*

interdiction of trade applies to ships of truce, or cartel ships, which are a species of navigation, intended for the recovery of the liberty of prisoners of war. Such a special and limited intercourse is dictated by policy and humanity, and it is indispensable that it be conducted with the most exact and exclusive attention to the original purpose, as being the only condition upon which the intercourse can be tolerated. All trade, * 69 therefore, by means of such vessels is unlawful, without the express consent of both the governments concerned. (a) It is equally illegal for an ally of one of the belligerents, and who carries on the war conjointly, to have any commerce with the enemy. A single belligerent may grant licenses to trade with the enemy, and dilute and weaken his own rights at pleasure, but it is otherwise when allied nations are pursuing a common cause. The community of interests and object and action creates a mutual duty not to prejudice that joint interest; and it is a declared principle of the law of nations, founded on very clear and just grounds, that one of the belligerents may seize and inflict the penalty of forfeiture on the property of a subject of a co-ally, engaged in a trade with the common enemy, and thereby affording him aid and comfort whilst the other ally was carrying on a severe and vigorous warfare. It would be contrary to the implied contract in every such warlike confederacy, that neither of the belligerents, without the other's consent, shall do anything to defeat the common object. (b)

In the investigation of the rules of the modern law of nations, particularly with regard to the extensive field of maritime capture, reference is generally and freely made to the decisions of the English courts. They are in the habit of taking accurate and comprehensive views of general jurisprudence, and they have been deservedly followed by the courts of the United States on all the leading points of national law. We have a series of judicial decisions in England and in this country, in which the usages and the duties of nations are explained and declared with that depth of research, and that liberal and enlarged inquiry, which strengthen and embellish the conclusions They contain more intrinsic argument, more full and precise details, * more accurate illustrations, and *70

of reason.

(a) The Venus, 4 C. Rob. 355; The Carolina, 6 C. Rob. 336.
(b) The Nayade, 4 C. Rob. 251; The Neptunus, 6 C. Rob. 403.

tribunals in Europe and in this country for information and authority on a great many points on which all the leading text-books have preserved a total silence. (x) The complexity of modern commerce has swelled beyond all bounds the number and intricacy of questions upon national law, and particularly upon the very comprehensive head of maritime capture. The illegality and penal consequences of trade with the enemy; the illegality of carrying enemy's despatches, or of engaging in the coasting, fishing, or other privileged trade of the enemy; the illegality of transfer of property in transitu between the neutral and belligerent; the rules which impress upon neutral property a hostile character, arising either from the domicile of the neutral owner, or his territorial possessions, or his connection with a house in trade in the enemy's country, are all of them doctrines in the modern international law, which are either not to be found at all, or certainly not with any fulness of discussion and power of argument, anywhere, but in the judicial investigations to which I have referred, and which have given the highest authority and splendor to this branch of learning.

(x) The Monroe doctrine, recently much discussed, although not yet recognized and defined in the Law of Nations, appears, apart from alliance with other American republics, to rest upon the right of self-defence and self-protection, illustrated in the case of the three-mile zone and arms of the sea as enclosed waters, which the author suggests, supra, p. 30,

in the case of the United States should be liberally extended by lines drawn from one distant headland to another. See 29 Am. L. Rev. 419, 839, 887; 1 Wharton's Digest, § 57; Tucker's Monroe Doctrine; the recent debates in Congress, and Pres. Diaz's recent message and Mr. Phelps' address noticed in 62 Nation, 264, 280, &c.

[99]

LECTURE IV.

OF THE VARIOUS KINDS OF PROPERTY LIABLE TO CAPTURE.

IT becomes important, in a maritime war, to determine with precision what relations and circumstances will impress a hostile character upon persons and property; and the modern international law of the commercial world is replete with refined and complicated distinctions on this subject. It is settled that there may be a hostile character merely as to commercial purposes, and hostility may attach only to the person as a temporary enemy, or it may attach only to property of a particular description. This hostile character, in a commercial view, or one limited to certain intents and purposes only, will attach in consequence of having possessions in the territory of the enemy, or by maintaining a commercial establishment there, or by a personal residence, or by particular modes of traffic, as by sailing under the enemy's flag or passport. This hostile relation, growing out of particular circumstances, assumes as valid the distinction which has been taken between a permanent and a temporary alien enemy. A man is said to be permanently an alien enemy when he owes a permanent allegiance to the adverse belligerent, and his hostility is commensurate in point of time with his country's quarrel. But he who does not owe a permanent allegiance to the enemy is an enemy only during the existence and continuance of certain circumstances. A neutral, for instance, said Ch. J. Eyre, (a) can be an alien enemy only with respect to his acts done under a local or temporary allegiance to a power at war, and when his temporary allegiance determines, his hostile character determines also.

It was considered by Sir William Scott, in the case of the Phoenix, (a) and again in the case of the Vrow Anna Catha

(a) Sparenburgh v. Bannatyne, 1 Bos. & Pull. 163.

(a) 5 C. Rob. 20.

The produce of

rina, (b) to be a fixed principle of maritime law, that the possession of the soil impressed upon the owner the character of the country, so far as the produce of the soil was concerned, wherever the local residence of the owner might be. a hostile soil bears a hostile character for the purpose of capture, and is the subject of legitimate prize when taken in a course of transportation to any other country. The enemy's lands are supposed to be a great source of his wealth, and perhaps the most solid foundation of his power; and whoever owns or possesses land in the enemy's country, though he may in fact reside elsewhere, and be in every other respect a neutral or friend, must be taken to have incorporated himself with the nation, so far as he is a holder of the soil; and the produce of that soil is held to be enemy's property, independent of the personal residence or occupation of the owner. (a) The reasonableness of this principle will be acceded to by all maritime nations; and it was particularly recognized as a valid doctrine by the Supreme Court of the United States, in Bentzon v. Boyle. (c) 1

1. Domicile in the Enemy's Country. If a person has a settlement in a hostile country by the maintenance of a commercial establishment there, he will be considered a hostile character, and a subject of the enemy's country, in regard to his commercial transactions connected with that establishment.

The posi

tion is a clear one, that if a person goes into a foreign country,

(b) 5 C. Rob. 161.

(c) 9 Cranch, 191.

1 The Crenshaw, Blatchf. Pr. 2, 27; The Mary Clinton, ib. 556.

(a) All property produced in the enemy's territory is stamped with the character of that country. Brigg's Case, 25 Ct. Cl. 126; 143 U. S. 346. Of "immovable property belonging to the conquered State, the conqueror has, by the rights of war, acquired the use so long as he holds them. The fruits, rents, and profits are, therefore, his; and he may lawfully claim and receive them. Any contracts or agree ments, however, which he may make with individuals farming out such property, will continue only so long as he retains control of them, and will cease on the restitution to, or recovery by, their former

owner." Halleck, Int. Law (3d ed.), ch. 33, § 4, approved by Hunt, J. in New Orleans v. Steamship Co., 20 Wall, 387, 397; see supra, p. 25, note (x). Although, during the civil war, the Government paid rent at Memphis upon proof of the owner's loyalty, such a contract cannot be made or implied, without the express sanction of the Government with an enemy for his property in the territory of its enemies. Stovall's Case, 26 Ct. Cl. 226; Osborne's Case, 24 id. 416. See White's Case, 29 id. 264; Austin's Case, 25 id. 437; 155 U. S. 417.