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being subject, at the same time, to the inconveniencies attaching on it." To this case of The Elizabeth (5 Rob. 2), Sir C. Robinson has subjoined a note, containing a report of the case of The Vreede Schottys, in which the Court laid down the distinction as to hostility of character between the ships and the cargo, in the following terms:-"A great distinction has been always made by the nations of Europe, between ships and goods; some countries have gone so far as to make the flag and pass of the ship conclusive on the cargo also, but this country has never carried the principle to that extent. It holds 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."

The doctrine of the federal Courts in the United States has been very strict on this point; and it has been frequently decided (The Julia, 1 Gall. 605, 8 Cranch, 181; The Aurora, ib. 203; The Hiram, ib. 444; The Ariadne, 2 Wheaton, 100), that sailing under the licence 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 federal Courts placed the objection to these licences on the grouud of a pacific dealing with the enemy, and as amounting to a contract, that the party to whom the licence 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 the voyage with an enemy's

licence 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.

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Goods, which, at the commencement of the voyage, have borne a hostile character, cannot, as a rule, change that character on their passage or in transitu. "The first objection that has been taken is, that such a transfer is invalid, and cannot be set up in a prize court, where the property is always considered to remain in the same character in which it was shipped till the delivery. If that could be maintained, there would be an end of the question, because it has been admitted that these wines were shipped as Spanish property, and that Spanish property is now become liable to condemnation. But I apprehend it is a position which cannot be maintained in that extent. the ordinary course of things in time of peace--for it is not denied that such a contract may be and effectually made (according to the usage of merchants)-such a transfer in transitu might certainly be made. It has even been contended that a mere delivery of the bill of lading is a transfer of the property. But it might be more correctly expressed, perhaps, if said that it transfers only the right of delivery; but that a transfer accompanyof the bill of lading, with a contract of sale ing it, may transfer the property in the ordinary course of things, so as effectually to bind the parties, and all When war intervenes, others, cannot be well doubted. another rule is set up by Courts of Admiralty, which interferes with the ordinary practice. In a state of war, existing or imminent, it is held that the property

shall be deemed to continue as it was at the time of shipment till the actual delivery; this arises out of the state of war, which gives a belligerent a right to stop the goods of his enemy. If such a rule did not exist, all goods shipped in the enemy's country would be protected by transfers, which it would be impossible to detect. It is on that principle held, I believe, as a general rule, that property cannot be converted in transitu, and in that sense I recognize it as the rule of this Court. But this, as I have said, arises out of a state of war, which creates new rights in other parties, and cannot be applied to transactions originating, like this, in a time of peace. The transfer must, therefore, be considered as not invalid in point of law at the time of the contract; and being made before the war, it must be judged according to the ordinary rules of commerce. (The Vrow Margaretha, 1 Rob. 337.)

Property sent from a late hostile colony cannot change its character in transitu, although the owners become British subjects by capitulation before capture. The Negotie en Zeevaart sailed from Demerara for Middelburgh, in Holland, 30th Jan., 1781, about six weeks after the hostilities against Holland. Demerara surrendered to the British forces on the 14th March; the Negotie was captured at sea on the 25th of March. "The terms of capitulation," says Lord Stowell (1 Rob. 111), "were very favourable; the inhabitants were to take the oath of allegiance, to be permitted to export their own property, and to be treated, in all respects, like British subjects, till his Majesty's pleasure could be known; and although this was in the first instance only under the proclamation of the captor, still that being accepted, it took complete effect. These terms were afterwards confirmed by the King; there

was, therefore, as strong a promise of protection as could be, and recognized and confirmed by the supreme authority of the state. Under these circumstances, the Judge of the Admiralty thought the claim so strong that he actually restored; and it was not his opinion alone. On appeal, however, the Lords were of opinion that property sailing after declaration of hostilities, and before a capitulation, and taken on the voyage, was not protected by the intermediate capitulation. It was not determined on any ground of illegal trade, nor on any surmise that when the owners became British subjects, the trade in which the property was embarked became, ex post facto, illegal; nor was it at all taken into consideration that Demerara had again become a Dutch colony at the time of adjudication. It was declared to be adjudged on the same principles as if the cause had come on at the time of capture. It was not on any of these grounds, but simply on the ground of Dutch property, that condemnation passed. The ship sailed as a Dutch ship, and could not change her character in transitu. This was the dictum of a great law lord then present-Lord Camden." See also The Dankebaar Affrican (1 Rob. 107), and The Jan Frederick (5 Rob. 128).

All the cases to which reference has been made were cases of bonâ fide transfers, but in many instances a belligerent, finding it impossible to protect his own trade under his own flag, transfers it to a neutral fraudulently; that is, either nominally or without a reservation of its solid advantages to himself, or actually for a time, with a condition that the neutral shall restore it on the conclusion of peace. All these colourable transfers are held to be illegal, and the circumstances of them are as various as may

be expected from the ingenuity of men, who have great interests at stake. The cases arising upon these and other frauds are almost all mere questions of evidence, turning solely on the construction which the transaction can be made to bear, by the acuteness of the captors on the one hand in tracking the deceit, and by the dexterity of the claimants on the other, in eluding the investigation.

"A sale made by an enemy to neutrals in time of war must be an absolute unconditional sale, and not a mere transfer evidently made to cover the property during the war." (The Anoydt Gedacht, 2 Rob. 137.) The 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,— any equity of redemption or other defeasance will be considered to keep the title still in the enemy. (The Sechs Geschwistern, 4 Rob. 100.)

Reservations of risk to the neutral consignors, in order to protect belligerent consignees, are uniformly treated by the Admiralty Court as fraudulent and invalid. The principal case on this point is that of The Sally (5 Rob. 300). The cargo, which occasioned the question in the case of the Sally, had been shipped during the last war, ostensibly on the account of American merchants: the master deposed as to his belief, that it would have become the property of the French Government upon being unladen. The sale, therefore, had obviously been completed, and the pretext of an American risk and account was merely to evade that capture to which the cargo would have been subject, if it had sailed avowedly as French pro

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