question, as already remarked, has never been determined by the Supreme Court of the United States, nor is its decision involved, as a necessary consequence, in the cases which have been adjudicated before that tribunal. In a case decided in the Supreme Court of the State of New York, it was held that a citizen of one belligerent may withdraw his property from the country of the other belligerent, provided he does it within a reasonable time after the declaration of the war, and does not himself go to the enemy's country for that purpose. In delivering the opinion of the court in this case (Armory v. McGregor), Chief Justice Thompson remarks, that, from the guarded and cautious manner in which the Supreme Court of the United States had reserved itself upon this particular question, there was reason to conclude that when it should be distinctly presented, it would be considered as not coming within the policy of the rule that renders all trading or intercourse with the enemy illegal.'

§ 9. The only well-established exception to the rule which confiscates all goods imported from the enemy's country, during the war, is where it is shown that the goods were purchased under an order given previous to the commencement of hostilities, and that it was not in the power of the owner, by any diligence, to countermand the order in time to prevent the shipment. It must, however, be clearly shown that all possible diligence was used, after the first notice of hostilities, to countermand the voyage."

10. The good faith or mistake of the party affords no protection to the ship or goods engaged in illegal trade with an enemy. The entire absence of any intention to violate the law, no matter how perfect the innocence of the intent may have been, nor whether the act resulted from mistake or ignorance, cannot avert the penalty of confiscation. In the celebrated case of the Hoop,' decided by Sir William Scott, the goods had been imported from an enemy's country with the express sanction of the commissioners of the customs, under an erroneous interpretation of a special provision of

1 Phillips, On Insurance, vol. i. p. 84; the 'Rapid,' 1 Gallis. R. 304; the Mary, Gallis. R. 621; the 'St. Lawrence,' 9 Cranch. 121; Amory v. McGregor, 15 Johns. R. 24; Rush, Opinions U. S. Att'y Genl., vol. i. p. 175.

* The 'Juffrow Catharina,' 5 Rob., 141; the 'Fortuna,' 1 Rob., 211; the 'Freeden,' I Rob., 212.

an Act of Parliament; but, while admitting and lamenting the hardship of the case, the judge felt himself compelled to pronounce a condemnation. He referred, in his opinion, to numerous cases where the Lords of appeal had rigorously enforced the rule, notwithstanding the strongest mitigating circumstances.1

§ 11. The ulterior destination of the goods determines the character of the trade, no matter how circuitous the route by which they are to reach that destination. Even where the ship in which the goods are embarked is destined to a neutral port, and the goods are there to be unladen, yet, if they are to be transported thence, whatever may be the mode of conveyance, to an enemy's port or territory, they fall within the interdiction and penalty of the law. The converse of this is also undoubtedly true; that is, trade from an enemy's country, through a neutral port, is unlawful, and the goods so shipped through a neutral territory, even though they may be unladen and transshipped, are liable to condemnation. It is an attempt to carry on trade with the enemy, by the circuitous route of a neutral port, and thus evade the penalty of the law. But the law will not countenance any such attempts to violate its principles by a resort to the shelter of neutral territory; any such voyage is illegal at its inception, and the goods shipped are liable to seizure at the instant it commences. A coasting, or colonial trade, limited to the ports of the enemy, so far from meriting any indulgence, is regarded as peculiarly noxious, and the ship and goods so

1 The Hoop,' 1 Rob., 196; the 'Angélique,' 3 Rob., app. 9; the 'Nelly,' 1 Rob. 219, note; the Franklin,' 6 Rob. 127; Griswald Waddington, 16 Johns. R. 438; Scolefield v. Eichelberger, 7 Peters R. 586.

In the case of the Hoop,' reference is made to an authority, in Rolle's Abridgment, 173, showing that it was anciently deemed illegal to trade with Scotland, when that country was at war with England. Sir W. Scott observes thereon, that the rule against trade with an enemy is just as weighty on land as on water, but that cases had more frequently happened upon water, in consequence of the insular situation of England.

