has a perfect right to transport his goods in a belligerent vessel. These rights do not interfere with each other. The neutral has no control over the belligerent right to arm-ought he to be accountable for the exercise of it?

By placing neutral property in a belligerent ship, that property, according to the positive rules of law, does not cease to be neutral. Why should it be changed by the exercise of a belligerent right, universally acknowledged and in common use when the rule was laid down, and over which the neutral had no control? The belligerent answers, that by arming his rights are impaired. By placing his goods under the guns of an enemy, the neutral has taken part with the enemy and assumed the hostile character.

Previous to that examination which the court has been able to make of the reasoning by which this proposition is sustained, one remark will be made which applies to a great part of it. The argument which, taken in its fair sense, would prove that it is unlawful to deposit goods for transportation in the vessel of an enemy generally, however imposing its form, must be unsound, because it is in contradiction to acknowledged law. It is said that by depositing goods on board an armed belligerent the right of search may be impaired, perhaps defeated.

What is this right of search? Is it a substantive and independent right wantonly, and in the pride of power, to vex and harrass neutral commerce, because there is a capacity to do so? or to indulge the idle and mischievous curiosity of looking into neutral trade? or the assumption of a right to control it? If it be such a substantive and independent right, it would be better that cargoes should be inspected in port before the sailing of the vessel, or that belligerent licenses should be procured. But this is not its character.

Belligerents have a full and perfect right to capture enemy goods and articles going to their enemy which are contraband of war. To the exercise of that right the right of search is essential. It is a mean justified by the end. It has been truely denominated a right growing out of, and ancillary to the great right of capture. Where this greater right may be legally exercised without search, the right of search can never arise or come into question.

But it is said that the exercise of this right may be prevented by the inability of the party claiming it to capture the belligerent carrier of neutral property. And what injury results from this circumstance? If the property be neutral, what mischief is done by its escaping a search? In so doing there is no sin even as against the belligerent, if it can be effected by lawful means. The neutral cannot justify the use of force or fraud, but if by means, lawful in themselves, he can escape this vexatious procedure, he may certainly employ them.

To the argument that by placing his goods in the vessel of an armed enemy, he connects himself with that enemy and assumes the hostile character; it is answered that no such connexion exists. The object

from that of The Nereide," and for that reason it was "unnecessary to repeat the reasoning on which that case was decided."

Mr. Justice Johnson, however, delivered an elaborate opinion, to which reference is made, concluding:

"Upon the whole, I am fully satisfied that the decision in the case of The Nereide was founded in the most correct principles, and recognise the rule, that lading on board an armed belligerent is not, per se, a cause of forfeiture; as not only the most correct on principle, but the most liberal and honorable to the jurisprudence of this country."

Mr. Justice Story, who had dissented in the case of The Nereide, did not dissent from the judgment of the court in the case of The Atalanta. Therefore the case of The Atalanta may be considered as an appeal from The Nereide, and the judgment in The Atalanta as a confirmation of The Nereide on appeal, and the unanimous opinion of the Supreme Court of the United States.

The importance of the decision was not lost upon James Kent, who said in the first edition of his Commentaries, vol. 1, pp. 123, 124, published in 1826: "The question decided in the case of The Nereide is a very important one in prize law, and of infinite importance in its practical results; and it is to be regretted, that the decisions of two courts of the highest character, on such a point, should have been in direct contradiction to each other. The same point afterwards arose, and was again argued, and the former decision repeated, in the case of The Atalanta, 3 Wheat. 409, 4 L. Ed. 422 (1818). It was observed, in this latter case, that the rule with us was correct in principle, and the most liberal and honorable to the jurisprudence of this country. The question may, therefore, be considered here as at rest, and as having received the most authoritative decision that can be rendered by any judicial tribunal on this side of the Atlantic."

In British Consul v. Ship Mermaid, Bee's Reports, 69, 71, Fed. Cas. No. 1,897 (1795), Judge Bee, speaking for the United States District Court of South Carolina, said:

"The laws of neutrality and nations in no instance, that I know of, interdict neutral vessels from going to sea armed and fitted for defensive war. All American Indiamen are armed, and it is necessary they should be so. * *

In William Hooper, Administrator, v. United States, 22 Ct. Cl. 408 (1887), Judge Davis, speaking for the court, held that armament for defensive purposes was proper, whereas, the case of a vessel armed for aggression and profit as a privateer would be different.

