is determined by the flag which its official documents show it to be entitled to fly, The Marie Glaeser (1914), L. R. [1914] P. 218; The Manchuria (1905), 2 Hurst and Bray, 52. This was a definite test, easy of application. It was founded however upon the assumption that no country would issue documents to a vessel not owned, at least in part, by its own citizens. But there are several countries such as Argentine, Chile, Colombia, Paraguay and possibly others, which document vessels owned entirely by foreigners. In the Great War it was found that some German merchant ships were documented under Argentine law and flew the Argentine flag. Hence a vessel's documents are not a conclusive indication of its national character. In The Proton (Egypt, 1916), 2 Br. & Col. P. C. 107, affirmed (1918), L. R. [1918] A. C. 578, the court went behind the ship's documents and determined its real ownership and national character. In order to ascertain whether a vessel is or is not enemy property, the court will consider all the circumstances of its registration, management and employment. See The Tommi and The Rothersand (1914), L. R. [1914] P. 251; The Polzeath (1916), L. R. [1916] P. 241; The St. Tudno (1916), L. R. [1916] P. 261; The Solveig (1915); Journal Officiel, Nov. 12, 1915; Mount, "Prize Cases in the English Courts Arising Out of the Present War," Columbia Law Review, XV, 316; Borchard, sec. 207; Hyde, II, 548, 562; Moore, Digest, VII, 406.

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This is a case of a claim of several British merchants for goods purchased on their account in Holland, and shipped on board a neutral vessel. Mr. Malcom of Glasgow, and several other merchants of North Britain, had, long prior to hostilities, been used to trade extensively with Holland; after the irruption of the French into Holland, they had constantly applied for, and obtained special orders of his majesty in council permitting them to continue that trade; [but] after the passing of the acts of parliament 35 G. 3. c. 15. § 80., 36 G. 3. c. 76., 37 G 3. c. 12 it was apprehended in that part of Great Britain, that by these acts the importation of such goods was made legal: but for the greater security, they still made application to the commissioners of customs at Glasgow, to know what they considered to be the interpretation of the said acts, and whether his majesty's license was still necessary; and were informed, under the opinion of the law advisers of the said commissioners, that no such orders of council were necessary, and that all goods brought from the United Provinces would in future be entered without them; and that in consequence of such information, they had caused the goods in question to be shipped at Rotterdam for their account; ostensibly documented for Bergen to avoid the enemy's cruisers.

SIR W. SCOTT [LORD STOWELL] . . It is said that these circumstances compose a case entitled to great indulgence; and I do not deny it. But if there is a rule of law on the subject

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binding the Court, I must follow where that rule leads me; though it leads to consequences which I may privately regret, when I look to the particular intentions of the parties.

In my opinion there exists such a general rule in the maritime jurisprudence of this country, by which all trading with the public enemy, unless with the permission of the sovereign, is interdicted. It is not a principle peculiar to the maritime law of this country; it is laid down by Bynkershoek as an universal principle of law.-Ex naturâ belli commercia inter hostes cessare non est dubitandum. Quamvis nulla specialis sit commerciorum prohibitio, ipso tamen jure belli commercia esse vetita, ipsæ indictiones bellorum satis declarant, &c. He proceeds to observe, that the interests of trade, and the necessity of obtaining certain commodities have sometimes so far overpowered this rule, that different species of traffic have been permitted, prout e re sua, subditorumque suorum esse censent principes (Bynk. Q. J. P. B. 1, c. 3). But it is in all cases the act and permission of the sovereign. Wherever that is permitted, it is a suspension of the state of war quoad hoc. It is, as he expresses it, pro parte sic bellum, pro parte pax inter subditos utriusque principis. It appears from these passages to have been the law of Holland; Valin, 1. iii., tit. 6, art. 3, states it to have been the law of France, whether the trade was attempted to be carried on in national or in neutral vessels; it will appear in a case which I shall have occasion to mention (The Fortuna), to have been the law of Spain; and it may, I think, without rashness be affirmed to have been a general principle of law in most of the countries of Europe.

