REPORT OF THE ATTORNEY-GENERAL.

The Adula (176 U. S., 361).

The case was

The Adula was an English vessel which had been chartered to a Spaniard during the Spanish war, and sailed from Kingston, Jamaica for Guantanamo, Cuba, among other Cuban ports, and was there seized for breach of the blockade de facto established at Guantanamo by direction of the admiral commanding in those waters. carefully argued and considered on a voluminous record in the prize court, and the vessel condemned. It was so argued and considered in the Supreme Court, and the condemnation affirmed, four of the justices dissenting. The claimants thereupon filed a petition for rehearing, which was denied, and have now made application to the Executive for restitution as an act of clemency or grace. This latter application is not yet determined.

The claimant relied in part upon an asserted intention of humane motive, namely, to bring away refugees, and the purpose to obtain permission of the blockading fleet to enter the Cuban ports. The majority of the court, however, finding that Guantanamo was actually and effectively blockaded, held that the owner and charterer of the Adula were duly warned by the American consul at Kingston not to let the vessel go on the trip in question, and that

While the mission of the Adula was not an unfriendly one to this Government, she was not a cartel ship privileged from capture as such, but one employed in a commercial enterprise for the personal profit of the charterer, and only secondarily, if at all, for the purpose of humanity. Her enterprise was an unlawful one, in case a blockade existed, and both Solis and the master of the Adula were cognizant of this fact.

The syllabus follows:

A legal blockade may be established by a naval officer acting upon his own discretion, or under direction of superiors, without governmental notification.

In view of the operations being carried on for the purpose of destroying or capturing the Spanish fleet at Santiago de Cuba and the reduction of that place, it was competent for the admiral commanding the squadron to establish a blockade there and at Guantanamo as an adjunct to such operations, and such blockade was valid as against all vessels having notice thereof. It appearing that Guantanamo was 18 miles from the mouth of Guantanamo Bay and was still occupied by the enemy, held, that although the American troops occupied the mouth of the bay, the blockade was still operative as to vessels bound to the city of Guantanamo.

The legal effect of a lawful and sufficient blockade is a closing of the port and an interdiction of the entrance of all vessels of whatever nationality or business.

The sailing of a vessel with a premeditated intent to violate a blockade is ipso facto a violation of the blockade, and renders her subject to capture from the moment she leaves the port of departure.

If a master has actual notice of a blockade, he is not at liberty even to approach the blockaded port for the purpose of making inquiries.

If a neutral vessel be chartered to an enemy, she becomes to a certain extent and pro hac vice an enemy's vessel, and a notice to her charterer of the existence of a blockade is a notice to the vessel.

It appearing in this case that both the charterer and the vessel had been previously engaged in bringing away refugees from Cuba, and were chargeable with notice of the military and naval operations against that island, that such facts were of common knowledge at the port from which she sailed, and that intercourse with Cuban ports was dangerous; and it appearing from a preponderance of evidence that both the charterer and master of the vessel had knowledge of the blockade: Held, that the vessel was properly condemned.

If an examination of the ship's papers and the testimony of the crew, taken in preparatorio, make a case for condemnation, an order for further proof is only made where the interests of justice clearly require it: Held, in this case that there was no error in denying the motion of the claimant for further proofs.

The Panama. (176 U. S., 535.)

This vessel sailed from New York for Havana with a general cargo on April 20, 1898, and was captured on the 25th while approaching that port. She was condemned in the court below on the ground that, since by the act of Congress of April 25, 1898, and by the Executive proclamation on the succeeding day, it was determined that the war with Spain began on April 21, including that day, all Spanish property afloat captured from that time became liable to condemnation, and that this vessel was not exempt under any provision of the Executive proclamation.

The majority of the Supreme Court affirmed the condemnation and found that the Panama was not entitled to the exemption of article 4 of the proclamation because, being under a contract with the Spanish Government, which attached her provisionally to the naval reserve, she carried an armament susceptible of use for hostile purposes, and was liable, upon arrival at the enemy port of destination, to be appropriated for such purposes. This decision and the other points involved are shown by the syllabus, as follows:

No general rule of international law exempts mail ships from capture as prize of war.

