supervening hostilities, by the means which he had used for his removal. On sufficient proof being made of the property, I shall be disposed to hold him entitled to restitution.22 THE WILLIAM BAGALEY. (Supreme Court of the United States, 1866. 5 Wall. 377, 18 L. Ed. 583.) Mr. Justice CLIFFORD delivered the opinion of the court.23 The steamer and cargo were captured as prize of war on the 18th day of July, 1863, and, having been duly libelled and prosecuted as such in the District Court, on the 17th day of August following, they were both condemned as forfeited to the United States. * * 1. Captors contend that the steamer and cargo were both rightfully condemned as enemy property, and also for breach of blockade. Appellant denies the entire proposition as respects his interest in the captured property, and insists that the one-sixth of the same belonging to him cannot properly be condemned on either ground, because he was never domiciled in the rebellious States, and because he never employed the property, either actually or constructively, in any illegal trade with the enemy, or in any attempt to break the blockade. * 3. Proclamation of blockade was made by the President on the nineteenth day of April, 1861, and on the thirteenth day of July, in the same year, Congress passed a law authorizing the President to inter 22 So, in The Doornbaag, restitution was decreed to A. B., removing from Holland, of a ship and parts of the cargo allotted to him on the dissolution of the partnership, for the purpose of his removal. The situation of British subjects wishing to remove from the country of the enemy on the event of a war, but prevented by the sudden interruption of hostilities from taking measures for removing sufficiently early to enable them to obtain restitution, forms not unfrequently a case of considerable hardship in the Prize Court. In such cases it would be advisable for persons so situated, on their actual removal, to make application to government for a special pass, rather than to hazard valuable property, to the effect of a mere previous intention to remove, dubious as that intention may frequently appear under the circumstances that prevent it from being carried into execution. [Reporter's note.]. In the case of The Flamenco, 1 British and Colonial Prize Cas. 509 (1915), it was held, as stated in the headnote, that: "An enemy subject who has acquired a trade domicile in a neutral country loses that domicile if, on the outbreak of war, he leaves the neutral country for another neutral country, in the absence of evidence that his departure is merely temporary." See The Lutzow (No. 5) 3 British and Colonial Prize Cas. 37, 45 (1917), in which the Privy Council cited leading cases, and stated, per Sir Arthur Channell, that: "On the outbreak of war the appellants were entitled to save themselves from being treated by Great Britain and her allies as an enemy in respect of their German branch by promptly ceasing to carry on trade in Germany, and if, for the purpose of doing so, they removed from Germany by sea any property which they then had in Germany, it would during its transit for that purpose be free from seizure and condemnation as enemy property." 23 The statement of facts is omitted. SCOTT INT.LAW dict, by proclamation, all trade and intercourse between the inhabitants of the states in insurrection and the rest of the United States.24 Provision of the sixth section of the act is that, after fifteen days from the issuing of such proclamation, "any ship or vessel belonging in whole or part to any citizen or inhabitant" of a state or part of a state, whose inhabitants shall be so declared to be in insurrection, if found at sea or in the port of any loyal state, may be forfeited. Reference is made to those provisions, as showing that our citizens were duly notified that Congress as well as the President had recognized the undeniable fact that civil war existed between the constitutional government and the Confederate States; and that seasonable notice. was given to all whose interests could be affected, and that ample opportunity and every facility were extended to them, which could properly be granted, to enable them to withdraw their effects from the states in rebellion, or to dispose of such interests as in the nature of things could not be removed. Open war had existed between the belligerents for more than two years before the capture in this case was made, and yet there is not the slightest evidence in the record that the appellant ever attempted or manifested any desire to withdraw his effects in the partnership or to dispose of his interest in the steamer. Effect of the war was to dissolve the partnership, and the history of that period furnishes plenary evidence that ample time was afforded to every loyal citizen desiring to improve it, to withdraw all such effects and dispose of all such interests. "Partnership with a foreigner," says Maclachlan, "is dissolved by the same event which makes him an alien enemy;" and Judge Story says, "that there is in such cases an utter incompatibility created by operation of law between the partners as to their respective rights, duties, and obligations, both public and private, and therefore that a dissolution must necessarily result therefrom, independent of the will or acts of the parties." 