is War, and who are to be deemed Alien Enemies, and what consti tutes an hostile Commercial further established by the case of the Anna Catharina (1), in Section II. What which there was a contract between the Spanish government, then at war with this country, and certain persons claiming to be considered as neutrals. But the Court held, that as the contract was of so privileged a nature, that none but Spanish merchants Character for would have been admitted to it, and not even Spanish merchants Purposes. merely as such, it did in fact carry with it, in the hands of the contractors, a character decidedly Spanish; and that character was held to adhere to the contract, not only in the hands of the party with whom it was originally made, but where in the hands. of those whom he had subsequently admitted to share it. "It is by nothing peculiar in his own character," said Sir William Scott," that the original contractor would be liable to be considered as a Spanish merchant, but merely by the acceptance of this contract, and by acting upon it. If other persons take their share, and accept those benefits, they take their share also in the legal effects: They accepted his privileges; they adopted his resident agent. It would be monstrous to say that the effect of the original contract is to give the Spanish character to the contracting person, but that he may dole it out to an hundred other persons, who in their respective portions are to have the entire benefit, but are not to be liable to the effect of any such imputations. The consequence would be, that such a contract would be protected, in the only mode in which it could be carried into effect; for a contract of such extent must be distributed; and if every subordinate person is protected, then here is a contract which concludes the original undertaker of the whole, but in no degree affects one of those persons who carry that whole into execution. On these grounds, I am of opinion that these goods are liable to be considered as the property of the Spanish government; and further, that these parties are liable to be considered as persons clothed in this transaction with the character of Spanish merchants." Within the rule which thus annexes a hostile character to the property of the neutral engaged in a trade peculiar to the enemy, falls of course the instance of a strict exclusive colonial trade, from the colony of the mother country, where the trade is limited to native subjects by the fundamental regulations of the state, and the national character is required to be established by oath, Carrying on colonial trade. Alien Enemies, and what consti Section II. What as in the case of the Spanish register ships. It was in the case of is War, and who are to be deemed the Vrow Anna Catharina (1), that Sir Wm. Scott particularized this instance of the Spanish register ships: and he added, that whosoever asserts himself to be the proprietor by the solemn averments of an oath, takes the fortunes of the community as to that property. tutes an hostile Character for Purposes. Sailing under enemy's flag, simulated papers, &c. (2) There are yet other modes in which a hostile character may be affixed to property, such is the sailing of the vessel under the flag and pass of an enemy: the case which most distinctly decides this point, is that of the Elizabeth (3). " By the established rules of law," said the Court, "it has been decided, that a vessel sailing under the colours and pass of a nation, is to be considered as clothed with the national character of that country. With goods it may be otherwise; but ships have a peculiar character impressed upon them by the special nature of their documents, and have always been held to the character with which they are so invested, to the exclusion of any claims of interest that persons living in neutral countries may actually have in them. In the war before the last, this principle was strongly recognized in the case of a ship taken on a voyage from Surinam to Amsterdam, and documented as a Dutch ship. Claims were made for specific shares, on behalf of persons residing in Switzerland; and one claim was on behalf of a lady to whom a share had devolved by inheritance, whether during hostilities or no, I do not accurately remember; but if it was so, she had done no act whatever with regard to that property, and it might be said to have dropped by mere accident into her lap. In that case, however, it was held, that the fact of sailing under the Dutch flag and pass was decisive against the admission of any claim; and it was observed, that as the vessel had been enjoying the privileges of a Dutch character, the parties could not expect to reap the ad (1) 5 Rob. Rep. 161. (2) An assured upon a policy on ship not having leave to carry simulated papers cannot recover for a loss by capture, if it appear by the sentence of the foreign prize court, that one of the causes stated for the condemnation was the carrying of simulated papers. Korneyer v. Lushington. 15 East, 49. 3 Campb. 85. S. C. Oswell v. Vigne, 15 East, 70. Fomin v. Oswell, 3 Campb. 