ship in which the goods are embarked is destined to a neutral port, and the goods are there to be unladen, yet, if they are to be transported thence, whatever may be the mode of conveyance, to an enemy's port or territory, they fall within the interdiction and penalty of the law. The converse of this is also undoubtedly true; that is, trade from an enemy's country, through a neutral port, is unlawful, and the goods so shipped through a neutral territory, even though they may be unladen and trans-shipped, are liable to condemnation. It is an attempt to carry on trade with the enemy, by the circuitous route of a neutral port, and thus evade the penalty of the law. But the law will not countenance any such attempts to violate its principles by a resort to the shelter of neutral territory; any such voyage is illegal at its inception, and the goods shipped are liable to seizure at the instant it commences. A coasting or colonial trade, limited to the ports of the enemy, so far from meriting any indulgence, is regarded as peculiarly noxious, and the ship and goods so employed, with a knowledge of the war, cannot escape the penalty of condemnation. The conduct of the citizen,' says Duer, 'who thus incorporates himself with the commerce and interests of the enemy, admits of no palliation or excuse; it is not simply blameable, but highly criminal.'1

voyages

§ 12. A vessel engaged in unlawful trade with the enemy Conis liable to capture and condemnation at any time during the tinuous voyage in which the offence is committed, but not after the voyage is completed. If, however, the voyage is continuous Addit. Letters, 43. The English Courts seem rather to have inclined to the doctrine that it is the destination of the vessel which determines the character of the trade, and not the destination of the goods. The 'Hendric and Alida,' 1 Hay and Marr., 96; Hobbs v. Henning, 5 New Rep., 406; the Diana,' Lords of Appeal, March 1, 1806. In the case of the 'Exchange' (Edwards, 39), a ship having been condemned for a deviation towards an enemy's port, the cargo was held to be involved, by such deviation, in the fate of the ship.

1 Kent, Com. on Am. Law, vol. i. p. 81; Wheaton, Elem. Int. Law, pt. iv. ch. i. § 17; Duer, On Insurance, vol. i. pp. 569, 570; the 'Diana,' 2 Gallis. R., 98; the 'Wellington,' 2 Gallis. R., 103; the 'Jonge Pieter,' 4 Rob., 79; the 'William,' 5 Rob., 393.

This trade, by a citizen, should not be confused with that carried on by a neutral. Modern jurists consider that it is contrary to free trade that a coasting or colonial trade should be denied the latter. The right of a belligerent to prohibit such trade unquestionably exists, but the present spirit and disposition of the European Powers are such as to render it very doubtful whether, in case of war, this right would be again enforced against neutrals.

When

offence is

and entire, although consisting of separable parts, she is liable to capture while any portion of it remains to be performed, even where the part in which the offence was committed has been completed. This point has been fully discussed and decided in the Supreme Court of the United States.1

§ 13. Actual trading with the enemy is not necessary to completed subject a ship or goods to confiscation. It is sufficient, as a general rule, that they are engaged in a voyage with that design, in order to complete the offence, and to incur the penalty. So also a ship belonging to a subject, and proceeding to an enemy's port in ballast, with no positive intention of procuring a cargo, or returning therefrom without any cargo, would be liable to capture both on her outward and return voyage. It would be in vain to allege that there was no act or intention of trading. But the mere intention to trade with the enemy is not punishable, if at the time of capture the execution of the intent is no longer practicable. Where, from fortuitous circumstances, whether known or unknown to the parties, the execution of the design can no longer be effected, the intent does not constitute the crime, for no crime could be committed. A criminal intent is never punishable, if, before the design can be executed, its execution becomes impossible. Thus, a British ship bound to a West India Island- an enemy's country-but captured after the island had, in fact, surrendered to the British forces, was restored by Sir William Scott. That particular case, however, was distinguished from the general rule as laid down by Duer, which requires the full sanction of judicial decisions.3

§ 14. Where the property seized for illegal traffic with the 1 Wildman, Int. Law, vol. ii. pp. 20-23; the 'Joseph,' Cranch., 454, 455; the Memphis,' Blatchf. Pr. Cas., 260; and see ch. xxviii. § 22.

