terminates in a reconciliation, the seizure is regarded as a mere civil embargo; but if war follow, it impresses upon the original seizure a direct hostile character.' But this particular point has been discussed in chapter xvii.

of enemy's

§ 15. The transfer, in time of war, of the vessel of an Transfer enemy to a neutral, is a transaction, from its very nature, ships to liable to strong suspicion, and consequently is examined with neutrals a jealous and sharp vigilance, and subjected to rules of a peculiar strictness in the prize court of the opposite belligerent. Nevertheless, neutrals have a right to make such purchases of merchant vessels, when they act with good faith, and, consequently, the belligerent powers are not justified, by the law of nations, in attempting to prohibit such transfers by a sweeping interdiction, as was done in former years by both the French and English governments. Ordinances of this character form no part of the law of nations, and, consequently, are not binding upon the prize courts, even of the country by which they are issued. Nevertheless, where the sale is claimed to have been made by an enemy to a neutral, in time of war, it is not unreasonable that its motives, nature, and terms should be an object of the most searching inquiry. The temptation to fraud, in such cases, is so great that the entire transaction should be most strictly examined, otherwise the opposing belligerent might be deprived of his just rights of capture. Hence courts of admiralty have established very severe rules respecting such transfers.2

'The Danckebaar Africaan,' 1 Rob., 107; Duer, On Insurance, vol. i. pp. 441-444; Phillimore, On Int. Law, vol. iii. § 21; Wheaton, Elem. Int. Law, pt. iv. ch. i. § 4; the 'Bodes Lust,' 5 Rob., 233-250; the 'Diana,' 5 Rob., 60; Wildman, Int. Law, vol. ii. pp. 101, 102.

2 Abreu, Tratado de las Presas, cap. v. § 3; Pouget, Droit Maritime, tome i. p. 459; Wheaton, On Captures, appen., p. 386; Hautefeuille, Droit des Nations Neutres, tit. xi. ch. ii. ; Cushing, Opinions of U.S. Attys.Genl., vol. vi. p. 638. An enemy's vessel ostensibly transferred to a neutral, but continuing in the enemy's trade, manned by subjects of the enemy, and sailing from and to an enemy's port, was condemned. (The • Embden,' 1 Rob., 13.) The sale of a ship of the enemy's to a neutral must be absolute and bona fide. Any equity of redemption or other defeasance will be considered to keep the title still in the enemy. (The 'Sechs Geschwistern,' 4 Rob., 100.) A vessel purchased in the enemy's country continually employed in the trade of that country during war, and evidently on account of the war, was deemed to be a ship of that country. (The Vigilantia,' I Rob., 13.) In the case of the purchase of an enemy's vessel by a neutral, it appearing that the asserted neutral was a person then resident in the enemy's country, it was held that the presumption was that he was there animo manendi,, and that the proof lay on the claimant to explain it (the 'Bernon,' 1 Rob., 102). A vessel, sold in a

Rules of

such transfer

So,

§ 16. These rules may be briefly stated as follows: the sale of an enemy's vessel to a neutral purchaser, to be valid, must, in all cases, be absolute and unconditional. The title and interest of the vendor must be completely and absolutely divested. If there is any covenant, condition, agreement, or even tacit understanding, by which he retains any portion of his interest, the entire contract is vitiated, and, in international law, regarded as void. Thus, if the vendee is bound by a condition to restore the vessel at the conclusion of the war; or, if the vendor retains a lien upon the vessel, for the whole or a part of the purchase money, the transfer is held to be colourable and void. Even where the sale is ostensibly absolute, if the vessel continues under the control and management of her former owner, and in the same trade and navigation in which she was previously employed, these circumstances are deemed conclusive evidence of a fraudulent intent to cover, under the name of a neutral, the property of an enemy, and the contract is necessarily adjudged to be invalid.1 blockaded port by a neutral, who had himself purchased of the enemy since the commencement of hostilities, was taken coming out of that port, and was condemned (the 'Vigilantia,' Reyt., 6 Rob., 122). A British ship was fictitiously transferred to Russian merchants, to prevent her seizure by the Russian authorities, while lying ice-bound in a Russian port, at the outbreak of the Crimean war, 1854. She was seized as Russian property, by the customs officers, on her arrival at Leith. The Prize Court was of opinion, that the case presented very considerable difficulties, of a perfectly novel character, for if the vessel was not restored to the claimants, there was no alternative but to condemn her to the Crown. And how? not as taken by a non-commissioned captor, but-following the case of 'Etrusco' (Lords of Appeal, 11 August, 1803)—to the Crown, for a violation of the British law. This the Court could not do: 1st, because there was no proof of a violation of British law, which, by British law, would entail a condemnation; 2ndly, because there had been no intention to commit a malâ fide act, in violation of British law; lastly, because the whole transaction was a deception on the British Customs for the purpose of protecting British property, not for the purpose of deceiving British authorities, nor with the intention of violating British law, but for rescuing property supposed to be in the grasp of the enemy. The Court, however, expressed considerable doubt whether this course of proceeding on the part of the claimant, even for a laudable purpose, was quite correct. (The 'Ocean Bride,' Spinks, Pri. Cas., 66.) See also the "Benedict,' Spinks, Pri. Cas., 314, a case of the bona fide transfer from an enemy to a neutral, and Sorensen v. Reg., suprà, § 4. The interest or expectancy of creditors in enemy property arrested as prize, even though amounting to a lien upon it, does not exempt it from capture as prize. (The Mary Clifton,' Blatchf. Pr. Cas., 556.)

