subject, a domiciled merchant, a mere stranger, or a sojourner. Every person in a country (with the limited exception of ambassadors, &c.), whether a native or stranger, owes obedience to its laws, and the rule of international jurisprudence, which forbids all intercourse and trade with the public enemy, is just as obligatory upon him as the municipal laws of revenue or regulations of police. We have already stated under what circumstances the property of a resident in an enemy's country is to be deemed hostile; the same circumstances, as a general rule, are sufficient to justify that enemy to treat it as the property of his own subjects, and to subject it to like penalties.1

§ 18. There exists, however, an important distinction between the case of a native subject and that of a domiciled stranger or mere sojourner. The property of the subject,' say's Mr. Duer,' where the trade was illegal in its origin and intent, cannot be redeemed from its guilt and penalty by any subsequent change of his own residence; but that of the domiciled merchant or stranger will be restored, if, previous to its capture, he had, in part, removed from the belligerent country, with the intention of returning to his own; for in this case, the illegality that arose solely from his local and temporary allegiance, by the removal of its cause, has ceased to exist.' This distinction has been established in a number of decisions, both in the United States and in England. In the case of the 'Indian Chief,' Mr. Johnson, one of the claimants, was an American citizen in his native character, but had resided and was engaged in trade in England, and was still living there, when the ship which he claimed as owner, and which was seized as engaged in a trade with the enemy, commenced her voyage. But as it was clearly proved that he had left England for the United States, and with the bond fide intention of resuming his native character, before the seizure, his claim was allowed and the ship restored. Again, in the case of the 'Eutrusco,' the claimant was a Swiss by birth, but had been impressed with a French hostile character, by trading under the protection of a French factory in China, and such was his character when the goods were shipped; but he had fortunately quitted China before the capture, and upon this ground the Lords of Admiralty decreed a restora

1 Riquelme, Derecho Pub. Int., lib. i. tit. ii. cap. xiv.

tion. In the case of the 'Ocean,' the only act upon which Sir William Scott relied, as evidence of the intention of the party, was, that he had made arrangements for withdrawing himself as a partner from a house of trade in the hostile country, and if he is able to show that the evidence on which the captors rely, as fixing his character, had been changed in fact, or in judgment of law, previous to capture, his claim to restitution will be allowed. In the judgment of Chief Justice Marshall, dissolution of partnership, discontinuance of trade in the enemy's country, and other arrangements obviously preparatory to a change of residence, ought all to be considered overt acts, which, when performed in good faith, entitle the claimant to restitution. This seems an important exception to the general rule, that the national character of property on the ocean cannot be changed in transitu during the prosecution of the voyage.1

§ 19. If a vessel belonging to one of the belligerents prosecutes a voyage, even to a neutral port, under a licence from the government of the enemy, both ship and cargo, while they remain under the protection of such licence, are liable to capture and confiscation. Such condemnation results from the presumption, not to be resisted, that the licence is granted by the enemy for the furtherance of his own interests, and the citizen or subject who lends himself to the promotion of that object, by accepting such licence, violates the plainest duties of his own allegiance. As has already been stated, individual members, composing the state or body politic, are prohibited from all commercial intercourse with the public enemy, unless sanctioned by the express authority of their own government. In the words of Sir William Scott, no principle should be held more sacred than that an intercourse with the enemy ought not to be allowed to subsist on any other footing than that of the direct permission of the State. The reasons of this rule are fully set forth in the opinion of Mr. Justice Story, in the case of the 'Julia,'' which opinion was

1 Duer, On Insurance, vol. i. pp. 515-517, 544, 545, 576; the 'Indian Chief, 3 Rob. 18-21; the Ocean,' 5 Rob. 91; the Eutrusco,' 3 Rob. 31.

In 1812, the brig ‘Julia' and cargo, owned by American citizens, was captured by the United States' frigate 'Chesapeake.' The vessel had on board a licence, from the English Admiral at Halifax, directing all Her Majesty's ships to suffer her to proceed without unnecessary molestation, and reciting that she was well inclined towards the British interest, and

adopted in extenso by the Supreme Court of the United States. At the threshold of his opinion, he lays down the fundamental proposition that, 'in war, all intercourse between the subjects and citizens of the belligerent countries is illegal, unless sanctioned by the authority of the government, or in the exercise of the rights of humanity.' That a personal licence from an enemy must be regarded as an implied agreement with such enemy, that the holder of such licence will conduct himself in a neutral manner, and avoid any hostile acts toward such enemy. That it is, therefore, a violation of the laws of war, and of his duties to his own government. Can an American citizen,' he asks, 'be permitted, in this manner, to carve out for himself a neutrality on the ocean, when his country is at war? Can he justify himself in refusing to aid his countrymen, who have fallen into the hands of the enemy on the ocean, or decline their rescue? Can he withdraw his personal

was laden with provisions for the use of the allied armies in the Peninsula. She was captured on her return journey, having disposed of the provisions, and then bearing a cargo of salt. Two questions were raised: ist, whether the use of an enemy's licence, or protection on a voyage to a neutral country in alliance with the enemy, be illegal, so as to affect the property with confiscation; 2nd, if not, whether the terms of the existing licence distinguish this case, unfavourably, from the general principle. The Supreme Court of the United States distinguished this case from that of the Elizabeth' (5 Rob. 2), inasmuch as the vessel and cargo were documented as American, and not as British property; further, it decided that the existence of a licence affords strong presumption of a concealed enemy's interest; that no argument in favour of a licence can be drawn from the safe conduct to enemies' fishing vessels in former times; that it is not universally true, that a destination to a neutral port gives a bond fide character to the voyage; that if the property be ultimately destined for an enemy's port, or an enemy's use, the interposition of a neutral port would not save it from condemnation; that if property be engaged in an illegal traffic with the enemy, or even in an attempt to trade, it is liable to confiscation as well on the return as on the outward voyage; and, that it may be assumed as a proposition liable to few, if any, excep tions, that the property which is rendered auxiliary, or subservient to enemy interests, becomes tainted with forfeiture.-The 'Julia,' 8 Cranch. 181; 1 Gall. R. 601.

