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jects are entitled to the privilege of having money brought from that colony to Spain. I have looked carefully through the manifest, and I perceive there is not one shipment but in the name of Spaniards. Therefore, it appears that this is not an ordinary trade; and I must take this to be property which must have been considered as Spanish, and which could not have been exported in any other character.
“It has been decided by the Lords, in several cases, that the property of British merchants, even shipped before the war, yet, if in a Spanish character, and in a trade so exclusively peculiar to Spanish subjects, as that no foreign name could appear in it, must take the consequences of that character, and be considered as Spanish property.”
One who is specially authorized by the governthority of ad- ment of the enemy to engage, and, pursuant to verse govern- such authority, does engage in commercial transac
tions which are, as a general thing, confined to the citizens or subjects of the enemy, must of necessity be regarded as an enemy, is fully established in the case of the Anna Catherina, which has been al. ready cited in another connection. Upon this particular subject, in that case, the learned judge says: “It is by nothing peculiar in his own character, 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 résident 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 a hundred other persons, who, in their respective portions, are to have the benefit, but are not 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 clothed in this transaction, with the character of Spanish merchants."
There is another principle which has become Character of
flag impresses established by the authorities of the courts, by the vessel. which a hostile character is impressed upon property, by virtue of the character of its employment, irrespective of the actual or even the implied or constructive domicil of the owner. It refers to ships or vessels which navigate the ocean under the flag, or the pass, or protection of the enemy.
The case which illustrates this principle most directly, is that of The Elizabeth, in which Lord Stowell says: “By the established rules of law, it has been decided that a vessel sailing under the colors and pass of a nation, is to be considered
* The Elizabeth, 5 Rob., 2.
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 al. ways 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 given 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 char. acter, the parties could not expect to reap the advantages of such an employment, without being subject at the same time to the inconveniences attaching to it."
To this case of The Elizabeth, the reporter, Dr. Robinson, has appended a note, embracing a report of the case of the“ Vreede Schottys," in which the distinction intimated by the learned judge in the case of The Elizabeth, as to hostility of character, between ships and their cargoes, is clearly set forth as follows: “A great distinction has always been
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 princi. ple 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 consid. ered.”
Tie doctrine, that a ship sailing under the flag and documentary protection of the enemy, clothes her with a hostile character, has been recognized and applied with exceeding strictness by the federal courts of the United States. Indeed the principle, as established by these decisions goes to the extent of declaring, that sailing under the license and protection of the enemy, in furtherance of his views and interests, is, without reference to the purpose of the voyage or its destination, such an illegality as subjected both ship and cargo to seizure and condemnation as lawful prize of war.
The basis of these decisions is, that the license Reason of the granted by the enemy is equivalent to a contract . by the licensee, to withdraw himself entirely from the war and enjoy the repose and blessings of peace,
The illegality of such an intercourse for such a purpose is strongly condemned, and it was held, that the moment a vessel sailed on her voyage with an enemy's license on board, the offence was irrevocably committed and consummated, and that the delictum was not done away, even by the termina
tion of the voyage, but that the vessel and cargo might be seized after arrival in a port of the United States, and condemned as lawful prize.?
Attempts to Attempts have been made from time to time, rules which and the ingenuity of merchants has been exercised impress boss to elude the application of the principle which im tility of character upon
presses property, whether vessel or cargo, with 8 persons or property. hostile character, making it subject to confiscation
-by reason of the actual or constructive residence of the owner, or of the peculiar character or mode
or manner of its employment. Transfer in The transfer of the property while in transit has transitu.
been frequently resorted to, in the hope of accom" plishing the purpose; but the rule has become settled by numerous decisions, that property stamped with a hostile character at the commencement of the voyage, cannot change its character by a mere change of ownership while in transitu.
The remarks of Lord Stowell, in a case in which the transfer was held to be valid, because actually made by delivery of bill of sale, though not of the property itself, prior to the commencement of hostilities, contain a lucid statement of the rule: “The first objection that has been taken is, that the 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 to the question; because it has been admitted that these wines were shipped as
'The Jalia, 1 Gall., 605; 8 Cranch, 181; The Aurora, ib., 203; The Hiram, ib., 444; The Ariadne, 2 Wheat., 100.