2 This doctrine is only settled in the American Courts. The 'Stephen Hart,' 2 Marit. Cas. 73; The Commercen,' 1 Wheat, 388; Historicus, Addit. Letters, 43. The English Courts seem rather to have inclined to the doctrine that it is the destination of the vessel, which determines the character of the trade, and not the destination of the goods. The Hendric and Alida,' 1 Hay and Marr. 96; Hobbs v. Henning, 5 New Rep. 406; the Diana,' Lords of Appeal, March 1, 1806. In the case of the Exchange' (Edwards, 39), a ship having been condemned for a deviation towards an enemy's port, the cargo was held to be involved, by such deviation, in the fate of the ship.

employed, with a knowledge of the war, cannot escape the penalty of condemnation. 'The conduct of the citizen,' says Duer, who thus incorporates himself with the commerce and interests of the enemy, admits of no palliation or excuse; it is not simply blameable, but highly criminal."1

§ 12. A vessel engaged in unlawful trade with the enemy is liable to capture and condemnation at any time during the voyage, in which the offence is committed, but not after the voyage is completed. If, however, the voyage is continuous and entire, although consisting of separable parts, she is liable to capture while any portion of it remains to be performed, even where the part in which the offence was committed has been completed. This point has been fully discussed and decided in the Supreme Court of the United States.2

§ 13. Actual trading with the enemy is not necessary to subject a ship or goods to confiscation. It is sufficient, as a general rule, that they are engaged in a voyage with that design, in order to complete the offence, and to incur the penalty. So also a ship belonging to a subject, and proceeding to an enemy's port in ballast, with no positive intention of procuring a cargo, or returning therefrom without any cargo, would be liable to capture both on her outward and return voyage. It would be in vain to allege that there was no act or intention of trading. But the mere intention to trade with the enemy is not punishable, if at the time of capture the execution of the intent is no longer practicable. Where, from fortuitous circumstances, whether known or unknown to the parties, the execution of the design can no longer be effected, the intent does not constitute the crime, for no crime could be committed. A criminal intent

1 Kent, Com. on Am. Law, vol. i. p. 81; Wheaton, Elem. Int. Law, pt. iv. ch. i. § 17; Duer, On Insurance, vol. i. pp. 569, 570; the Diana,' 2 Gallis. R. 98; the 'Wellington,' 2 Gallis. R. 103; the ‘Jonge Picter, 4 Rob. 79; the 'William,' 5 Rob. 393.

This trade, by a citizen, should not be confused with that carried on by a neutral. Modern jurists consider that it is contrary to tree trade that a coasting or colonial trade should be denied the latter. The right of a belligerent to prohibit such trade unquestionably exists, but the present spirit and disposition of the European Powers is such as to render it very doubtful whether, in case of war, this right would be again enforced against neutrals.-See also the note to § 2, supra.

* Wildman, Int. Law, vol. ii. pp. 20-23; the 'Joseph,' Cranch., 454, 455; the Memphis,' Blatchf. Pr. Cas. 260.

is never punishable, if, before the design can be executed, its execution becomes impossible. Thus, a British ship bound to a West India island—an enemy's country-but captured after the island had, in fact, surrendered to the British forces, was restored by Sir William Scott. That particular case, however, was distinguished from the general rule as laid down by Duer, which requires the full sanction of judicial decisions.2

§ 14. Where the property seized for illegal traffic with the enemy belongs to a house of trade, established in a neutral country, but of which one of the partners is a resident subject of the belligerent country, his share, notwithstanding the neutrality of the house, is condemned. The rule is equally applicable, even where the belligerent party is strictly dormant, and takes no part whatever in the direction and management of the affairs of such trading house. If he is a party interested in the property so contaminated, he must suffer the penalty of the offence. He cannot engage as a partner in a transaction in which he could not lawfully engage, if alone.3

