No 186. [Washington.] Attorney Generals Office, October, 1855. Contraband of war. It is no departure from neutrality for the citizens of a neutral State to sell to belligerents gunpowder, arms, munitions, or any other article of merchandise contraband of war, or for the merchant ships of a neutral state to transport the troops or military munitions of either belligerent. Such commerce is perfectly lawful in itself, subject always to the chances of hostile capture by the other belligerent; and, in the present war, supplies of gunpowder, or other articles contraband of war, and military transportation, have been furnished of lawful right, by citizens of the United States, to each of the belligerents, but more especially, and in larger proportions, to Great Britain and to France. Anhang. Entscheidungen des Admiralitäts-Prisen-Gerichts und der Gerichts-Committee des Geheimenraths in London, (H H.) THE BALTICA.-Aug. 6, 1855. Transfer to a neutral, war being imminent, and the title of vendor not absolutely divested, invalid. This was a class of cases in which the several vessels implicated were seized in British ports. The cireumstances are fully stated in the judgement. Dr. LUSHINGTON. Before considering the facts of this and the other cases nearly similarly circumstanced, and the various points of law which may arise thereon, it may be well to state certain dates which have an important bearing on all these questions. The Russian ambassador left this country in the early part of February, namely, on the 8th, and war was declared on the 29th March in the last year, 1854. Looking at all the circumstances attending the political state of Europe, I think that it may in truth be said, that from the commencement of the year 1854 war was imminent-imminent in the sense in which Lord Stowell uses that and similar expressions; or, in other words, war was highly probable. The bill of sale in the case of The Baltica bears date the 5th March, in that year 1854. The bill of sale, therefore, which is conveyance of the vessel, took place after war had become imminent, and before the actual declaration. The vendor was Mr. Sorensen the elder, who died on the 17th May following. His national character, for the purpose of this transaction, is beyond all doubt Russian. More doubt arises as to the national character of Mr. Sorensen the son, who was the purchaser of this vessel. At the period when these transactions originated—in the month of February-Mr. Sorensen, jun., was carrying on a mercantile business in London; and whatever was his origin, he must be, as to trade, considered a British merchant at that particular period. It appeared to Mr. Sorensen the elder, and to other merchants at Libau, owners of vessels under the Russian flag, that as war between Great Britain and Russia was probable, the preponderancy of the naval forces of Great Britain was such as would seriously embarrass, if not wholly prevent, the profitable employment of vessels sailing under the Russian flag, and that therefore it was expedient to sell their vessels, though at a considerable sacrifice. Actuated by these considerations, Mr. Sorensen, sen., framed a plan for the transfer of this property. He appointed his son, then resident in England, to meet him at Hamburg; and it appears that either on the 23d or 24th February they met, and then came to an agreement that he, Mr. Sorensen, jun., should become a merchant at Altona, and be the purchaser of the ships, or some of the ships, in question. With respect to the payment for these vessels, it will be a question requiring presently the attention of the Court. Mr. Sorensen, jun., assented to this arrangement, and then, or shortly after the precise time matters not-Mr. Sorensen undertook to be the purchaser of all the vessels, the fate of which is now under the consideration of the Court; and in pursuance of that plan he, in the beginning of March took a counting-house at Altona, on the 8th March was admitted a burgher of that place, and subsequently resided, in the manner deposed to in the evidence in this case, at Hamburg. I shall now address myself to the question which has been much discussed at the bar, namely, what was the national character of Mr. Sorensen, jun., at the time when these contracts were entered into and completed. Much has been said as to the domicile of origin of Mr. Sorensen, jun. I will briefly advert to it, though I do not think it has any stringent bearing on the case; for I must always remember that the question before me is that of mercantile national character, which is governed by rules and by authorities particularly applicable to it alone. I think I should only confuse the case by following it up in reference to other cases of domicile; therefore I shall abstain from so doing. Mr. Sorensen, sen., was a Dane by birth, and Danish consul at Libau, but long settled at that place as a merchant. His son was born at Libau, and until he, the son, acquired another mercantile national character, he must, being resident at Libau, have inherited that of his father—at least, so long as he continued there to reside. I am of opinion, therefore, that Mr. Sorensen, jun., remained a Russian until he came to England, but that he did acquire a British mercantile national character, and at the commencement of this transaction he was to be considered a British merchant. Then, when and how did he become divested of that national character, and become entitled to call himself a Dane? This question appears to me to turn upon divers