the law of nations. But it was in the war of 1756, that the rule awakened general and earnest attention. Mr. Jenkinson, in his "Discourse on the conduct of Great Britain in respect to 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. On the other hand, Hubner, who published his Treatise 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, 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 relaxtions, 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. 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 diplomatic intercourse, that the

a 6 Rob Rep. 74. note, and 252. note.

b In the British Memorial addressed to the Deputies of the States General of Holland, December 22d, 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 circumstances.

c De la Saisie des Batimens Neutres.

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 Rob. Rep. passim.

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 exceptions of blockades and contrabands, to and between all ports of the enemy, and in all articles, although the trade should not have been opened to them in time of peace." 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 repeatedly attacked by writers in this country, with great 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 exempted 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, 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 indi

b

a Mr. Monroe's Letter to Lord Mulgrave, of Sept. 23d, 1805, and Mr. Madison's Letter to Messrs. Monroe and Pinkney, dated May 17th, 1806.

b 1 Wheat. 396.

cate, and which 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 favour of the policy and equity of the rule.

der foreign

Sailing under the flag and pass of an enemy, is another Sailing unmode by which a hostile character may be affixed to pro- flag. perty; for, if a neutral vessel enjoys the privileges of a foreign character, she 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. The doctrine of the 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.

The

a The Elizabeth, 5 Rob. 2. The Vreede Scholtys, cited in the note to 5 Rob. 5.

b The Julia, 8 Cranch, 181. The Aurora, Ib. 203. The Hiram, lb. 444. The Ariadne, 2 Wheaton, 143. The Caledonia, 4 Wheaton, 100.

Property in transitu.

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.

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 colourable assignments to neutrals. 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 war, is for the sake of the belligerent right, and to prevent secret transfers from the enemy to neutrals, in fraud of that right, and upon conditions and reservations which it might be impossible to detect. So, property shipped from a neutral to the enemy's country, under a contract to become the property of the enemy on arrival, may be taken in transitu as enemy's property, for capture is considered as delivery. The captor, by the rights of war, stands in the place of the enemy. The prize courts will

a Vrow Margaretha, 1 Rob. 336. Jan Frederick, 5 Rob. 128. See also 1 Rob. 1. 101. 122. 2 Rob. 137. 1 Rob. 16. note. 4 Rob.32. b The Anna Catharina, 4 Rob. 107. The Sally Griffiths, 3 Rob. 300. in notis.

not allow a neutral and belligerent, by a special agreement, to change the ordinary rule of peace, by which goods ordered and delivered to the master, are considered as delivered to the consignee. All such agreements are held to be constructively fraudulent, and if they could operate, they would go to cover all belligerent property, while passing between a belligerent and a neutral country, since the risk of capture would be laid alternately on the consignor or consignee, as the neutral factor should happen to stand in the one or the other of those relations. These principles of the English admiralty have been explicitly recognised and acted upon by the prize courts in this country. The great principles of national law were held to require, that, in war, enemy's property should not change its hostile character in transitu; and that no secret liens, no future elections, no private contracts looking to future events should be able to cover hostile property while sailing on the ocean. Captors disregard all equitable liens on enemy's property, and lay their hands on the gross tangible property, and rely on the simple title in the name and possession of the enemy. If they were to open the door to equitable claims, there would be no end to discussion and imposition, and the simplicity and celerity of proceedings in prize courts would be lost. All reservations of risk to the neutral consignors, in order to protect belligerent consignees, are held to be fraudulent, and these numerous and strict rules of the maritime jurisprudence of the prize courts, are intended to uphold the rights of lawful maritime capture, and to prevent frauds, and preserve candour and good faith in the intercourse between belligerents and neutrals. The modern cases contain numerous and striking instances of the acuteness of the captors in tracking out deceit, and of the dexterity of the claimants in eluding investigation.

a The Frances, 1 Gallison, 445. 8 Cranch, 335. 359. S. C. b The Josephine, 4 Rob. 25. The Tobago, 5 lb. 218. The Marianna, 6 lb. 24. And the American cases ubi sup.