a person has a settlement in a hostile country by the maintenance of a commercial establishment there, he will be considered a hostile character, and a subject of the enemy's country, in regard to his commercial transactions connected with that establishment. The position is a clear one, that if a person goes into a foreign country,

(b) 5 C. Rob. 161.

(c) 9 Cranch, 191.

1 The Crenshaw, Blatchf. Pr. 2, 27; The Mary Clinton, ib. 556.

(x) All property produced in the enemy's territory is stamped with the character of that country. Brigg's Case, 25 Ct. Cl. 126; 143 0. S. 346. Of "immovable property belonging to the conquered State, the conqueror has, by the rights of war, acquired the use so long as he holds them. The fruits, rents, and profits are, therefore, his; and he may lawfully claim and receive them. Any contracts or agreements, however, which he may make with individuals farming out such property, will continue only so long as he retains control of them, and will cease on the restitution to, or recovery by, their former

owner." Halleck, Int. Law (3d ed.), ch. 33, § 4, approved by Hunt, J. in New Orleans v. Steamship Co., 20 Wall, 387, 397; see supra, p. 25, note (x). Although, during the civil war, the Government paid rent at Memphis upon proof of the owner's loyalty, such a contract cannot be made or implied, without the express sanction of the Government with an enemy for his property in the territory of its enemies. Stovall's Case, 26 Ct. Cl. 226; Osborne's Case, 24 id. 416. See White's Case, 29 id. 264; Austin's Case, 25 id. 437; 155 U. S. 417.

and engages in trade there, he is, by the law of nations, to be considered a merchant of that country, and a subject for all civil purpose, {75} whether that country be hostile or neutral; and he cannot be permitted to retain the privileges of a neutral character, during his residence and occupation in an enemy's country. (a)l This general rule has been applied by the English courts to the case of Englishmen residing in a neutral country, and they are admitted, in respect to their bona fide trade, to the privileges of the neutral character. (b) In the case of the Danous. (c) the rule was laid down by the English House of Lords, in 1802, in unrestricted terms; and a British-born subject, resident in Portugal, was allowed the benefit of the Portuguese character, so far as to render his trade with Holland, then at war with England, not impeachable as an illegal trade. The same rule was afterwards applied (d) to a natural-born British subject domiciled in the United States, and it was held that he might lawfully trade to a country at war with England but at peace with the United States. (x)

This same principle, that, for all commercial purposes, the domicile of the party, without reference to the place of birth, becomes the test of national character, has been repeatedly and

(a) Wilson v. Marryat, 8 T. R. 31; M'Connell v. Hector, 3 Bos. & Pull. 113; The Indian Chief, 3 C. Rob. 12; The Anna Catharina, 4 C. Rob. 107; The President, 5 C. Rob. 277; Lord Stowell [in The Matchless,] 1 Hagg. Adm. 103, 104.

(b) M'Connell v. Hector, 3 Bos. & Pull. 113; The Emanuel, 1 C. Rob. 296.

(c) Cited in 4 C. Rob. 255, note.

(d) Bell v. Reid, 1 Maule & Selw. 726.

1 Ante, 44, n. 1; The Abo, 1 Spinks, Ad. & Ec. 347; The Aina, ib. 313, 2 Eng. Law & Eq. 600; The Gerasimo, 11 Moore, P. C. 88; but sometimes, as in this case, it is a question whether the place of residence is enemy's country or not. A temporary occupation of neutral terri-

(x) Formerly a British subject in the covenanted service of the East India Company acquired thereby an Anglo-Indian domicile the same as if he had contracted for service abroad under a foreign Government; but British subjects resident in Chinese territory did not in like manner acquire an Anglo-Chinese domicile. See

tory by an enemy's force does not necessarily give it a hostile character. But actual and firm possession by one power or the other determines the character of the place for the time being. Wheat. Dana's note 160. As to domicile, see ii. 430, n. 1.

In re Tootal's Trusts, 23 Ch. D. 532. So a permanent residence, under British protection, at Cairo, which is not a British possession governed by English law, does not attract an English or Anglo-Egyptian domicile to one who is a Turk by origin and a member of the Chaldean Catholic community. Abd-ul-Messih v. Farra, 13 A. C. 431.

explicitly admitted in the courts of the United States. If he resides in a belligerent country, his property is liable to capture as enemy's property, and if he resides in a neutral country, he enjoys all the privileges, and is subject to all the inconveniences, of the neutral trade. He takes the advantages and disadvantages, whatever they {76} may be, of the country of his residence. (a) The doctrine is founded on the principles of national law, and accords with the reason and practice of all civilized nations. Migrans jura amittat ac privilegia et immunitates domicilii prioris. (b) A person is not, however, permitted to acquire a neutral domicile that will protect such a trade in opposition to the belligerent claims of his native country, if he emigrate from that country flagrante bello. (c) Vattel (d) denies explicitly the right of emigration in a war in which his country is involved. It would be a criminal act. (e) This doctrine is considered as settled in the United States. (f)

