that duty? The law of prize is a part of the law of nations. By it a hostile character is attached to trade, independent of the character of the trader who pursues or directs it. Condemnation to the captor is equally the fate of the enemy's property, and of that found engaged in an anti-neutral trade. But a citizen or ally may be engaged in a hostile trade, and thereby involve his property in the fate of those in whose cause he embarks. This liability of the property of a citizen to condemnation, as prize of war, may likewise be accounted for on other considerations. Every thing that issues from a hostile country is, primâ facie, the property of the enemy; and it is incumbent upon the claimant to support the negative of the proposition. But if the claimant be a citizen, or an ally, at the same time that he makes out his interest he confesses the commission of an offence, which, under a well-known rule of the municipal law, deprives him of his right to prosecute his claim. Nor did this doctrine rest upon abstract reasoning only; it was supported by the practice of the most enlightened, perhaps it might be said, of all commercial nations; and it afforded the Court full confidence in their judgment in this case, that they found, upon recurring to the records of the Court of Appeals in Prize Causes, established during the war of the Revolution, that, in various cases, it was reasoned upon as the established law of that Court. Certain it was, that it was the law of England before the American Revolution, and therefore formed a part of the admiralty and maritime jurisdiction conferred upon the United States Courts by their Federal Constitution. Whether the trading, in that case, was such as, in the eye of the prize law, subjects the property to capture and confiscation, depended on the legal force of the term. If by trading, in the law of prize, were meant that signification of the term which consists in negotiation or contract, the case would certainly not come under the penalty of the rule. policy, and spirit of the rule are intended to cut off all communication, or actual locomotive intercourse between individuals of the States at war. Negotiation or contract had, therefore, no necessary connection with the offence. Intercourse, inconsistent with actual hostility, is the offence against which the rule is directed; and by substituting this term for that of trading with the enemy, an answer was given to the argument, that this was not a trading within the meaning of the cases cited. Whether,

But the object,

on the breaking out of war, a citizen has a right to remove to his own country, with his property, or not, the claimant certainly had not a right to leave his own country for the purpose of bringing home his property from an enemy's country. As to the claim for the vessel, it was held to be founded upon no pretext whatever; for the undertaking was altogether voluntary and inexcusable.1

So where hostilities had broken out, and the vessel in question, with a full knowledge of the war, and unpressed by any peculiar danger, changed her course and sought an enemy's port, where she traded and took in a cargo, it was determined to be a cause of confiscation. If such an act could be justified, it would be in vain to prohibit trade with an enemy. The subsequent traffic in the enemy's country, by which her return cargo was obtained, connected itself with a voluntary sailing for a hostile port; nor did the circumstance that she was carried by force into one part of the enemy's dominions, when her actual destination was another, break the chain. The conduct of this ship was much less to be defended than that of The Rapid.2

So, also, where goods were purchased some time before the war, by the agent of an American citizen in Great Britain, but not shipped until nearly a year after the declaration of hostilities, they were pronounced liable to confiscation. Supposing a citizen had a right, on the breaking out of hostilities, to withdraw from the enemy's country his property, purchased before the war, (on which the Court gave no opinion,) such right must be exercised with due diligence, and within a reasonable time after a knowledge of hostilities. To admit a citizen to withdraw property from a hostile country a long time after the commencement of war, upon the pretext of its having been purchased before the war, would lead to the most injurious consequences, and hold out temptations to every species of fraudulent and illegal traffic with the enemy. To such an unlimited extent the right could not exist.3

In another case, the vessel, owned by citizens of the United States, sailed from thence before the war, with a cargo or freight,

1 Cranch's Rep. vol. viii. p. 155. The Rapid.

2 Ibid. pp. 169-179. The Alexander.

3 Ibid. p. 434. The St. Lawrence; vol. ix. p. 120, S. C.

on a voyage to Liverpool and the north of Europe, and thence back to the United States. She arrived in Liverpool, there discharged her cargo, and took in another at Hull, and sailed for Petersburg under a British license, granted the 8th June, 1812, authorizing the export of mahogany to Russia, and the importation of a return cargo to England. On her arrival at St. Petersburg she received news of the war, and sailed to London with a Russian cargo, consigned to British merchants; wintered in Sweden, and, in the spring of 1813, sailed under convoy of a British man-of-war for England, where she arrived and delivered her cargo, and sailed for the United States in ballast, under a British license, and was captured near Boston light-house. The Court stated, in delivering its judgment, that, after the decisions above cited, it was not to be contended that the sailing with a cargo or freight, from Russia to the enemy's country, after a full knowledge of the war, did not amount to such a trading with the enemy as to subject both vessel and cargo to condemnation, as prize of war, had they been captured whilst proceeding on that voyage. The alleged necessity of undertaking that voyage to enable the master, out of the freight, to discharge his expenses at St. Petersburg, countenanced, as the master declared, by the opinion of the United States minister there that, by undertaking such a voyage, he would violate no law of his own country; although those considerations, if founded in truth, presented a case of peculiar hardship, yet they afforded no legal excuse which it was competent for the Court to admit as the basis of its decision. The counsel for the claimant seemed to be aware of the insufficiency of this ground, and had applied their strength to show that the vessel was not taken in delicto, having finished the offensive voyage in which she was engaged in the enemy's country, and having been captured on her return home in ballast. It was not denied that, if she had been taken in the same voyage in which the offence was committed, she would be considered as still in delicto, and subject to confiscation; but it was contended that her voyage terminated at the enemy's port, and that she was on her return, on a new voyage. But the Court said, that even admitting that the outward and homeward voyage could be separated, so as to render them two distinct voyages, still, it could not be denied that the termini of the homeward voyage were St. Petersburg and the