In The Panama, 176 U. S. 535, 544, 20 Sup. Ct. 480, 44 L. Ed. 577 (1900), Mr. Justice Gray, speaking for the court, quoted with approval the following language of Portalis, acting as commissioner of the French government:

"For my part, I do not think it is enough to have or to carry arms, to incur the reproach of being armed for war. Armament for war is of a purely offensive nature. It is established when there is no other object in the armament than that of attack, or, at least, when everything shows that such is the principal object of the enterprise; then a vessel is deemed enemy or pirate, if she has no commission or papers sufficient to remove all suspicion. But defence is a natural right, and means of defence are lawful in voyages at sea, as in all other dangerous occupations of life. A ship which had but a small crew, and a considerable cargo, was evidently intended for commerce, and not for war. The arms found on this ship were evidently intended, not for committing acts of rapine or hostility, but for preventing them; not for attack, but for self-defence. The pretext of being armed for war therefore appears to me to be unfounded."

The Council of Prizes, upon consideration of the report of Portalis, adjudged that the capture of the vessel and her cargo was null and void, and ordered them to be restored, with damages. The Pégou, or Pigou, 2 Pistoye et Duverdy, Prises Maritimes, 51 (1800); Id., 2 Cranch, 96-98, 2 L. Ed. 208 and note.

The question arose in the World War (1914-18) whether belligerent merchantmen could arm for defensive purposes, and in case of attack defend themselves. The right so to do was maintained by Great Britain and its allies. It was denied by Germany. It is believed that the views of Great Britain and its allies represented existing law.

SECTION 8.-TRANSFER OF VESSELS

THE NOYDT GEDACHT.

(High Court of Admiralty, 1799. 2 C. Rob. 137, note.)

In The Noydt Gedacht, Waalrave, 23d August, 1799, which was a subsequent case of a small Dutch fishing vessel transferred to the neutral claimant under a condition to reconvey at the end of the war. THE COURT [SIR WM. SCOTT]. A sale made by an enemy to neutrals, in time of war, must be an absolute unconditional sale. This transfer is evidently done only to cover the property during the war. The vessel continues in the old trade, and is, in every respect, a Dutch vessel. As to the cargo, the value of the property is very small; and it would be of very little benefit to any party to send the case to farther proof. I must, therefore, dispose of it according to the preponderancy of the present evidence. The master, who, I must say, has spoken very ingenuously, says "that the consignees reside at Dort; that he believes the laders have an interest in the cargo now, but that it would become the property of the consignees on the arrival at Dort; and he gives his reason for this belief, that the lader told him so." On this authority the master undertakes to swear that he believes it to be the property of persons for whom it is claimed. It has been settled by repeated decisions that this will not do, that neutrals should take upon themselves the sea risk and danger of the voyage, will not be allowed. In opposition to what the master states, there are only two certificates, which do not, I think, meet the point. What is there. sworn may be very true; and yet the master's account true at the same time. I am inclined, therefore, to adhere to the master's account; and, under it, I must condemn this cargo as Dutch property. ** *55

55 The doctrine briefly stated in the principal case is set forth at length and in detail in The Vigilantia, 1 C. Rob. 1 (1798), the first of Sir William Scott's cases to be reported by his favorite reporter and successor, Sir Christopher Robinson. It may be said in this connection, that while transfers of merchant vessels during the war are allowed on certain conditions, the sale of war vessels is not recognized. See The Minerva, 6 C. Rob. 396 (1807).

The Georgia, 7 Wall. 32, 43, 19 L. Ed. 122 (1868), an armed vessel of the Confederate States, was built in Great Britain in 1862-1863. With armament and complement of officers and crew aboard it entered Liverpool in 1864, and, owing to the presence of an American squadron cruising off the British and French coasts, it was unable to put to sea. It was dismantled and sold to a British subject in the port of Liverpool and fitted up for the purposes of com

merce.

Upon leaving Liverpool in the summer of 1864, the now merchant vessel was captured by a ship-of-war of the United States and passed before a Prize court, which refused to recognize the validity of the sale. In the course of the opinion of the court, Mr. Justice Nelson said:

"The distinction between the purchase of vessels of war from the belligerent,

THE BALTICA.

(Privy Council, 1858. 11 Moore. P. C. 141.)