The only limitation upon the principle of determining the character from residence is, that the party must not be found in hostility to his native country. He must do nothing inconsistent with his native allegiance; and this qualification is annexed to the rule by Sir William Scott, in the case of the Emanuel, and the same qualification exists in the French law, as well since as before their revolution. (g) It has been questioned whether the rule does not go too far, even with this restriction; but it appears to be too well and solidly settled to be now shaken.

2. Residence in the Enemy's Country. — It has been a question admitting of much discussion and difficulty, arising from the complicated character of commercial speculations, what state of facts constitutes a residence so as to change or fix the commercial character of the party. The animus manendi appears to have been the point to be settled. The presumption, arising from actual resi-

(a) Case of the Sloop Chester, 2 Dallas, 41; Murray v. Schooner Betsey, 2 Cranch, 64; Maley v. Shattuck, 3 Cranch, 488; Livingston v. Maryland Insurance Co., 7 Cranch, 506; The Venus, 8 Cranch, 253; The Frances, 8 Cranch, 363.

(b) Voet, Comm. ad Pand. i. 347.

(c) The Dos Hermanos, 2 Wheaton, 76. (d) B. 1, c. 19, see. 220-223.

(e) See also, to the same effect, Grotius, lib. 2, c. 5, sec. 2. Puffendorf par Barbeyrac, b. 8, c. 11, sec. 3.

(f) Duer on Insurance, i. 521.

(g) 1 C. Rob. 296; Code Napoleon, Nos. 17, 21; Pothier's Traité du Droit da Propriété, No. 94.

dence in any place, is, that the party is there ammo manendi, and it lies upon him to remove the presumption, if it should be requisite for his safety. (A) If the intention to establish a permanent residence be ascertained, the recency {77} of the establishment, though it may have been for a day only, is immaterial. If there be no such intention, and the residence be involuntary or constrained, then a residence, however long, does not change the original character of the party, or give him a new and hostile one. (a) But the circumstances requisite to establish the domicile are flexible, and easily accommodated to the real truth and equity of the case. Thus it requires fewer circumstances to constitute domicile in the case of a native subject, who returns to reassume his original character, than it does to impress the national character on a stranger. (b) The quo animo is, in each case, the real subject of inquiry; and when the residence exists freely, without force or restraint, it is usually held to be complete, whether it be an actual or only an implied residence.

When the residence is once fixed, and has communicated a national character to the party, it is not divested by a periodical absence, or even by occasional visits to his native country. (c) Nor is it invariably necessary that the residence be personal, in order to impress a person with a national character. The general rule undoubtedly is, that a neutral merchant may trade in the ordinary manner to the country of a belligerent, by means of a stationed agent there, and yet not contract the character of a domiciled person. But if the principal be trading, not on the ordinary footing of a foreign merchant, but as a privileged trader of the enemy, such a privileged trade puts him on the same ground with their own subjects, and he would be considered as sufficiently invested with the national character by the residence of his agent. Sir William Scott, in the case of the Anna Catharina, (d) applied this distinction to the case of {78} a neutral, invested with the privileges of a Spanish merchant, and the full benefit of the Spanish character; and this case has

(h) The Bernon, 1 C. Rob. 102.

(a) The Diana, 5 C. Rob. 60; The Ocean, 5 C. Rob. 90.

(b) La Virginie, 5 C. Rob. 99.

(c) 1 Acton, 116; 9 Cranch, 414; Marshall, Ch. J., The Friendschaft, 3 Wheaton, 14.

(d) 4 C. Rob. 107.

been followed to its fullest extent in this country. (a) It affords a sample of that piercing and unwearied investigation which the courts of admiralty have displayed in unravelling the intricate process by which an enemy's trade was attempted to be protected from hostile seizure, and in the application of sound principles of national law to new and complex cases. On the same ground it has been decided (b) that an American consul-general in Scotland, committing his whole duty to vice-consuls, was deemed to have lost his neutral character by engaging in trade in France; and it is well settled that if a foreign consul carries on trade as a merchant, in an enemy's country, his consular residence and character will not protect that trade from interruption by seizure and condemnation as enemy's property. (c)1

A national character, acquired by residence, may be thrown off at pleasure by a return to the native country. It is an adventitious character, and ceases by non-residence, or when the party puts himself in motion bona fide, to quit the country sine animo revertendi; and such an intention is essential, in order to enable the party to reassume his native character. (d)2 In the

(a) The San Jose Indiano, 2 Gallison, 268. In this case, says Mr. Duer, in his work on Insurance, i. 527, the language of Mr. Justice Story reflects the spirit and emulates the style of the illustrious judge whose doctrines he adopts and defends.

