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general rule, that they are engaged in a voyage with that design, in order to complete the offense and to incur the penalty. So also a ship belonging to a subject, and proceeding to an enemy's port in ballast, with no positive intention of procuring a cargo, or returning therefrom without any cargo, would be liable to capture both on her outward and return voyage. It would be in vain to allege that there was no act or intention of trading. But the mere intention to trade with the enemy is not punishable, if at the time of capture the execution of the intent is no longer practicable. Where, from fortuitous circumstances, whether known or unknown to the parties, the execution of the design can no longer be effected, the intent does not constitute the crime, for no crime could be committed. A criminal intent is never punishable, if, before the design can be executed, its execution becomes impossible. Thus, a British ship bound to a West India island-an enemy's countrybut captured after the island had, in fact, surrendered to the British forces, was restored by Sir William Scott. That particular case, however, was distinguished from the general rule as laid down by Duer, which requires the full sanction of judicial decisions. (Wildman, Int. Luw, vol. 2, p. 22; Duer, On Insurance, vol. 1, pp. 571, 572, 628; The Abby, 5 Rob. Rep., p. 251; The Imma, 3 Rob. Rep., p. 167; The Lisette, 6 Rob. Rep., p. 387; The Trende Sostre, 6 Rob. Rep., p. 390, in notes; The Joseph, 8 Cranch. Rep., p. 454.)

§ 14. Where the property seized for illegal trafic with the enemy, belongs to a house of trade, established in a neutral country, but of which one of the partners is a resident subject of the belligerent country, his share, notwithstanding the neutrality of the house, is condemned. The rule is equally applicable, even where the belligerent party is strictly dormant, and takes no part whatever in the direction and management of the affairs of such trading house. If he is a party interested in the property so contaminated, he must suffer the penalty of the offense. He cannot engage as a partner in a transaction in which he could not lawfully engage, if alone. (Wildman, Int. Law, vol. 2, p. 21; Duer, On Insurance, vol. 1, p. 573; The Franklin, 6 Rob. Rep., p. 127; The Fortuna, cited 1 Rob. Rep., p. 211.)

§ 15. Courts of prize regard with extreme suspicion and jealousy, the transfer of ships from subjects to nentrals, during the war. If such a ship is subsequently employed in a trade with the enemy, very slight indicia of fraud would cause her condemnation. Thus, an English vessel, asserted to have been sold to a neutral, after hostilities had been commenced between England and Holland, was captured while engaged in trade between Guernsey and Amsterdam, under the command of her former master, who had also been the owner, and it was held by Sir William Scott, that the transfer was colorable and void, and he condemned both ship and cargo. If, however, the transfer be bona fide, and the vessel becomes neutral property, it may be employed in all trade, in which neutrals may lawfully engage. (Wildman, Int. Law, vol. 2, p. 83; Duer, On Insurance, vol. 1, pp. 446-448, 573, 574; The Omnibus, 6 Rob. Rep., p. 71; The Odin, 1 Rob. Rep., pp. 252, 253.)

§ 16. Regularity of papers, in such cases, are not conclusive evidence of ownership; for, as remarked by Sir William Scott, in the case of The Odin, where there is an intention to deceive, the regularity of the paper documents is a necessary part of the apparatus and machinery of the fraud. Although regular documents, if duly verified and supported, are presumptive evidence, yet, if the circumstances and facts of the case lead justly to the conclusion that these papers, however formal, are themselves false, the court will not be bound by them. Where the papers say one thing, and the facts of the case another, the court will exercise a sound judgment as to which the preponderance is due. It has already been stated, that although a vessel be documented as a neutral vessel, it will not be protected by its documents, if the domicil of its owner is hostile. A government may grant the privilege of a national character to vessels for the purpose of its own navigation, but cannot change its national character, to the prejudice of third parties. Consequently, if the real owner of the vessel engaged in trade with the enemy, be a subject of one of the belligerents, its apparent neutral character will not save it from condemnation. (Wildman, Int. Law, vol. 2, p. 83; Duer, On Insurance, vol. 1, pp. 574, 575; The Odin, 1 Rob. Rep., p. 252, 253; The President, 5 Rob. Rep., p. 277.)

§ 17. When the trading is from a port of the belligerent, claiming the right of capture, the property is, as a general rule, liable to confiscation, if the owner at the inception of the voyage was a resident in the country, whether as a native subject, a domiciled merchant, a mere stranger, or a sojourver. Every person in a country, (with the limited exception of ambassadors, etc.,) whether a native or stranger, owes obedience to its laws, and the rule of international jurisprudence, which forbids all intercourse and trade with the public enemy, is just as obligatory upon him as the municipal laws of revenue or regulations of police. We have already stated under what circumstances the property of a resident in an enemy's country, is to be deemed hostile; the same circumstances, as a general rule, are sufficient to justify that enemy to treat it as the property of his own subjects, and to subject it to like penalties. (Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 14; Duer, On Insurance, vol. 1, p. 575; The Indian Chief, 3 Rob. Rep., p. 17; Wildman, Int. Law, p. 15.)