considerations. It was, no doubt, fully competent to Mr. Sorensen, jun., bonâ fide to abandon his British character and assume the Danish. Did he do so animo et facto? is the question. Now, as to his intention, it appears to me that all probability was in favour of his becoming a Dane, and for obvious reasons. The very object of the purchase of the vessels was to carry on trade as a neutral merchant; and this object, of course, could not be effected if his national character was either Russian or British; and if he desired to be invested with a neutral character, it is most probable that he would select a Danish domicile; most probable, because it was the domicile of his father, and was best calculated to further his mercantile pursuits. I see no reason to doubt the bonâ fide intention of Mr. Sorensen, jun., to assume that character. Then, as the fact, it appears to me that Mr. Sorensen did, as speedily as was convenient, carry that intention into effect; he did proceed to wind up his affairs in England, he did take a counting-house at Altona in March, and he did take lodgings at Hamburg; and upon the authority of the case of The Conferensrath, (6 Rob. 362), I am of opinion that the residence at Hamburg must be taken as equivalent to a residence at Altona. I have come to the conclusion, therefore, that Mr. Sorensen, jun., at the time when he made this claim, was not in error when ascribing to himself a Danish national character; but at what particular time he became entitled thereto, might, if it were necessary narrowly to investigate it, be a matter not only of some, but of very great difficulty. I have considered all the authorities on this subject, and I think the fair result is, with respect to a mercantile national character, that the party become clothed with a new character from the period when he first, animo removendi, takes steps to abandon his former domicile, and animo manendi to acquire a new one; and I think the claimant is fairly entitled to a liberal consideration in this respect. At the same time, I place very little reliance upon the mere formality of becoming an Altona burgher. Such commonform proceedings are little more than nominal, and obtainable at the expense of a few dollars. I have now arrived at the following state of facts:That at the interview between the father and the son, when the contract was first entered into, Mr. Sorensen, jun. was to be considered a British merchant-that is, on the 23rd or 24th February. From that time he purposed to become a merchant of Altona, and from the period of his taking his counting-house and beginning to reside at Hamburg he became an Altona merchant. It is necessary to bear these dates strictly in recollection in order to pronounce anything like a clear opinion upon these transactions. The interview with the father was at the end of February, when Mr. Sorensen, jun., was undoubtedly a British merchant, according to his national character; at the time of the completion of this transaction he had become a Dane. Now, on this state of facts, the first question which arises is, wether the contract of sale, as to some of these vessels, between a Russian merchant and a British merchant, is a legal transaction for the transfer of these ships. In other words, the proposition is this, whether a British merchant can, when war is imminent, enter legally into a contract with a subject of a state likely to become hostile, for the purpose of purchasing his property in ships. This question, if it were necessary to prosecute it, would give rise to very curious inquiries; but from what has subsequently occurred, I do not think that it is incumbent on me to pronounce any definite opinion on this point. I will only observe, that I am not aware that any authority whatsoever can be found on it. When the question arises in a proper shape it will be a very nice question for consideration, namely whether it is competent for a British merchant, immediately antecedent to hostilities, to purchase shipping belonging to the subjects of that state likely to go to war with England, and legally to be able to hold it. This case becomes complicated by the change of national character, if I may use the expression, in the midst of the transactions themselves; and this change, as I think, did take place, or rather was in progress. It is impossible to say more as regards Mr. Sorensen, jun., after the contract, and before the actual purchase was complete. Where a neutral merchant makes a purchase of a ship, the property of the subject of a state that immediately afterwards becomes hostile to Great Britain, and does not make full payment of the purchase money, but leaves the same either as an incumbrance or a debt, I apprehend that such vendor would clearly be entitled to have a locus standi in any court whatever having a competent jurisdiction, excepting of course the court of an enemy. Looking, then, through the whole of these transaction, I think Mr. Sorensen changed his national character between the making the contract and the actual transfer; that, imputing no illegality to the contract in initio, I must consider the sale itself, being the completion of the contract--to give Mr. Sorensen, jun., the benefit of any doubt which may arise on this point-as a sale made to a Danish subject. I will add, that of course all the papers are to that effect; and in delivering the judgment I am about to pronounce I apply my mind solely to the considerations arising from the sale by a Russian shipowner to a neutral mer |
