all who conduct themselves as such towards him; they are enemies de facto, and whilst they continue to be such, the juridical incidents of the Enemy character must be deemed to attach to them equally as to persons who are enemies de jure. But there is this difference between enemies de facto and enemies de jure, that the former are enemies sub modo only, and in reference to so much of their conduct as is hostile. If they cease to act as enemies, the foundation of their hostile character is gone. The practice of Nations in this respect allows equitable considerations to have weight in the question. It is in the interest of the belligerent himself that an enemy de facto should be distinguished in Law from an enemy de jure. Peace is restored in the case of an enemy de facto by the cessation of hostilities: in the latter case however there is a question of Right, which remains to be settled by conference after the suspension of arms. But the conduct of a party is that of an enemy de facto, if he supplies the necessities of a belligerent, and by so doing furthers his resistance to his adversary. Upon the field of battle the men who bring up supplies from the rear are sustaining the energies of those in the front ranks so in the case of a besieged town those who carry in supplies to the Garrison are furthering its resistance to the besiegers. There is no distinction in principle between the conduct of such parties, and the conduct of the trader who carries supplies into a blockaded port. The undertaking is evidently for the immediate benefit of one belligerent, and for the direct disadvantage of the other belligerent, and is accordingly inconsistent with neutrality. To allow the property of the trader in such a case to be exempt from capture and condemnation, on the grounds that he is resident in a neutral Employ ment of the subject in of a belli gerent Power. country, would be unreasonable, for it is precisely in virtue of such residence that he is able to assist the enemy, by supplying him with those necessaries which the enemy has not in his own country. The merchant however is only considered to be thus far impressed with the hostile character, as regards his unneutral trade. He is so far and no further an enemy de facto. § 158. The Residence of a merchant in a neutral country is thus not always conclusive of the neutral character of his property in time of war. The use, property of to which an article is put, will in certain cases detera neutral mine the right of a belligerent Power to seize and the service confiscate it, without any regard to the neutral character of the legal owner. For instance, if the subject of a neutral Power places an article, of which he is owner, at the absolute disposal of a belligerent Power for a certain time, the article in question becomes subject to capture and confiscation during such time, precisely as if it were enemy's property. To admit any other conclusion would be equivalent to allowing a belligerent to make war with borrowed weapons, and to preclude his adversary from seizing them and disarming him. It is immaterial in reference to the employment of the property of a neutral subject in the service of an Enemy State, whether such employment be voluntary or involuntary on the part of the owner. "If an act of force," observed Lord Stowell, "exercised by one belligerent on a neutral ship or person is to be deemed a sufficient justification for any act done by him contrary to the known duties of the neutral character, there would be an end of any prohibition under the Law of Nations to carry Contraband, or to engage in any other hostile act. If any loss is sustained in such service, the neutral yielding to such demands must seek redress against the Government that has imposed the restraint upon him." Upon this principle Lord Stowell condemned as prize of war, a Swedish vessel 20, which had been employed by the French Government in transporting a troop of cavalry to Alexandria, notwithstanding the Master alleged that he was acting under duress. The conveyance of enemy-soldiers to a neutral country is distinguishable from the conveyance of enemy-soldiers to an enemy's country. If a vessel belonging to the subjects of a Neutral Power is engaged in conveying military persons in the service of the enemy to an enemy's colony, such a trade will subject the vessel captured to confiscation, notwithstanding that the Master of the ship may have been deceived in respect of the military character of his passengers, and however few may be the number of them; although on the other hand the carrying persons in the military service of the enemy to a neutral country, as passengers in the ordinary course of trade, will not enure to the confiscation of the ship, if she be owned by the subjects of a neutral Power. Thus in the case of the Henric and Alida", which was a Dutch ship bound from a Dutch port to St. Eustatius, a Dutch Colony, with powder, guns, and naval stores on board, and five military officers in the enemy's service embarked as ordinary passengers, Sir George Hay directed the ship and cargo to be restored to the Dutch owners, Holland being at such time a Neutral Power. It would be otherwise, however, if a neutral-owned vessel should have been hired by the agents of a belligerent Government so as to be entirely at its 20 The Carolina, 4 Ch. Rob. p. 261. P. 436. 221 Hay and Marriott's Re21 The Orozembo, 6 Ch. Rob. ports, p. 139. disposal for the purpose of carrying soldiers or stores in the service of the State. It will signify nothing under such circumstances whether or not the troops or stores conveyed are to be applied immediately to hostile purposes, when they arrive at their destination. For instance, if Great Britain should be engaged in a war with Russia, and the British Government should charter a neutral vessel to transport a British regiment of infantry to Alexandria, the Sultan of the Ottomans, being at such time at peace with both the belligerent Powers, might consistently with neutrality allow a passage through a province of the Ottoman Empire to the troops of Great Britain. It is obvious however that the immediate destination of the vessel to a neutral port would not relieve such a traffic on the part of the shipowner from its hostile character. The actual conveyance of troops, either for present or for future use, is what constitutes the object and employment of transport-vessels; and it is a distinction totally unimportant, whether the transport of enemy-troops may be connected with immediate action in the service of the enemy or not 23. So likewise the transport, coupled with the concealment, of public despatches addressed from the Governor of an enemy's colony to the Government of the mother country in charge of an officer of high rank, as a passenger on board of a neutral vessel, although the voyage of such vessel was to end in a neutral port, was held to be inconsistent with the neutral character, and to be an aggravated case of active interposition in the service of the enemy. Other cases of trade in the service of the enemy may be enumerated, in which a neutral shipowner cannot with good faith and 23 The Friendship, 6 Ch. Rob. 24 The Atalanta, 6 Ch. Rob. P. 427. P. 460. without forfeiture of his neutral character engage his vessel. Thus if a vessel is owned by the subject of a neutral Power, which is under treaty-engagements with a belligerent Power not to carry goods of a particular nature for the use of its enemies, the employment of such a vessel in carrying such commodities will work its forfeiture, if it be captured by the belligerent Power25. So again a vessel neutral owned but sailing under an enemy's license 26 or under enemy's convoy 27, renders itself thereby liable to capture by the adverse belligerent. cantile affected by sular § 159. The national character of the Political agent The Merof a neutral State, who is resident in a belligerent character country, is not affected by such residence, whatever is not may have been the duration of such residence; but the Conit is otherwise with a Commercial agent. A Consul character. does not participate in the privilege of exterritoriality, which a Political Envoy enjoys; and if he is personally engaged in the commerce of a belligerent country, his Consular character affords no protection to his mercantile adventures. "It is a point fully established in these Courts," says Lord Stowell 29, "that the character of Consul does not protect that of Merchant united in the same person. It was so decided in solemn argument in the course of the last war by the Lords, in the cases of Mr. Gildermester, the Portuguese Consul in Holland, and of Mr. Eykellenburg, Prussian Consul at Flushing". These cases were again brought forward to notice in the case of Mr. Fenwick, American Consul at Bourdeaux, in the beginning of this war, on whose behalf |