Sailing under an enemy's licence is legal cause for the forfeiture of a neutral vessel.-The Alliance,' Blatchf. Pr. Cas. 262. But the fact that a vessel carried a custom-house clearance and permit to pass fortifications, issued by the Confederate Government in 1860, was held in the courts of the United States not to be of itself a justifiable cause for capture; the papers did not profess to protect from arrest at sea, nor were they calculated to mislead the captors.-The 'Sarah Starr,' Blatchf. Pr. Cas. 69.

A neutral sailing under the flag of the enemy is considered as enemy property, and is liable to confiscation jure belli.-U. S. v. the 'Telegrafo,' i Newb. 383.

services, when the necessities of the nation require them? Can an engagement be legal, which imposes upon him the temptation or necessity of deeming his personal interests at variance with the legitimate objects of his government?' Incompleteness of a voyage, under licence from the enemy, is no defence, for the vessel is liable to capture at the instant the voyage under such licence is commenced. To say that the vessel could not be seized till the voyage was completed or abandoned, would be, in effect, saying that the right of capture only exists when the power of making it is at an end. In all cases where the object of the voyage is prohibited, its inception with the illegal intent completes the offence to which the legal penalty attaches. This case of illegal trading, under a licence from the enemy, is only a particular application of a universal rule. Nor is it any defence to allege or prove that the trade is not subservient to the enemy's interest. The condemnation of such licensed vessel and cargo rests upon the broad ground of the illegality of such voyage, and that the mere sailing under the enemy's licence subjects the property to confiscation. The acceptance of such hostile licence, by any individual of a belligerent country, is an act inconsistent with the duties of his allegiance; it is an attempt, on his part, to clothe himself with a neutral character by favour of the other belligerent, and thus to separate himself, without the sanction of his own government, from the common character of his country, and such act is in itself a sufficient ground of condemnation.'

§ 20. The unlawfulness of trade with the enemy extends not only to every place within his dominions, and subject to his government, but also to all places in his possession or military occupation, even though such occupation has not ripened into a conquest, or changed the national character of the inhabitants. In each case there is the same hazard to the State, and, if the hostile occupation is known when the communication is attempted, there is the same breach of duty on the part of the subject. The reasons of public policy, which forbid such intercourse, apply as fully in the one case

1 Wildman, Int. Law, vol. ii. p. 259; Phillimore, On Int. Law, vol. iii. § 69; Duer, On Insurance, vol. i. p. 587; the 'Aurora,' 8 Cranch 441; the Hiram,' 1 Wheaton. R. 440; the Ariadne,' 2 Wheat. R. 143; Colquhoun v. N. Y. F. Insurance Co., 15 Johns. R. 357; Ogden v. Barker, Johns. R. 87; Craig v. U. S. Ins. Co., 1 Peter. C. C. R., p. 410.

as in the other. The same rule holds even in the case of a revolted territory, or colony of the enemy, which is known to have been for years in the hands of the insurgents: courts of justice always regard such revolted territory as belonging to the enemy, until, by some public act of their own government, it is expressly recognised as an independent and friendly power. Until such express recognition, courts must regard the revolted territory as a subsisting part of the parent State, with its former relations unaltered.'

§ 21. It may be stated, as a general rule, that any insurance, on either vessel or cargo, engaged in illegal trade with the enemy, is illegal, and whenever the goods or vessel are liable to condemnation, the policy of insurance will be declared void. Where the property insured is justly liable to belligerent capture, whether the delictum, that is, the substantive cause of condemnation, exists at the inception of the voyage, or occurs subsequently, but prior to the time the policy attaches, it is considered to be illegal, and is declared void. There are, however, on this question conflicting opinions and decisions, the examination of which does not come within the purpose and object of this work.2

1 Phillips, On Insurance, vol. i. p. 82; the Manilla,' 1 Edw. Ad. Rep., 3; the Pelican,' 1 Edw. Ad. Rep., Appen. D.; Johnson v. Greaves, 2 Fount. Rep. 344 ; Blackburne v. Thompson, 15 East. 81 ; Rose v. Himely, 4 Cranch. 272; Gelston v. Hoyt, 13 Johns. R. 587; the Phoenix,' 5 Rob. 21; the President,' ibid., 277; the Indian Chief,' 3 Rob. 12; the 'Fama,' 5 Rob. 106; the 'Boletta,' I Edw. Rep. 171; Hagedorn v. Bell, 1 Maule and Sel. 450; Bromley v. Hesseltine, 1 Camp. 75; Bentzon v. Boyle, 9 Cranch. 191.

2 Arnould, On Insurance, pt. iii. ch. i. sec. 7; Bedarride, Droit Maritime, §§ 1095 et seq.