(b) The Dree Gebroeders, 4 C. Rob. 232.

(c) Vattel, b. 4, c. 8, sec. 114; The Indian Chief, 3 C. Rob. 22; Albretcht v. Sussmann, 2 Ves. & Bea. 323; Arnold v. U. I. Company, 1 Johns. Cas. 363.

(d) The Indian Chief, 3 C. Rob. 12; The Friendschaft, 3 Wheaton, 14.

1 Cases cited, ante, 44, n. 1.

2 United States v. Guillem, 11 How. 47; The Amy Warwick, 2 Sprague, 143; S. C. 2 Black, 635, 674. A foreigner residing in a country, if a war breaks out between that country and another, is allowed a reasonable time for leaving it and withdrawing his business connections. The Gerasimo, 11 Moore, P. C. 88; The Ariel, ib. 119, 127. And a like rule was applied in favor of citizens of Northern States temporarily residing or having business relations with the South at the beginning of the late war. The Sarah Starr, Blatch. Pr. 69, 650; 52 Bales of Cotton,

ib. 644; The John Gilpin, ib. 661; The William Bagaley, 5 Wall. 377; The Gray Jacket, ib. 342, 370; The Peterhoff, ib. 28, 60; [Gates v. Goodloe, 101 U. S. 612.] The property of persons remaining within the Southern lines was treated as enemy's property, without regard to personal disposition. See cases last cited, and the Prize Cases, 2 Black, 635; Mrs. Alexander's Cotton, 2 Wall. 404; Flying Scud, 6 Wall. 263; Miller v. United States, 11 Wall. 268, 306; Elgee v. Lovell, 1 Woolw. 102; The Adelso, 11 Op. Att.-Gen. 445, 451; cf. 15 U. S. St. at L. 75, § 3; and see El Telegrafo, Newb. 383.

case of the Venus, (e) the decisions of the English courts on the subject of national character acquired by residence, and on the consequences of such acquired character, were recognized as being founded on sound principles of public law. It was declared that the law of nations distinguishes between a temporary residence in a foreign {79} country for a special purpose, and a residence, accompanied with an intention to make it the party's domicile, or permanent place of abode; and that the doctrine of the prize courts, and the common-law courts of England, was the same on this subject with that of the public jurists. As a consequence of the doctrine of domicile, the court decided that if a citizen of the United States should establish his commercial domicile in a foreign country, and hostilities should afterwards break out between that country and the United States, his property, shipped before knowledge of the war, and while that domicile continued, would be liable to capture, on the ground that his permanent residence had stamped him with the national character of that country. The hostile character was deemed to attach to the American citizen only in respect to his property connected with his residence in the enemy's country; and the converse of the proposition was also true, that the subject of a belligerent state, domiciled in a neutral country, was to be considered a neutral by both the belligerents, in reference to his trade. The doctrine of enemy's property, arising from a domicile in an enemy's country, is enforced strictly; and equitable qualifications of the rule are generally disallowed, for the sake of preventing frauds on belligerent rights, and to give the rule more precision and certainty.

In the law of nations, as to Europe, the rule is, that men take their national character from the general character of the country in which they reside; and this rule applies equally to

(e) 8 Cranch, 253. In this case, Ch. J. Marshall dissented from the decision of the court, and contended that a commercial domicile, wholly acquired in time of peace, ceased at the commencement of hostilities, which superseded the motives that alone induced the foreign residence; that the presumption of an intention to return to the native country at the first opportunity was to be entertained; and that this presumption ought to shield the property from condemnation until delay or circumstances should destroy that presumption. Mr. Duer, in his Treatise on Insurance, i. 494-508, considers this opinion of the Ch. J. as exceedingly able, and he evidently concurs in that opinion. There is no doubt of its superior solidity and justice.

