The Sarah Starr and The Aigburth. and carrying on trade in such place. That sale was unlawful as to Munro, even if, as he contends, he was then a resident of a loyal State, because it was in fraud of his obligations and duties towards his own government. Traffic with the enemy was forbidden by public law. (Duponceau on War, 24; Chitty's Law of Nations, 1; 1 Kent's Comm., 66.) The cargo claimed by the Munroes was purchased in a like port, and consisted of enemy products. The remainder of the cargo, shipped by Evans, was obtained at the same place, and he was also a resident there. If Gravely had an interest in any of the cargo, it is not proved that he had acquired a vested property, or more than an optional privilege to take it on its arrival at Liverpool; and, at all events, it must have been obtained, if any vested interest passed, through purchase or trade, from George C. Munro, a domiciled dealer in the enemy country at the time, and, as such, himself an enemy. (Westlake on International Law; 101, Law Library, p. 49.) The property would not pass out of Munro by such sale, and it remained, notwithstanding, liable to seizure in transitu at sea. The vessel is confiscable because, in the eye of the law, business intercourse with an enemy, inconsistent with actual hostility, is equivalent to trading with such enemy. (The Rapid, 8 Cranch., 162, 163.) These reasons all concur to bring the present case within the doctrine laid down in the antecedent decisions, that loyal citizens or neutrals who trade with an enemy, or have a mercantile domicile in an enemy country, are regarded, in the prize courts, in their commercial dealings and transactions there, as enemies, in relation to vessels and cargoes owned by them and captured at sea. With respect to George C. Munro, the direct vendor of the vessel, and the purchaser, in North Carolina, of the cargo claimed by him and his partner, and to Gravely, who claims the vessel, each had, indubitably, a trading or mercantile domicile in the enemy's country, at the period of the transaction in question, and other and further than in the special occurrence of the sale of this vessel and the lading of cargo on her for the voyage in question. William J. Munro was, likewise, a resident in the Confederate States for commercial purposes; both partners, apparently, upon the proofs, having their sole business domicile, in carrying on their copartnership operations, for a period of years prior to the insurrection and since, within those States. According to a brief but comprehensive summary of the law of prize relative to inhabitancies of that character, drawn up by Judge Story, with ample support of authority from the ancient and modern books, "persons who The Sarah Starr and The Aigburth. reside in a foreign country for purposes of trade are deemed inhabitants of that country by foreign nations, and the character of each changes with that of his country; in peace he is deemed a neutral, in war an enemy; and his property is dealt with accordingly in prize courts." (4 American Encyclopedia, App., 615, art. Domicile.) Thus, in Hogsheads of Sugar v. Boyle, (9 Cranch., 191,) the Supreme Court decided, in a prize case, that the claimant, a neutral, by his actual residence in Denmark, yet had a national character of trade by means of his relationship to the procurement of the cargo captured, which was shipped from an enemy port; and the cargo was, accordingly, condemned. Furthermore, the sale of the Sarah Starr by Munro to Gravely was, under the proofs, manifestly colorable, and resorted to for the purpose of enabling the Munroes, under that cover, to ship their property from an enemy country to a neutral market, in avoidance of the rules of public law which inhibit such commerce to either belligerent. (3 Phillimore's International Law, 603, sec. 484, and notes.) That offence on the part of the Munroes, if their true residence and citizenship was, at the time, out of the Confederate States, and in Rhode Island, subjected the property to seizure and confiscation. The cases are unequivocal to this proposition, coming from an early source in English jurisprudence, and fully confirmed in the American courts. The Bernon (1 Ch. Rob., 102) was the case of a vessel purchased in France, during the war with England, by an American then resident in France. Sir William Scott regarded those circumstances as so suspicious that he required clear proof of the bona fides of the dealing, and that the vessel was not to be employed to the advantage of an enemy, and, for want of such evidence, he condemned the vessel. A series of decisions reiterated the doctrine before the same judge, and applied it rigidly to American neutrals, under varying phases of facts, all upholding the principle that a residence by a trading person, for commercial purposes, in an enemy country, constitutes a domicile, imparting a national character to the residence, although it be fluctuating and temporary in its duration, and quasi incorporeal and not personal. (The Harmony, 2 Ch. Rob., 322; The Indian Chief, 3 Ch. Rob,, 17; The Dree Gebroeders, 4 Ch. Rob., 233; The Danous, 4 Ch. Rob., 255, note 2; The Diana, 5 Ch. Rob., 60; The President, Id., 277.) Many of the cases proceed upon the recognition of the doctrine, that commerce by a citizen or subject with an enemy, is a criminal transaction, on the common principle that it is illegal The Sarah Starr and The Aigburth. in any person owing an allegiance, though temporary, to trade with the public enemy." These doctrines are maintained by the successors of that eminent jurist in the English prize court, and applied with undiminished vigor in cases of dealing and trade in ships and merchandise, equally in cases directly preceding the commencement of hostilities and in transactions during actual war; and no distinction is made, in their application, between domiciled neutrals and natural subjects. (The Abo, 1 Spinks' Prize Cases, 42; The Johanna Emilie, Id., 16; The Ernest Merk, Id., 98; The Christine, Id., S2.) So, if a neutral makes purchase of a vessel, in an enemy country, just prior to the breaking out of war, the bona fides of the transaction must be made out by indisputable proof, in order to protect her from capture, (The Rapid, 1 Spinks, 80,) particularly when the purchase has been made upon the personal credit of the buyer, to be satisfied on the arrival of the vessel in the neutral country; (The Christine, Id., 82;) and the onus of proving the actual payment of the consideration money is, in such case, laid on the claimant. (The Ernest Merk, 1 Spinks, 101.) A sale of a vessel to a neutral, flagrante bello, leaving a portion of the purchase money