altogether the use of false colors would be little, if any, in advance of this proposition, and would remove from consideration all question as to what constitutes hostile action.

On the whole, therefore, it would seem advisable to prohibit the use of false colors, but at the same time the prohibition should not deprive a belligerent of any proper means of attack or defense.

Pillet's proposed zone (p. 16) within which no other man-of-war, not recognized, can enter without being considered and treated as an enemy is open to objections. The limits of such an arbitrary zone are very difficult to determine. Its establishment would in some degree restrict the right of neutrals in the navigation of the high seas. A belligerent vessel should have the right to guard against attack from points outside any zone that might reasonably be established.

The existing practice that any vessel not showing her colors in response to a summons is liable to treatment as an enemy should be embodied in any new regulations which may be adopted. Such a regulation coupled with the prohibition of the use of false colors would enable a belligerent to assure himself of the nationality of an approaching vessel, or failing that, to take immediate action. It would relieve the belligerent of the risk of serious mistake which prevails when false colors are tolerated; for certainly it would be a grave misfortune to fire upon an innocent passing vessel on the sea on suspicion that she might be a belligerent under false colors.

It is held by some that the prohibition of the use of false colors should be limited to their use by the public. vessels of the belligerents. It is argued, with much force, that the use of false colors by a neutral vessel would be in itself such strong evidence that the vessel was carrying contraband or engaged in unneutral service that the practice would be rare; and further, to prohibit a private or merchant vessel of a belligerent from using her enemy's or a neutral flag, as a possible means of diverting her enemy's attention and thus escaping capture, is to deprive her of a legitimate stratagem, which involves only per

missible deceit, not the slightest degree of perfidy, and no injury to the neutral in case a neutral flag were used. Conclusion. To bring about results in accord with modern ideas, without undue restriction of belligerent action, regulations like the following are proposed:

1. The use of false colors by public vessels in war is prohibited.

2. When a public belligerent vessel summons a vessel to lie to, or before firing a gun and during action, the national colors shall be displayed.

3. Any vessel not showing her colors in response to a summoning gun may be considered and treated as an

enemy.

TOPIC II.

What restrictions should be placed upon the transfer of flags of merchant vessels during or in anticipation of war?

CONCLUSION.

(a) The transfer of vessels, when completed before the outbreak of war, even though in anticipation of war, is valid if in conformity to the laws of the state of the vendor and of the vendee.

(b) The transfer of a private vessel from a belligerent's flag during war is recognized by the enemy as valid only when bona fide and when the title has fully passed from the owner and the actual delivery of the vessel to the purchaser has been completed in a port outside the jurisdiction of the belligerent states in conformity to the laws of the state of the vendor and of the vendee.

DISCUSSION AND NOTES.

General practice as regards commerce.-Any restriction on the sale of vessels in the time of war would be a restriction on commerce. As a general rule a citizen of a neutral state may carry on commerce in the time of war as in the time of peace. It is generally admitted also that a belligerent has a right to take reasonable measures to bring his opponent to terms. It has been held that a neutral may be under obligation to use "due diligence" in order that acts hostile to either belligerent may not be undertaken within its jurisdiction. The arbitrators in case of the Alabama declared that "due diligence" should be "in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfill the obligations of neutrality on their part." Citizens of neutral states can not perform certain services for a belligerent without rendering themselves or their property liable to treatment as hostile. How far the neutral state is bound to interfere in order to prevent its citizens from engaging in certain transactions is not fully determined.

Ordinary commercial transactions which can not affect the issue of the war are permitted.

In certain respects the purchase of goods belonging to a belligerent by a neutral may be a most effective method of freeing them from liability to capture. In the case of vessels sold by a subject of one state to a subject of another state, the transfer to the flag of the nation of the new owner ordinarily follows.

A vessel purchased from a subject of a belligerent by a subject of a neutral state would then pass under the protection of the neutral state and be exempt from capture. There is a great probability, therefore, that transfers will be made solely for the purpose of obtaining the protection of a neutral flag. Such transfers might not be of the nature of a valid sale. The opposing belligerent has therefore exercised the right of testing the validity of the transfer before the prize court. The Continental practice has been more in the direction of regarding all sales made with a knowledge of the existence of war as invalid. There have been many cases before the American and British courts. In these courts the neutral purchaser is generally under obligation to establish the validity of his claim to the ownership by abundant proof. The attitude of the courts under various circumstances may be seen in the following opinions:

Opinions of courts on transfers.-In the case of The Jemmy in 1801, Lord Stowell maintained that

When an enemy ship has been transferred to a neutral owner, but is left under the same management and in the same trade as before the transier, the conclusive presumption is raised that the transfer is not genuine. (4 C. Robinson's Report, 31.)

In the case of the Sechs Geschwistern Lord Stowell supports the position that a transfer is void if the enemy still retains any interest in the transferred property. He

says:

This is the case of a ship asserted to have been purchased of the enemy, a liberty which this country has not denied to neutral merchants, though by the regulation of France it is entirely forbidden. The rule which this country has been content to apply is that property so transferred must be bona fide and absolutely

transferred; that there must be a sale divesting the enemy of all further interest in it; and that anything tending to continue his interest vitiates a contract of this description altogether. This is the rule which this country has always considered itself justified in enforcing; not forbidding the transfer as illegal, but prescribing such rules as reason and common sense suggest to guard against collusion and cover, and to enable it to ascertain, as much as possible, that the enemy's title is absolutely and completely divested. (4 C. Robinson's Admiralty Reports, 100.)

In 1805 Lord Stowell said:

The court has often had occasion to observe that where a ship, asserted to have been transferred, is continued under the former agency and in the former habits of trade not all the swearing in the world will convince it that it is a genuine transaction. Omnibus, 6 C. Robinson's Admiralty Reports, 71.)

(The

In the case of the Ernst Merck in 1854, Doctor Lushington says:

This being a sale by a merchant, now become an enemy, very shortly before the war, is a transaction requiring to be very narrowly investigated, and respecting which the court must exercise great vigilance lest the property of the enemy should be sheltered under a fictitious sale. A real bona fide sale is, no doubt, within the bounds of lawful commerce-of commerce lawful to the neutral; but if a neutral merchant chooses to engage for the purpose of extraordinary profit in dangerous speculations of this kind, he must be bound to satisfy the court of the fairness of the transaction by the clearest evidence, complete in all legal form, and not only in legal form, but in truth and reality. If he does not produce such proof, or produces it in part only, when the res gesta show that better proof might have been adduced, he must not expect restitution upon such incomplete evidence. (Spinks' English Prize Cases, 98.)

The law requires, where a vessel has been purchased shortly before the commencement of the war or during the war, clear and satisfactory proof of the right and title of the neutral claimant, and of the entire divestment of all right and interest in the enemy vendor. The onus is put upon the claimant to produce this proof; if he does not do so the court can not restore. The court is not called upon to say that the transaction is proved to be fraudulent; it is not required that the court should declare affirmatively that the enemy's interest remains; it is sufficient to bar restitution if the neutral claim is not unequivocally sustained by the evidence. (Ibid.)