§ 15. Courts of prize regard with extreme suspicion and jealousy the transfer of ships from subjects to neutrals, during the war. If such a ship is subsequently employed in a trade

1 Sir W. Scott also restored a Dutch ship from Demerara (a Dutch colony), which had been captured, at sea, several days after that colony had capitulated to the British forces, one of the terms of the capitulation being that the inhabitants were to be permitted to export their own property, and to be treated in all respects like British subjects. (The 'Negotie en Zeevaart,' 1 Rob. 3.) But on appeal the House of Lords reversed the decision on the ground that property sailing after a declaration of hostilities, and taken on a voyage, cannot be protected by an intermediate capitulation; Lord Camden observing, that 'the ship sailed as a Dutch ship, and could not change her character in transitu.

The Abbey,' 5 Rob. 251; Wildman, Int. Law, vol. ii. p. 22; the 'Imma,' 3 Rob. 167; the 'Lisette,' 6 Rob. 387; the 'Trende Sostre, 6 Rob. 390, in notes.

3 The Franklin,' 6 Rob. 127; the 'Fortuna', 1 Rob. 211.

The liability of property (the product of an enemy's country, and coming from it during war) to seizure is irrespective of the status domicilii, guilt or innocence of the owner. These principles apply to property held, before the war, in partnership, as well as to that held in severalty. The war dissolves the partnership. The Dashwood,' 5 Wall, 170; the 'Gray Jacket,' ibid., 342; the William Bagaley,' ibid., 377. But see 'Bales of Cotton,' supra, p. 160.

The property of a commercial house, established in the enemy's country, is subject to seizure and condemnation as prize, though some of the partners may have a neutral domicile.—The 'Cheshire,' 3 Wall. 231.

with the enemy, very slight indicia of fraud would cause her condemnation. Thus, an English vessel, asserted to have. been sold to a neutral, after hostilities had been commenced between England and Holland, was captured while engaged in trade between Guernsey and Amsterdam, under the command of her former master, who had also been the owner, and it was held by Sir William Scott, that the transfer was colorable and void, and he condemned both ship and cargo. If, however, the transfer be bona fide, and the vessel becomes neutral property, it may be employed in all trade, in which neutrals may lawfully engage.'

§ 16. Regularity of papers, in such cases, is not conclusive evidence of ownership; for, as remarked by Sir William Scott, in the case of the 'Odin,' where there is an intention to deceive, the regularity of the paper documents is a necessary part of the apparatus and machinery of the fraud. Although regular documents, if duly verified and supported, are presumptive evidence, yet, if the circumstances and facts of the case lead justly to the conclusion that these papers, however formal, are themselves false, the court will not be bound by them. Where the papers say one thing, and the facts of the case another, the court will exercise a sound judgment as to which the preponderance is due. It has already been stated that, although a vessel be documented as a neutral vessel, it will not be protected by its documents, if the domicile of its owner is hostile. A government may grant the privilege of a national character to vessels for the purpose of its own navigation, but cannot change its national character, to the prejudice of third parties. Consequently, if the real owner of the vessel engaged in trade with the enemy be a subject of one of the belligerents, its apparent neutral character will not save it from condemnation.2

§ 17. When the trading is from a port of the belligerent, claiming the right of capture, the property is, as a general rule, liable to confiscation, if the owner at the inception of the voyage was a resident in the country, whether as a native

1 Wildman, Int. Law, vol. ii. p. 83; the 'Omnibus,' 6 Rob. 71; the 'Jemmy,' 4 Rob. 31.

The transfer, during war, of a ship of war, by an enemy to a neutral, is illegal.-The 'Packet de Bilboa,' 2 Rob. 133; the Georgia,' 1 Low. 96. 2 The Odin,' 1 Rob. 252, 253; the President, 5 Rob. 277; Tolard v. Bell, 8 Term. R., 434.