America. But in Asia and Africa an immiscible character is kept up, and Europeans, trading under the protection of a factory, take their national character from the establishment under which they live and trade. This rule applies to those parts of the world from obvious reasons of policy, because foreigners are not admitted there, as in Europe "and the western part of the world," into the general body and mass of the society of the nation, but they continue strangers and sojourners, not acquiring any national {80} character under the general sovereignty of the country. (a)

National character may be acquired in consideration of the traffic in which the party is concerned. If a person connects himself with a house of trade in the enemy's country, in time of war, or continues during a war a connection formed in a time of peace, he cannot protect himself by having his domicile in a neutral country. He is considered as impressed with a hostile character in reference to so much of his commerce as may be connected with that establishment.1 The rule is the same, whether he maintains that establishment as a partner or as a sole trader. (b) The Supreme Court of the United States, referring to the English prize cases on this subject, observed, that they considered the rule to be inflexibly settled, and that they were not at liberty to depart from it, whatever doubt might have been entertained if the case was entirely new.

But though a belligerent has a right to consider as enemies all persons who reside in a hostile country, or maintain commercial establishments there, whether they be by birth neutrals, or allies, or fellow-subjects, yet the rule is accompanied with this equitable qualification, that they are enemies sub modo only, or in reference to so much of their property as is connected with that residence or establishment. This nice and subtle distinction allows a merchant to act in two characters, so as to protect his property connected with his house in a neutral country, and to subject to seizure and forfeiture his effects belonging to the establishment

(a) The Indian Chief, 3 C. Rob. 22; [ante, 42, n. 1.]

(i) The Vigilantia, 1 C. Rob. 1; The Portland, 3 C. Rob. 41; The San Jose Indiano, 2 Gallison, 268; The Antonia Johanna, 1 Wheaton, 159; The Friendschaft, 4 Wheaton, 105.

1 The William Bagaley, 5 Wall. 377; The Gray Jacket, ib. 342; The Cheshire, 3 Wall. 231; S. C. Blatchf. Pr. 151.

in the belligerent country. So there may be a partnership between two persons, the one residing in a neutral, and the other in a belligerent country, and the trade of one {81} of them with the enemy will be held lawful, and that of the other unlawful, and consequently the share of one partner in the joint traffic will be condemned, while that of the other will be restored. This distinction has been frequently sustained, notwithstanding the difficulties that may attend the discrimination between the innocent and the noxious trade, and the rule has been introduced into the maritime law of this country. (a)

3. Colonial Trade. — The next mode in which a hostile character may be impressed, according to the doctrine of the English courts, is by dealing in those branches of commerce which were confined, in time of peace, to the subjects of the enemy. There can be no doubt that a special license, granted by a belligerent to a neutral vessel, to trade to her colony, with all the privileges of a native vessel, in those branches of commerce which were before confined to native subjects, would warrant the presumption that such vessel was adopted and neutralized, or that such permission was granted in fraud of the belligerent right of capture, and the property so covered may reasonably be regarded as enemy's property. This was the doctrine in the case of Berens v. Mucker, as early as 1760. (b) But the English rule goes further, and it annexes a hostile character, and the penal consequences of confiscation, to the ship and cargo of a neutral engaged in the colonial or coasting trade of the enemy, not open to foreigners in time of peace, but confined to native subjects by the fundamental regulations of the state. This prohibition stands upon two grounds: 1st. That if the coasting or colonial trade, reserved by the permanent policy of a nation to its own subjects and vessels, be open to neutrals during war, the act

(a) The Portland, 3 C. Rob. 41; The Herman, 4 C. Rob. 228; The Jonge Klassina, 5 C. Rob. 297; The San Jose Indiano, 2 Gallison, 268. [Hall, Int. Law, pt. 3, c. 6, on "Enemy Character." It is to be observed that property may be liable to capture either because it is an enemy's property, or because it is itself hostile in origin or in the purpose to which it is intended to be put. Thus cotton within the enemy's lines was liable to capture though belonging to a British subject. Young v. United States, 97 U. S. 39. — B.]

(b) 1 Wm. Bl. 313. See also the case of The Princessa, 2 C. Rob. 52; The Anna Catharina, 4 C. Rob. 107; The Rendsborg, 4 C. Rob. 121; The Vrow Anna Catharina, 5 C. Rob. 15.

proceeds from the pressure of the naval force of the enemy, and to obtain relief from that pressure. The neutral who interposes to relieve the belligerent, under such circumstances, {82} rescues him from the condition to which the arms of his enemy had reduced him, restores to him those resources which have been wrested from him by the arms of his adversary, and deprives that adversary of the advantages which successful war had given him. This the opposing belligerent pronounces a departure from neutrality, and an interference in the war, to his prejudice. 2d. If the trade be not opened by law, the neutral employed in a trade reserved by the enemy to his own vessels identifies himself with that enemy, and assumes his character. These principles first became a subject of interesting discussion in the war of 1756, and they are generally known in England and in this country by the appellation of the rule of. 1756; but the rule is said to have been asserted before that period.