charged upon the vessel, or unpaid by the vendee, leaves the property in the belligerent, and subject to condemnation in a prize court, as enemy property. (The Ballica, 1 Spinks' Prize Cases, 273, 274.) The American authorities are equally explicit, that a neutral, even enjoying the privileges of consul, domiciled and trading in a belligerent country, is, in war, deemed a belligerent, and his acts are clothed with the character of one of its subjects; and he can neither hold title to property acquired in such country during war, nor confer it upon others, against the interests imparted, by capture at sea, to adversary bellige rents. (The Venus, 8 Cranch, 253; Hogsheads of Sugar v. Boyle, 9 Cranch, 191; The Ann Green, 1 Gall., 284; The San José Indiano, 2 Gall., 268; The Mary and Susan, 1 Wheat., 54, note f; 1 Kent's Comm., 72, 75; Wheat. Internat. Law, ch. 1, sec. 17. See also Manning's Law of Nations, 7.) So far, then, as the proofs disclose the actual facts attending the acquisition of the cargo placed on board the Sarah Starr in North Carolina, it was wholly the property of the Munroes, acquired by them there jointly during the war, and is lawful prize of war on both considerations that they purchased it in an enemy country, and that they, at the same time, had a commercial domicile there. The vessel, on general principles, is placed in the same predicament. It was sold The Sarah Starr and The Aigburth. to Gravely, all parties being disqualified by their relations to this country to sell or purchase in a belligerent State, for the purpose of covering property from the operations of the law of war; and the transaction thus became, between them, one in fraud of the United States. These observations apply equally to the title set up by Gravely to the schooner Aigburth. She was sold to him by resident enemies, and he acquired her and loaded her for foreign trade whilst he was a domiciled trader in the enemy country; and his position as a neutral was evidently employed as a cover to an illegitimate trade. The cases above cited stamp such a procedure as a fraud upon the belligerent rights of the United States and as constituting good cause of forfeiture of the vessel, and of the property on board of her, owned by him. His being a native British subject affords no protection against these consequences. He was mixed personally, and in his responsibilities, with the people with whom he maintained a commercial domicile. In his claim he represents himself to be of "England, merchant, but temporarily residing in Charleston, and a subject of her Britannic Majesty, and being the true and lawful and sole owner of the said schooner, her tackle, apparel, and furniture, and also owner of all the cargo on board said vessel." No other claim is interposed to the cargo than that of Gravely, and the bills of lading, noting the cargo as shipped to its owners, and being indorsed in blank, import the ownership of the cargo to be according to the claim. The papers taken with the vessel show that the transmission of the outward cargo and the return one was made through the intermediation of the house of Fraser & Co., of Charleston, as agents of the claimant; and thus far the outside evidence supports the claim of ownership of this claimant in the cargo captured, because a prize court regards merchandise to be the property of the shipper or consignor, and not of the consignee, unless there be clear proof to the contrary. (The Abo, 1 Spinks' Prize Cases, 42) Certainly this will be the rule when no other supposed owner litigates the right of property. The return cargo, then, simply as enemy property, is liable to arrest at sea as prize, whether its destination be to the enemy port, or to one in a neutral and friendly country. No distinction is marked, in the cases, between the liability of property taken at sea, owned by a neutral who is stamped with the character of an enemy by his commercial residence and dealing in the enemy's country, and the native residents thereof. Dr. Lushington comments upon the character of a neutral commer The Sarah Starr and The Aigburth. cially domiciled in an enemy country in these terms: "There is no principle, I apprehend, so well laid down, no principle so generally true, as this that whatever country a gentleman may belong to, if he is resident in and carries on trade for a period of time in another country, he must be taken, for the purpose of trade, to belong to that other country, and not to his original domicile." (The Johanna Emilie, 1 Spinks' Prize Cases, 16.) That vessel was owned by Rucker, a neutral, and the Hanoverian consul, resident in Riga, and was sold by his authority at Newcastle, and purchased by another Hanoverian, previous to a declaration of war; but the court held her to belong to Rucker, who, by his domicile, was an enemy, and condemned her as good prize. It appears to me, therefore, in view of the rules of law applicable to the question, that the claimant Gravely, in the character of a neutral and a British subject by birth, was, within the purview of the public law, in his mercantile relations, an enemy of the United States at the time the two above-named vessels were captured, and that they, together with so much of their respective cargoes as belonged to him, are lawful prizes. The manifest principle of that jurisprudence divests the man acting in promotion of the interests of one belligerent, in its commercial, military, or fiscal operations, of all protection against the other, under the shield of foreign birth or allegiance, and stamps him with the character of the party whose ends his conduct subserves; and his planting himself as a resident within the dominions of an enemy, and there carrying on a traffic in vessels or merchandise tending to the benefit of the belligerent with whom he is domiciled, constitutes him an enemy of the other, and renders his property so acquired or used just prize of war. A ground of defence and immunity in behalf of this claimant is, however, interposed, which, it is contended, gives him pre-eminent protection in both these suits. It is, that by the treaty regulations between the British government and the United States, of November 19, 1794, (8 U. S. Stat. at Large, 116,) the contingency in this case is provided for and remedied. The provision in that treaty is as follows, (p. 128) "If at any time a rupture should take place between his Majesty and the United States, the merchants and others of each of the two nations residing in the dominions of the other shall have the privilege of remaining, and continuing their trade, so long as they behave peaceably, and commit no offence against the laws." The fur |