either her Dutch flag or the country of incorporation of the owning company or the place of residence of her subordinate managers or some or all of these matters be conclusive, she bore a character which justified her condemnation, for she formed part of that enemy commerce which a belligerent is entitled to disable and restrain.

It may be as well to put on one side certain aspects of the effect of using a national flag, which are not now relevant and are really only false analogies. If a ship for her own purposes has assumed and used a national flag to which she is not really entitled, she may in some circumstances be held bound by the nationality which she has thus assumed without warrant. If a ship lawfully flies a national flag, she may in some cases be said, by a figure of speech, to derive from her flag the system of municipal law, by which her contracts or her civil liabilities are governed. In the first case she cannot deny as against captors the national character, which she has irregularly taken; in the second, she derives from the national character, which is actually hers and is indicated by her flag, the system of legal rights and liabilities applicable to her. Neither case touches the position, where in a question with captors it becomes necessary to consider whether the ship, though in contemplation of technical municipal law a neutral ship, of neutral registry, and entitled to the benefits of a neutral flag, is, in the view of the law of nations, a ship of enemy character and liable to be treated in accordance with that character. If the case turned on her user de facto at the time of capture it would be simple: so it would be, if her owners were natural persons of neutral nationality de jure, neither adhering to the enemy nor allowing their chattel to be used in enemy service. The present case is more complex. The criteria for deciding enemy character in the case of an artificial person differ from those applicable to a natural person, since in the nature of things conduct, which is one of the most important matters, can in the former case only be the conduct of those who act for or in the name of the artificial person. It was decided in the case of Daimler Company v. Continental Tyre and Rubber Company, [1916] 2 A. C. 307, that, in the case of an incorporated company, the right and power of control may form a true criterion, the control, that is, of those persons who are the active directors of the company and whose orders its officers must obey, or the control of those persons who in their turn are the masters of the directorate and

11

make or unmake it by the use of the controlling majority of votes. The application of this test presents no difficulty here, for no living person and no sentient mind exercised or possessed any control over the Hamborn Steamship Company, except persons and minds of enemy nationality. The residence of the two German managers in Rotterdam, if not altogether immaterial, at any rate cannot affect the result, since the question is not one of trading with enemy subjects, resident or carrying on business in a neutral country, but is one of the character of an artificial persona, whose trade is carried on for it under the supreme direction and control of enemies born. Their Lordships agree with a passage of the President's judgment, which sufficiently represents the true gist of his reasoning, [1918] P. 25:-"The centre and whole effective control of the business of the Hamborn Steamship Company was in Germany. Having regard to these facts, the vessel must be regarded in this Court as belonging to German subjects," in a claim by captors for condemnation.

Their Lordships will humbly advise His Majesty that this appeal should be dismissed with costs.

NOTE. It is a general rule of law that a corporation is a citizen of that jurisdiction under the laws of which it was formed, and the citizenship or nationality of its officers or shareholders is immaterial. In the exercise of its war rights a belligerent will observe the corporate fiction when it is to its interest to do so. In The Pedro (1899), 175 U. S. 354, a vessel which belonged to a corporation formed in Spain and which had a Spanish registry and license and was manned by Spanish officers and crew was held to be a Spanish ship although all the shareholders in the corporation were British. Early in the Great War, the courts began to disregard the corporate fiction and to make the character of the corporation depend upon the character of the real parties in interest or the persons by whom it was controlled. In The Tommi and The Rothersand (1914), L. R. [1914], P. 251, the court intimated that if a British ship were owned by a British company, all the shareholders being alien enemies, the court would determine the character of the ship by the character of the individuals who composed the corporation. A mining company which owned mines in Germany was incorporated in France for the purpose of selling the products of its German mines to persons in Africa. One of its four directors was a German, and eight-tenths of its stock was held by Germans. In Mines of Barbary v. Raymond (1916), 44 Clunet, 226, the Court of Paris held that the corporation was under German control and could not sue in a French court, but in The Poona (1915), 1 Br. & Col. P. C. 275, in which the character of a similar corporation owning the cargo was involved, the Prize Court clung to the corporate fiction. A vessel flying the British flag but under such control of an

enemy corporation that the British ownership was merely nominal was treated as an enemy vessel, The St. Tudno (1916), L. R. [1916] P. 291. See also In re Hilckes (1916), L. R. [1917] 1 K. B. 48; Clapham Steamship Co. v. Naamlooze &c Vulcaan (1917), L. R. [1917] 2 K. B. 639; Young, "The Nationality of a Juristic Person," Harvard Law Review, XXII, 1; Piciotto, "Alien Enemy Persons, Firms and Corporations in English Law," Yale Law Journal, XXVII, 167; Schuster, "The Nationality and Domicile of Trading Corporations," Grotius Society, Proceedings, II, 57; notes and comments in Yale Law Jour nal, XXVII, 108, and Harvard Law Review, XXVIII, 629 and XXX, 83; Hyde, II, 567.