In the letter of Puffendorf to Groningius, published in 1701, (a) he says that the English and the Dutch were willing to leave to neutrals the commerce they were accustomed to carry on in time of peace, but were not willing to allow them to avail themselves of the war to augment it, to the prejudice of the English and the Dutch. The French ordinances of 1704 and 1744 (b) have been considered as founded upon the basis of the same rule, and regulations are made to enforce it, and to preserve to neutrals the same trade which they had been accustomed to enjoy in peace, and to prohibit them from engaging in the colonial trade of the enemy. There is some evidence, also, that in the reign of Charles II. neutral vessels were considered, both by England and Holland, to be liable to capture and condemnation for being concerned in the coasting trade of the enemy. The Dutch, at that day, contended for this neutral exclusion, on the authority of general reasoning and the practice of nations; and the same rule is said to have been asserted in the English courts, in the war of 1741, and the exclusion of neutral vessels from the coasting trade of the enemy was declared to stand upon {83} the law of nations. (a) But it was in the war of 1756 that the rule awakened general and earnest attention. Mr. Jenkinson, in his "Discourse on the conduct of Great Britain in respect to

(a) Puff. Droit des Gens, par Barbeyrac, ii. 558.

(b) Valin, Comm. ii. 248, 250. (a) 6 C. Rob. 74, note, and 252, note.

neutral nations," written in 1757, considered it to be unjust and illegal for neutrals to avail themselves of the pressure of war to engage in a new species of traffic, not permitted in peace, and which the necessities of one belligerent obliged him to grant to the detriment, or perhaps to the destruction, of the other. (b) On the other hand, Hübner, who published his treatise (c) in 1759, is of opinion that neutrals may avail themselves of this advantage presented by the war, though he admits the lawfulness of the trade to be a question of some uncertainty.

Thus seemed to stand the authority of the rule of 1756, (d) when it was revived and brought into operation by England, in the war of 1793, and again upon the renewal of war in 1803. The rule was enforced by her, under occasional relaxations, during the long course of the wars arising out of the French Revolution; and it was frequently vindicated by Sir William Scott, in the course of his judicial decisions, with his customary ability and persuasive manner, as a rule founded in natural justice and the established jurisprudence of nations. (e) On the other hand, the government of the United States constantly and earnestly protested against the legality of the rule, to the extent claimed by Great Britain; and they insisted, in their diplomatic intercourse, that the {84] rule was an attempt to establish "a new principle of the law of nations," and one which subverted "many other principles of great importance which have heretofore been held sacred among nations." They insisted that neutrals were of right entitled "to trade, with the exception of blockades and contrabands, to and between all ports of the enemy, and in all articles, although the trade should not

(b) In the British Memorial, addressed to the Deputies of the States General of Holland, December 22, 1758, the injustice of neutrals in assuming the enemy's carrying trade was urged, and it was declared that their high mightinesses had never suffered such a trade, and that it had been opposed in all countries in like circumstances.

(c) De la Saisie des Batimens Neutres. Mr. Wheaton, in his History of the Law of Nations in Europe and America, New York, 1845, 219-228, has given a summary of the two small volumes of Hübner on neutral rights; and he says that the doctrines of Hübner found but little favor with the public jurists, his contemporaries. It is a work of inferior weight and authority.

(d) It stood upon loose grounds, in point of official authority, according to the able examination of the documentary evidence of the rule, given in a note to the first volume of Mr. Wheaton's Reports, App. note 3.

(e) The Immanuel, 2 C. Rob. 186, and C. Rob. Rep. passim.

have been opened to them in time of peace." (a) It was considered to be the right of every independent power to treat, in time of peace, with every other nation, for leave to trade with its colonies, and to enter into any trade, whether new or old, that was not of itself illegal and a violation of neutrality. One state had nothing to do with the circumstances or motives which induced another nation to open her ports. The trade must have a direct reference to the hostile efforts of the belligerents, like dealing in contraband, in order to render it a breach of neutrality. The rule of 1756, especially in respect to colonial trade, has also been attacked and defended by writers in this country, with ability and learning; and though the rule would seem to have received the very general approbation of British lawyers and statesmen, yet it was not exempt from severe criticism, even in distinguished publications in that country. The principle of the rule of 1756 may, therefore, very fairly be considered as one unsettled and doubtful, and open to future and vexed discussion. The Chief Justice of the United States, in the case of the Commercen, (b) alluded to the rule, but purposely avoided expressing any opinion on the correctness of the principle. It is very possible that, if the United States should hereafter attain that elevation of maritime power and influence which their rapid growth and great resources seem to indicate, {85] and which shall prove sufficient to render it expedient for her maritime enemy (if any such enemy shall ever exist) to open all his domestic trade to enterprising neutrals, we might be induced to feel more sensibly than we have hitherto done the weight of the arguments of the foreign jurists in favor of the policy and equity of the rule. (a)1

(a) Mr. Monroe's Letter to Lord Mulgrave, of September 23, 1805, and Mr. Madison's Letter to Messrs. Monroe and Pinckney, dated May 17, 1806.

