France. It turned out that the transaction was connected with a neutral domicile in Germany, and not with the enemy domicile, and the cargo was accordingly declared neutral.

The Jonge Klassina (f) was a case where, during war between Great Britain and Holland, a British citizen named Ravie obtained a special licence (g) to import from Holland goods belonging to him, presumably as a Birmingham merchant. The citizen was, as it turned out, not only the importer to England, but also the exporter from Holland, and it was held that the licence was given to protect Ravie in his capacity of a British importer, and did not extend to cover his exportation from Holland in the capacity of a Dutch merchant. That he held no fixed counting-house in the enemy's country was held to be a consideration of secondary importance. The goods were condemned.

If an alien subject be domiciled in a country with which war is declared, the fact that he shipped goods thence before the declaration of war does not exempt them from capture by his government as being enemy goods. This was decided by the American Court (which, however, was not unanimous) in The Venus (h).

If a British subject be domiciled in a neutral country, he is entitled to carry on his lawful trade unmolested, even with nations with which his government is at war (i).

If, however, he should trade in articles contraband of war, or of a contraband nature, such traffic would be deemed contrary to his allegiance (k). And if he should engage in the

(ƒ) 5 Rob. 297; and p. 283, infra.

(g) Vide p. 277, infra, for the subject of Special Licences.

(h) 8 Cranch, 253. (Vide Wheaton's comments on this case; Int. Law,

2 Eng. ed. pp. 388-395.)

(i) The Danaous, cited in 4 Rob. 255; Bell v. Reid, 1 M. & S. 726.

(4) The Neptunus, p. 270, infra.

privileged trade of the enemy, the act would imbue the undertaking with a hostile character, whatever his domicile (?).

If a neutral and an enemy subject engage in a joint undertaking, and a shipment of the joint property be captured, the share of the neutral will be released, while that of the enemy is confiscated (m).

But if, as in The Primus (n), a neutral be part-owner of an enemy's ship, his share will be confiscated. The neutral owner, said the Court in this case, enjoys the privileges attached to the enemy's flag and must take its risks.

All produce of soil in the enemy's territory is impressed with a hostile character, whatever the nationality or domicile of the owner, provided that at the time of capture this produce be owned by the proprietor of the soil (o).

In The Boedes Lust (p), till December, 1803, the inhabitants of Demerara had remained British subjects, but the colony was then surrendered to the Dutch in virtue of the Treaty of Amiens. In January and February, 1804, certain property, the produce of the island during the British occupation, was shipped by the above vessel, which sailed in March, and was captured in May under an embargo laid on all Dutch property at sea, a month before the declaration of war against Holland. Before adjudication the settlement had again been acquired by the British. The circumstances were, on the one hand, submitted to the Court as justifying condemnation, and on the other as requiring restoration, of the property. Sir William Scott (afterwards Lord Stowell), in a lucid and interesting judgment, which does not admit of a brief summary, decided that the property at the time of its seizure was vested in Dutch owners; that the declaration of war

(1) The Ann, Dodson, 222; The Anna Catharina, 4 Rob. 107.

(m) The Franklin, 6 Rob. 120.

(n) 24 L. T. 15. Cf. The Napoleon, Blatch. Pr. Ca. 357.

(0) The Phoenix, 5 Rob. 20; The Mary Clinton, Blatch. Pr. Ca. 556. (p) 5 Rob. 233.

had a retroactive effect, applying to all property previously detained; that the fact that the owners of the property had since become friends of this country would not relieve them; and, finally, that the property was liable to confiscation.

As regards factories or colonial establishments in Asia or Africa, there is attributed to them the national character of the European mother state to which they belong (q).

Insurances on enemy property being void by statute, the property of subjects domiciled with the enemy is, so far as concerns property attaching to the domicile, also within the statute (r). To an inquiry, in 1854, on the part of British merchants domiciled in Riga, as to what respect would be paid by British cruisers to bonâ fide British property, the produce of Russia, if shipped on board neutral vessels, a reply was sent from the Foreign Office that such property, even if purchased before the outbreak of war, would not be respected unless specially licensed or exempted by instructions to the officers of the British navy ($). Shortly afterwards, however, it was by proclamation announced that her Majesty had decided to waive the right to seize enemy's property laden on neutral vessels (t). The Treaty of Paris (u), in 1856, having embodied the principle "free ships, free goods," all property, except contraband of war, covered by the neutral flag must, so long as the treaty holds good, be deemed, as between the signatories of the treaty, free from capture.