1 A vessel, belonging to a Russian, sailed from Cronstadt with a cargo of wheat on May 17, 1854, bound to Leith, where she arrived in June, and was there seized by the customs officers. She was said to have been transferred, by virtue of a power of attorney, to a Dane at Messina, then

also, if the neutral vendee, although residing himself in a neutral country, continues to employ the vessel constantly in the trade of the country to which she belonged, she is as thoroughly incorporated in a hostile commerce, as if she had never been transferred. The inference from these circumstances is not to be resisted, that the sole object of the transfer was to enable the vessel to carry on the enemy's trade without a liability, and, consequently, that the sale was collusive, and a meditated fraud upon belligerent rights. But, in these cases, condemnation would follow from the hostile character impressed upon the vessel by the trade in which she is employed, even if the transfer were to be considered as in itself valid. If, says Sir William Scott, a neutral chooses to engage himself in the trade of a belligerent nation, he must be content to bear all the consequences of the speculation; if he confines himself exclusively to the trade and navigation of an enemy's country, he is liable to be considered an enemy, in respect to the vessel so employed. If a merchant vessel of an enemy shelters itself from hostile pursuit in a neutral port, and, on account of the difficulty or impossibility of escape, is there sold, it has been contended that such sale is a violation of belligerent rights; but the purchase of a neutral, under such circumstances, if bonâ fide, is considered valid, and sustained by courts of prize. But not so with respect to the purchase of an enemy's ship of war, under like circumstances, resold by virtue of another power of attorney to her master while at Copenhagen, in the course of her voyage. She was condemned by the English Prize Court as never having been bonâ fide transferred. It was held, that the Court looks rather for the natural evidence of a transaction, such as correspondence, than for formal documents, and that the Court can restore to the claimant only in the character in which he claims, and that the onus of full and complete proof lies upon such claimant. The master had made an affidavit, after the capture, stating that he had taken on board his cargo on May 14; this he had done with the evident intention of bringing his vessel within the protection of a certain Order in Council, which would not have protected him had he named the real date. Dr. Lushington observed that, not only had the claimant failed to prove his claim, but that even if the proof of ownership had been more stringent, he was not satisfied that he could have restored the property to the master, as entitled to a Danish character. If a man chooses to clothe himself fictitiously with a Danish character, and attempts to get restitution under that pretence, and is detected by the Court, it is not very consistent with law or justice, that he should then be entitled to turn round, and say, 'I played the rogue; I tried to persuade you I was a Dane, but I am in reality a Russian. Give me the benefit of that Order in Council which I should have been entitled to, if I had acted as an honest man.' (The 'Soglasie,' 2 Spinks, 101.)

General

character

our courts.

for it is held that neutrals cannot purchase ships of war from either of the belligerents. It has been held by the British courts of prize, that a ship cannot change her character in transitu, and that a transfer to a neutral, notwithstanding the bona fides of the transaction, will not exempt her from capture and condemnation. This doctrine is sustained by the dicta of Mr. Justice Story, in the Ann Green' and the 'Francis,' but the question has not been directly decided in It therefore remains a debatable point with us. Such is a summary of the rules adopted by the British prize courts with respect to the transfer of ships during the war, from one of the belligerents to a neutral. So far as they conform to the rules of evidence and logical proof, established by the practice and consent of the nations of Christendom, they are obligatory, and can neither be resisted nor disputed. But, beyond this, they have no force as rules of international law. For no belligerent nation can impose upon a neutral its regulations, nor dictate to such neutral unusual rules of evidence, or arbitrary means of proof. In other words, if a neutral, who has purchased a vessel from a belligerent, holds such vessel by a title valid by the law of nations, he cannot be deprived of it by a prize court, because he does not prove his ownership according to the arbitrary and unusual rules of evidence which that court may adopt. If the sale be valid, it cannot be annulled by any rules which a belligerent nation may see fit to prescribe for itself, but which, by the law of nations, are not obligatory upon neutrals.1

