cumstances of the case, adding these further remarks, which are applicable to all other cases of cartel ships trading with the enemy: "It is not a question of gain, but one on which depends the recovery of the liberty of individuals, who may happen to have become prisoners of war; it is therefore a species of navigation which, on every consideration of humanity and policy, must be conducted with the most exact attention to the original purpose, and to the rules which have been built upon it; since, if such a mode of intercourse is broken off, it cannot but be followed by consequences extremely calamitous, to individuals of both countries. Cartel ships are subject to a double obligation to both countries not to trade. To engage in trade may be disadvantageous to the enemy, or to their own country. Both are mutually engaged to permit no trade to be carried on under a fraudulent use of this intercourse; all trade must therefore be held to be prohibited, and it is not without the consent of both governments, that vessels engaged in that service can be permitted to take in any goods whatever."

"The employment to which the privilege of cartel is allowed, is of a very peculiar nature," said Lord Stowell; "it is a mode of intercourse between hostile nations, invented for the purpose of alleviating, in some degree, the calamities of war, by restoring to their liberty those individuals who may happen to have fallen into a state of captivity. It is the mutual exchange of prisoners of war; and, therefore, properly speaking, it can have place between belligerents only." (The Rose in Bloom, Dodson, 60; see also The Carolina Verhage, 6 Rob. 336.)

When a ship claims to be going as a cartel, the nature of the vessel does not appear to be material. Even without a certificate of cartel on board, so that she appears to be bonâ fide on a voyage for the purpose of bringing prisoners, she ought not to be condemned, and the protection extends to the return voyage. (The Diafjie, 3 Rob. 139; La Gloire, 5 Rob. 192.) A ship going to be employed as a cartel ship is not protected by mere intention on her way from one port to another of her own country, for the purpose of taking on herself that character when she arrives at the latter port. If such necessity occurs, it is proper to apply to the commissary of prisoners in the enemy's country for a pass. (The Diafjie, ib.143.) All contracts made for equipping and fitting cartel ships are to be considered as contracts between friends, and consequently to be enforced in the tribunals of either belligerent. Such vessels are considered neutral licensed vessels, and all persons connected with their navigation, upon the particular service in which both belligerents have employed her, are neutral in respect of both, and under the protection of both. (Crawford v. The William Penn, Peters, 106.) Persons put on board a cartel with their own consent, by the government of the enemy, to be carried to their own country, are bound to do no act of hostility. Therefore, a capture made by such persons of a vessel of their own country from the enemy, is not a re-capture in contemplation of law, and gives them no title to salvage, and the former owner no title to claim the vessel. (The Mary Folger, 5 Rob. 200.) Tin plates for canister shot, put on board a cartel ship by a British manufac

turer, were condemned as droits of Admiralty. (La Rosine, 2 Rob. 372.)

The rule which renders it illegal for a British subject to carry on commerce with an enemy, also precludes an ally from similar intercourse. "It is well known," said Lord Stowell (The Neptune, 6 Rob. 405), "that a declaration of hostility naturally carries with it an interdiction of all commercial intercourse; it leaves the belligerent countries in a state that is inconsistent with the relations of commerce. This is the natural result of a state of war, and it is by no means necessary that there should be a special interdiction of commerce to produce this effect. At the same time it has happened, since the world has grown more commercial, that a practice has crept in, of admitting particular relaxations, and if one state only is at war, no injury is committed to any other state. It is of no importance to other nations how much a single belligerent chooses to weaken and dilute his own rights; but it is otherwise when allied nations are pursuing a common cause against a common enemy. Between them it must be taken as an implied, if not an express, contract, that one state shall not do anything to defeat the general object. If one state admits it subjects to carry on an uninterrupted trade with the enemy, the consequence may be, that it will supply that aid and comfort to the enemy, especially if it is an enemy depending, like Holland, very materially on the resources of foreign commerce, which may be very injurious to the prosecution of the common cause, and the interests of its ally. It should seem, that it is not enough therefore to say, that the one state has allowed this practice to its own subjects; it should appear to be at least de

sirable that it could be shown, that either the practice is of such a nature as can in no manner interfere with the common operations, or that it has the allowance of the confederate state."

A fictitious destination will in no degree operate to save persons from the penalty of trading with the enemy. In The Jonge Pieter (4 Rob. 79), an attempt was made to protect a cargo shipped in England, and ultimately destined for an enemy's market, by dividing the voyage, and directing the cargo to be taken, in the first instance, to a neutral port, from whence it might or might not be afterwards carried forward to the place of its real destination, the enemy's market. But Lord Stowell condemned it to the captors. "Without the licence of government, no communication, direct or indirect, can be carried on with the enemy. Where no rule of law exists, a sense or feeling of general expediency, which is, in other words, common sense, may fairly be applied; but where a rule of law interferes, these are considerations to which the court is not at liberty to advert. In all the cases that have occurred on this question, and they are many, it has been held indubitably clear, that a subject cannot trade with the enemy without the special licence of government. The interposition of a prior port makes no difference; all trade with the enemy is illegal, and the circumstance, that the goods are to go first to a neutral port, will not make it lawful. The trade is still liable to the same abuse, and to the same political danger, whatever that may be."

The intervention of third persons will not protect a cargo in trade with the enemy. Thus, in the case of The Samuel (4 Rob. 284, 8 Term R. 548) it was de

cided that if an English subject employs a neutral to purchase for him in the country of the enemy, the neutral is in such case but the mere agent; the goods must then be considered to pass immediately from the enemy to the British subject, and such a transaction would be illegal. If a neutral merchant has, bonâ fide, purchased a vessel lying in an enemy's port, he may dispose of her as freely as if she were on the seas, and the locality of the ship will not affect the legality of the sale.

The allegation of partnership will not be allowed to save individuals from the consequences of commerce with the enemy. In The Franklin (6 Rob. 131), which was a case of trade carried on with the enemy, by a firm consisting partly of neutrals and partly of British subjects, Lord Stowell said :-"It has been decided, that even an inactive, or sleeping partner as it is termed, cannot receive restitution in a transaction in which he could not lawfully be engaged as a sole trader."

The rule thus rigidly enforced in the Admiralty Courts prevails to the same extent in the Courts of Common Law. The cases of Gist and Mason (1 Term Reports, 84), and Bell and Gilson (1 Bos. & Pul. 245), had, indeed, left the question in much perplexity; but the uniformity of decision between both tribunals was definitively established by Lord Kenyon, in the case of Potts v. Bell, in error (8 Term R. 548). His Lordship said, "That the reasons urged, and the authorities cited, were so many, so uniform, and so conclusive, to show that a British subject's trading with an enemy was illegal, that the question might be considered finally at rest, and that it was needless to delay