The William Bagaley
APPEAL from the District Court for the Eastern District of Louisiana.
The steamer William Bagaley,-with a register issued at Mobile, June 16, 1863, under the authority of the 'Confederate States,' and reciting a previous enrolment in 1857 and a present ownership,-'property having changed,'-by Waring and others ('citizens of the Confederate States' and 'trustees of association of stockholders),' with a master appointed by these trustees, and bearing the Confederate flag,-sailed from Mobile, July 17, 1863, during the blockade of that port, proclaimed April 19, 1861, by the United States, for Havana. Her cargo was of cotton, turpentine, &c. No papers were on board, for 'fear of being captured.' The 'cotton was shipped for the benefit of the owners in Mobile.' All the officers and crew were, with one exception, 'citizens of the Confederate States.' The master had instructions to escape the blockading vessels, but not to resist.
Being perceived by the blockading squadron, she was pursued, and, after a brisk chase, captured. Being brought into New Orleans and libelled for condemnation, a claim for one-sixth of the vessel and cargo was interposed by Joshua Bragdon, and of this sixth he prayed restitution.
The facts upon which he grounded his claim were, that he was, and for many years had been, a resident of the State of Indiana, a loyal State; that the firm of Cox, Brainerd & Co., of Mobile, Alabama, a rebel State, were the sole owners of the captured vessel and her cargo, of which firm the claimant had been for several years a member, and owned one-sixth interest in all the property of the copartnership, which interest he had never in any way transferred. That he was, and always had been, a true and loyal citizen of the United States, and that he had never, in any way, aided or abeted the rebellion, and after the breaking out of the same had never exercised any act of ownership or control over the property or the captured steamer, and that he had no connection with, or knowledge of, the unlawful voyage of the steamer which occasioned her capture. That in consequence of his loyalty, the so-called Confederate government seized all his interest and property in said firm of Cox, Brainerd & Co., and by a decree and process of one of her pretended courts, 'at some time during the year 1862,-the exact date not known,' confiscated the same. That all such acts and proceedings of the insurrectionary government were void, and that the title of the claimant to his property remains unimpaired.
On the trial these facts were admitted of record by the District Attorney as true. The court dismissed the claim with costs, and condemned both vessel and cargo.
No other claim having been interposed in the proceedings in the lower court for any portion of the captured property or its proceeds, the only question presented by the appeal was the legal sufficiency and merit of the claim of Bragdon for his one-sixth.
After the case came into this court by appeal, however, the owners of the remaining five-sixths filed a petition asking to intervene for their interests. Their excuse for not appearing or putting in any claim in the District Court, it may be here stated, was, that they were residents of a State hostile to the United States, and had therefore no standing in that court; that this disability continued till after the case was removed into this court by appeal. And they set up, as reason for the restitution of their shares to them, that since the appeal they had received from the President 'a full pardon and amnesty for all offences by them committed arising from participation, direct or implied, in the said rebellion.'Messrs. Henry Crawford, S. S.C.ox, and J. J. Lewis, for the appellants and for the petitioners:
There is no dispute about the facts. The case is to be taken as a special verdict or case agreed on and stated.
I. We have, then, a question of good prize or lawful property a contest between the government and a citizen, whom she admits to have been unshaken in his allegiance during a long rebellion, as to the right of the former to forfeit his property, or her duty to restore the same upon his application.
If the United States has warrant as against the admitted rightful owner to forfeit this property as good prize, it can only be on account of the commission of some offence against the law of nations. There are only two such offences which can be relative to the present case. We will treat them in their order.
1. The claimant's property in vessel and cargo cannot be forfeited as enemy's property.
To justify condemnation of property for such reason it is necessary to establish (a) the domicil of the owner in the enemy's country, or (b) the employment of the property, either actually or constructively, by him in illegal trade with the enemy.
(a) Since it is not the place where a thing is, which determines the nature of that thing, but the character of the person to whom it belongs, the general principle upon the subject has always been, that the domicil of the party is the true test of national character and determines the nature of property.  And so the property of one resident in the enemy's territory is res hostilis, and the lawful subject of maritime capture. 
The question presented by this claim cannot be injuriously affected by the principle thus announced. The claimant here was not domiciled on the south side of what Grier, J.,  calls 'the boundary marked by lines of bayonets, which can be crossed only by force;' nor had he at any time been 'a citizen or subject of any State or district in insurrection against the United States;' but, on the contrary, as the government admits, was, and long had been, a resident loyal citizen of the State of Indiana.
(b) The other criterion of 'enemy's property' is equally powerless to work a forfeiture. That test is thus defined by an eminent writer: 'All the property of enemies found afloat, and all property of citizens or subjects condeucting themselves as belligerents, may be lawfully captured.' 
This rule has been applied in such a multitude of cases that a cursory reference to the language employed by courts cannot fail to give a correct appreciation of its true meaning and limitation. In the leading case of The Rapid,  it is said:
'A citizen or ally may be engaged in a hostile trade, and thereby involve his property in the fate of those in whose cause he embarks.'
Again, in another case:
'He incorporated himself into the permanent interests of the enemy.' 
In a third case, Sir William Scott says:
'By intendment of law, all property condemned is the property of enemies; that is, of persons so to be considered in the particular transaction.' 
Text-writers proceed in the same way:
'He who clings to the profits of a hostile connection must be content to bear its losses also.' 
Story, J., thus speaks:
'When a person is engaged in the commerce of the enemy upon the same footing and with the same advantages as native resident subjects, his property employed in such trade is deemed incorporated in the general business of that country, and subject to confiscation, be his residence where it may.' 
In the case of navigating under the pass or flag of the enemy, the party who uses them 'is not at liberty,' it is said in The Fortuna Verissimo, 'when they turn to his disadvantage, to deny the character which he has worn for his own benefit.' 
All these instances,-sailing under the enemy's pass or flag; breach of blockade; carriage of contraband; establishment or continuance of a house of trade in the enemy's country; illegal traffic with the enemy,-are cases of a criminal voluntary adoption of the enemy character by the citizen, odious violations of his duty to his government; and justice requires that all his ventures so employed be the rightful subjects of capture and condemnation as enemies' property.
^1 The Emanuel, 1 Robinson, 296; Upton's Laws of War, 113, 150.
^2 The Venus, 8 Cranch, 253; The Hoop, 1 Robinson, 196.
^3 Prize Cases, 2 Black, 635.
^4 Phillimore, International Law, vol. 3, § 345.
^5 Cranch, 155.
^6 Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191.
^7 The Elsebe, 5 Robinson, 172.
^8 Upton's Maritime War, 110; 1 Kent's Commentaries, 82.
^9 San Jose Indiano, 2 Gallison, 268; and see Maisonaire v. Keating, Id. 338; and The Friendschaft, 4 Wheaton, 105.
^10 1 Dodson, 87; and see The Success, Id. 131; The Hiram, 1 Wheaton, 440; The Vigilantia, 1 Robinson, 13.