§ 180.

Under the head of enemy property

Property belonging to subjects of the enemy state

is naturally included, unless it is connected with a neutral domicil acquired by its owner. In that case it is accounted neutral and remains free from hostile seizure.

The property of enemy subjects possesses the

enemy character nected with a

unless it is con

neutral domicil.

Since property belonging to an enemy is primâ facie enemy property, and property belonging to a neutral primâ facie neutral property, enemy property-owners often endeavor at the outbreak of war to transfer their vessels to neutrals in order that the neutral flag may protect them from capture, and sometimes these transfers are merely colorable. The Prize Courts of France do not recognize sales of merchant vessels by enemy subjects to neutral subjects during war. The English and American courts do not go so far as to forbid them absolutely, but they scrutinize every transfer very rigidly in order to be sure of the good faith of the transaction. Transfers of belligerent vessels and goods to neutrals effected in transitu, that is to say while the voyage is going on, are prohibited altogether, not only during hostilities, but even when made in contemplation of war. The general rule of maritime law in time of peace is that goods once laded on board a vessel belong to the consignee. Yet special agreement is allowed to alter the position of the parties and render the goods the property of the consignor till the termination of the voyage. But in war, if the consignee is an enemy, no special agreement can divest him of his proprietary rights in the goods from the moment they start on their voyage. If, however, he is neutral, proof is required that he, and not the enemy consignor, is really owner, the Prize Courts in each case leaning towards that legal doctrine which makes the goods enemy property and renders them liable to capture.

§ 181.

The next kind of enemy property to be considered may be defined as

The produce of estates owned by neutrals in belligerent territory or in places in the military occupation of the enemy, as long as it remains the property of the owner of the soil.

The produce of estates owned by neutrals in places under enemy con

Such property is enemy property, even though the neutral owners reside in their own neutral country. The point was fully discussed and decided by the Supreme Court of the United States in the case of the trol is enemy prop. Thirty Hogsheads of Sugar, which occurred in the war of 1812-1814. An American privateer captured a cargo of sugar proceeding in a British vessel from the Danish island of Santa Cruz to a commercial house in London at the risk of its owner, the proprietor of the estate from whence it came. Denmark was an ally of

erty as long as it belongs to the owner of the soil.

France, and Great Britain was at one and the same time engaged in waging war on them and carrying on a separate war on different grounds with the United States. In the course of her war with Denmark she had captured the island of Santa Cruz and held it under her belligerent occupation. Denmark was neutral in the war between Great Britain and the United States; and the proprietor of the sugar, Adrian Benjamin Bentzon, was a Danish subject who had left Santa Cruz and was living in Denmark. But the Supreme Court condemned the sugar on the ground that it was the produce of a place which must be considered for purposes of war as belligerent territory, and was when captured the property of the owner of that place.1

1 Cranch, Reports of U. S. Supreme Court, IX., 195–199.

§ 182.

The last kind of property which possesses the enemy character is

Property owned by neutrals, but incorporated in enemy commerce or subject to enemy control.

enemy commerce

or subject to character as long

enemy control pos sesses the enemy

as it remains in its equivocal position.

A ship with an enemy captain and crew employed in the trade of the enemy would be treated as enemy property, even though she belonged to a neutral owner, Neutral property and the same fate would probably befall a neu- incorporated in tral ship habitually sailing under the enemy's flag or taking a pass or license from the enemy. There can be no doubt that neutral goods laden on board a public armed vessel of the enemy forfeit their neutral character and become liable to capture as enemy property. But if they are laden on board an armed enemy merchantman their position is not clearly defined. In 1815 Lord Stowell decided in the case of the Fanny that the fact of being found on board an enemy vessel armed to resist attack was conclusive against the goods. But in the same year the Supreme Court of the United States took the contrary view in the case of the Nereide, and held that unless the neutral owner took part in the armament or the resistance his goods were not liable to forfeiture.2 Judge Story, however, supported the English view and delivered an elaborate dissenting judgment. It appears, therefore, that there is a slight balance of authority in favor of the stricter rule, which seems on principle to be the better of the two, for it is difficult to see what other object the neutral owner could have had in view, when he selected an armed enemy merchantman as the vehicle for his goods, than to profit by her force in order to defeat the search and capture of the other belligerent.

1 Dodson, Admiralty Reports, I., 443–449.

2 Cranch, Reports of U. S. Supreme Court, 388-455.

§ 183.

We are now in a position to answer the question, How does property acquire the enemy character? Its legal condition is determined sometimes by the nationality of the owner and sometimes by his domicil, sometimes by the character of the place from which the property comes and sometimes

Summary of the circumstances under which the enemy character is acquired by property.

There

by the nature of the control exercised over it. remains, however, a difficulty connected with the double or ambiguous character of sovereignty in certain cases. Fortunately these cases tend to decrease in number with the simplification of the political condition of modern Europe, though it may well be doubted whether recent assumptions of Protectorates in Africa will not add to them in the future. They occur when two or more powers can each claim authority over certain territory. If one of them be belligerent and the other neutral, it is difficult to tell how the territory is to be regarded for war purposes. The Protectorate exercised by Great Britain over the Ionian Islands gave rise to such a difficulty during the early part of the Crimean War, when the Leucade, an Ionian vessel, was captured by a British cruiser and brought in for adjudication before a Prize Court on a charge of trading with Russia, the enemy of Great Britain in the war. It was contended that, since the Ionian Islands were under a British Protectorate, they were parties to the war and their vessels were forbidden to engage in commerce with the enemy. But Dr. Lushington, who tried the case, held that the Ionian Republic was not a party to the war. It had a commercial flag of its own, and, though Great Britain occupied its fortresses and had control of its diplomatic arrangements, it was not involved in the public acts of the British Government unless specially included. There had been no special inclusion in the case of the then existing war. British vessels had been forbidden to trade with Russia, but Ionian vessels had not. He, there

fore, restored the vessel, but would not give costs against the captors on the ground that the point was a very difficult one and they acted in perfect good faith. The cession of the Ionian Islands to Greece in 1864 has rendered a repetition of the case impossible, but we may venture to point out with regard to it that the judgment seemed to leave the determination of the status of the island Republic exclusively in the hands of one of the belligerents. It is possible to imagine circumstances in which this would have operated unfairly towards the other. If, for instance, Great Britain had used the islands as a depôt and base of naval operations and at the same time claimed immunity for their commerce as being neutral, Russia would have had good cause to complain. In discussing cases of double or ambiguous sovereignty, Hall lays down the rule that the use to which a place is put by the power which exercises de facto control over it determines whether it should be regarded as neutral or belligerent territory.2 This test is at once simple, effective, and fair as between the hostile powers; and we may hope that it will be adopted in all future cases.

1 Spinks, Admiralty Reports, II., 212.

2 Hall, International Law, § 174.