357. Mercurius, 1 Rob. 288. (3) 5 Rob. Rep. 2. But in Oswell v. Vigne, 15 East, 73, per Bayley, J. carrying false colours could not be a ground of condemnation; and per Lord Ellenborough, J. carrying a variety of colours has never been considered as a contravention of the law of nations. is War, and who and what consti Commercial vantages of such an employment without being subject, at the Section II. What same time, to the inconveniences attaching on it." To this case are to be deemed of the Elizabeth (1), Dr. Robinson has subjoined a note, con- Alien Enemies, taining a report of the case of the Vreede Schottys, in which the tu es an hostile Court laid down the distinction as to hostility of character be- Character for tween the ships and the cargo, in the following terms: "A great Purposes. 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 immunity of neutral cargoes on board an enemy's ship is also asserted by Vattel. (2) These are the principal circumstances which have been held Transfers of property in by the courts of international law, to impress an hostile character transitu. When property has borne such character at upon commerce. Rules. We will now consider the attempts which have been made to Attempts to protect this hostile commerce by fraudulent contrivances of vari- evade these ous descriptions: a belligerent not unfrequently attempts to save the property, which he has already shipped, from the capture of his adversaries, by assigning it, while on the voyage, to neutrals. This practice has been held by the courts to be unavailing for its protection. "During peace," says Sir Wm. Scott, in giving judgment upon the case of the Vrow Margarittha (4), "a transfer in transitu may certainly be made; but (1) 5 Rob. Rep. 2. (3) 1 Rob. Rep. 107.; see also 3 Rob. Rep. 197. Section II. What in a state of war existing or imminent, (that is, whether the is War, and who are to be deemed war have actually broken out, or whether it be in the expectaAlien Enemies, tion of the parties), it is held, that the property shall be deemed stitutes an hostile to continue as it was at the time of shipment, till the actual de and what con Character for livery; 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 an 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. (1)” The illegality of transfer in transitu during, or in contemplation of war, is shewn at great length by Sir Wm. Scott, in the case of the Jan Frederick (2); but where the contract was made in contemplation of peace, after the signature of preliminaries, as in the case of the Vrow Catharina (3), the court held that the transfer was legal, as not tending to defeat a belligerent's right of capture. All these are 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 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. (4) 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 principle case on this point, is that of the Sally (5). The cargo, which occasioned the question in the case of the Sally, had been shipped during the (1) 1 Burr. 147. See the several instances and decisions, 1 Rob. Rep. 1. 101. 122. 1 Acton, 43. 2 Rob. 137. 1 Rob. 16. note. 4 Rob. 32. (5) 5 Rob. Rep. 300. is War, and who and what con Character for last war, ostensibly on the account of American merchants: the Section II. What master deposed as to his belief, that it would have become the pro- are to be deemed perty of the French government upon being unladen. The Alien Enemies, sale, therefore, had obviously been completed, and the pretext stitutes an hostile of an American risk and account, was merely to evade that cap- Commercial ture, to which the cargo would have been subject if it had sailed Purposes. avowedly as French property: the Court said, "It had always been the rule of the Prize Court, that property going to be delivered in the enemy's country, and under a contract to become the property of the enemy immediately on arrival, if taken in transitu is to be considered as enemy's property. When the contract is made in time of peace, or without any contemplation of a war, no such rule exists. But in a case like the present, where the form of the contract was framed directly for the purpose of obviating the danger apprehended from approaching hostilities, it is a rule which unavoidably must take place. The bill of lading expresses account and risk of the American merchants; but papers alone make no proof, unless supported by the depositions of the master; instead of supporting the contents of his papers, the master deposes that on arrival the goods would become the property of the French government; and all the concealed papers strongly support him in this testimony. The evidentia rei is too strong to admit further proof; supposing it was to become the property of the enemy on delilivery, capture is considered as delivery. The captors, by the rights of war, stand in the place of the enemy, and are either entitled to a condemnation of goods passing under such a contract, as of enemy's property; on every principle on which prize courts can proceed, this cargo must be considered as enemy's property." The principles on which this judgement was given are stated more at large in the case of the Packet de Bilboa (1), and of the Anna Catharina. (2) Detention, Sei Thirdly, we are to consider the right of capture or seizure by the Sect. III. Of the respective belligerents of each other's property, so far as it affects zure, Capture, commerce. It was justly observed by the king's advocate, in the case of Potts v. Bell (4), that there is no such thing as a war (1) 2 Rob. Rep. 133. in general, see Horne on Captures; and Confiscation, by Belligerents, of Property employed in Commerce. (3). |