Nathan Clifford

“ Contributing nothing to 'the reparation of injury, the re-establishment of right, and the restoration of order,' such action on the part of government would of itself be an injury to the citizen, a palpable denial of his common and constitutional right, and the sure promoter of disorder and discontent. ”

“ Part-owners of ships are seldom partners in the commercial sense, because no one can become the partner of another without his consent, and because if they acquire title by purchase, they usually buy distinct shares at different times and under different conveyances, and even when they are the builders they usually make separate contributions for the purpose. Generally speaking, they are only tenants in common; but the steamer, in this case, belonged to the partnership, and throughout the rebellion to the time of capture was controlled and managed by the partners in the enemy country. ”

“ But all interests and rights in both the vessel and the cargo are confiscable for breach of blockade. It is not competent for owner of either vessel or cargo, in such case, to protect his property from condemnation by showing innocence in the transaction. All parties are concluded by the illegal act of the master, though it may have been done without their privity, and even contrary to their wishes. It is the act and intention of the master which determine the guilt or innocence of the property and its liability to confiscation; and this applies equally to vessel and cargo. ”

“ 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 that country where he has his domicile, whatever may be his native or adopted country. ”

“ Courts and text-writers agree that ships are a peculiar property, and that such peculiarity assumes more importance as a criterion of judicial decision in war than in peace. They have a national character as recognized by the law of nations, becuase they regularly carry the flag of the nation to which they belong. ”

“ Promptitude is therefore justly required of citizens resident in the enemy country, or having personal property there, in changing their domicil, 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. ”

“ 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. ”

“ Property of the enemy, if at sea, may be captured as prize of war, but the property of a friend cannot be lawfully captured, provided he observes his neutrality. Public war, duly declared or recognized as such by the war-making power, imports a prohibition by the sovereign to the subjects or citizens of all commercial intercourse and correspondence with citizens or persons domiciled in the enemy country. ”

“ A court of prize has no means of settling the accounts of the firm and determining the particular interests of the several members in the property. The ownership of this vessel was in the firm, and the resident members at Mobile, who were in possession of her, had authority to divest their own interests, as well as the interest of the Northern member, in virtue of their general power and agency as recognized by the law of partnership. ”

“ But a person may be penally affected by the misconduct of his agent as well as by his own acts; and if he delegated general powers to others and they misuse their trust, his remedy must be against them.'
It is safe to assume that the authorities cited above, establish that no forfeiture can be incurred unless the offence was committed by some agent appointed by the owner, and touching the identical property intrusted to his care. If this be correct, it follows that the government fails to make out any case against the property of this appellant. ”

“ Established rule is that when the owners agree to take the flag and pass of another country they are not permitted, as matter of convenience, in case of capture, to change the position they have voluntarily chosen, but others are allowed to allege and prove the real character of the vessel. Meaning of the rule is that the ship is bound by the character impressed upon her by the authority of the government from which all her documents issue; and Chancellor Kent says that rule is necessary to prevent the fraudulent mask of enemy's property. ”

“ There is, however, another principle touching the law of blockade, borrowed from the general admiralty practice, and of frequent application. Recognizing the full force of the maxim qui facit per alium facit per se, the law of nations holds the owners of vessels to be accountable for the acts of those to whom they have intrusted the vessel, and in such cases decrees forfeitures or awards restitution of the owner's property according to the criminal or lawful conduct of their agents. ”

“ So far as concerns Bragdon's interest in this property he was clothed by law with both the right of property and the right of possession, while his copartners had the naked possession of his interest without right, and under the decree of a false court, whose authority cannot for a moment be recognized. It would be preposterous to contend, that for the deeds of persons guiltily in the possession of property, the true and innocent owner is to be held responsible. ”

“ Neutral friends, or ever citizens, who remain in the enemy country after the declaration of war, have impressed upon them so much of the character of enemies, that trading with them becomes illegal, and all property so acquired is liable to confiscation. ”

“ 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. ”

“ When a ship is captured as prize of war she is bound by the flag and pass under which she sailed. Owners are also bound by those insignia of national character. They are not at liberty when they happen to be evidence against them to turn round and deny they character the ship has assumed for their benefit. ”

“ Such a partnership is, by the law of war, treated throughout as a hostile establishment, and the whole partnership property is liable to capture and condemnation as enemy's property notwithstanding one or more of the partner may be domiciled in a neutral country; a fortiori, if some of the partners are domiciled in one of the hostile countries and the rest in the other, the partnership is hostile, and the partners are also personally enemies. ”

“ 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. ”

“ Commercial nations generally have, for the advancement of their own individual prosperity, conferred great privileges upon the ships belonging to theier own citizens, and, in consideration thereof, have imposed upon their owners certain special duties and obligations. Usually they are required to be registered at the home port, and they are not allowed to sail on any voyage, foreign or coasting, without such papers as the laws of the country to which they belong require. ”

“ Even where the part-owners of a ship are tenants in common the majority in interest appoint the master and control the ship, unless they have surrendered that right by agreeing in the choice of a ship's husband as managing owner. ”

“ The claimant's property cannot be decreed good prize for any breach of blockade, unless the offence was committed in his interest and in person or by agent.
The breach of blockade is viewed in all cases as a criminal act. ”

“ There the vessel had been guilty of an undoubted violation of the law and was condemned accordingly, but upon the intervention of an innocent owner of a portion of the cargo, it was holden, that 'if the owner can show that he did not participate in the offence, his property is not liable to forfeiture.'
It is notable, also, how indulgently the courts construe the law in certain cases in favor of the personally innocent, even as against the wilful action of their agents. ”

“ Appellees are always heard in support of the decree, but they cannot have any greater damages than were assessed in the court of subordinate jurisdiction. Intervenors here, however, are neither appellants or appellees, as they did not appear as claimants in the District Court, and were not in any way made parties to the litigation. Original jurisdiction in prize, as well as in all other admiralty causes, is vested exclusively in the district courts. ”

“ 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 inderdict, by proclamation, all trade and intercourse between the inhabitants of the States in insurrection and the rest of the United States. ”

“ Projected voyage of the steamer was from Mobile to Havana, and the master testified that she sailed under the Confederate flag. Proofs show that she left her anchorage in the night-time, and that she was captured, as alleged in the libel, after a brisk chase by several of our blockading squadron, more than two hundred miles from the port of departure. When captured, she had on board a permanent register, issued at Mobile under Confederate authority, and which described her owners as trustees of a certain association, and citizens of the Confederate States. ”

“ Proceeds of the sale were paid to the marshal, but before the amount was actually deposited in the registry of the court the appellant filed his petition of intervention, claiming one-sixth of the proceeds, upon the ground that he was the true and lawful owner of one-sixth part of the vessel and cargo. Allegations of the petition of intervention were, in substance and effect, as follows:1. That the petitioner was, and for many years had been, a citizen of the State of Indiana; that at the breaking out of the rebellion he was a member of the firm of Cox, Brainard & Co., at Mobile, Alabama ”

“ Admiralty, however, in certain cases, if no ship's husband has been appointed, will interfere to prevent the majority from employing the ship against the will of the minority without first entering into stipulation to bring back the ship or pay the value of their shares. ”

“ Section 1, of the act of August 6, 1861, 'to confiscate property used for insurrectionary purposes,' enacts that if any person shall knowingly use his property, or suffer it to be used in aiding, abetting, or promoting the insurrection, such property shall be the lawful subject of prize and capture. ”

“ Section 7 of the act regulating the collection of direct taxes in insurrectionary districts, allows any loyal citizen having a lien upon any real estate which has been sold for taxes to redeem the same. ”