The privilege of trading, in time of war, through the enemy's ports is allowed to inland states, such as Switzerland, in consideration of the hardship to which they would be exposed were this denied them. But such a trade, as being necessarily exposed to great suspicion, must, according to

(q) 5th ed. Arnould's Insce. 146.

(r) Vide sub Void Insurances, p. 405, infra.

(s) 44 State Papers, 1853-4, pp. 106, 108.

(t) 1 Bulletins, 1854, p. 356.

(u) P. 27, infra.

Sir W. Scott, in The Magnus, be justified by proofs of more than ordinary strictness (x).

In like manner as domicile is the test of the ownership of goods, so the national character of a ship is deemed to depend on the domicile of the owner (y). Thus, in Tabbs v. Bendlebrack (z), a vessel built and registered in America, and owned by an American subject, was deemed British property, the owner being domiciled in Great Britain. But a vessel sailing under the flag or pass of the enemy is regarded as enemy property, irrespective of the real ownership (a). Except that if a country have no national maritime flag, and a vessel belonging to subjects of such country be, in consequence, sailed under an alien flag, the flag is not to be deemed conclusive as to the vessel's nationality. This was decided in The Palme, a Swiss vessel, captured by a French cruiser in 1871, whilst sailing under the German flag (b). And if a vessel be engaged in the privileged trade of the enemy, or be habitually engaged in the trade of the enemy's country, or sail under his licence and passport, she will be regarded as enemy property: as will be illustrated presently (c). This principle of the law of nations is not to be evaded by a colourable transfer. Thus, in The Jemmy, which had been purchased of the enemy, but left in the trade and under the management of the former owner, the Court, regarding the transfer as colourable, declined to admit further proofs (d). The Odin (e) is another

(x) 1 Rob. 31. See also The Active, Ho. Lords, 10 March, 1798. (3) The Elizabeth, 5 Rob. 2; The Vigilantia, 1 Rob. 1, 19, 26; The Vrow Anna Catharina, 5 Rob. 161; The Success, 1 Dodson, 131; The Magnus, 1 Rob. 31.

(z) 4 Esp. 108; 3 Bos. & Pul. 207, note, S. C.

(a) Vide pp. 233 et seq., infra.

(b) Wheat. Int. Law, 2 Eng. ed. 401.

(c) Vide p. 233, infra.

(d) 4 Rob. 31;

(e) 1 Rob. 248. tion to the rule.

The Christine, 2 Spinks' Ec. & Ad. Rep. 24.

Vide The Ocean Bride, p. 335, infra, for a special excep

instance of condemnation consequent on a transfer not recognized by the Court. This was a vessel belonging to British subjects at Calcutta, who had been in the habit of trading with Batavia. On the outbreak of war with Holland, an ostensible transfer was made to a Norwegian domiciled at a Danish establishment near Calcutta, by whom the trade with Batavia was continued. When seized, the vessel was on a voyage from Batavia to Copenhagen, having on board an English ship-master (the former master of the vessel), but who, it was asserted, was not acting as master. The Court, finding that the allegation of transfer had not been sufficiently supported, condemned the property, of which the value was assessed at 150,0007. In The Omnibus (f), also, Sir William Scott declared that "the Court had often had occasion to observe that where a ship, asserted to have been transferred, is continued under the former agency and in the former habits of trade, not all the swearing in the world will convince it that it is a genuine transaction."

It being established as a general principle that domicile is the test of ownership, the question remains, in whom is the property in goods captured on the high seas to be deemed to be vested :-in the shipper; the consignee at destination, or the purchaser; or other apparent proprietor, domiciled perhaps in the country neither of the ship's port of loading nor destination? The common rule is, that goods entrusted to a ship-master by a consignor for delivery to a consignee are regarded as the property of the latter (g). But notwithstanding this general rule, if at the commencement of the transit the goods are enemy-owned, the circumstance that they are destined to a neutral consignee will not be considered material (h). In short, neutral goods with a hostile destination, or hostile goods with a neutral destination, shipped

(ƒ) 6 Rob. 71.

(g) Packet de Bilboa, 2 Rob. 133; The Sally Magee, Blatch. Pr. Ca. 385. (h) The Sally; The Atlas; The Anna Catharina, infra.