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them might be defeated, and that, which was granted as a favor, would be converted into a snare. If the peculiar hardships of confiscating the property of persons thus circumstanced, should induce even the hostile government to relax, for their benefit, the ordinary rules of war, it is evident, that the same consideration addresses itself still more directly, and with greater power, to the justice of their own government. It would, indeed, be a strange assertion, that the very property, which the enemy is bound to release, their own government can be justified in siezing and condemning. To protect its subjects who retain their allegiance, is the moral obligation that rests upon every government, and where the acts for which the protection is sought are not merely innocent, but meritorious, the obligation presses with a peculiar force. To confiscate the property of subjects, in the act of returning to their allegiance, is the extreme of injustice, as well as of impolicy. It is to punish those whom their country should desire to reward." (Phillimore, On Int. Law, vol. 3, § 75; Duer, On Insurance, vol. 1, pp. 561-563; Wheaton, Elem. Int. Law, pt. 4, ch. 1, § 17; Vattel, Droit des Gens, liv. 2, ch. 18, § 344; liv. 3, ch. 4, § 63; ch. 5, §§ 73, 77; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 7; Brown v. The U. S., 8 Cranch. Rep., p. 125; Heffter, Droit International, § 126; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 10; Bello, Derecho Internacional, pt. 2, cap. 2, § 2.)

§ 6. A distinction must be here noticed between the property of a citizen resident in a foreign country, and that of one domiciled in the belligerent state. The property of a citizen domiciled in a foreign country, when that country becomes involved in a war with that of his allegiance, is at once liable to be condemned as that of an enemy. But that of a citizen simply resident in the belligerent state, if condemned on his attempt to withdraw it from the enemy's country, must be condemned as that of a citizen engaged in an unlawful trade with the enemy. The supreme court of the United States have decided that the property of American citizens domiciled in an enemy's country, although shipped before a knowledge of the war, was, by that event, irredeemably stamped with a hostile character, and the goods were condemned as a lawful prize. But the case of a citizen,

merely resident in the enemy's country, presents a very different question. (Duer, On Insurance, vol. 1, pp. 503, 563; Phillips, On Insurance, vol. 1, p. 84; Wheaton, Elem. Int. Law, pt. 4, ch. 1, §17; The Venus, 8 Cranch. Rep., p. 253; The St. Lawrence, 9 Cranch. Rep., p. 121; Amory v. McGre gor, 15 Johns. Rep., p.24.)

87. If it be admitted that it is the duty of a government to facilitate the withdrawal of its own citizens and their property from an enemy's country, the question next to be considered is, the propriety of requiring the citizens to procure a license from their own government for the transportation of such property. On this question Mr. Duer remarks: "It is, doubtless, right and necessary that a merchant, not resident in an enemy's country, who desires, at the commencement of a war, to withdraw his property and effects, should obtain a license from his own government. He is guilty, otherwise, of a voluntary trading. The good faith of a person who has the power to apply for a license, and neglects the duty, is liable to just suspicions; and the express permission of the government is, in such cases, the only adequate security against abuse and fraud. But the propriety of requiring a person, who is seeking to escape from a hostile country, to continue à residence that exposes his person to imprisonment, and his property to seizure, until a license from his own government can be obtained, so far from being evident, can, by no means, be admitted. His ability to return to save himself and his property- may depend upon measures, that, to be effectual, must be immediate; and the necessary delay in procuring a license would operate, in most cases, to defeat the execution of the design." Mr. Duer, therefore, adopts the conclusion that a license is not in all cases necessary, and "that the property of subjects withdrawing themselves, in good faith, from a hostile country, within a reasonable time after knowledge of the war, is not stamped with the illegal character of a trading with the enemy; but is to be considered, by a just exception from the general rule, as exempt from confiscation. Such would be the probable decision of the question in the English courts of prize; nor is it by any means certain that an opposite determination would be made in those of the United States. The

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exact question has not yet been determined by the supreme tribunal; nor is its decision involved as a necessary consequence in the cases that have hitherto occurred." (Duer, On Insurance, vol. 1, pp. 564–566; The Madonna dellâ Gracie, 4 Rob. Rep., p. 198; The St. Lawrence, 9 Cranch Rep., p. 121; Armory v. McGregor, 15 Johns, Rep., p. 24; Phillips, On Insu surance, vol. 1, p. 84.)

§ 8. The language of Mr. Justice Story, in the cases of The Rapid and The Mary, in the circuit court, amounts to a clear denial of the existence of the right in question, under any circumstances; although in the case of The St. Lawrence, subsequently decided in the supreme court, where the opinion of the court was given by the same distinguished judge, any direct decision of this question was studiously avoided, and that case was decided on the ground that the property had not been withdrawn from the enemy's country within reasonable time after the knowledge of the war. This exact question, as already remarked, has never been determined by the supreme court of the United States, nor is its decision involved, as a necessary consequence, in the cases which have been adjudicated before that tribunal. In a case decided in the supreme court of the State of New York, it was held that a citizen of one belligerent may withdraw his property from the country of the other belligerent, provided he does it within a reasonable time after the declaration of the war, and does not himself go to the enemy's country for that purpose. In delivering the opinion of the court in this case, (Amory v. McGregor,) Chief Justice Thompson remarks, that, from the guarded and cautious manner in which the supreme court of the United States had reserved itself upon this particular question, there was reason to conclude that when it should be distinctly presented, it would be considered as not coming within the policy of the rule that renders all trading or intercourse with the enemy illegal. (Duer, On Insurance, vol. 1, p. 566, note; Phillips, On Insurance, vol. 1, p. 84; The Rapid, 1 Gallis. Rep., p. 304; The Mary, 1 Gallis. Rep., p. 621; The St. Lawrence, 9 Cranch Rep., p. 121; Amory v. McGregor, 15 Johns. Rep., p. 24; Rush, Opinions U. S. Att'y Genl., vol. 1, p. 175.)

