age or danger to American interests, and in addition, to guard and cherish, to the extent of its power, the right of neutrals to carry on honest commerce between nations engaged in hostilities, reducing to the least possible degree the hindrances to neutral trade which inevi tably arise from a state of war." Mr. Evarts, Sec. of State, to Mr. Christiancy, min. to Peru, Dec. 26, 1879, For. Rel. 1879, 894. A similar instruction was at the same time sent to Mr. Osborn, minister to Chile. In the case of the Itata, which, after being transferred by a Chilean cor- It being subsequently reported that the Itata and her consorts were about In reply to a request for some sanction or approval of the proposed transfer of enemy vessels to a neutral in a blockaded Cuban port in 1898, the Department of State said that it could not "give desired permission or concede any privilege because of transfer from belligerent to neutral in a blockaded port. Vessels might be allowed to sail subject to capture and to adjudication by prize court of bona fides of transaction and of effect, if any, of mortgage, on national character of vessels, prior to transfer." Mr. Moore, Assist. Sec. of State, to Messrs. Butler, Notman, Joline, and "This Government is in receipt of information that ships carrying the Spanish flag have been, or are about to be, furnished with British or other neutral papers upon colorable transfers of ownership, made for the purpose of avoiding belligerent capture. It is desired that any such cases coming to your notice should receive your immediate attention, and that steps should be taken to prevent the colorable and void transfers of vessels under the Spanish flag to a neutral flag." Circular, Mr. Day, Sec. of State, to the Diplomatic and Consular Officers of the United States, July 1, 1898, For. Rel, 1898, 1176. Capt. Henry Glass, U. S. N., when captain of the port of Manila, in August and September, 1898, before the treaty of peace between the United States and Spain had been signed, allowed the transfers of a large number of steamers from the Spanish to the American flag, on presentation of a regular bill of sale to an American citizen properly certified by the American consul, and issued a provisional register to each vessel, as the captain of the port was authorized to do under the Spanish law. The main object of the transaction was to protect the vessels from the insurgents and maintain trade between the islands while they were yet under Spanish sovereignty. The Benito Estenger was captured by the United States steamship Hornet June 27, 1898, off Cape Cruz, on the south side of the island of Cuba. December 7, 1898, she was condemned by the United States district court for the southern district of Florida as enemy property. The claimant appealed on the ground, among others, that she was a British merchant ship, duly documented and entitled to the protection of the British flag, and lawfully owned and registered by a British subject domiciled in Great Britain. It appeared that prior to June 9, 1898, the vessel was the property of Enrique de Messa, a Spanish subject resident in Cuba, and that on that day a bill of sale was made by de Messa to the claimant, Beattie, a British subject, and the vessel registered as a British vessel, at Kingston, in accordance with the requirements of British law. She had been engaged in trade with the island of Cuba, and more particularly between the ports of Kingston and Montego, Jamaica, and the port of Manzanillo, Cuba. She left Kingston June 23, and proceeded with a cargo of flour, rice, corn meal, and coffee to Manzanillo, where the cargo was discharged. She cleared from Manzanillo on June 27 for Montego, and thence for Kingston, and was captured on the same day off Cape Cruz. According to de Messa's story, he was compelled to sell the steamer in order to get money to live on, and he made the sale for $40,000, for the whole or a large part of which credit was given on an indebtedness to the firm of which Beattie was a member, and that he was employed by Beattie to go on the vessel as his representative and business manager. Beattie in his testimony said that the sale was bona fide, but declined to state of what the payment of the purchase money consisted. The consul of the United States at Kingston testified that Beattie in conversation, while insisting that the transfer was absolute, admitted that it was effected for the purpose of protecting the vessel. Apparently no money passed. The Spanish master and crew remained in charge. De Messa went on the voyage as supercargo; and in the brief of the claimant's counsel it was declared that the tran-fer was obviously made to protect the steamer as neutral property from Spanish seizure, while it was admitted that de Messa "still retained a beneficial interest after this sale and transfer of H. Doc. 551-vol 7-28 flags." On this statement of facts the court observed that "transfers of vessels flagrante bello were originally held invalid," but that the rule had been "modified." The court quoted from Hall's International Law, 4th edition, page 525, as containing the correct rule of law, the following passage: "In England and the United States, on the contrary, the right to purchase vessels is in principle admitted, they being in themselves legitimate objects of trade as fully as any other kind of merchandise, but the opportunities of fraud being great, the circumstances attending a sale are severely scrutinized, and the transfer is not held to be good if it is subjected to any condition or even tacit understanding by which the vendor keeps an interest in the vessel or its profits, a control over it, a power of revocation, or a right to its restoration at the conclusion of the war." The burden of proof, said the court, was on the claimant. In conclusion, the court held that the requirements of the law of prize were not satisfied by the proofs in question, and that the condemnation was proper. The Benito Estenger, 176 U. S. 568. The court cited Story's Notes on the Principles and Practice of Prize Justices Shiras, White, and Peckham dissented. "Merchant vessels acquired from a hostile power or its subjects by persons of neutral nationality are acknowledged to be hostile vessels unless it is proven that the acquisition must be considered, according to the laws of the nation to whom the purchasers belong, as having actually taken place before the purchasers received news of the declaration of war, or that the vessels acquired in the manner mentioned, although after the receipt of such news, were acquired quite conscientiously, and not for the purpose of covering hostile property." Russian Prize Regulations, March 27, 1895, § 7, For. Rel. 1904, 736. VIII. ENEMY CHARACTER. 