of exchange, which were drawn on Kleinwort & Co. for the amount of the advances, was any reference made to the cargo, and that while two of the bills of lading were alleged to have been delivered to the firm at the time of its acceptance of the bills of exchange, the third, for the greater part of the jerked beef, was not delivered till long afterwards. On these and other circumstances the court held that the cargo never bona fide passed to Kleinwort & Co., but remained the property of Spanish subjects, and was liable to condemnation. The Carlos F. Roses, 177 U. S. 655. Mr. Justice Shiras delivered a dissenting opinion, in which Mr. Justice 2. TITLE TO PROPERTY IN TRANSIT, § 1184. If a British merchant purchase with his own funds two cargoes of goods, in consequence of but not in strict conformity with the orders of an American house, and ship them to America, giving the consignors an option within 24 hours after receipt of his letter to take or reject both cargoes, and if they give notice within the time that they will take one cargo, but will consider as to the other, this puts it in the power of the British merchant either to cast the whole upon the American house, or to resume his property, and make them accountable for that which came to their hands; and, therefore the right of property in cargo, does not, in transitu, vest in the American house, but remains in the British subject, and is liable to condemnation, he being an enemy. The Frances (1815), 9 Cranch, 183. See, also, The Frances, 8 Cranch, 354, 358, 359; 1 Gallison, 445. See, further, as to title of property in transitu, The Vrow Margharetha, 1 "In the ordinary course of mercantile transactions, a delivery to a ship-master is a delivery to the consignee. Bue it is evident that this delivery must be absolute or qualified, and that the effect of it must vary accordingly. A voluntary agent has the option either to enter upon his agency in strict conformity with the instructions of his principal, or with such reservations or conditions as he may think proper to prescribe; and the only consequence is, that, in the latter case, he leaves his principal at liberty to adopt or repudiate his acts. The shipper who purchases goods on his own credit or with his own funds, is not acting in the ordinary capacity of a factor. If he were, the goods, even before shipment, would be the property of the indi vidual on whose order the purchase is made. Such shipments are in the nature of a merchantile credit, and the shipper always retains the uncontrolled exercise of discretion in extending it." The Frances (1815), 9 Cranch, 183. Property in transit from a belligerent to a neutral is subject to capture and condemnation, if it has not vested at the time of the capture in the neutral consignees. The St. Jose Indiano, 1 Wheat. 208. See, also, 2 Gallison, 268. "Goods were shipped by D. B. & Co., of Liverpool, on board a neutral ship bound to Rio de Janeiro, which was captured and brought into the United States for adjudication. The invoice was headed 'consigned to Messrs. D. B. & F., by order and for account of J. L.' In a letter accompanying the invoice from the shippers to the consignees, they say, 'For Mr. J. L. we open an account in our books here, and debit him, &c. We can not yet ascertain the proceeds of his hides, &c., but we find his order for goods will far exceed the amount of these shipments; therefore we consign the whole to you, that you may come to a proper understanding with him.' It was held that the goods were, during their transit, the property, and at the risk of the enemy shippers, and, therefore, subject to condemnation." The St. Joze Indiano (1816), 1 Wheat., 208, Wheaton's Syllabus. This Department is not disposed to deny the rule of law which forbids the transfer of an enemy's property to a neutral when on its way to the enemy's country. The leading case on this subject is that of the Sally, Griffiths, master, reported in the third volume of Robinson's Admiralty Reports, page 300. The case was decided against the claimants by the British House of Lords on the 12th of December, 1795. It is not easy to see how it could have been differently decided, in view of the fact that there were in evidence certain letters of Mr. Ternant, the minister of France in this country, showing that he was commissioned by his Government to purchase on its account and to forward to France the very property which was captured." Mr. Bayard, Sec. of State, to Mr. Godoy, Chilean min., April 11, 1885, With reference to an application in behalf of a German subject for the return of goods shipped by him on the Spanish steamer Pedro, which had been condemned, the Department of State, referring to a report of the Attorney-General, said that the goods in question were consigned to a Spanish firm in Cuba " without any reservations, and were consequently subject to the general rule of law that goods in the course of transportation from one place to another, if they are shipped on account and at the risk of the consignees, are considered as the goods of the latter during the voyage." Mr. Hay, Sec. of State, to Mr. Von Holleben, German ambass., No. 178, It did not even appear by the papers in the case that there was any 3. PRODUCE OF THE ENEMY'S SOIL. § 1185. The Danish island of Santa Cruz having been seized by and surrendered to the British, B., an officer of the Danish Government and an owner of land in the island, withdrew and went to Denmark, leaving his estate in the care of an agent, who afterwards shipped 30 hogsheads of sugar, the produce of the estate, on a British ship, to a house in London, on B.'s account and risk. On her passage the ship was captured by an American privateer and brought into the United States, where, in spite of a claim by B. to the sugar, both the ship and her cargo were condemned. Harper, counsel for B., contended that the British rule that the produce of a plantation in an enemy's country was to be considered, while the produce remained the property of the owner of the soil, as enemy property, was modern, and that, besides, it did not apply to the case of B. By the cases of the Phoenix, 5 Rob. 26, the Diana, 5 Rob. 60, and the Vrow Anna Catharina, 5 Rob. 161, it appeared that the reason of the rule was that the proprietor of the soil had incorporated himself with the permanent