* the war of 1793, and again upon the renewal of war in 1803. The rule was enforced by her, under occasional relaxations, during the long course of the wars arising out of the French Revolution; and it was frequently vindicated by Sir William Scott, in the course of his judicial decisions, with his customary ability and persuasive manner, as a rule founded in natural justice and the established jurisprudence of nations. (e) On the other hand, the government of the United States constantly and earnestly protested against the legality of the rule, to the extent claimed by Great Britain; and they insisted, in their diplo*84 matic 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." (a) 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 a 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 seem 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, (b) alluded to the rule, but purposely avoided expressing (e) The Immanuel, 2 C. Rob. 186, and C. Rob. Rep. passim. (a) Mr. Monroe's Letter to Lord Mulgrave, of September 23, 1805, and Mr. Madison's Letter to Messrs. Monroe and Pinckney, dated May 17, 1806. (b) 1 Wheaton, 396. * any opinion on the correctness of the principle. It is very possible that, if the United States should hereafter attain that elevation of maritime power and influence which their rapid growth and great resources seem to indicate, and which *85 shall prove sufficient to render it expedient for her maritime enemy (if any such enemy shall ever exist) to open all his domestic trade to enterprising neutrals, we might be induced to feel more sensibly than we have hitherto done the weight of the 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 intermediate port, or a mere contrivance to cover the original scheme of the voyage to an ulterior port? This is the true prin 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, under 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 (c. 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 destination 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. s. 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 pur[97] 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 also; but the English courts have never carried the principle to that extent, as to cargoes ciple 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. pose 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 The Pri war, is liable to condemnation. 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 confiscation 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. Lawrence's note 192; post, 128, n. 1. 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 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 * 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 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 prop (b) The Elizabeth, 5 C. Rob. 2; The Vreede Scholtys, cited in the note to 5 C. Rob. 5. (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. But if erty from capture, by colorable assignments to neutrals. 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 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 the place of the enemy. (c) The prize courts 87 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 (a) Packet De Bilboa, 2 C. Rob. 133, 134; Anna Catharina, 4 id. 112. (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. 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 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. |