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as in the case of the Toone, the contrivance was resorted to of executing the transfer in a foreign port, through the medium of a procuration executed in the blockaded port.
Inasmuch as the transferree in that, as well as in most of the other cases, was a domiciliated business resident of the country of the enemy, the question of the validity of the transfer, as made in a blockaded port, or during war, by an enemy to a neutral, became of secondary importance.
But the ingenuity of man is unequal to the task of rendering valid by indirection, an act which the
law invalidates when done directly. Transfers by The transfer of a vessel by power of attorney, neutrals dur- whenever made, is the act of the principal, and ing war void, although done by the agent in a foreign port, in belligerent legal intendment, it is not less the act of the prinrights.
cipal at his own domicile.
But subsidiary to all this, is the well settled principle, under which such transfers become mere waste paper; it is that principle, well established in the law of nations, that a transfer by an enemy to a neutral in time of war, or in aid of a contem. plated war, is void, as in fraud of belligerent rights.
The undoubted belligerent right of conquering from the adversary an honorable peace, by inflicting a blow upon his ocean commerce, is directly invaded, and may be wholly destroyed by the acts of neutrals, in becoming possessed of that commerce; and hence, the law regards such acts as in no man
ner changing the true ownership of the property. The Mersey.
The schooner Mersey belonged to a citizen of U. S. Court, Charleston, South Carolina, and succeeding in get
ting out of that port in violation of the blockade, in March 1862, went to the British port of Nassau, where, through a power of attorney executed in Charleston, she was transferred to a British subject residing at Nassau, and thereupon clothed with a British register. Being captured on her next voyage, two days out from Nassau, and sent to New York as prize of war, the learned judge of that district, in adjudicating upon the questions raised in the proceedings against her, affirms this doctrine in the following emphatic language :
'For aught that appears before the court, this vessel retained the same character and ownership she bore when she left Charleston, and entered the port of Nassau, the last of March, and at the time the British register on board her, was executed at Nassau. Beyond that subsidiary principle is the higher doctrine, that a transfer of property to a neutral by an enemy in time of war, or in aid of a contemplated war, is illegal, as in violation and in fraud of vested belligerent rights.” (The Bernou, 1 Rob., 86; 2 ibid., 114, note a; 6 ibid., 396, note 400; 2 ibid., 281; The Rosalie and Betty.) (Vide MS. Decisions in Prize, of United States District Court of New York.)
The doctrine that secret liens upon captured Secret liens property are wholly disregarded in prize courts, by courts of and that confiscations enure to the benefit of
captors, discharged from all such incumbrances as are not visible at the time of capture, has been affirmed and enforced by the Federal courts of the United States, in recent adjudications.
In the cases of the Hiawatha, the Crenshaw, the
Lynchburg, and others, many of the claimants of the captured property were persons who had made advances upon portions of merchandize shipped on board the vessels captured, and claimed a lien upon the property, by express agreement, as security for the advances.
Such claims were held to be inadmissible, except in the instance where the bills of lading were indorsed to the person making the advance, giving to him the actual right of possession of the property, leaving to the shipper only a claim to the surplus of proceeds after payment of advances.
In the case of the Delta, adjudicated in the New York Federal court, citizens of Massachusetts claimed a lien upon the captured vessel to the amount of £1,900, by virtue of a mortgage upon the vessel to that amount, executed in London, by the holder of the legal title, and assigned to them.
The claim was rejected by the eminent judge, who, in passing upon the question, says:
“Preliminary to the question of prize or no prize, to be determined upon the proofs, is one in relation to the character of the claim of Isaac and Seth Adams, and their right to assert the same, as against the captors.”
“Although the conclusions to which the court has arrived, upon the main question, cannot be affected by the determination of that of a mortgagee of captured property to assert his mortgage in a prize court, and demand that it be paid out of the proceeds of the property, if condemned, it is nevertheless proper to consider that question.”
“Charles W. Adams being the sole owner of the brig, executed a bill of sale to the claimant, Marsh, in Liverpool, and took back from him a mortgage to secure the purchase-money, for £1,900 sterling."
“Isaac and Seth Adams, claim solely as the holders and owners of this mortgage."
“Now there is, perhaps, no doctrine better settled in the law of maritime capture, than this that all liens upon captured property, which are not, in their very nature, open and visible (like that for freight for enemy cargo laden on board a neutral vessel) are disregarded by prize courts.
“ The great principles of international law require that no secret liens, no mortgages, no bottomry bonds, no claims for repairs, supplies, or advances, should be allowed to cover and protect private property while sailing on the ocean. If the door were once opened for the admission of equitable claims and liens, there would be no end to discussion and imposition, and the simplicity and celerity of prize proceedings would be alike sacri. ficed. (The Francis, 1 Gall., 445; The Josephine, 4 Rob., 25; The Tobago, 5 Rob., 218; The Mariana, 6 Rob., 24; The Sisters, 5 Rob., 161.)
“The claim, therefore, of the brothers, Isaac and Seth Adams, is one that cannot be regarded in this court."
In the case of the Arcola, adjudicated in the Dis- The Arcola. trict Court of the United States in Maryland, the District Court, learned judge, while recognizing the correctness of Maryland. the doctrine, allows the claim of the mortgagee of the vessel, solely because his lien was visible.
In reviewing the cases in which liens upon captured property have been disallowed, the learned judge says:
“Now these were all secret liens, of which the
captors could learn nothing when they made the capture, and depending for their existence upon the different laws of different countries. The difficul. ties which the examination of such claims would impose upon the prize courts in deciding upon them, have excluded such claims from their consideration. But do these considerations apply to the case of a mortgage, regularly recorded under the act of Congress of July 29th, 1850, and indorsed on the certificate of enrolment? Our act of Congress does not require the mortgage or memorandum thereof, to be indorsed on the vessel's register or enrolment, as the statute of 6 Geo. IV., ch. 20, and subsequent British statutes do. But it was done in this case, and it is a practice that should be followed in similar cases. It notifies the captors, immediately on inspection of the ship’s papers, that there is an interest in the vessel, vested in parties friendly to the government, and puts them to their election whether, under such circumstances, they will proceed in the capture.
Upon this ground the claim was allowed, upon terms, as to costs.
In the case of the Amy Warwick, on the claim of
John L. Phipps, & Co., decided in the United Phipps & Co. States District Court for the District of MassachuU.S. Court,
setts, the learned judge, in applying the law in relation to liens upon captured property, takes occasion to declare the distinction between such liens as may be upheld in a court of prize, and such as cannot be protected, which seems to cover the whole ground.
He says: “The counsel for the captors contend that the claimants had only a lien on this cargo,
The Amy Warwick. Claim of John L.