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never doubted, that the belligerent party who claims to be sovereign may exercise both belligerent and sovereign rights, (see 4 Cr., 272). Treating the other party as a belligerent and using only the milder modes of coercion which the law of nations has introduced to mitigate the rigors of war, cannot be a subject of complaint by the party to whom it is accorded as a grace or granted as a necessity. We have shown that a civil war such as that now waged between the Northern and Southern States is properly conducted according to the humane regulations of public law as regards capture on the ocean.

Under the very peculiar Constitution of this Government, although the citizens owe supreme allegiance to the Federal Government, they owe also a qualified allegiance to the State in which they are domiciled. Their persons and property are subject to its laws.

Hence, in organizing this rebellion, they have acted as States claiming to be sovereign over all persons and property within their respective limits, and asserting a right to absolve their citizens from their allegiance to the Federal Government. Several of these States have combined to form a new confederacy, claiming to be acknowledged by the world as a sovereign state. Their right to do so is now being decided by wager of battle. The ports and territory of each of these States are held in hostility to the General Government. It is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force-south of this line is enemies' territory, because it is claimed and held in possession by an organized, hostile and belligerent power.

All persons residing within this territory whose property may be used to increase the revenues of the hostile power are, in this contest, liable to be treated as enemies, though not foreigners. They have cast off their allegiance and made war on their Government, and are none the less enemies because they are traitors.

But in defining the meaning of the term "enemies' property," we will be led into error if we refer to Fleta and Lord Coke for their definition of the word "enemy." It is a technical phrase peculiar to prize courts, and depends upon principles of public policy as distinguished from the common law.

Whether property be liable to capture as "enemies' property" does not in any manner depend on the personal allegiance of the owner. "It is the illegal traffic that stamps it as 'enemies'

property.' It is of no consequence whether it belongs to an ally or a citizen. 8 Cr., 384. The owner, pro hac vice, is an enemy." 3 Wash. C. C. R., 183.

The produce of the soil of the hostile country, as well as other property engaged in the commerce of the hostile rower, as the source of its wealth and strength, are always regarded as legitimate prize, without regard to the domicile of the owner, and much more so if he reside and trade within their territory. .

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[MR. JUSTICE NELSON delivered a dissenting opinion, in which CHIEF JUSTICE TANEY and JUSTICES CATRON and CLIFFORD Concurred.]

NOTE.-Property may acquire an enemy character even though the neutral owner thereof resides in the state to which he owes allegiance. Property in enemy territory and which is necessarily associated therewith is enemy property regardless of ownership, The Phoenix (1803), 5 C. Robinson, 20; The Jonge Klassima (1804), 5 Ib. 297; The Nina (1854). Spinks, 276; The Friendschaft (1819), 4 Wheaton, 105; United States v. Farragut (1875), 22 Wallace, 406; Young v. United States (1877), 97 U. S. 39; Briggs v. United States (1890), 25 Ct. Cl. 126. It is employed in enemy commerce upon the same footing and with the same advantages as the property of the enemy's resident subjects. It thereby strengthens his resources and hence an enemy character is attributed to it, The San Jose Indiano (1814), 2 Gallison 268, 286, and it is subject to the same treatment as other enemy property, Juragua Iron Co. v. United States (1909), 212 U. S. 297, unless the owner thereof takes prompt measures upon the outbreak of hostilities to withdraw his property, The Gray Jacket (1867), 5 Wallace, 342. Enemy territory is any territory which the enemy controls and can use for purposes of war, without regard to the title by which he holds it, The Gutenfels (1916), L. R. [1916] 2 A. C. 112. If goods manufactured in an enemy country and ordered and paid for by a neutral purchaser are shipped to him by sea, they will be treated as enemy goods until actual delivery, The United States (1916), L. R. [1917] P. 30. The fact that the produce of enemy land was shipped before the outbreak of war does not exempt it from capture, The Vrow Anna Catherina (1804), 5 C. Robinson, 161. The protection extended to foreigners in Turkey does not permit the condemnation of their goods as the produce of enemy soil, The Asturian (1916), L. R. [1916] P. 150. A corporation formed in Belgium which removed its office to England soon after the outbreak of the Great War did not become an enemy company in consequence of the German occupation of Belgium, Société Anonyme Belge des Mines d'Aljustrel (Portugal) v. AngloBelgian Agency, Lt. (1915), L. R. [1915] 2 Ch. 409; but compare Central India Mining Co., Ltd. v. Société Coloniale Anversoise (1919), L. R. [1920] 1 K. B. 753.