(b) 1 Wheaton, 396.

(a) On the subject of neutral trade between the colony and the mother country of a belligerent power, it was a question discussed in the English admiralty, in the case of the Polly (1800), whether the fact of a cargo, consisting of Spanish colonial produce, imported from the Havana in an American ship to the United States, and after being landed and duties paid, re-exported in the same vessel to Spain, was

1 On the subject of continuity of voyages, discussed in note (a), see The Hart, 3 Wall. 559; S. C.Blatchf. Pr. 387; Jecker v. Montgomery, 18 How. 110. The Ber-

muda, 3 Wall. 514, affirms the doctrine of Sir William Grant, and also that when several ships are successively engaged in one transaction of conveying a cargo to

Sailing under the flag and pass of an enemy is another mode by which a hostile character may be affixed to property; for if a neutral vessel enjoys the privileges of a foreign character, she

sufficient to break the continuity of the voyage from the enemy's colony to the mother country, and legalize the trade by the mere transshipment in the United States. Sir William Scott, in that case, thought that landing the goods and paying the duties was a sufficient test of the bona fides of the transaction. 2 C. Rob. 361. But afterwards, in the cases of the Essex and the Maria (5 id. 365, 369), it was held that merely touching at the neutral port, and paying a nominal duty, was a mere evasion, and not sufficient to exempt the voyage from the charge of a direct, continued, and unlawful trade between the mother country and the colony of the enemy. The question is one of intent. Did the animus importandi terminate at the intermediate port, or look to an ulterior port? Was it, under the circumstances, a

a blockaded belligerent port, and a ship is let by its owners for the first part of the voyage with a view to the ulterior destination of the cargo, or when a ship let as above is carrying a contraband cargo, destined to a belligerent port, under circumstances of bad faith, such ship may be condemned. See further The Peterhoff, 5 Wall. 28, 54; S. C. Blatchf. Pr. 463. See further, iii. 269, n. 1.

Professor Mountague Bernard, in his Neutrality of Great Britain during the American Civil War (c. 12, pp. 310, 311), says that these decisions extended Lord Stowell's doctrine of continuous voyages to breaches of blockade and to conveyance of articles contraband of war for the first time; and that before that war it had been commonly assumed that if a neutral port were the bona fide destination of the ship and the end of her outward voyage, both ship and goods were safe, and a prize court would not inquire what was the destination of the cargo.

In Hobbs v. Henning, 17 C. B. N. S. 791, which was a suit against the insurers of the Peterhoff's cargo, after the condemnation by our courts, it was held that a plea that the goods were contraband, and were shipped by the plaintiff for the purpose of being sent to a port in a state at war with the United States, &c., that defendant was ignorant of these facts at the time of insuring, and the vessel was seized

by United States cruisers, which was the loss complained of, alleged only a mental process and not a participation in the unlawful transaction, and so did not show a concealment of material facts, iii. 269, n. 1.

As to the last part of note (a) see Katchenovsky's Prize Law, translated by Pratt, London, 1867, for criticism of the British rule.

The next passage in the text is cited and approved in The William Bagaley,

5 Wall. 377, 410. The share of a neutral in a ship sailing under the flag and pass of an enemy, though purchased before the war, is liable to condemnation. The Primus, 1 Spinks, Ec. & Ad. 353; The Industrie, ib. 444; same cases, 29 Eng. Law

& Eq. 589; 33 id. 572.

By an order in council, which was passed at the beginning of the Crimean war, and which will be referred to again, 128, n. 1, it was signified not to be "her Majesty's intention to claim the confiscation of neutral property, not being contraband of war, found on board enemy's ships." 1 Spinks, Ec. & Ad. B. app. p. ix. No. 8. The French government, which had maintained a contrary doctrine, made a similar declaration. Wheat. Lawrence's note 228. See declaration of principles of the Congress of Paris, April 16, 1856; Ann. Reg. 1856, p. 221; Wheat. Lawrence's note 192; post, 128, n. 1.

