Adoption of the English

rule in America.

nation."

He acquired the property while Santa Cruz was a Danish colony, and he withdrew from the island when it became British.

one.

This distinction did not appear to the Court to be a sound The identification of the national character of the owner with that of the soil, in the particular transaction, is not placed on the dispositions with which he acquires the soil, or on his general national character. The acquisition of land in Santa Cruz bound the claimant, so far as respects that land, to the fate of Santa Cruz, whatever its destiny might be. While that island belonged to Denmark, the produce of the soil, while unsold, was, according to this rule, Danish property, whatever might be the general national character of the particular proprietor. When the island became British, the soil and its produce, while that produce remained unsold, were British. The general commercial or political character of Mr. Bentzon could not, according to this rule, affect that particular transaction. Although incorporated, so far as respects his general national character, with the permanent interests of Denmark, he was incorporated, so far as respected his plantation in Santa Cruz, with the permanent interests of Santa Cruz, which was at that time British; and though, as a Dane, he was at war with Great Britain, and an enemy, yet as a proprietor of land in Santa Cruz, he was no enemy: he could ship his produce to Great Britain in perfect safety.

2. The case was therefore certainly within the rule as laid down by the British Prize Courts. The next inquiry was, how far that rule will be adopted in this country?

The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognised by all civilized and commercial States throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice: but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial decisions. The decisions of the Courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of the Courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this. Without taking a comparative view of the justice or fairness of the rules established in the

British Prize Courts, and of those established in the Courts of other nations, there were circumstances not to be excluded from consideration, which give to those rules a claim to our consideration that we cannot entirely disregard. The United States having, at one time, formed a component part of the British empire, their prize law was our prize law. When we separated, it continued to be our prize law, so far as it was adapted to our circumstances, and was not varied by the power which was capable of changing it. It would not be advanced, in consequence of this former relation between the two countries, that any obvious misconstruction of public law made by the British Courts is entitled to more respect than the recent rules of other countries. But a case professing to be decided entirely on ancient principles, will not be entirely disregarded, unless it be very unreasonable, or be founded on a construction rejected by other nations.

The rule laid down in The Phoenix was said to be a recent rule, because a case solemnly decided before the Lords Commissioners, in 1783, is quoted in the margin as its authority. But that case was not suggested to have been determined contrary to former practice or former opinions. Nor did the Court perceive any reason for supposing it to be contrary to the rule of other nations in a similar case.

The opinion that ownership of the soil does, in some degree, connect the owner with the property, so far as respects that soil, was an opinion which certainly prevailed very extensively. It was not an unreasonable opinion. Personal property may follow the person anywhere; and its character, if found on the ocean, may depend on the domicile of the owner. But land is fixed. Wherever the owner may reside, that land is hostile or friendly according to the condition of the country in which it is placed. It was no extravagant perversion of principle, nor was it a violent offence to the course of human opinion to say, that the proprietor, so far as respects his interest in the land, partakes of its character, and that its produce, while the owner remains unchanged, is subject to the same disabilities (z).

character of

So, also, in general, and unless under special circumstances, National the character of ships depends on the national character of the ships. owner, as ascertained by his domicile; but if a vessel is navigating under the flag and pass of a foreign country, she is to be considered as bearing the national character of the country under

(z) Thirty Hogsheads of Sugar (Bentzon v. Boyle) (1815), 9 Cranch, 191.

The flag as evidence of ship's nationality.

whose flag she sails: she makes a part of its navigation, and is in every respect liable to be considered as a vessel of the country; for ships have a peculiar character impressed upon them by the special nature of their documents, and are always held to the character with which they are so invested, to the exclusion of any claims of interest which persons resident in neutral countries may actually have in them. But where the cargo is laden on board in time of peace, and documented as foreign property in the same manner with the ship, with the view of avoiding alien duties, the sailing under the foreign flag and pass is not held conclusive as to the cargo. A distinction is made between the ship, which is held bound by the character imposed upon it by the authority of the Government from which all the documents issue, and the goods, whose character has no such dependence upon the authority of the State. In time of war a more strict principle may be necessary; but where the transaction takes place in peace, and without any expectation of war, the cargo ought not to be involved in the condemnation of the vessel, which, under these circumstances, is considered as incorporated into the navigation of that country whose flag and pass she bears (a).

The Declaration of London, 1909 (the outcome of a conference of the leading maritime Powers, 1908-1909), affirms the established test of the flag. Thus Article 57 says, that subject to the provisions respecting transfer of flag (b), the neutral or enemy character of a vessel is determined by the flag which she has the right to fly.

An exceptional case was decided by the French Prize Court (the Conseil des Prises) in 1872, in which the flag carried by the vessel was held not to be conclusive as to her national character. The Palme was, in 1871, captured by a French cruiser, on a voyage from Accra to Bremen. She carried the German flag, and was therefore primâ facie lawful prize. Evidence was produced which showed that the Palme was a German-built vessel; that in 1866 she was sold to the Société du Commerce des Missions Protestantes, a Swiss corporation; and that she still belonged to the Société at the time of capture, though she then carried the German flag. It also appeared that the Swiss Federal Council did not permit Swiss subjects to fly the Federal flag, and that France had, in 1854, refused to acknowledge any Swiss maritime flag. Thus, the Société being compelled to sail its ship under some flag,

(a) The Vigilantia, 1 C. Rob. 1; The Vrow Anna Catharina (1806), 5 C. Rob. 161; The Success, 1 Dods.

