neutral nations," written in 1757, considered it to be unjust and illegal for neutrals to avail themselves of the pressure of war to engage in a new species of traffic, not permitted in peace, and which the necessities of one belligerent obliged him to grant to the detriment, or perhaps to the destruction, of the other. (b) On the other hand, Hübner, who published his treatise (e) in 1759, is of opinion that neutrals may avail themselves of this advantage presented by the war, though he admits the lawfulness of the trade to be a question of some uncertainty.

Thus seemed to stand the authority of the rule of 1756, (d) when it was revived and brought into operation by England, in 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

(b) In the British Memorial, addressed to the Deputies of the States General of Holland, December 22, 1758, the injustice of neutrals in assuming the enemy's carrying trade was urged, and it was declared that their high mightinesses had never suffered such a trade, and that it had been opposed in all countries in like circum

stances.

(c) De la Saisie des Batimens Neutres. Mr. Wheaton, in his History of the Law of Nations in Europe and America, New York, 1845, 219-228, has given a summary of the two small volumes of Hübner on neutral rights; and he says that the doctrines of Hübner found but little favor with the public jurists, his contemporaries. It is a work of inferior weight and authority.

(d) It stood upon loose grounds, in point of official authority, according to the able examination of the documentary evidence of the rule, given in a note to the first volume of Mr. Wheaton's Reports, App. note 3.

(e) The Immanuel, 2 C. Rob. 186, and C. Rob. Rep. passim.

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 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) 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.

(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

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 Ber

muda, 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

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

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

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 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. (e)

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 principle 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.

(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. [113]

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*86 The federal courts placed the objection to these licenses 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 property from capture, by colorable assignments to neutrals. But if 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

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 ». 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.

(a) Packet De Bilboa, 2 C. Rob. 133, 134; Anna Catharina, 4 id. 112.

1 The Sally Magee, 3 Wall. 451, 460. Law Mag. and Law Rev., Aug. 1870, See United States v. The Lilla, 2 Cliff. xxix. 233, advocates still more liberal 169. But actual delivery terminates the doctrines. 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. The Ariel, 11 Moore, P. C. 119; The

See

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