It has been customary to hold that the national character of a ship

is determined by the flag which its official documents show it to be entitled to fly, The Marie Glaeser (1914), L. R. [1914] P. 218; The Manchuria (1905), 2 Hurst and Bray, 52. This was a definite test, easy of application. It was founded however upon the assumption that no country would issue documents to a vessel not owned, at least in part, by its own citizens. But there are several countries such as Argentine, Chile, Colombia, Paraguay and possibly others, which document vessels owned entirely by foreigners. In the Great War it was found that some German merchant ships were documented under Argentine law and flew the Argentine flag. Hence a vessel's documents are not a conclusive indication of its national character. In The Proton (Egypt, 1916), 2 Br. & Col. P. C. 107, affirmed (1918), L. R. [1918] A. C. 578, the court went behind the ship's documents and determined its real ownership and national character. In order to ascertain whether a vessel is or is not enemy property, the court will consider all the circumstances of its registration, management and employment. See The Tommi and The Rothersand (1914), L. R [1914] P. 251; The Polzeath (1916), L. R. [1916] P. 241; The St. Tudno (1916), L. R. [1916] P. 261; The Solveig (1915); Journal Officiel, Nov. 12, 1915; Mount, "Prize Cases in the English Courts Arising Out of the Present War," Columbia Law Review, XV, 316; Borchard, sec. 207; Hyde, II, 548, 562; Moore, Digest, VII, 406.

CHAPTER XIII.

THE RULE OF NON-INTERCOURSE WITH ENEMIES.

SECTION 1. TRADE WITH THE ENEMY.

THE HOOP.

HIGH COURT OF ADMIRALTY OF ENGLAND. 1799.
1 C. Robinson, 196.

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This is a case of a claim of several British merchants for goods purchased on their account in Holland, and shipped on board a neutral vessel. Mr. Malcom of Glasgow, and several other merchants of North Britain, had, long prior to hostilities, been used to trade extensively with Holland; .. after the irruption of the French into Holland, they had constantly applied for, and obtained special orders of his majesty in council permitting them to continue that trade; [but] after the passing of the acts of parliament 35 G. 3. c. 15. § 80., 36 G. 3. c. 76., 37 G 3. c. 12 .. it was apprehended in that part of Great Britain, that by these acts the importation of such goods was made legal: but for the greater security, they still made application to the commissioners of customs at Glasgow, to know what they considered to be the interpretation of the said acts, and whether his majesty's license was still necessary; and were informed, under the opinion of the law advisers of the said commissioners, that no such orders of council were necessary, and that all goods brought from the United Provinces would in future be entered without them; and that in consequence of such information, they had caused the goods in question to be shipped at Rotterdam for their account; ostensibly documented for Bergen to avoid the enemy's cruisers.

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SIR W. SCOTT [LORD STOWELL] . It is said that these circumstances compose a case entitled to great indulgence; and I do not deny it. But if there is a rule of law on the subject

binding the Court, I must follow where that rule leads me; though it leads to consequences which I may privately regret, when I look to the particular intentions of the parties.

In my opinion there exists such a general rule in the maritime jurisprudence of this country, by which all trading with the public enemy, unless with the permission of the sovereign, is interdicted. It is not a principle peculiar to the maritime law of this country; it is laid down by Bynkershoek as an universal principle of law.-Ex naturâ belli commercia inter hostes cessare non est dubitandum. Quamvis nulla specialis sit commerciorum prohibitio, ipso tamen jure belli commercia esse vetita, ipsæ indictiones bellorum satis declarant, &c. He proceeds to observe, that the interests of trade, and the necessity of obtaining certain commodities have sometimes so far overpowered this rule, that different species of traffic have been permitted, prout e re sua, subditorumque suorum esse censent principes (Bynk. Q. J. P. B. 1, c. 3). But it is in all cases the act and permission of the sovereign. Wherever that is permitted, it is a suspension of the state of war quoad hoc. It is, as he expresses it, pro parte sic bellum, pro parte pax inter subditos utriusque principis. It appears from these passages to have been the law of Holland; Valin, 1. iii., tit. 6, art. 3, states it to have been the law of France, whether the trade was attempted to be carried on in national or in neutral vessels; it will appear in a case which I shall have occasion to mention (The Fortuna), to have been the law of Spain; and it may, I think, without rashness be affirmed to have been a general principle of law in most of the countries of Europe.

By the law and constitution of this country, the sovereign alone has the power of declaring war and peace-He alone therefore who has the power of entirely removing the state of war, has the power of removing it in part, by permitting, where he sees proper, that commercial intercourse which is a partial suspension of the war. There may be occasions on which such an intercourse may be highly expedient. But it is not for individuals to determine on the expediency of such occasions on their own notions of commerce, and of commerce merely, and possibly on grounds of private advantage not very reconcilable with the general interest of the state. It is for the state alone, on more enlarged views of policy, and of all circumstances which may be connected with such an intercourse, to determine when it shall be permitted, and under what regulations. In my opin

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