Ad. 131.

(b) See infra, p. 572.

that of Germany had been retained. In order to do this, the ship was nominally assigned to an agent of the Société at Bremen, while the real owners were the Société itself. Under these circumstances, the vessel being in reality owned by Swiss, and consequently neutral subjects, the Conseil des Prises held that she was not a German vessel, and therefore restored her to the owners, reversing the decree of the Court below (c).

By the law of England, no ship shall be deemed to be a British Ownership of British ships. ship unless she belongs wholly to owners of the following description:-1. Natural born British subjects. 2. Persons made denizens or naturalized, by letters of denization, or by Act of Parliament, or the proper authority in any British possession. 3. Bodies corporate established under, and subject to the laws of, and having their principal place of business in the United Kingdom or some British possession (d). If any person uses the British flag and assumes the British national character on board any ship owned in whole or in part by any persons not entitled by law to own British ships, for the purpose of making such ship appear to be a British ship, such ship shall be forfeited to His Majesty, unless such assumption has been made for the purpose of escaping capture by an enemy, or by a foreign ship of war in exercise of some belligerent right; and in any proceeding for enforcing any such forfeiture, the burden of proving a title to use the British flag and assume the British national character shall lie upon the person using and assuming the same (e). When a ship has become forfeited for such an offence, she may be seized by the Crown whenever she returns within British jurisdiction, and even if transferred to a bona fide purchaser (f).

We have already seen that no commercial intercourse can be lawfully carried on between the subjects of States at war with each other, except by the special permission of their respective Governments. As such intercourse can only be legalized in the subjects of one belligerent State by a license from their own. Government, it is evident that the use of such a license from the enemy must be illegal unless authorized by their own Government; for it is the sovereign power of the State alone which is competent to act on the considerations of policy by which such

(c) Dalloz, Jurisprudence Générale (1872), Pt. III. p. 94.

(d) 57 & 58 Vict. c. 60, s. 1; and see Scrutton, Merchant Shipping Act, 1891, p. 8.

(e) 57 & 58 Vict. c. 60, s. 69; and see Scrutton, p. 55; R. v. Seberg, L. R. 1 C. C. R. 264.

(f) The Annandale, 2 P. D. 218.

Sailing under the enemy's license.

The Continental view

and Art. 23 (h) of the Hague Regulations.

Illustrations furnished during the Great War, 1914.

an exception from the ordinary consequences of war must be controlled. And this principle is applicable not only to a license protecting a direct commercial intercourse with the enemy, but to a voyage to a country in alliance with the enemy, or even to a neutral port; for the very act of purchasing or procuring the license from the enemy is an intercourse with him prohibited by the laws of war; and even supposing it to be gratuitously issued, it must be for the special purpose of furthering the enemy's interests, by securing supplies necessary to prosecute the war, to which the subjects of the belligerent State have no right to lend their aid by sailing under these documents of protection (g).

The continental view as to the effect of war on commercial intercourse has, on the whole, been contrary to that of the AngloAmericar. Courts; that is, commercial intercourse was not regarded as being necessarily prohibited on the outbreak of war, but its interdiction depended on special provisions to that effect. Moreover, it has recently been held on the continent that this latter doctrine was adopted by the representatives of the States of the world assembled at the Hague, 1907, inasmuch as a right to appear in Court on the part of an enemy alien was alleged to have been recognised. The Article in question, 23 (h), says that it is forbidden to declare extinguished, suspended, or unenforceable in a court of law the right or rights of action of the subjects of the hostile party. The wide sense claimed for this rule by continental writers could not possibly have been accepted by the British delegates, in view of the long-established rule of English common law. On more than one occasion, however, the British Foreign Office clearly intimated that Article 23 (h) concerns only the obligations of an invading commander (h); and this interpretation was supported by United States authorities, including General Davis, one of the American plenipotentiaries at the Hague Conference (i).

With regard to the immediate effects of war on commercial intercourse, the Anglo-American principle expounded above received numerous illustrations in the Great War, 1914. (It may be added that owing to wide difference of opinion and diversity of practice among the States of the world, these principles cannot be regarded as universal or even general principles of inter

(g) The Julia, 8 Cranch, 181; The Aurora, 8 Cranch, 203; The Ariadne, 2 Wheaton, 143; The Caledonia, Wheaton, 100.

(h) Cf. a communication made by the Foreign Office; in Zeitschrift für

Völkerrecht und Bundesstaatsrecht, vol. v. (1911), pp. 389-391. See also, intra, p. 466, the decision of the Court of Appeal.

(i) See Amer. Journ. of Int. Law, vol. ii. (1908), p. 70.