By the law and constitution of this country, the sovereign alone has the power of declaring war and peace-He alone therefore who has the power of entirely removing the state of war, has the power of removing it in part, by permitting, where he sees proper, that commercial intercourse which is a partial suspension of the war. There may be occasions on which such an intercourse may be highly expedient. But it is not for individuals to determine on the expediency of such occasions on their own notions of commerce, and of commerce merely, and possibly on grounds of private advantage not very reconcilable with the general interest of the state. It is for the state alone, on more enlarged views of policy, and of all circumstances which may be connected with such an intercourse, to determine when it shall be permitted, and under what regulations. In my opin

ion, no principle ought to be held more sacred than that this intercourse cannot subsist on any other footing than that of the direct permission of the state. Who can be insensible to the consequences that might follow, if every person in a time of war had a right to carry on a commercial intercourse with the enemy, and under colour of that, had the means of carrying on any other species of intercourse he might think fit? The inconvenience to the public might be extreme; and where is the inconvenience on the other side, that the merchant should be compelled, in such a situation of the two countries, to carry on his trade between them (if necessary) under the eye and controul of the government, charged with the care of the public safety?

Another principle of law, of a less politic nature, but equally general in its reception and direct in its application, forbids this sort of communication as fundamentally inconsistent with the relation at that time existing between the two countries; and that is, the total inability to sustain any contract by an appeal to the tribunals of the one country, on the part of the subjects of the other. In the law of almost every country, the character of alien enemy carries with it a disability to sue, or to sustain in the language of the civilians a persona standi in judicio. The peculiar law of our own country applies this principle with great rigour. The same principle is received in our courts of the law of nations; they are so far British courts, that no man can sue therein who is a subject of the enemy, unless under particular circumstances that pro hâc vice discharge him from the character of an enemy; such as his coming under a flag of truce, a cartel, a pass, or some other act of public authority that puts him in the king's peace pro hâc vice. But otherwise he is totally ex lex; even in the case of ransoms which were contracts, but contracts arising ex jure belli, and tolerated as such, the enemy was not permitted to sue in his own proper person for the payment of the ransom bill; but the payment was enforced by an action brought by the imprisoned hostage in the courts of his own country, for the recovery of his freedom. A state in which contracts cannot be enforced, cannot be a state of legal commerce. If the parties who are to contract have no right to compel the performance of the contract, nor even to appear in a court of justice for that purpose, can there be a stronger proof that the law imposes a legal inability to contract? to such transactions it gives no sanction; they have no legal existence; and the whole of such commerce is attempted without its protection

and against its authority. Bynkershoek expresses himself with great force upon this argument in his first book, chapter 7, where he lays down that the legality of commerce and the mutual use of courts of justice are inseparable: he says, that cases of commerce are undistinguishable from cases of any other species in this respect-Si hosti semel permittas actiones exercere, difficile est distinguere ex quâ causâ oriantur, nec potui animadvertere illam distinctionem unquam usu fuisse servatam.

Upon these and similar grounds it has been the established rule of law of this Court, confirmed by the judgment of the supreme court, that a trading with the enemy, except under a royal license, subjects the property to confiscation:-and the most eminent persons of the law sitting in the supreme courts have uniformly sustained such judgments...

erable number of English decisions are here reviewed.]

[A consid

I omit many other cases of the last and the present war merely on this ground that the rule is so firmly established, that no one case exists which has been permitted to contravene it.-For I take upon me to aver, that all cases of this kind which have come before that tribunal have received an uniform determination. The cases which I have produced prove that the rule has been rigidly enforced-where acts of parliament have on different occasions been made to relax the navigation-law and other revenue acts; where the government has authorized, under the sanction of an act of parliament, a homeward trade from the enemy's possessions, but has not specifically protected an outward trade to the same, though intimately connected with that homeward trade, and almost necessary to its existence; that it has been enforced, where strong claim not merely of convenience, but almost of necessity, excused it on behalf of the individual; that it has been enforced where cargoes have been laden before the war, but where the parties have not used all possible diligence to countermand the voyage after the first notice of hostilities; and that it has been enforced not only against the subjects of the crown, but likewise against those of its allies in the war, upon the supposition that the rule was founded on a strong and universal principle, which allied states in war had a right to notice and apply, mutually, to each other's subjects. Indeed it is the less necessary to produce these cases, because it is expressly laid down by Lord Mansfield, as I understand him, that such is the maritime law of England. (Gist v. Mason, 1 T. R., 85.)