25 Executory contracts with an alien enemy, or even with a neutral, if they cannot be performed except in the way of commercial intercourse with the enemy, are ipso facto dissolved by the declaration of war, which operates to that end and for that purpose with a force equivalent to that of an act of Congress.26 Duty of a citizen when war breaks out, if it be a foreign war, and he is abroad, is to return without delay; and if it be a civil war, and he is a resident in the rebellious section, he should leave it as soon as practicable and adhere to the regular established government. Domicile in the law of prize becomes an important consideration, because every person is to be considered in such proceedings as belonging to 24 12 Stat. at Large, 1258, 257. 25 Maclachlan on Shipping, 475; Story on Partnership, § 316; Griswold v. Waddington, 15 Johns. (N. Y.) 57 (1818); Id., 16 Johns. (N. Y.) 438 (1819). 26 Exposito v. Bowden, 7 Ellis & Bl. 763 (1857). that country where he has his domicile, whatever may be his native or adopted country.27 4. Personal property, except such as is the produce of the hostile soil, follows as a general rule the rights of the proprietor; but if it is suffered to remain in the hostile country after war breaks out, it becomes impressed with the national character of the belligerent where it is situated. Promptitude is therefore justly required of citizens resident in the enemy country, or having personal property there, in changing their domicile, severing those business relations, or disposing of their effects, as matter of duty to their own government, and as tending to weaken the enemy. Presumption of the law of nations is against one who lingers in the enemy's country, and if he continue there for much length of time, without satisfactory explanations, he is liable to be considered as remorant, or guilty of culpable delay, and an enemy.28 Ships purchased from an enemy by such persons, though claimed to be neutral, are for the same reasons liable to condemnation, unless the delay of the purchaser in changing his domicile is fully and satisfactorily explained. Omission of the appellant to dispose of his interest in the steamer, and his failure to withdraw his effects from the rebellious state, are attempted to be explained and justified, because the same were, as alleged in the petition, confiscated during the rebellion under the authority of the rebel government. More than a year however had elapsed after the proclamation of blockade was issued before any such pretended confiscation took place. Members of a commercial firm domiciled in the enemy country, whether citizens or neutrals, after having been guilty of such delay in disposing of their interests or in withdrawing their effects, cannot, when the property so domiciled and so suffered to remain, is captured as prize. of war, turn round and defeat the rights of the captors by proving that their own domicile was that of a friend, or that they had no connection with the illegal voyage. Property suffered so to remain has impressed upon it the character of enemy property, and may be condemned as such or for breach of blockade. Prize courts usually apply these rules where the partnership effects of citizens or neutrals is suffered to remain in the enemy country, under the control and management of the other partners who are enemies. * Giving full effect to the admissions in this case, the appellant shows no just ground for the reversal of the decree made by the District Court. * * * Decree of the District Court affirmed.29 27 The Vigilantia, 1 C. Rob. 1 (1798); The Venus, 8 Cranch, 288, 3 L. Ed. 553 (1814); 3 Phillimore's International Law, 128. 28 Maclachlan on Shipping. 480; The Ocean, 5 Roh. 91 (1804); The Venus, 8 Cranch, 278, 3 L. Ed. 553 (1814). 29 In The Joseph, 1 Gall. 545, 13 Fed. Cas. 1126, 1128, No. 7,533 (1813), Mr. Justice Story had said at circuit: "It has been further argued, that a declaration of war is, in effect, a command to the citizens of the belligerent country abroad at the time, to return home, and that the law allows a reasonable time and way to effect it. I am not aware of any principle of public law, which obliges every absent citizen to return to his country, on the breaking out of a war; nor has any authority been produced which countenances the position. It may be admitted, that the sovereign power of the country has a right to require the services of all its citizens, in time of war, and for this purpose may recall them home under penalties for disobedience. But until the sovereign power has promulgated such command, the citizens of the country have a perfect right to pursue their ordinary business and trade in and with all other countries, except that of the enemy. Upon any other supposition, all foreign commerce would, during war, be suspended; for if it were the duty of absent citizens to return, it would, upon the same principle, be the duty of those at home to remain there. As to citizens in the hostile country, the declaration of war imports a suspension of all further commerce with such country, and obliges them to return, unless