his property involved in war with his own country may be condemned as enemy property; if merely resident, the attempt to withdraw may be similarly penalized, but only on the ground of unlawful trade with the enemy.1

The question has been raised whether the withdrawal of property from an enemy country for the purpose of bringing it to his own country by a citizen resident in the latter requires a governmental license. to relieve it from the implication of voluntary unlawful trading. Duer believes 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 it is to be considered, by a just exception from the general rule, as exempt from confiscation." 2

3

The United States Supreme Court has not passed squarely on the question whether such withdrawal of property from enemy territory within a reasonable time after the outbreak of war constitutes unlawful trading. The dicta of Justice Story in the cases of the Rapid and the Mary in the Circuit Court, might lead to the conclusion that he considered such withdrawal unlawful trading. The New York Supreme Court expressed the opinion that a subject of one belligerent may withdraw his property from the territory of the other belligerent, provided it is done within a reasonable time after knowledge of the war and does not involve going to the enemy's country for that purpose. The judge rendering the opinion added that he thought if the question came before the United States Supreme Court such a transaction would be considered as not coming within the policy of the rule which renders all trading or intercourse with the enemy illegal.4

Certain British admiralty cases have laid down an exception to the rule which confiscates all goods imported from the enemy's country during the war. This exception covers the case of goods purchased

1 See Wheaton's Elements of international law, Part 4, Chap. I, § 17; The Venus, 8 Cranch, 253.

2 Duer, Insurance, I, 564-565.

3 The Rapid, 1 Gall. 295; The Mary, 1 Gall. 620.

4 Amory v. McGregor, 15 Johns. 24; see also Attorney General Rush, 1 Op. Atty. Gen. 175.

under an order given prior to the commencement of hostilities, where it was not in the power of the owner, by any diligence, to countermand the order in time to prevent the shipment.1

The good faith or mistake of the party thus withdrawing his property affords no protection to the vessel or goods engaged in illegal trade with an enemy subject. This was expressly determined by Lord Stowell in the leading case of the Hoop, and the rule has since been adhered to.2

§ 355. Prohibition upon Neutral Vessels. Decisions of International Tribunals.

Neutral vessels are equally bound with those belonging to subjects of the enemies to refrain from a trade between enemy ports. Cases of this kind have frequently come before international tribunals for adjudication. In one of the most important of these cases,3 an American vessel during the war between Spain and Mexico sailed from Havana, then a Spanish port, to New Orleans, there shipping additional cargo, and then proceeded to a port in Mexico. So far as the vessel and the Spanish cargo were concerned, this was held to be an unlawful trade and operated as a forfeiture of the vessel's neutral character, giving Mexico, a belligerent, the right to prescribe the penalties which the neutral vessel was to incur.

Various cases of unlawful intercourse and illicit trade occurred during the French occupation of Mexico, in which the property of American citizens domiciled in Mexico was confiscated by Mexican authorities while proceeding from a place occupied by the French

1 Juffrow Catharina, 5 Rob. 141; The Fortuna, 1 Rob. 211; The Freeden, 1 Rob. 212. 2 The Hoop, 1 Rob. 196; The Franklin, 6 Rob. 127; Scolefield v. Eichelberger, 7 Pet. 586. The whole subject of trading with the enemy is discussed in Halleck on International Law, 4th ed., ch. 23, II, 143 et seq., from which much of the material of the last few paragraphs has been taken.

The Felix (U. S.) v. Mexico, Domestic Commission under act of Congress, March 3, 1849, Moore's Arb. 2800-2815; The Isaac McKim (U.S.) v. Mexico, Moore's Arb. 2815-2816; Frear, Cuculla et al. (U. S.) v. Mexico, Moore's Arb. 2815-2816. As cases in support the commissioners, Evans, Smith and Paine, cite the case of the Hoop, Robinson's Admiralty Rep. (1799), I, 298 and Potts v. Bell, 8 Term Rep. (1800), 548. See also Schooner Baigorry, Renaud, Claimant, v. U. S., 2 Wall. 474. On the general subject, see Halleck, International law, II, 143 et seq.

either to another place in Mexico or destined for foreign shipment, a trade prohibited by Mexico.1

The violation of the embargo and non-intercourse acts of the United States of 1806, 1807 and 1809 was held, by the commission under the treaty with France of July 4, 1831, to deprive the guilty vessel of her right to national protection.2

3

During the war between Texas and Mexico, American citizens attempted to introduce goods into Mexico from Texas against the Mexican prohibition. They claimed that they were unaware until almost at their destination that a war was in existence, but the commission, in disallowing the claim against Mexico for a seizure of the goods, held that the existence of the war at the time of shipment was well known and that the claimants had had time to remove their property.

In these cases protection was forfeited not because of the mere carriage of goods belonging to the enemy, but because of their carriage from or to ports or places, intercourse between which was prohibited. As has been observed, the neutral flag does not cover an illicit trade forbidden to enemies.

§356. Licenses.

