not proved the vessel has usually been restored but on condition that it pay the captors' expenses, the ground being taken that the belligerent has a right of seizing, bringing in and investigating neutral vessels suspected of unneutral service, even where condemnation is not warranted.

(4) Presumption of Enemy Character. The general rule applies that enemy property at sea is liable to confiscation. The belligerent will therefore claim condemnation of vessels and goods apparently neutral if their real ownership or the actual right to their use is enemy. The enemy or neutral character of property may be determined in a number of different ways, as by the nationality of the owner, the domicile of the owner, the location of the goods, or the flag of the vessel. Where the character of the goods depends upon the character of the owner, the question of who is the owner when goods are in transit arises.

68

By the Declaration of London, the neutral or enemy character of a vessel is determined by the "flag which she is entitled to fly" and of goods on board an enemy vessel by the "neutral or enemy character of the owner," the title ordinarily remaining with the seller until the destination is reached.

These principles have been generally adhered to by United States courts, but the character of goods or of their owner has been interpreted in accordance with the Anglo-American principle of territoriality as opposed to nationality. Thus goods owned by an inhabitant of enemy territory, irrespective of his sympathy69 or nationality,70 have been considered enemy goods. Goods employed in the enemy service or the produce of enemy soil

67 The Caroline, 6 Rob. 461, (1808); The Madison, Edw. Adm. 224, (1810); The Rapid, Edw. Adm. 228, (1810); See Moore's Digest, 7;762763.

68 Declaration of London, 1909, art. 58-60.

69 Mrs. Alexander's Cotton, 2 Wall. 404, 419; The Benito Estenger, 176 U. S. 568. See Moore's Digest, 7;429-430.

70Chester vs. The Experiment, Fed. Court of Appeals, 2 Dall. 41, (1787); U. S. vs. Gillies, Pet. C. C. 159; Murray vs. The Charming Betsey, 2 Cranch 64, (1804); The Venus, 8 Cranch 253, (1814); The Frances, 8 Cranch 335, (1814); The Mary and Susan, 1 Wheat. 46. See Moore's Digest, 7;424-429.

71Darby vs. The Erstern, Fed. Court of Appeals, 2 Dall. 34, (1782); The Hart, 3 Wall. 559, The Baigorry, 2 Wall, 474. See Moore's Digest, 7;410-415.

72 Thirty Hogsheads of Sugar vs. Boyle, 9 Cranch 191, (1815); The Prize Cases, 2 Black 635, (1862). See Moore's Digest, 7;406-410.

are also regarded as enemy goods whatever the character of the

owner.

The courts have held that title to property in transit is with the vendor. Thus goods enroute from an enemy seller to a neutral buyer, even when sold, are condemned as enemy property and goods in transit from a neutral seller to a belligerent buyer are released as neutral property." It has been hinted, however, that if the contract of sale specified that the transfer should take place on delivery to the master of the vessel, and consideration had been given, a neutral buyer might make good his claim.75

In addition to these general principles, international law recognizes certain circumstances which give a constructive enemy character to goods which are really neutral, in which case condemnation is permitted. This constructive enemy character has at different times and by different countries been asserted on the following grounds: (a) transfers to neutral flag, (b) acceptance of enemy convoy, protection or license, (c) resistance to visit and search or fraud, (d) engaging in closed trade, (e) carriage by neutral vessels of enemy goods, (f) shipping of neutral goods on enemy vessels.

76

(a) By the Declaration of London, transfers of enemy vessels to a neutral flag are in general valid if made before the outbreak of hostilities, void if made after. Certain provisions and presumptions, however, are added. A more liberal rule has heretofore been applied by United States courts. Thus bona fide transfers of vessels and property, whether made before or after the outbreak of the war, have been held valid." This has also been the British rule.78 The sale, however, is presumed not bona

73The Ship Frances and Cargo, I Gall. 445, affirmed 8 Cranch 350, (1813); The Frances, 9 Cranch 183, (1815); The San Jose Indiano, 2 Gall. 268, affirmed 1 Wheat. 308, (1814).

74The Ship Ann Green, 1 Gall. 274, Scott, 620, (1812).

75The San Jose Indiano, 2 Gall. 268, affirmed 1 Wheat. 208. See Moore's Digest, 7;404-406.