SECTION 3. PROPERTY.

THIRTY HOGSHEADS OF SUGAR, BENTZON, CLAIMANT, v. BOYLE AND OTHERS.

SUPREME COURT OF THE UNITED STATES. 1815.
9 Cranch, 191.

Appeal from the sentence of the Circuit Court for the district of Maryland, condemning 30 hogsheads of sugar, the property of the Claimant, a Danish subject, it being the produce of his plantation in Santa Cruz, and shipped after the capture of that island by the British, to a house in London for account and risk of the Claimant, who was a Danish officer and the second in authority in the government of the island before its capture; and who, shortly after the capture, withdrew, and has since resided in the United States and in Denmark. By the articles of capitulation, the inhabitants were permitted to retain their property, but could only ship the produce of the island to Great Britain. This sugar was captured in July, 1812, after the declaration of war by the United States against Great Britain, and libelled as British property.

MARSHALL, Ch. J., delivered the opinion of the Court.

Some doubt has been suggested whether Santa Cruz, while in the possession of Great Britain, could properly be considered as a British island. But for this doubt there can be no foundation. Although acquisitions made during war are not considered as permanent until confirmed by treaty, yet to every commercial and belligerent purpose, they are considered as a part of the do

main of the conqueror, so long as he retains the possession and government of them. The island of Santa Cruz, after its capitulation, remained a British island until it was restored to Denmark.

Must the produce of a plantation in that island, shipped by the proprietor himself, who is a Dane residing in Denmark, be considered as British, and therefore enemy property?

In arguing this question, the counsel for the Claimant has made two points.

1. That this case does not come within the rule applicable to shipments from an enemy country, even as laid down in the British Courts of admiralty.

2. That the rule has not been rightly laid down in those Courts, and consequently will not be adopted in this.

1. Does the rule laid down in the British Courts of admiralty embrace this case?

It appears to the Court that the case of the Phoenix [5 C. Rob. 20] is precisely in point. In that case a vessel was captured on a voyage from Surinam to Holland, and a part of the cargo was claimed by persons residing in Germany, then a neutral country, as the produce of their estates in Surinam.

The counsel for the captors considered the law of the case as entirely settled. The counsel for the Claimant did not controvert this position. They admitted it; but endeavoured to extricate their case from the general principle by giving it the protection of the treaty of Amiens. In pronouncing his opinion, sir William Scott lays down the general rule thus: "Certainly nothing can be more decided and fixed, as the principle of this Court and of the Supreme Court, upon very solemn arguments, than that the possession of the soil does impress upon the owner the character of the country, as far as the produce of that plantation is concerned, in its transportation to any other country, whatever the local residence of the owner may be. This has been so repeatedly decided, both in this and the superior Court, that it is no longer open to discussion. No question can be made on the point of law, at this day."

Afterwards, in the case of the Vrow Anna Catharina, [5 C. Rob., 161] sir William Scott lays down the rule, and states its reason. "It cannot be doubted," he says, "that there are transactions so radically and fundamentally national as to impress the national character, independent of peace or war, and the local residence of the parties. The produce of a person's own

plantation in the colony of the enemy, though shipped in time of peace, is liable to be considered as the property of the enemy, by reason that the proprietor has incorporated himself with the permanent interests of the nation as a holder of the soil, and is to be taken as a part of that country, in that particular transaction, independent of his own personal residence and occupation."

This rule laid down with so much precision, does not, it is contended, embrace Mr. Bentzon's claim, because he has not "incorporated himself with the permanent interests of the nation." He acquired the property while Santa Cruz was a Danish colony, and he withdrew from the island when it became British.

This distinction does not appear to the Court to be a sound one. The identification of the national character of the owner with that of the soil, in the particular transaction, is not placed on the dispositions with which he acquires the soil, or on his general character. The acquisition of land in Santa Cruz binds him, so far as respects that land, to the fate of Santa Cruz, whatever its destiny may be. While that island belonged to Denmark, the produce of the soil, while unsold, was, according to this rule, Danish property, whatever might be the general character of the particular proprietor. When the island became British, the soil and its produce, while that produce remained unsold, were British.

The general commercial or political character of Mr. Bentzon could not, according to this rule, affect this particular transaction. Although incorporated, so far as respects his general character, with the permanent interests of Denmark, he was incorporated, so far as respected his plantation in Santa Cruz, with the permanent interests of Santa Cruz, which was, at that time, British; and though as a Dane, he was at war with Great Britain, and an enemy, yet, as a proprietor of land in Santa Cruz, he was no enemy: he could ship his produce to Great Britain in perfect safety.

The case is certainly within the rule as laid down in the British Courts. The next inquiry is: how far will that rule be adopted in this country?

The law of nations is the great source from which we derive those rules, respecting belligerent and neutral rights, which are recognized by all civilized and commercial states throughout Europe and America. This law is in part unwritten, and in part