Mention has been made of the exception from the penalty of confiscation of a trade carried on under the license or protection of one of the enemies. Halleck defines a license as follows:

"A license is a kind of safe conduct granted by a belligerent state to its own subjects, to those of its enemy, or to neutrals, to carry on a trade which is interdicted by the laws of war, and it operates as a dispensation from the penalty of those laws, with respect to the state

1 Schleining and Pentenreider (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2818; Jaroslowsky (U. S.) v. Mexico, July 4, 1868, Moore's Arb., p. 2818, MSS. Op. VI. p. 65; Scott (U. S.) v. Mexico (traffic between two points occupied by the French in Mexico), Moore's Arb. 2817.

2 Kane's Notes on some of the questions decided by the board of commissioners under the convention with France of July 4, 1831, Phila., 1836, p. 20, Moore's Arb. 2807-2808, 4472.

3 Forbes and Parker (U. S.) v. Mexico, Domestic Commission of March 3, 1849, Moore's Arb. 2666.

Halleck, International law, 4th ed., II, 371.

granting it, and so far as its terms can be fairly construed to extend. The officers and tribunals of the state under whose authority they are issued, are bound to respect such documents as lawful relaxations of the ordinary state of war; but the adverse belligerent may justly consider them as per se a ground of capture and confiscation."

Several cases have come before international commissions in which the acceptance by a neutral of an enemy license or the carrying on of trade under the protection of one belligerent was regarded as sufficient reason for the confiscation of the property involved by the other belligerent.1

The Supreme Court has held that a vessel and cargo liable to capture for sailing under a pass or license of the enemy, or for trading with the enemy, may be seized after the vessel's arrival in a port of the United States and condemned as prize of war. The fault is not purged by the termination of the voyage.2

§ 357. Special Cases of Intercourse with Enemies,

The carrying of a petition to the commander of the French Imperial forces, then at war against México, requesting the release of a certain prisoner, was held not to be such an illicit intercourse as warrants a fine by Mexican authorities for violating the laws of war and bearing communications to the enemy.

3

In the case of the Felix, the property of an American citizen taken on board at New Orleans was held not subject to confiscation, although the vessel had come with some Spanish cargo from Havana and proceeded, after taking this additional cargo at New Orleans, to a Mexican port, being subsequently captured on the way.4

While the establishment of a blockade renders any attempt to break

1 Biencourt (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2818-2819 (property of an American citizen domiciled in Mexico seized by Mexico while under French military escort); Torre and Labordette (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2816; Scott (U. S.) v. Mexico, July 4, 1868, ibid. 2817.

2 The Caledonian, 4 Wheat. 100; see also Castro (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2816.

3 Johnson (U. S.) v. Mex., July 4, 1868, Moore's Arb. 2817.

The Felix (U.S.) v. Mexico, Domestic Commission of Mar. 3, 1849, Moore's Arb.,

it, either by belligerents or neutrals, a just cause for condemnation, an anticipated blockade of the ports of one belligerent by the forces of the other does not interfere with the freedom of neutral commerce, for, said Pinkney, American Commissioner in the Commission under the Jay Treaty "there cannot be a constructive blockade to the prejudice of the trade with neutrals" and, added Trumbull in the same case,2

1

"it is lawful for a citizen of the United States during the war between Great Britain and France to carry on a trade in provisions between the United States and French possessions in the West Indies, for this is neither inconsistent with the law of nations nor with the duties of neutrality."

The Court of Claims has in a number of cases had to decide whether certain transactions carried on by individuals in the confederate states with aliens, or with American citizens, were unlawful under the nonintercourse act, or the abandoned and captured property act.3

UNNEUTRAL CONDUCT AND UNFRIENDLY ACT

§ 358. Breach of Neutrality.

The breach of neutrality constitutes one of the largest classes of cases in which the protection of the national government is forfeited, in whole or in part. We shall not enter here into an examination of the duties incumbent upon states themselves to observe neutrality in the case of war between two other nations, but shall confine our discussion to such cases of breach of neutrality by an individual as incur either a criminal prosecution under municipal law or the loss

1 The Betsey (U. S.) v. Gt. Brit., Nov. 19, 1794, Moore's Arb. 2839.

2 Ibid, 2848.

3 Mayer v. U. S., 3 Ct. Cl. 249, to the effect that the collection of ante-bellum debts in the confederate lines was not commercial intercourse with the enemy. Investment by a loyal citizen in the confederate lines in a city captured by Union forces, making the purchaser a resident within the Union lines, took him and the transaction out of the prohibition of the non-intercourse act of 1861; Furman v. U. S., 5 Ct. Cl. 579; La Plante v. U. S., 6 Ct. Cl. 311. To the effect that the non-intercourse act did not apply to purchases of cotton in the disloyal states by an alien resident abroad through an agent, where it does not appear that the agent was appointed, or the means to purchase transmitted, during the rebellion, see Ensley v. U. S., 9 Ct. Cl. 11; 6 Ct. Cl.