interests of the nation. B. had never incorporated himself with the interests of the British nation, either permanently or temporarily; the character was forced upon him against his will; he was born and continued to be a Dane; he did not purchase a plantation in an enemy country, Denmark being, at the time of his purchase, neutral; the British occupation was temporary, and ended with the war. But, even if the case were within the rule, the rule was merely a British rule, never recognized by Denmark, and not a part of the law of nations, and should not be adopted by the United States. Pinkney, contra, maintained that Santa Cruz, on its capture, immediately became a British colony, and during the occupation, which, though not perpetual, was indefinite, so remained; that, this being so, the sugar in question was, under the rule in the case of the Phoenix, enemy property; that, according to the opposite argument, if the land was purchased before the capture of the island, the owner would not be considered an enemy, though the island should remain permanently British; that, in reality, it was immaterial when the estate was acquired, if the owner continued to hold it after the island came into possession of the enemy. Such was the rule of the English prize courts, and it did not appear that any of the nations of Europe had protested against it. It was not harsher than the rule of domicil, to which it was analogous. Marshall, C. J., delivering the opinion of the court, said: "Some doubt has been suggested whether Santa Cruz, while in the possession of Great Britain, could properly be considered as a British island. But for this doubt there can be no foundation. Although acquisitions made during war are not considered as permanent until confirmed by treaty, yet to every commercial and belligerent purpose they are considered as a part of the domain of the conqueror, so long as he retains the possession and government of them. The island of Santa Cruz, after its capitulation, remained a British island until it was restored to Denmark. "Must the produce of a plantation in that island, shipped by the proprietor himself, who is a Dane residing in Denmark, be considered as British, and therefore enemy, property? "In arguing this question, the counsel for the claimants has made two points: "1. That this case does not come within the rule applicable to shipments from an enemy country, even as laid down in the British courts of admiralty. "2. That the rule has not been rightly laid down in those courts, and consequently will not be adopted in this. "1. Does the rule laid down in the British courts of admiralty embrace this case? "It appears to the court that the case of the Phonix is precisely in point. In that case a vessel was captured in a voyage from Surinam to Holland, and a part of the cargo was claimed by persons residing in Germany, then a neutral country, as the produce of their estates in Surinam. "The counsel for the captors considered the law of the case as entirely settled. The counsel for the claimants did not controvert this position. They admitted it; but endeavored to extricate their case from the general principle by giving it the protection of the treaty of Amiens. In pronouncing his opinion, Sir William Scott lays down the general rule thus: Certainly nothing can be more decided and fixed, as the principle of this court and of the supreme court, upon very solemn arguments, than that the possession of the soil does impress upon the owner the character of the country, as far as the H. Doc. 551-vol 7—27 produce of that plantation is concerned, in its transportation to any other country, whatever the local residence of the owner may be. This has been so repeatedly decided, both in this and the superior court, that it is no longer open to discussion. No question can be made on the point of law, at this day.' "Afterwards, in the case of the Vrow Anna Catharina, Sir William Scott lays down the rule, and states its reason. 'It can not be doubted,' he says, 'that there are transactions so radically and fundamentally national as to impress the national character, independent of peace or war, and the local residence of the parties. The produce of a person's own plantation in the colony of the enemy, though shipped in time of peace, is liable to be considered as the property of the enemy, by reason that the proprietor has incorporated himself with the permanent interests of the nation as a holder of the soil, and is to be taken as a part of that country, in that particular transaction, independent of his own personal residence and occupation.' "This rule laid down with so much precision, does not, it is contended, embrace Mr. Bentzon's claim, because he has not incorporated himself with the permanent interests of the nation.' He acquired the property while Santa Cruz was a Danish colony, and he withdrew from the island when it became British. "This distinction does not appear to the court to be a sound one. The identification of the national character of the owner with that of the soil, in the particular transaction, is not placed on the dispositions with which he acquires the soil, or on his general character. The acquisition of land in Santa Cruz binds him, so far as respects that land, to the fate of Santa Cruz, whatever its destiny may be. While that island belonged to Denmark, the produce of the soil, while unsold, was, according to this rule, Danish property, whatever might be the general character of the particular proprietor. When the island became British, the soil and its produce, while that produce remained unsold, were British. "The general commercial or political character of Mr. Bentzon could not, according to this rule, affect this particular transaction. Although incorporated, so far as respects his general character, with the permanent interests of Denmark, he was incorporated, so far as respected his plantation in Santa Cruz, with the permanent interests of Santa Cruz, which was, at that time, British; and though as a Dane, he was at war with Great Britain, and an enemy, yet, as a proprietor of land in Santa Cruz, he was no enemy: he could ship his produce to Great Britain in perfect safety. "The case is certainly within the rule as laid down in the British. courts. The next enquiry is: How far will that rule be adopted in this country? |