*84

stantly 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 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 have been opened to them in time of peace." 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 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 seemed 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, 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 attain that elevation of maritime power and influence which their rapid growth and great resources seem to indicate, *and which shall prove sufficient to render it expedient *85 for her maritime enemy (if any such enemy shall ever exist) to open all his domestic trade to enterprising neutrals,

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

b 1 Wheaton, 396.

we might be induced to feel more sensibly than we have hitherto done, the weight of the arguments of the foreign jurists in favour of the policy and equity of the rule.a

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 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

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 Havanna 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 transhipment 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 Rob. Adm. Rep. 361. But afterwards, in the cases of the Essex and the Maria, (5 Ibid. 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 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 Rob. R. 349, and recognised in this country. Opinions of the Attorneys-General of the United States, vol. 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, vol. i. 394–396.

also; but the English courts have never carried the principle
to that extent, as to cargoes laden before the war. The Eng-
lish 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 sail-
ing under a foreign flag and pass has not been held conclusive
as to the cargo. 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.b
The *federal courts placed the objection to these licenses *86
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 the voyage, with
an enemy's license on board, the offence was irrevocably com-
mitted 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.

transitu.

Having thus considered the principal circumstances which Property in 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 commence

* The Elizabeth, 5 Rob. Rep. 2. The Vreede Scholtys, cited in the note to 5, Rob. Rep. 5.

The Julia, 1 Gall. 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 Johnson, 352. Ogden v. Barker, 18 Id. 87. Craig v. U. S. Ins. Co., 1 Peter's C. C. Rep.

ment 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 colourable 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. 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 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 consid

ered as delivery. The captor, by the rights of war, stands *87 in the place of the enemy. 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 Eng

Packet De Bilboa, 2 Rob. Adm. R. 183, 4. Anna Catharina, 4 Id. 112. b Vrow Magarethra, 1 Rob. Rep. 336. Jan Frederick, 5 Rob. Rep. 128. See also 1 Rob. Rep. 1. 101. 122. 2 Rob. Rep. 137. 1 Rob. Rep. 16, note. 4 Rob. Rep. 32. The Boedes Lust, 5 Rob. 233. Story J., in the Ann Green, 1 Gallison,

291.

The Anna Catharina, 4 Rob. Rep. 107. The Sally Griffiths, 3 Rob. Rep. 300, in notis.

lish admiralty have been explicity recognised 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 to discussion and imposition, and the simplicity and celerity of proceedings in prize courts would be lost. 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 maritime capture, and to prevent frauds, and to preserve candour and good faith in the intercourse between belligerents and neutrals. 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

a The Frances, 1 Gallison, 445. 8 Cranch, 335. 359. S. C.

The Josephine, 4 Rob. Rep. 25. The Tobago, 5 Ib. 218. The Marianna, 6 Ib. 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 Rob. Adm. 155. The Valiant, English Adm. July, 1839.

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, vol. i. 478-484.

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, vol. i. 444, 445. 573.