arguments of the foreign jurists in favor of the policy and equity of the rule. (a)1

(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 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 bona fide importation, ending at the intermediáte 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.

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 Bermuda, 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 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, un

der 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 (ch. 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 destina.

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 must expect, at the same time, to be subject to the inconveniences attacking 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

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

tion 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. 8. 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; 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 confisca tion of neutral property, not being contraband of war, found on board enemy's ships." 1 Spinks, Ec. & Ad. R. 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. Law rence's note 192; post, 128, n. 1.

86

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. (c) The 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. This

(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. 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.

1 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

illegality of transfer, during or in contemplation of 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 *87 the place of the enemy. (c) The prize courts will 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

(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.

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 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.

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 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. (c) 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

(a) The Francis, 1 Gallison, 445; 8 Cranch, 335, 359, s. c.

(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, 573.2

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. 872. See The Aina, Spinks, Ec. & Ad. 813; 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.