76 Declaration of London, 1909, art. 55-56.

77 Cushing, Att. Gen., 6 op. 638, (1854); 7 op. 538, (1855). See Moore's Digest, 7;715-724.

78 The Baltica, 11 Moore P. C. 141, (1857); The Ariel, 11 Moore P. C. 119, (1857). France and Russia have generally applied the principle that sales made after the outbreak of war are void. See French Regulations, July 26, 1778, noted Moore's Digest, 7;417; Russian Prize Regulations, March 27, 1895, quoted Moore's Digest, 7;424. Great Brit

fide if made in transit79 or under conditions such as the retention of enemy control or the reservation of a right to repurchase.80 The sale of enemy warships to a neutral has been regarded as void even if bona fide.81.

(b) While the sailing under neutral convoy exempts merchant vessels not only from capture but from visit and search, the acceptance of enemy convoy, of enemy license, or the shipping of goods in an enemy armed vessel has sometimes been held in itself to render the neutral goods and vessels liable to condemnation as of constructive enemy character.82 In the leading United States case, however, The Nereide, the majority of the court, speaking through Chief Justice Marshall, held that neutral goods laden on an armed enemy ship were exempt from capture, and this decision was followed in the Atalantas a few years later. Justice Story dissented in The Nereide, holding that a distinction existed between the loading of neutral goods in unarmed and armed belligerent vessels, and the latter case, similar to belligerent convoy, gave the neutral goods enemy character. Story's opinion was followed by the court of claims in a number of French spoliation claim cases. The condemnation of neuain adopted this rule as a measure of retaliation by order in council, Nov. 11, 1807, Br. and For. St. Pap., 8:468; Am. St. Pap., For. Rel., 3;270. By Naval Instructions of 1870, France somewhat relaxed her practice, and admitted that the presumption of illegality in sales made during war might be overthrown by sufficient evidence. See A. P. Rivier, Principes du Droit des Gens, 2 vols., Paris, 1896, 2:414.

85

79The Ship Frances and Cargo, 1 Gall. 443, affirmed 8 Cranch 354, (1813); The Sally, 3 Wall. 451, 460, (1865).

80 The Island Belle, Fed. Cas. 168; The Benito Estenger, 176 U. S. 568, (1899), Scott, 621.

81 The Georgia, 7 Wall. 32, (1868); The Sally, 3 Wall, 451, 460, (1865). See also the Texan Star, Moore, Int. Arb., 3;2360 and an editorial comment by J. B. Scott, Am. Jour. Int. Law, Jan. 1915.

82 See Danish Instructions, Mch. 28, 1810, declaring all neutral vessels good prize "which made use of British Convoy". Eighteen United States vessels were seized under this clause and a diplomatic controversy ensued which was settled by a convention of March 28, 1830, Malloy, p. 377, in which Denmark made compensation. See Moore's Digest, 7;496

499.

83 The Nereide, 9 Cranch 388, (1815).

84 The Atalanta, 3 Wheat. 409, (1818).

85 The Nancy, 27 Ct. Cl. 99, (1827); The Brig Sea Nymph, 36 Ct. Cl. 369, (1901). It was held in The Galen, 37 Ct. Cl. 89, (1901), that though

tral and national vessels sailing under an enemy license or passport has been decreed in a number of cases.86.

(c) The Declaration of London87 provides that "forcible resistance to the legitimate exercise of the right of stoppage, search and capture" involves in all cases the condemnation of the vessel and of goods belonging to the master or owner. Similar provision was made in the United States naval instructions of 1898 and in Stockton's Naval war code.88 The courts have invariably held the captors exempt from liability for making seizures when any of these circumstances exist,89 and in a number of cases have condemned the vessel.00 In most of the early treaties of the United States, neutral vessels were required to carry passports or sea letters and other papers. In some of them it was also provided that a vessel not carrying such papers could be detained and might be "declared legal prize" by a competent court unless the absence of the papers could be satisfactorily explained. The courts, however, have held that in such cases neutral vessels could not be condemned even in the absence of passports, if other evidence indicated a bona fide neutral character.92 (d) Belligerents have at times condemned neutral vessels for engaging in a branch of enemy trade closed to them in time of peace, for trading between enemy ports or even for trading acceptance of belligerent convoy rendered the vessel liable, the liability did not inhere after voluntary seperation from it.

86 The Julia, 8 Cranch 181; The Aurora, 8 Cranch 203; The Hiram, 8 Cranch 444; The Hiram, 1 Wheat. 440; The Ariadne, 2 Wheat. 143; Patton vs. Nicholson, 3 Wheat. 204; The Langdon Cheves, 4 Wheat. 103. See Moore's Digest, 7;395-398.