must expect, at the same time, to be subject to the inconveniences attaching to that character. This rule is necessary to prevent the fraudulent mask of enemy's property. But a distinction is made, in the English cases, between the ship and the cargo. Some countries have gone so far as to make the flag and pass of the ship conclusive on the cargo also; but the English courts have never carried the principle to that extent, as to cargoes laden before the war. The English rule is, to hold the ship bound by the character imposed upon it by the authority of the government from which all the documents issue. But goods which have no such dependence upon the authority of the state may be differently considered; and if the cargo be laden in time of peace, though documented as foreign property in the same manner as the ship, the sailing under a foreign flag and pass has not been held conclusive as to the cargo. (b) The doctrine of the federal courts in this country has been very strict on this point, and it has been frequently decided that sailing under the license and passport of protection of the enemy, in furtherance of his views and interests, was, without regard to the object of the voyage or the port of destination, such an act of illegality as subjected both ship and cargo to confiscation as prize of war. (a)

bona fide importation, ending at the intermediate port, or a mere contrivance to cover the original scheme of the voyage to an ulterior port? This is the true principle of the cases, as declared by Sir William Grant, in the case of The William, 5 C. Rob. 385, and recognized in this country. Opinions of the Attorneys-General of the United States, i. 359-362, 394-396. It is understood that the English and American Commissioners at London, in 1806, came to an understanding as to the proper and defined test of a bona fide importation of cargo into the common stock of the country, and as to the difference between a continuous and an interrupted voyage. But the treaty so agreed on was withheld by President Jefferson from the Senate of the United States, and never ratified. The doctrine of the English admiralty is just and reasonable on the assumption of the British rule, because we have no right to do covertly and insidiously what we have no right to do openly and directly. That rule is, that a direct trade by neutrals, between the mother country and the colonies, of her enemy, and not allowed in time of peace, is by the law of nations unlawful. But if that rule be not well founded, all the qualifications of it do not help it; and in the official opinion of Mr. Wirt to the executive department, while he condemns the legality of the rule itself, he approves, as just in the abstract, the English principle of continuity. Opinions of the Attorneys-General, i. 394-396.

(b) The Elizabeth, 5 C. Rob. 2; The Vreede Scholtys, cited in the note to 5 C. Rob. 5.

(c) The Julia, 1 Gallison, 605; S. C. 8 Cranch, 181; The Aurora, ib. 203; The Hiram, ib. 444; The Ariadne, 2 Wheaton, 143; The Caledonia, 4 Wheaton, 100.

The {86} federal courts placed the objection to these licenses on the ground of a pacific dealing with the enemy, and as amounting to a contract that the party to whom the license is given should, for that voyage, withdraw himself from the war, and enjoy the repose and blessings of peace. The illegality of such an intercourse was strongly condemned; and it was held that the moment the vessel sailed on a voyage, with an enemy's license on board, the offence was irrevocably committed and consummated, and that the delictum was not done away even by the termination of the voyage, but the vessel and cargo might be seized after arrival in a port of the United States, and condemned as lawful prize.

4. Property in Transitu. — Having thus considered the principal circumstances which have been held by the courts of international law to impress a hostile character upon commerce, it may be here observed, that property which has a hostile character at the commencement of the voyage cannot change that character by assignment, while it is in transitu, so as to protect it from capture. This would lead to fraudulent contrivances to protect the property from capture, by colorable assignments to neutrals. But if a shipment be made in peace, and not in expectation of war, and the contract lays the risk of the shipment on the neutral consignor, the legal property will remain to the end of the voyage in the consignor. (a) During peace, a transfer in transitu may be made; but when war is existing or impending, the belligerent rule applies, and the ownership of the property is deemed to continue as it was at the time of the shipment until actual delivery.1 This illegality of transfer, during or in contemplation of

That an insurance is void, when made on a voyage so rendered illegal by sailing under an enemy's license, is considered as settled. Colquhoun v. N. Y. F. Ins. Co., 15 Johns. 352; Ogden v. Barker, 18 Johns. 87; Craig v. U. S. Ins. Co., 1 Peters, C. C. 410.

(a) Packet De Bilboa, 2 C. Rob. 133, 134; Anna Catharina, 4 id. 112.

l The Sally Magee, 3 Wall. 451, 460. See United States v. The Lilla, 2 Cliff. 169. But actual delivery terminates the transitus, so far as liability to capture is concerned. The Baltica, 11 Moore, P. C. 141; Baltazzi v. Ryder, The Panaghia Rhomba, 12 Moore, P. C. 168, 188. See The Ariel, 11 Moore, P. C. 119; The

Law Mag. and Law Rev., Aug. 1870, xxix. 233, advocates still more liberal doctrines.