2 Sir W. Scott also restored a Dutch ship from Demerara (a Dutch colony), which had been captured, at sea, several days after that colony had capitulated to the British forces, one of the terms of the capitulation being that the inhabitants were to be permitted to export their own property, and to be treated in all respects like British subjects (the 'Negotie en Zeevaart,' I Rob., 3). But on appeal the House of Lords reversed the decision on the ground that property sailing after a declaration of hostilities, and taken on a voyage, cannot be protected by an intermediate capitulation; Lord Camden observing, that 'the ship sailed as a Dutch ship, and could not change her character in transitu?

3 The 'Abbey,' 5 Rob., 251; Wildman, Int. Law, vol. ii. p. 22; the 'Imma,' 3 Rob., 167; the 'Lisette,' 6 Rob., 387; the 'Trende Sostre,' 6 Rob., 390, in notes.

neutral

enemy belongs to a house of trade, established in a neutral share of country, but of which one of the partners is a resident subject partner in of the belligerent country, his share, notwithstanding the house neutrality of the house, is condemned. The rule is equally applicable, even where the belligerent party is strictly dormant, and takes no part whatever in the direction and management of the affairs of such trading house. If he is a party interested in the property so contaminated, he must suffer the penalty of the offence. He cannot engage as a partner in a transaction in which he could not lawfully engage, if alone.1

§ 15. Courts of prize regard with extreme suspicion and Transfer of ships jealousy the transfer of ships from subjects to neutrals, during the war. If such a ship is subsequently employed in a trade with the enemy, very slight indicia of fraud would cause her condemnation. Thus, an English vessel, asserted to have been sold to a neutral, after hostilities had been commenced between England and Holland, was captured while engaged in trade between Guernsey and Amsterdam, under the command of her former master, who had also been the owner, and it was held by Sir William Scott, that the transfer was colourable and void, and he condemned both ship and cargo. If, however, the transfer be bonâ fide, and the vessel becomes neutral property, it may be employed in all trade in which neutrals may lawfully engage.2

larity of

§ 16. Regularity of papers, in such cases, is not conclusive Reguevidence of ownership; for, as remarked by Sir William Scott, papers not in the case of the 'Odin,' where there is an intention to conclusive deceive, the regularity of the paper documents is a necessary part of the apparatus and machinery of the fraud. Although regular documents, if duly verified and supported, are pre

1 The 'Franklin,' 6 Rob., 127; the 'Fortuna,' 1 Rob., 211.

The liability of property (the product of an enemy's country, and coming from it during war) to seizure is irrespective of the status domicilii, guilt or innocence of the owner. These principles apply to property held, before the war, in partnership, as well as to that held in severalty. The war dissolves the partnership. (The 'Dashwood,' 5 Wall., 170; the 'Gray Jacket,' ibid. 342; the William Bagaley,' ibid. 377. But see 'Fifty-two Bales of Cotton,' suprà, p. 127.)

The property of a commercial house, established in the enemy's country, is subject to seizure and condemnation as prize, though some of the partners may have a neutral domicile. (The 'Cheshire,' 3 Wall., 231.) Wildman, Int. Law, vol. ii. p. 83; the Omnibus,' 6 Rob., 71; the 'Jemmy,' 4 Rob., 31. The transfer, during war, of a ship of war, by an enemy to a neutral, is illegal (the Packet de Bilboa,' 2 Rob., 133; the Georgia,' I Low., 96).