United States. The continuity of such a voyage could not be broken by a voluntary deviation of the master, for the purpose of carrying on an intermediate trade. That the going from the neutral to the enemy's country was not undertaken as a new voyage, was admitted by the claimants, who alleged that it was undertaken as subsidiary to the voyage home. It was, in short, a voyage from the neutral country, by the way of the enemy's country; and, consequently, the vessel, during any part of that voyage, if seized for any conduct subjecting her to confiscation as prize of war, was seized in delicto.1

We have seen what is the rule of public and municipal law on this subject, and what are the sanctions by which it is guarded. Various attempts have been made to evade its operation, and to escape its penalties; but its inflexible rigor has defeated all these attempts. The apparent exceptions to the rule, far from weakening its force, confirm and strengthen it. They all resolve themselves into cases where the trading was with a neutral, or the circumstances were considered as implying a license, or the trading was not consummated until the enemy had ceased to be such. In all other cases, an express license from the government is held to be necessary, to legalize commercial intercourse with the enemy. (a)

'Cranch's Rep. vol. viii. pp. 451, 455. The Joseph.

2 Robinson's Adm. Rep. vol. vi. p. 127. The Franklin; vol. iv. p. 195. The Madonna della Gracie; vol. v. p. 141. The Juffrow Catharina; p. 251. The Alby. Wheaton's Rep. vol. ii. Appendix, Note I. p. 34. Wheaton on Captures, pp. 220-223.

(a) [On the subject of commercial intercourse with the enemy, by the subjects of the belligerents themselves, important modifications have been introduced into the English maritime system, since the commencement of hostilities with Russia. To an inquiry made, on 20th of March, 1854, by the merchants connected with the Russian trade, whether produce of that country, brought over the frontier by land and shipped from thence by British or neutral vessels, would be subject to seizure by her Majesty's cruisers, and to subsequent confiscation in the High Court of Admiralty, the following answer, which is in accordance with the decisions rendered during former wars, was returned on the 25th of the same month, by direction of the Secretary of State for Foreign Affairs:— "Lord Clarendon conceives that the question will turn upon the true ownership, or the interest, or risk in, and the destination of, the property, which may be seized or captured; and that neither the place of its origin, nor the manner

§ 14. Trade with the common

Not only is such intercourse with the enemy, on the part of the subjects of the belligerent State, prohibited

of its conveyance to the port from whence it was shipped, will be decisive, or even, in most cases, of any real importance.

"Such property, if shipped at neutral risk, or after it has become bonâ fide neutral property, will not be liable to condemnation, whatever may be its destination. If it should still remain enemy's property, notwithstanding it is shipped from a neutral port and in a neutral ship, it will be condemned, whatever may be its destination. If it be British property, or shipped at British risk, it will be condemned if it is proved to be really engaged in a trade with the enemy, but not otherwise. The place of its origin will be immaterial; and if there has been a bonâ fide and complete transfer of ownership to a neutral, (as by purchase in the neutral market,) the goods will not be liable to condemnation, notwithstanding they may have come to that neutral market from the enemy's country, either overland or by sea. Lord Clarendon has, however, to observe, that circumstances of reasonable suspicion will justify capture, although release, and not condemnation, may follow; and that ships with cargoes of Russian produce may not improbably be considered, under certain circumstances, as liable to capture, even though not liable to condemnation." London Times, March, 1854.

England having, however, in conjunction with France, by the royal declaration of the 28th of March, adopted not only the principle, "free ships free goods," but adhered to her former rule, not to claim the confiscation of neutral goods in enemy's vessels, neither of which relaxations would have given immunity to the property of the allies themselves, engaged in a trade with the enemy, an Order in Council, of the 15th of April, authorized not only a neutral trade in neutral ships with the enemy's ports, but it allowed it to be carried on by British subjects, provided neutral vessels were employed; the only restrictions on such trade being that it should not extend to contraband, and articles requiring a special permission to export them, or to a violation of blockade. But the prohibition, as regards British vessels, to enter or communicate with any port or place in possession of the enemy, and which, apart from any special provision, is the ordinary consequence of the war, is still retained, in express terms. “All goods and merchandises whatsoever, to whomsoever the same may belong," and which are words including even Russian property, may be shipped under any flag but the Russian; and it is open to all traders to take such cargoes on board in any port not being blockaded. The same order declares, " that all the subjects of her Majesty, and the subjects and citizens of any neutral or friendly State, shall and may, during and notwithstanding the present hostilities with Russia, freely trade with all ports and places, wheresoever situate, which shall not be in a state of blockade; save and except that no British vessel shall, under any circumstances whatsoever, either under or by virtue of this order, or otherwise, be permitted or empowered to communicate with any port or place, which shall belong to or be in the possession or occupation of her Majesty's enemies." London Gazette, April 18, 1854.

"The effect of this order is, therefore," says a late English writer, "to leave