87 The Declaration of London, 1909, art. 63.

88Naval Instructions, June 20, 1898. For. Rel., 1898, p. 780; Stockton's Naval War Code, art. 33.

89 Del Col vs. Arnold, 3 Dall. 333; The Marianna Flora, 11 Wheat. I, (1826).

90 The Bermuda, 3 Wall. 514.

91 Non-carriage of passports was declared to subject the vessel to condemnation in sixteen treaties with eleven countries, of which those with Bolivia (1858, art. 22, Malloy, p. 121) and Colombia (1846, art. 22, p. 309) are still in force. In six treaties with five countries, of which that with Prussia (1799-1810, revived 1828, art. 14, p. 1491) is still in force, the carriage of passports was required but failure to do so was specifically declared not to create a presumption against the vessel.

92 The Pizarro, 2 Wheat. 227; The Venus, 27 Ct. Cl. 116. (1892). 93 See British Rule of 1756, Moore's Digest, 7;383, also similar rule of 1793, Order in Council, Nov. 6, 1793, Lawrence, op, cit. p. 717. Historical account of the growth of these rules, I Wheat. 530, App. ii.

94

with the enemy at all. In a large number of its treaties9 the United States has agreed as a belligerent to recognize the right of citizens of the other contracting party to free navigation between neutral and enemy ports and between two enemy ports; and in none of its wars has it condemned neutral vessels, even when not protected by treaty, on the basis of engaging in closed trade." The condemnation of vessels of American citizens trading with the enemy is based on an entirely different principle and is really not governed by international law at all.97 In insurance cases98

94 See Napoleon's Berlin, (Nov. 21, 1806) and Milan, (Nov. 23, 1807, Dec. 17, 1807) decrees and British Orders in Council, (Jan. 7, 1807, Nov. 11, 1807, Mch. 15, 1915). Texts of all but the last, Br. and For. St. Pap. 8; 401-513; DeMarten's Nouveau Recueil, 1;433-549; Am. St. Pap., For. Rel. 3;262.

95 The freedom of neutral trade has been guaranteed in twenty-five treaties with eighteen countries, of which the following are in force: Bolivia, 1858, art. 15, 18, Malloy, p. 119; Colombia, 1846, art. 15, 18, p. 206; Italy, 1871, art. 16, p. 974; Prussia, 1785-1796, revived, 1828, art. 12, p. 1481; Sweden, 1783-1798, revived, 1816, 1827, art. 7, p. 1727.

96 Dicta in some civil war cases seems to indicate that such trade creates an enemy character. See The Hart, 3 Wall. 560.

97 The condemnation of property of citizens engaged in trade with the enemy should be regarded as a matter of domestic policy, rather than of international law. Such trade has always been branded as illegal and creating a constructive enemy character by the United States, see The Rapid, 8 Cranch 155, (1814); Rush, Att. Gen., 1 op. 175, (1814); The Alexander, 8 Cranch 169, (1814); The Sally, 8 Cranch 382, (1814); The St. Lawrence, 8 Cranch 434, (1814); The Thomas Gibbons, 8 Cranch 421, (1814); The Rugen, I Wheat. 63, (1816); Jecker vs. Montgomery, 13 How. 498, 18 How. 110. See President Lincoln's proclamation Aug. 16, 1861, prohibiting all trade with the southern states, (12 stat. 1262). See Moore's Digest, 7;391-395. The United States courts have applied the doctrine of continuous voyage to such trade, The Joseph, 8 Cranch 451, 454, (1814); The Grotius, 8 Cranch 456, (1814). See Moore's Digest, 7; 388-391. In the Mary, 9 Cranch, 126, 148, (1815), the doctrine of continuous voyage acted to the advantage of a vessel which left England for the United States after the repeal of the British Orders in Council and before the news of the outbreak of the war of 1812, and consequently would have been exempt from capture under the president's instructions of Aug. 28, 1812, had she come home directly. Although she left an Irish port in which she had been forced to take shelter long after she had knowledge of the war, the court held her voyage was continuous from the innocent start in England so she could not be condemned for trading with the enemy. See Moore's Digest, 7;393.

98 Vasse vs. Ball, 2 Dall. 270, (Pa.), See Moore's Digest, 7;387.