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a British register, which evidence of neutral ownership was found on board at the time of capture.
Aymar was examined as a witness on the standing interrogatories; and testified that he was a British subject, born at St. Andrews, in the British province of New Brunswick, and that he called St. Andrews his place of residence, but had transacted business in New Orleans for eight years past.
There were many other grounds upon which this vessel and cargo (which consisted of warlike munitions almost entirely) were clearly subject to confiscation as lawful prize, but the permanent business residence of the claimant of the vessel, as sworn to by himself, was considered quite conclusive, as impressing upon the property such hostility of character as rendered it lawful subject of capture as the property of the enemy.
So also the recent adjudications in the United The General States District Court of Pennsylvania, in the case Court, Penn. of the General Parkhill, and in the United States District Court of Massachusetts, in the case of the Revere.
In this latter case, the learned judge says:
“Property of persons resident in an enemy's The Revere. country is deemed hostile, and subject to condem-Court, Mass. nation, without any evidence as to the individual opinions or predilections of the owner. If he be the subject of a neutral, or a citizen of one of the belligerent states, and has expressed no disloyal sentiments toward his native country, still, his residence in the enemy's country impresses upon his property engaged in commerce, and found
the ocean, a hostile character, and subjects it to condemnation.”
In recognition and application of this doctrine, Court, Penn "the learned judge of the United States Court in
Pennsylvania, in the case of the General Parkhill, uses the following language :
“One of the purposes of naval warfare is to diminish the power of hostile governments, or of other hostile organizations, by the indiscriminate mari. time capture of the property of all persons residing in places within hostile dominion, or in permanent or temporary hostile occupation.
“The capture and confiscation of such property, by destroying or suppressing the maritime trade of such places, diminishes their wealth, and thus reduces the power of their hostile rulers.
“ The liberation of the property when captured, whether the individual residents who owned it are well or ill affected in feeling toward the government of the captors, would restore its value in wealth to the hostile place.
“The rule of confiscation applies, though the resident may owe a duty of allegiance to the captor's government, and may, while in the hostile place, have been perfectly loyal in his own feeling and conduct.
“ After the declaration of war against England, in 1812, a citizen of the United States, residing in England, before any knowledge of the war, shipped merchandize for the United States, which, having been captured on the voyage, was condemned as prize. The Supreme Court said, although he cannot be considered an enemy in the strict sense of the word, yet, he is deemed such with reference to the seizure of so much of his property concerned in the trade of the enemy, as is connected with his residence. »
“Those predatory maritime hostilities, which the law of war sanctions, could not be prosecuted with effect, if this rule were not applied with inexorable rigor.”
So, too, in the case of the Amy Warwick, the The Amy Wardistinguished judge of the United States Court in States Court, Massachusetts, takes occasion to enforce the familiar Mass. doctrine, as follows:
“What shall be deemed enemy's property is a question of frequent occurrence in prize courts, and on which certain rules and principles are well estab. lished.
“ Property of persons resident in an enemy's country is deemed hostile, and subject to condem. nation, without any evidence as to the individual , opinions or predilections of the owner. If he be the subject of a neutral, or a citizen of one of the belligerent states, and has expressed no disloyal sentiments toward his native country, still, his residence in the enemy's country impresses upon his property engaged in commerce, and found upon the ocean, a hostile character, and subjects it to confiscation.” (The Venus, 8 Cranch, 253. See also The Hoop, 1 Rob., 196, and the cases there col. lected.)
Although, from the numerous adjudications upon captured vessels, transferred by public enemies to British subjects residing in the enemy's territory, during the existing war, the error seems to have been quite prevalent, that immunity from capture was, by such transfer, secured; there, nevertheless, seems to have been an apprehension, that a transfer of a vessel by an enemy to a neutral, in a blockaded port, might be of questionable validity. And thus,
as in the case of the Toone, the contrivance was resorted to of executing the transfer in a foreign port, through the medium of a procuration executed in the blockaded port.
Inasmuch as the transferree in that, as well as in most of the other cases, was a domiciliated business resident of the country of the enemy, the question of the validity of the transfer, as made in a blockaded port, or during war, by an enemy to a neutral, became of secondary importance.
But the ingenuity of man is unequal to the task of rendering valid by indirection, an act which the
law invalidates when done directly. Transfers by The transfer of a vessel by power of attorney, neutrals dur-, whenever made, is the act of the principal, and ing wangoid, although done by the agent in a foreign port, in belligerent legal intendment, it is not less the act of the prinrights.
cipal at his own domicile.
But subsidiary to all this, is the well settled principle, under which such transfers become mere waste paper; it is that principle, well established in the law of nations, that a transfer by an enemy to a neutral in time of war, or in aid of a contemplated war, is void, as in fraud of belligerent rights.
The undoubted belligerent right of conquering from the adversary an honorable peace, by inflicting a blow upon his ocean commerce, is directly invaded, and may be wholly destroyed by the acts of neutrals, in becoming possessed of that commerce; and hence, the law regards such acts as in no man
ner changing the true ownership of the property. The Mersey.
The schooner Mersey belonged to a citizen of Pos. Court Charleston, South Carolina, and succeeding in get.
ting out of that port in violation of the blockade, in March 1862, went to the British port of Nassau, where, through a power of attorney executed in Charleston, she was transferred to a British subject residing at Nassau, and thereupon clothed with a British register. Being captured on her next voyage, two days out from Nassau, and sent to New York as prize of war, the learned judge of that district, in adjudicating upon the questions raised in the proceedings against her, affirms this doctrine in the following emphatic language :
“For aught that appears before the court, this vessel retained the same character and ownership she bore when she left Charleston, and entered the port of Nassau, the last of March, and at the time the British register on board her, was executed at Nassau. Beyond that subsidiary principle is the higher doctrine, that a transfer of property to a neutral by an enemy in time of war, or in aid of a contemplated war, is illegal, as in violation and in fraud of vested belligerent rights.” (The Bernou, 1 Rob., 86; 2 ibid., 114, note a; 6 ibid., 396, note 400; 2 ibid., 281; The Rosalie and Betty.) (Vide MS. Decisions in Prize, of United States District Court of New York.)
The doctrine that secret liens upon captured Secret liens property are wholly disregarded in prize courts, by courts of and that confiscations enure to the benefit of cap
prize. tors, discharged from all such incumbrances as are not visible at the time of capture, has been affirmed and enforced by the Federal courts of the United States, in recent adjudications.
In the cases of the Hiawatha, the Crenshaw, the