§ 18. There exists, however, an important distinction between the case of a native subject and that of a domiciled stranger or mere sojourner. "The property of the subject," says Mr. Duer, "where the trade was illegal in its origin and intent, cannot be redeemed from its guilt and penalty by any subsequent change of his own residence; but that of the domiciled merchant, or stranger, will be restored, if, previous to its capture, he had, in part, removed from the belligerent country, with the intention of returning to his own; for in this case, the illegality that arose solely from his local and temporary allegiance, by the removal of its cause, has ceased to exist." This distinction has been established in a number of decisions, both in the United States and in England. In the case of The Indian Chief, Mr. Johnson, one of the claimants, was an American citizen in his native character, but had resided and was engaged in trade in England, and was still living there, when the ship which he claimed as owner, and which was seized as engaged in a trade with the enemy, commenced her voyage. But as it was clearly proved that he had left England for the United States, and with the bona fide intention of resuming his native character, before the seizure, his claim was allowed and the ship restored. Again,

in the case of The Eutrusco, the claimant was a Swiss by birth, but had been impressed with a French hostile character, by trading under the protection of a French factory in China, and such was his character when the goods were shipped; but he had fortunately quitted China before the capture, and upon this ground the Lords of Admiralty decreed a restoration. In the case of The Ocean, the only act upon which Sir William Scott relied, as evidence of the intention of the party, was, that he had made arrangements for withdrawing himself as a partner from a house of trade in the hostile country, and if he is able to show that the evidence on which the captors rely, as fixing his character, had been changed in fact, or in judgment of law, previous to capture, his claim to restitution will be allowed. In the judgment of Chief Justice Marshall, dissolution of partnership, discontinuance of trade in the enemy's country, and other arrangements obviously preparatory to a change of residence, ought all to be considered overt acts, which, when performed in good faith, entitle the claimant to restitution. This seems an important exception to the general rule, that the national character of property on the ocean cannot be changed in transitu, during the prosecution of the voyage. (Duer, On Insurance, vol. 1, pp. 515–517, 544, 545, 576; Wildman, Int. Law, vol. 2, pp. 15, et seq.; The Frances, 1 Gallis. Rep., p. 614; The Venus, 8 Cranch. Rep., p. 299; The Frances, 8 Cranch. Rep., p. 335; The Ocean, 5 Rob. Rep., p. 91; The Eutrusco, cited 3 Rob. Rep., p. 31; The Indian Chief, 3 Rob. Rep., pp. 18–21.)

§ 19. If a vessel belonging to one of the belligerents prosecutes a voyage, even to a neutral port, under a license from the government of the enemy, both ship and cargo, while they remain under the protection of such license, are liable to capture and confiscation. Such condemnation results from the presumption, not to be resisted, that the license is granted by the enemy for the furtherance of his own interests, and the citizen or subject who lends himself to the promotion of that object, by accepting such license, violates the plainest duties of his own allegiance. As has already been stated, individual members, composing the state or body politic, are prohibited from all commercial intercourse with the public enemy, unless sanctioned by the express authority of their

own government. In the words of Sir William Scott, no principle should be held more sacred than that an intercourse with the enemy ought not to be allowed to subsist on any other footing than that of the direct permission of the state. The reasons of this rule are fully set forth in the opinion of Mr. Justice Story, in the case of The Julia, which opinion was adopted, in extenso, by the supreme court of the United States. At the threshold of his opinion, he lays down the fundamental proposition that, "in war, all intercourse between the subjects and citizens of the belligerent countries is illegal, unless sanctioned by the authority of the government, or in the exercise of the rights of humanity." That a personal license from an enemy must be regarded as an implied agreement with such enemy, that the holder of such license will conduct himself in a neutral manner, and avoid any hostile acts toward such enemy. That it is, therefore, a violation of the laws of war, and of his duties to his own government. "Can an American citizen," he asks, “be permitted, in this manner, to carve out for himself a neutrality on the ocean, when his country is at war? Can he justify himself in refusing to aid his countrymen, who have fallen into the hands of the enemy on the ocean, or decline their rescue? Can he withdraw his personal services, when the necessities of the nation require them? Can an engagement be legal, which imposes upon him the temptation or necessity of deeming his personal interests at variance with the legitimate objects of his government?" Incompleteness of a voyage, under license from the enemy, is no defense, for the vessel is liable to capture at the instant the voyage under such license is commenced. To say that the vessel could not be seized till the voyage was completed or abandoned, would be, in effect, saying that the right of capture only exists when the power of making it is at an end. In all cases where the object of the voyage is prohibited, its inception with the illegal intent, completes the offense to which the legal penalty attaches. This case of illegal trading, under a license from the enemy, is only a particular application of a universal rule. Nor is it any defense to allege or prove that the trade is not subservient to the enemy's interest. The condemnation of such licensed vessel and cargo rests upon the broad ground of the illegality of such

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