This ship, under Danish colours, was seized by the custom house officers, at the port of Leith, on suspicion of being a Russian ship

The vessel, under the Russian flag, formerly belonged to Sorensen, Sr., and was sold by him on the 17th of March, 1854, immediately antecedent to the declaration of war between Great Britain and Russia, to the appellant, his son, a Danish subject, resident at Altona, and transferred by a regular bill of sale. Part only of the purchase money was paid, the remainder being agreed to be paid by the earnings of the vessel. Sorensen, Sr., was a Dane by birth, but had long resided at Libau, as Danish consul, where he traded as a merchant. The only distinguishing feature in this case from The Ariel, 11 Moo. P. C. 119, was, that at the time of the purchase, The Baltica was prosecuting a voyage from Libau to Copenhagen. It appeared that on her arrival in the port of Copenhagen, in the middle of March, she was delivered over to the agent of the appellant, and was admeasured by the Danish custom house officers there, and branded as Danish property. Her flag was also there changed for the Danish flag, and a Danish master and crew engaged to navigate her. She sailed from Copenhagen with a cargo of linseed on the 21st of May, 1854, and arrived at Leith, in Scotland, her port of destination, on the 29th of that month, and was seized on the 31st, by the custom house authorities as prize.

Proceedings consequent upon her seizure were commenced against. the vessel in the High Court of Admiralty of England, when the appellant put in a claim as owner of the ship and freight.

The judge of the Court of Admiralty (Right Hon. Dr. Lushington), by his interlocutory decree, dated the 6th of August, 1855 (see case reported, nom. The Baltica, 1 Spinks' Prize Cases, 264), condemned the ship, upon the ground that from the fact of the seller being Consul of a neutral state and also a merchant trading in the enemy's country, he was to be regarded as an enemy; moreover, that the transfer was fraudulent and collusive, and intended to defeat the just belligerent rights of Great Britain, and also that the vendor had retained an interest in the ship, part of the purchase money having been agreed to be paid by the earnings of the vessel. The appeal was from this decree.

The appellant insisted upon the bona fides of the purchase and the

in time of war, by neutrals, in a neutral port, and of merchant vessels, is founded on reason and justice. It prevents the abuse of the neutral by partiality towards either belligerent, when the vessels of the one are under pressure from the vessels of the others, and removes the temptation to collusive or even actual sales, under the cover of which they may find their way back again into the service of the enemy."

national character of the purchaser, which had already been established in The Ariel, and submitted that that case was not distinguishable, in principle, from the present appeal.

On behalf of the crown it was submitted that the sale was invalid, having been made when the vessel was in transitu.

Their Lordships called upon the crown to distinguish this case from The Ariel. *

The arguments are fully noticed in the judgment, which was delivered by

THE RIGHT HON. T. PEMBERTON LEIGH. The Baltica was one of several Russian ships, which, in the month of March, 1854, shortly before the breaking out of the war between Russia and Great Britain, were sold by Sorensen, Sr., a merchant domiciled in Russia, to his son, Sorensen, Jr., a merchant domiciled in Denmark. These vessels having been condemned in the Court of Admiralty in England, appeals were brought against those sentences; and in the case of The Ariel, 11 Moo. P. C. 119, which was selected for the purpose of deciding the general question, it was held by their Lordships that the sale was bona fide; that the property was entirely divested from the vendor, and vested in the vendee before the seizure; that the transfer was complete, and was not a fraud upon any just right of the belligerents, and they, therefore, ordered restitution of the vessel.

In conformity with this decision, the crown officers very properly restored such of the vessels as appeared to them to stand in the same situation with the Ariel, but they declined to restore the Baltica, considering the case of that vessel to be distinguishable from the rest, on the ground, that the sale of the ship had taken place while she was engaged in the prosecution of a voyage, or, as it is technically termed, while she was in transitu.

In order to determine the validity of this distinction in the circumstances of this case, the present appeal has been brought.

The general rule is open to no doubt. A neutral while a war is imminent, or after it has commenced, is at liberty to purchase either goods or ships (not being ships of war) from either belligerent, and the purchase is valid, whether the subject of it be lying in a neutral port or in an enemy's port. During a time of peace, without prospect of war, any transfer which is sufficient to transfer the property between the vendor and the vendee, is good also against a captor, if war afterwards unexpectedly break out. But, in case of war, either actual or imminent, this rule is subject to qualification, and it is settled that in such a case a mere transfer by documents which would be sufficient to bind the parties, is not sufficient to change the property as against captors, as long as the ship or goods remain in transitu.

With respect to these principles, their Lordships are not aware that it is possible to raise any controversy; they are the familiar rules of