The above were cases of merchant vessels. The Georgia was a Confederate war steamer. After cruising a year or more, and doing a good deal of damage, she ran into Liverpool to escape the

war, is for the sake of the belligerent right, and to prevent secret transfers from the enemy to neutrals, in fraud of that right, and upon conditions and reservations which it might be impossible to detect. (b) So property shipped from a neutral to the enemy's country, under a contract to become the property of the enemy on arrival, may be taken in transitu as enemy's property; for capture is considered as delivery. The captor, by the rights of war, stands in the place of the enemy. (c) The prize courts will {87} not allow a neutral and belligerent, by a special agreement, to change the ordinary rule of peace, by which goods ordered and delivered to the master are considered as delivered to the consignee. All such agreements, though valid in time of peace, are in time of war, or in peace, if made in contemplation of war, and with intent to protect from capture, held to be constructively fraudulent; and if they could operate, they would go to cover all belligerent property, while passing between a belligerent and a neutral country, since the risk of capture would be laid alternately on the consignor or consignee, as the neutral factor should happen to stand in the one or the other of those relations. ' These principles of the English admiralty have been explicitly recognized and acted upon by the prize courts in this country. The great principles of national law were held to require that, in war, enemy's property should not change its hostile character, in transitu; and that no secret liens, no future elections, no private contracts looking to future events, should be able to cover private property while sailing on the ocean. (a) Captors disregard all equitable liens on enemy's property, and lay their hands on the gross tangible property, and rely on the simple title in the name and possession of the enemy. If they were to open the door to equitable claims, there would be no end

(b) Vrow Margaretha, 1 C. Rob. 336; Jan Frederick, 5 C. Rob. 128. See also 1 C. Rob. 1, 101, 122; 2 C. Rob. 137; 1 C. Rob. 16, note; 4 C. Rob. 32; The Boedes Lust, 5 C. Rob. 233; Story, J., in The Ann Green, 1 Gallison, 291.

(c) The Anna Catharina, 4 C. Rob. 107; The Sally Griffiths, 3 C. Rob. 300, in notis.

(a) The Francis, 1 Gallison, 445; 8 Cranch, 335, 359, S. C.

Kearsarge and other United States vessels, which were in search of her. While in port, she was bona fide dismantled, and sold to a British subject for commercial purposes. But she was watched and

seized as soon as she came out. The Supreme Court affirmed a decree condemning her as good prize. The Georgia, 7 Wall. 32; S. C. 1 Lowell, 96.

to discussion and imposition, and the simplicity and celerity of proceedings in prize courts would be lost. (b)1 All reservation of risk to the neutral consignors, in order to protect belligerent consignees, are held to be fraudulent; and these numerous and strict rules of the maritime jurisprudence of the prize courts are intended to uphold the rights of lawful maritime capture, and to prevent frauds, and to preserve candor and good faith in the intercourse between belligerents and neutrals. (a) The modern cases contain numerous and striking instances of the acuteness of the captors in tracking out deceit, and of the dexterity of the claimants in eluding investigation. (d)2

(b) The Josephine, 4 C. Rob. 25; The Tobago, 5 id. 218; The Marianna, 6 id. 24; and the American cases, ubi supra. It is the general rule and practice in the admiralty, on questions depending upon title to vessels, to look to the legal title, without taking notice of equitable claims. The Sisters, 5 C. Rob. 155; The Valiant, 1 Wm. Rob. 64.

(c) The prize law, as declared by the English admiralty as early as 1741, and by the decisions of the prize courts in this country, in the case of property in transitu, during war, is clearly and correctly stated and ably enforced by Mr. Duer in his Treatise on Insurance, i. 478-484.

(d) The purchase of ships is a branch of trade neutrals may lawfully engage in, when they act in good faith, though from its nature it is liable to great suspicion, and the circumstances of the case are examined in the prize courts with a jealous and sharp vigilance. Duer on Insurance, i. 444, 445, 573.1

1 The Sally Magee, 3 Wall. 451; S. C. Blatchf. Pr. 382; The Battle, 6 Wall. 498; The Ida, Spinks, Prize Cas. 26. And a like principle was applied against a bona fide mortgagee not in possession, although a citizen of the country whose courts decided the case. The Hampton, 5 Wall. 372. See The Aina, Spinks, Ec. & Ad.

313; The Maria, 11 Moore, P. C. 271, 287, commented on in The Amy Warwick, 2 Sprague, 150, 158. Enemy's liens on neutral ships are to be equally disregarded, and will not render them liable to capture. The Ariel, 11 Moore, P. C. 119.

2 See, generally, The Ariel, 11 Moore, P. C. 119; The Baltica, ib. 141; Ernst

Merck, Spinks, Prize Cas. 98; S. C. 2 Spinks, Ec. & Ad. 87.