Trade by stranger in enemy's country

Distinction as to native subject

sumptive evidence, yet, if the circumstances and facts of the case lead justly to the conclusion that these papers, however formal, are themselves false, the court will not be bound by them. Where the papers say one thing, and the facts of the case another, the court will exercise a sound judgment as to which the preponderance is due. It has already been stated that, although a vessel be documented as a neutral vessel, it will not be protected by its documents, if the domicile of its owner is hostile. A government may grant the privilege of a national character to vessels for the purpose of its own navigation, but cannot change its national character, to the prejudice of third parties. Consequently, if the real owner of the vessel engaged in trade with the enemy be a subject of one of the belligerents, its apparent neutral character will not save it from condemnation.1

§ 17. When the trading is from a port of the belligerent, claiming the right of capture, the property is, as a general rule, liable to confiscation, if the owner at the inception of the voyage was a resident in the country, whether as a native subject, a domiciled merchant, a mere stranger, or a sojourner. Every person in a country (with the limited exception of ambassadors, &c.), whether a native or stranger, owes obedience to its laws, and the rule of international jurisprudence, which forbids all intercourse and trade with the public enemy, is just as obligatory upon him as the municipal laws of revenue or regulations of police. We have already stated under what circumstances the property of a resident in an enemy's country is to be deemed hostile; the same circumstances, as a general rule, are sufficient to justify that enemy to treat it as the property of his own subjects, and to subject it to like penalties.2

§ 18. There exists, however, an important distinction between the case of a native subject and that of a domiciled stranger or mere sojourner. The property of the subject,' says Mr. Duer, 'where the trade was illegal in its origin and intent, cannot be redeemed from its guilt and penalty by any subsequent change of his own residence; but that of the domiciled merchant or stranger will be restored, if, previous to its capture, he had, in part, removed from the belligerent

1 The Odin,' I Rob., 252, 253; the 'President,' 5 Rob., 277; Tolard v. Bell, 8 Term. R., 434; as to ships' papers, see ch. xxii. § 19. Riquelme, Derecho Púb. Int., lib. i. tit. ii. cap. xiv.

country, with the intention of returning to his own; for, in this
case, the illegality that arose solely from his local and tem-
porary allegiance, by the removal of its cause, has ceased to
exist.' This distinction has been established in a number of
decisions, both in the United States and in England. In the
case of the 'Indian Chief,' Mr. Johnson, one of the claimants,
was an American citizen in his native character, but had resided
and was engaged in trade in England, and was still living
there, when the ship which he claimed as owner, and which
was seized as engaged in a trade with the enemy, commenced
her voyage. But as it was clearly proved that he had left
England for the United States, and with the bona fide intention
of resuming his native character, before the seizure, his claim
was allowed and the ship restored. Again, in the case of the
'Etrusco,' the claimant was a Swiss by birth, but had been
impressed with a French hostile character, by trading under
the protection of a French factory in China, and such was his
character when the goods were shipped; but he had fortunately
quitted China before the capture, and upon this ground the
Lords of Admiralty decreed a restoration. In the case of the
'Ocean,' the only act upon which Sir William Scott relied,
as evidence of the intention of the party, was, that he had
made arrangements for withdrawing himself as a partner from
a house of trade in the hostile country, and if he is able to show
that the evidence on which the captors rely, as fixing his
character, had been changed in fact, or in judgment of law,
previous to capture, his claim to restitution will be allowed.
In the judgment of Chief Justice Marshall, dissolution of
partnership, discontinuance of trade in the enemy's country,
and other arrangements obviously preparatory to a change of
residence, ought all to be considered overt acts, which, when
performed in good faith, entitle the claimant to restitution.
This seems an important exception to the general rule, that
the national character of property on the ocean cannot be
changed in transitu during the prosecution of the voyage.'

ance of

§ 19. If a vessel belonging to one of the belligerents pro- Acceptsecutes a voyage, even to a neutral port, under a license from license the government of the enemy, both ship and cargo, while they from

1 Duer, On Insurance, vol. i. pp. 515-517, 544, 545, 576; the Indian Chief,' 3 Rob., 18-21; the Ocean,' 5 Rob., 91; the Etrusco,' 3 Rob., 31; the Portland,' 3 Rob., 41.

enemy