1. BELLIGERENT DOMICIL § 1189. The domicil of a merchant, and not his natural allegiance, determines the neutral or unneutral character of his trade. Chester v. Experiment, Federal Court of Appeals (1787), 2 Dall. 41. While a citizen of the United States by settling permanently abroad for business purposes, so as to acquire a commercial domicil in such place of settlement, may impress upon his property found on the ocean the legal liabilities of such domicil, it does not follow from this that he becomes expatriated, so as to divest himself of the responsibilities and liabilities of citizenship of the United States. United States v. Gillies, Pet. C. C. 159. An American citizen, residing in a foreign country, may acquire the commercial privileges attached to his domicil; and, by making himself the subject of a foreign power, he places himself out of the protection of the United States while within the territory of the sovereign to whom he has sworn allegiance. Murray r. The Charming Betsey, 2 Cranch, 64. See, also, United States v. Cargo of El Telegrafo, 1 Newb. Adm. 383. A Spanish subject, who comes to the United States in time of peace to carry on trade, and remains here engaged in trade after a war has been begun between Spain and Great Britain, is to be deemed an American merchant by the law of domicil, although by the law of Spain the trade in which he was engaged could be carried on only by a Spanish subject; his neutral character depending, not on the kind of trade in which he was engaged, but on his domicil. Livingston r. Maryland Ins. Co. (1813), 7 Cranch, 506, See, also, the Pizarro (1817), 2 Wheat. 227. Where a naturalized citizen of the United States, of British origin, was, on the declaration of war by the United States against Great Britain, domiciled within the dominions of the latter power, it was held that his property, shipped from England after the declaration of war, but before the declaration was known there, was subject to capture and condemnation as enemy's property. The Venus (1814), 8 Cranch, 253. Marshall, C. J., dissented, and his dissent is approved by Chancellor Kent (1 Com. 79), and by Mr. Duer (1 Duer on Insurance 496-498). James Thompson, a native of Scotland, came to the United States in 1793, and resided there, carrying on trade, till 1801. In 1797 he was naturalized. In 1801 he went to France on the business of his house; he afterwards went to England on similar business. In 1803 he settled in Glasgow, where he continued to attend to the business of his partnership till 1812, when the United States declared war. After knowledge of that event, he transacted no commercial business whatever, but applied himself to arranging his affairs so as to return to the United States. This accomplished, he engaged passage in August, 1813, on a cartel ship from Liverpool to New York, but, being stopped by orders of the Government, went over to Ireland and privately embarked for the United States, where he arrived in November, 1813. There were affidavits to show that he always considered the United States his permanent place of residence, and that he uniformly expressed his intention to return. His letters manifested the same intention. His business was complicated, and required his attention after he ceased to engage in new adventures. He appeared as the claimant of certain goods of British manufacture, consigned to various persons in the United States and shipped on the ship Frances, which sailed from Greenoch, Scotland, for New York, July 19, 1812. The Frances was captured by an American privateer, war having been declared by the United States against Great Britain, June 18, 1812. The goods were shipped without knowledge of the war. Held, on the authority of the case of the Venus, that, as the rights of Thompson depended on his national commercial character, the goods must be condemned. The Frances (1814), 8 Cranch, 335. Certain goods belonged to Colin Gillespie, a native of Great Britain, who emigrated to the United States in 1793 and was naturalized in 1798. He went to Great Britain on commercial business in 1794 and 1796; was in the United States in 1795 and 1797; returned to Great Britain in 1799 and married there; went, in the same year, with his wife, to New York, and remained there till June, 1802; then revisited Great Britain and resided there till November, 1805, when he returned to the United States and formed a partnership in New York; returning in the same year to Glasgow, he continued in business there, both while his partnership lasted and after its dissolution, till July 2, 1813, when he returned to the United States with his family. He kept house at Glasgow, and built a warehouse there, which he still owned, and in which he kept his counting house. He deposed that he determined to return to the United States when he heard of the declaration of war, but was prevented from immediately doing so by engagements and commercial affairs, some of which he finally left unarranged. Held, on the authority of the case of the Venus, that the goods must be condemned as enemy property. The Frances (1814), 8 Cranch, 363. See The St. Lawrence, 1 Gall. 467; The Frances, id. 314. A merchant having a fixed residence, and carrying on business at the place of his birth, does not acquire a foreign commercial character by occasional visits to a foreign country. The Nereide, 9 Cranch, 388. |