§ 17. It follows, from the rules of decision heretofore anrule as to nounced, that the character of property on the high seas, of ships whether vessels or goods, results, as a general rule, from the and goods character of their owners, or those who are regarded in international law as the owners. If such owners are hostile, friendly or neutral, according to the particular rules of law applicable to the state of war, their property is, in general,

1 The Ann Green,' I Gal., 289; Wildman, Int. Law, vol. ii. pp. 84 et seq.; Phillimore, On Int. Law, vol. iii. p. 448; Duer, On Insurance, vol. i. pp. 446-448; Kluber, Droit des Gens, § 234; Rayneval, Droit de la Nat. et des Gens, liv. iii. chs. xiv. xv.; the Noydt Gedacht,' 2 Rob., 137, note; the 'Sechs Geschwistern,' 4 Rob., 100; the 'Vigilantia,' 1 Rob., 1; the 'Embden,' I Rob., 16; the' Jemmy,' 4 Rob., 31; the 'Argo,' 1 Rob., 163; the Vrow Hermina,' 1 Rob., 163; the Endraught,' I Rob., 18, 19; the Minerva,' 6 Rob., 396, 399; the Omnibus,' 6 Rob., 71; the 'Packet de Bilboa,' 2 Rob., 133.

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to be considered hostile, friendly or neutral, and, as such, is subject to, or exempt from, capture.' The laws of war applicable to ownership are, as before remarked, different from those which apply in time of peace, and hence what, by the latter, would be considered the property of a neutral, will not unfrequently, by the former, be regarded as the property of an enemy. But there are numerous exceptions to this general rule, that the character of property on the high seas results from that of its owner, for the property of neutrals, subjects, and allies, is not unfrequently impressed with a hostile character from the circumstances of its locality, use, &c. Thus, ships are deemed to belong to the country under whose flag and pass they sail; at least, this circumstance is conclusive, as against the party who takes the benefit of them, although they do not bind other parties, as against him. So, a ship belonging to a neutral owner may acquire a hostile character from the trade in which she engages, or some particular act which she may do. The same may be said with respect to proprietary interests in cargoes, although, in general, goods have the same national character as their owners; yet they sometimes have impressed on them a hostile character while their owners are friendly or neutral, sometimes from their origin, character, or use, and sometimes from the acts of their owners, of the ship in which they are carried, or of the master in charge of them.2 These questions were discussed in chapter xii.

§ 18. In determining the national character of property,

1 A cargo was purchased and shipped in Holland, when at war with Great Britain, on board a neutral vessel; on it being proved by the bill of lading and other papers to be the property of a merchant in Hamburg, then in neutrality, it was held not liable to condemnation as prize. O'Neale, v. Cordes and Gronemeyer (1805), 13 F. c. 221.

If a British ship, captured by an enemy, is afterwards purchased by a British subject, she is still, in the contemplation of the law of England, the property of the person from whom she was captured (Woodward v. Larking, 3 Esp., 286; the 'Reward,' Hay and Mar., 197). The 55 Geo. III., c. 160, § 5, now expired, enacted that if any British ship, taken as prize by the enemy, be set forth for war by the enemy, it shall, on being recaptured by British subjects, be condemned as prize to the recaptors. See cases, the 'Horatio,' 6 Rob., 320; L'Actif,' Edwards, 185; the 'Ceylon,' 1 Dods., 114; the Georgiana,' ibid. 401.

The Vrow Anna Catharina,' 5 Rob., 161; the Magnus,' 1 Rob., 31 ; the 'Fortuna,' 1 Dod. R., 87; the 'Success,' 1 Dod. R., 131; the Princesa,' 2 Rob., 49; the 'Anna Catherina,' 4 Rob., 107; the Rendsborg,' 4 Rob., 121; the Commercen,' 1 Wheaton R., 382; the Phoenix,' 5 Rob., 20; the 'Drie Gebroeders,' 4 Rob., 232; the Industrie,' Spinks R., 444.

VOL. II.

II