they would be involved in all the consequences of the hostile character. If they wish to return, they must do it in a manner, which does not violate the laws; and their property cannot be removed with safety from the enemy country, unless under the sanction of their own government. But even if the position were generally true, that is contended for, the law would never deem that a reasonable mode of conveying property home, which involved it in a noxious trade with the public enemy. That can never be held to be a reasonable mode of returning a ship to the United States, which involves her in a traffic forbidden by the laws. However, I am well satisfied, that the position cannot be maintained in any extent adequate to the purpose, for which it has been introduced." The doctrine laid down in the principal case appears to have met with the approval of the Supreme Court: * 申 "Brinkley, in his answer, claims to have gone within the insurrectionary lines as a private citizen and upon private business. He was, therefore, in the very fullest legal sense, an enemy of the government during his stay within the military lines of the rebellion, liable to be treated as such both as to his person and property. His remaining there was in plain violation of law and in disregard of duty. In The William Bagaley, 5 Wall, 377, 18 L. Ed. 583 (1866), we said that it was the duty of a citizen when war breaks out, if it be a foreign war and he is abroad, to return without delay; and if it be a civil war, and he is a resident in the rebellious section, he should leave it as soon as practicable, and adhere to the regular established government.'" Per Mr. Justice Harlan in Gates v. Goodloe, 101 U. S. 612, 617, 25 L. Ed. 895 (1879). "The liability of the property is irrespective of the status domicilii, guilt or innocence of the owner. If it come from enemy territory, it bears the impress of enemy property. If it belong to a loyal citizen of the country of the captors, it is nevertheless as much liable to condemnation as if owned by a citizen or subject of the hostile country or by the hostile government itself. The only qualification of these rules is, that where, upon the breaking out of hostilities, or as soon after as possible, the owner escapes with such property as he can take with him, or in good faith thus early removes his property, with the view of putting it beyond the dominion of the hostile power, the property in such cases is exempt from the liability which would otherwise attend it. Such, with this limitation, is the settled law of this and of all other prize courts." Per Mr. Justice Swayne in The Gray Jacket, 5 Wall. 342, 369, 370, 18 L. Ed. 646 (1866). CHAPTER IX OCCUPATION; CONQUEST; MARTIAL LAW THE SANTA ANNA. (High Court of Admiralty, 1809. 1 Edwards, 180.) This was the case of a Spanish ship and cargo, which was captured 21st August, 1809, by the private ship of war John Bull, on a voyage from Montrico to Cadiz; with an ostensible destination to St. Andero. On the part of the captors it was contended-That the parties on whose behalf the claim was given, were resident in that part of Spain which was under the dominion of the French, and, consequently, that they had not a persona standi in the British Court of Admiralty. Sir WILLIAM SCOTT. I think it is clearly the intention of the government of this country, publicly expressed, that all Spanish property should be treated with the utmost possible tenderness. The order in council of the 4th July, 1808, declares that "all hostilities against Spain, on the part of his Majesty, shall immediately cease"; here, then, is a total extinction of hostilities proclaimed, without any exception or limitation whatever. In the third and fourth articles of the same order it is provided, "that all ships and vessels belonging to Spain shall have free admission into the ports of his Majesty's dominions, as before the present hostilities; and that all ships and vessels belonging to Spain, which shall be met with by any of his Majesty's ships and cruisers, shall be treated in the same manner as the ships of states in amity with his Majesty." Here, again, is no restrictive distinction of particular parts of Spain, but peace and amity are proclaimed generally with that country, in exactly the same terms as would have been employed in a definitive treaty. Under these public declarations of the state, establishing this general peace and amity, I do not know that it would be in the power of this court to condemn Spanish property, though belonging to persons resident in those parts of Spain which are, at the present moment, under French control, except under such circumstances as would justify the confiscation of neutral property. The order in council appears to be framed under the impression, that the general disposition of the inhabitants is friendly to this country, and that this disposition is only overruled by the effect of French force in particular districts. In the cases of the property of such persons taken, the court would, I think, be at most inclined to suspend its judgment for the present, under the authority of this general declaration, and wait till some more precise rule was framed by proper authority, or till |