contract by persons pretending to act upon rights which they had parted with, as well by their own engagments as by the nature of the situation in which they were placed. The Court held the enemy to be aggrieved by this act, and considering the interest, which the Crown has in preserving the sanctity of good faith in all public relations to foreign states, it decreed the property to be delivered to his Majesty, to be by him disposed of as his sense of justice towards the injured government might direct (d).

The principal use of safe conducts or papers, in modern times, is for the protection of cartel ships employed for the exchange of prisoners of war. Ships are to be protected in this office both in carrying prisoners and in returning from that service. A ship going 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 upon herself that character when she arrives at the latter port. The security is derived from the special safe conduct. Yet, when ships without any safe conduct were taken acting bonâ fide as cartel ships, it was held that it would be too strict to hold them liable to confiscation, and they were restored subject to the payment of expences (e). The actual existence of war is not necessary to give effect to contracts of cartel. They may be entered into upon contemplation of hostilities; and protection granted by persons executing the functions of executive government abroad is to be considered as granted under the authority of the crown, if not renounced by the crown in subsequent actions or declarations (ƒ). But the privilege of cartel being confined to the intercourse of hostile states, has place only between belligerents, and is not applicable to the transactions of a neutral state acting for its own purposes

(d) The Mary, 5 Rob. 200.

(e) The Daifjee, 3 Rob. 139. La Gloire, 5 Rob. 492. he Carolina, 6 Rob. 336.

(f)

without reference to the existence of a war with any other country (g).

In the following chapter will be considered the national character of ships, which renders them liable to be seized and brought in for adjudication under the order of council granting general reprisals against the ships, vessels, and goods of the Emperor of all the Russias and of his subjects or others inhabiting within any of his countries, territories, or dominions. In considering the right of capture, it is not necessary to treat of the national character of goods, because goods on board an enemy's vessel must necessarily be sent in for adjudication with the vessel, and enemy's goods on board a neutral or friendly vessel are exempted from capture by the orders in council of the 28th of March and 15th of April 1854.

(g) The Rose in Bloom, 1 Dod. 60.

CHAPTER III.

OF THE NATIONAL CHARACTER OF SHIPS.

THE national character of a vessel is determined by its flag and pass; or, secondly, by the character of its employment; or, thirdly, by the residence of its owner. Under the head of ownership will be considered the validity of transfers of title.

1st. It is a known and established rule with regard to a vessel, that if she is navigating under the pass of a foreign country, she is considered as having the national character of that nation under whose pass she sails. She makes a part of its navigation and is in every respect liable to be considered as a vessel of that country (a). A vessel sailing under the colours and pass of a nation, though adopted in time of peace and not in contemplation of war, is considered as clothed with the national character of that nation. Ships have a peculiar character impressed upon them by the special nature of their documents, and have always been held to the character, with which they are so invested, to the exclusion of any claims of interest which persons living in neutral countries may actually have in them. This principle was strongly recognised in the case of a ship taken on a voyage from Surinam to Amsterdam, and documented as a Dutch ship. Claims were

(a) Per Cur. The Vigilantia, 1 Rob. 13. The Diana, 5 Rob. App. 2. The Ariadne, 2 Wheaton, 143. The Caledonia, 4 Wheaton, 100.

given for specific shares on behalf of persons resident in Switzerland; and one claim was on behalf of a lady, to whom a share had devolved by inheritance. In that case it was held, that sailing under a Dutch flag and pass was decisive against the admission of any claim; and it was observed, that as the vessel had been enjoying the privileges of a Dutch character, the parties must be subject at the same time to the inconveniences attaching to it (b). By assuming the flag and pass of a foreign state persons expose themselves to a double disadvantage. It is a known rule of law, that when parties agree to take the flag and pass of a foreign country they are not permitted, in case any inconvenience should afterwards arise, to aver against the flag and pass to which they have attached themselves, and to obtain the benefit of their real character. They are likewise subject to this further inconvenience, that their real character may be averred against them by others. Thus, when a ship was sailing under a Swedish flag and pass, and was engaged in a trade lawful only to a ship entirely Swedish, and one-half of the ship belonged to British owners, she was condemned (c). So where a ship was sailing under the flag and pass of Portugal, but was proved by papers found concealed on board to be a Spanish ship (d). So where a Dutch vessel was sailing under the flag and pass of Kniphausen (e).

Secondly. A vessel may have a national character impressed upon her by her employment. A vessel belonging to neutral or friendly owners acquires the character of an enemy's vessel by conveying naval or military persons in the service of the enemy, or enemy's despatches.

(b) The Elizabeth, 5 Rob. 2. The Vreede Scholtys, 5 Rob. 5, n.

(c) The Success, 1 Dod. 131.

(d) The Citade de Lisboa, 6 Rob. 358.

(e) Ibid. n.

Thus, the carrying military persons to the colony of the enemy, who are there to take upon them the exercise of their military functions, will lead to condemnation; and the Court will not scan with minute arithmetic the number of persons who are so carried. The number of persons alone is an insignificant circumstance in the considerations, on which the principle of law upon this subject is built, since fewer persons of high quality and character may be of more importance than a much greater number of persons of lower condition. To send out one veteran general to take the command of forces might be a more noxious act than the conveyance of a whole regiment. If it has appeared to be of sufficient importance to the government of the enemy to send them, it must be enough to put the adverse government on the exercise of their right of prevention. The ignorance of the master can afford no ground of exculpation in favour of the owner, who must seek his remedy in cases of deception as well as force against those who have imposed upon him; otherwise such opportunities of conveyance would be constantly used, and it would be almost impossible, in the greater number of cases, to prove the knowledge and privity of the immediate offender (f). Thus, where a vessel was seized, on a voyage from Bourdeaux to New York, having on board a French officer of rank disguised as a merchant's clerk, and the master made an affidavit averring his ignorance: the Court observed, that the general rule must be held strong against the averment of ignorance, and that it was scarcely credible that the master could have been deceived with respect to the character of a military officer of high rank, so as to be imposed upon by the disguise of a merchant's clerk, which he had pretended to assume; and the ship was condemned (g). So where a

(f) The Ororzembo, 6 Rob. 430.

(g) The Susan, 6 Rob. 431.