§ 9. The only well-established exception to the rule which confiscates all goods imported from the enemy's country, during the war, is where it is shown that the goods were purchased under an order given previous to the commencement of hostilities, and that it was not in the power of the owner, by any dilligence, to countermand the order in time to prevent the shipment. It must, however, be clearly shown. that all possible dilligence was used, after the first notice of hostilities, to countermand the voyage. (Duer, On Insurance, vol. 1, p. 560; The Juffrow Catharina, 5 Rob. Rep., p. 141; The Fortuna 1 Rob. Rep., p. 211; The Freeden, 1 Rob. Rep., p. 212; The Madonna dellâ Gracie, 4 Rob. Rep., p. 195.)

§ 10. The good faith or mistake of the party, affords no protection to the ship or goods engaged in illegal trade with an enemy. The entire absence of any intention to violate the law, no matter how perfect the innocence of the intent may have been, nor whether the act resulted from mistake or ignorance, cannot avert the penalty of confiscation. In the celebrated case of The Hoop, decided by Sir William Scott, the goods had been imported from an enemy's country with the express sanction of the commissioners of the customs, under an erroneous interpretation of a special provision of an act of parliament; but, while admitting and lamenting the hardship of the case, the judge felt himself compelled to pronounce a condemnation. He referred, in his opinion, to numerous cases where the Lords of appeal had rigorously enforced the rule, notwithstanding the strongest mitigating circumstances. (Duer, On Iusurance, vol. 1, p. 567; Kent, Com. on Am. Law, vol. 1, p. 68; The Hoop, 1 Rob. Rep., p. 196; The Charlotte, 1 Dod. Rep., p. 387; The Angelique, 3 Rob. Rep., app. 9; The Nelly, 1 Rob. Rep., p. 219, note; The Franklin, 6 Rob. Rep., p. 127; The Noyade, 4 Rob. Rep., p. 251; The Joseph, 1 Gallis. Rep., p. 545; 8 Cranch. Rep., p. 451; Griswald v. Waddington, 16 Johns. Rep., p. 438; Scolefield v. Eichelberger, 7 Peters, Rep., p. 586.)

§ 11. The ulterior destination of the goods determines the character of the trade, no matter how circuitous the route by which they are to reach that destination. Even where the ship in which the goods are embarked is destined to a neutral port, and the goods are there to be unladen, yet, if they

are to be transported thence, whatever may be the mode of conveyance, to an enemy's port or territory, they fall within the interdiction and penalty of the law. The converse of this is also undoubtedly true; that is, trade from an enemy's country, through a neutral port, is unlawful, and the goods so shipped through a neutral territory, even though they may be unladen and transhipped, are liable to condemnation. It is an attempt to carry on trade with the enemy, by the circuitous route of a neutral port, and thus evade the penalty of the law. But the law will not countenance any such attempts to violate its principles by a resort to the shelter of neutral territory; any such voyage is illegal at its inception, and the goods shipped are liable to seizure at the instant it commences. A coasting, or colonial trade, limited to the ports of the enemy, so far from meriting any indulgence, is regarded as peculiarly noxious, and the ship and goods so employed, with a knowledge of the war, cannot escape the penalty of condemnation. "The conduct of the citizen," says Duer, "who thus incorporates himself with the commerce and interests of the enemy, admits of no palliation or excuse; it is not simply blameable, but highly criminal." (Kent, Com. on Am. Law, vol. 1, p. 81; Wheaton, Elem. Int. Law, pt. 4, ch. 1, § 17; Duer, On Insurance, vol. 1, pp. 569, 570; The Diana, 2 Gallis. Rep., p. 98; The Wellington, 2 Gallis. Rep., p. 103; The Jonge Pieter, 4 Rob. Rep., p. 79; Wildman, Int. Law, vol. 2, p. 20.)

§ 12. A vessel engaged in unlawful trade with the enemy is liable to capture and condemnation at any time during the voyage, in which the offense is committed, but not after the voyage is completed. If, however, the voyage is continuous and entire, although consisting of separable parts, she is liable to capture while any portion of it remains to be performed, even where the part in which the offense was committed has been completed. This point has been fully discussed and decided in the supreme court of the United States. (Wildman, Int. Law, vol. 2, pp. 20, 23; Duer, On Insurance, vol. 1, pp. 570, 571; The Joseph, Cranch. Rep., pp. 454, 455.)

§ 13. Actual trading with the enemy is not necessary to subject a ship or goods to confiscation. It is sufficient, as a