A Spanish mail steamship carrying mail of the United States from New York to Havana at the time of the breaking out of the recent war with Spain was not exempt from capture by the sixth clause of the President's proclamation of April 26, 1898.

At the time of the breaking out of the recent war with Spain a Spanish mail steamship was on a voyage from New York to Havana, carrying a general cargo, passengers, and mails, and

having mounted on board two breech-loading Hontoria guns of 9-centimetre bore, and one Maxim rapid-firing gun, and having also on board twenty Remington rifles and ten Mauser rifles, with ammunition for all the guns and rifles, and thirty or forty cutlasses. Her armament had been put on board more than a year before, for her own defense, as required by her owner's mail contract with the Spanish Government, which also provided that, in case of war, that Government might take possession of the vessel, with her equipment, increase her armament, and use her as a war vessel, and, in these and other provisions, contemplated her use for hostile purposes in time of war. Held, that she was not exempt from capture as prize of war by the fourth clause of the President's proclamation of April 26, 1898.

The Benito Estenger. (176 U. S., 568.)

The Benito Estenger was a Spanish vessel, but was sailing under the English flag after transfer from the Spanish owner to the neutral, and was captured off Cape Cruz, on the south coast of Cuba, at the end of June, 1898. She was condemned in the court below as enemy property, and that condemnation was affirmed by the Supreme Court, three justices, however, dissenting, the opinion resting the condemnation also on the ground that, although there was no breach of blockade duly established, the vessel had been engaged in illicit intercourse with the enemy after warning given. The transfer to the neutral was found to be merely colorable, and the claimant's charterer, the former or rather the real owner to be, a Cuban subject of Spain, although he claimed to be an adherent of the insurgent cause, and therefore an ally of the United States rather than a loyal subject of Spain. The court found little to support this claim, and applied the general doctrine that in time of war citizens or subjects of the belligerents are enemies to each other without regard to individual sentiments or dispositions. Upon this point the owner of the Benito Estenger has now addressed a petition to the Executive for restitution, which has not yet been determined.

The syllabus states:

The general rule is that in time of war the citizens or subjects of the belligerents are enemies to each other without regard to individual sentiments or dispositions, and that political status determines the question of enemy ownership.

By the law of prize, property engaged in any illegal intercourse with the enemy is deemed enemy property, whether belonging to an ally or a citizen, as the illegal traffic stamps it with the hostile character and attaches to it all the penal consequences.

Provisions are not, in general, deemed contraband; but they may become so if destined for the army or navy of the enemy, or his ports of naval or military equipment.

In dealing with a vessel asserted to be an enemy vessel, the fact of trade with the enemy in supplies necessary for the enemy's forces is of decisive importance.

Individual acts of friendship can not change political status

where there is no open adherence to the opposite cause and former allegiance remains apparently unchanged.

A consul has no authority by reason of his official station to grant exemption from capture to an enemy vessel, and this vessel was not entitled to protection by reason of any engagement with the United States.

In cases of peculiar hardship, or calling for liberal treatment, it is not for the courts, but for another department of the Government, to extend such amelioration as the particular instance may demand.

Transfers of vessels flagrante bello can not be sustained if subjected to any condition by which the vendor retains an interest in the vessel or its profits, a control over it, or a right to its restoration at the close of the war.

The burden of proof in respect of the validity of such transfers is on the claimant, and the court holds as to the transfer in this case that the requirements of the law of prize were not satisfied by the proofs.

The Carlos F. Roses. (177 U. S., 655.)

The Carlos F. Roses was a Spanish bark and was proceeding from Montevideo, where her outward cargo from Spain had been discharged, to Havana, with a cargo of jerked beef and garlic, when on May 17, 1898, she was captured in the Bahama Channel. She was duly condemned as enemy property and no appeal was taken from that judgment. But neutral bankers claimed the cargo on the ground that they had made advances upon the security of the bills of lading indorsed in blank, and were wholly unindemnified except through insurers who would be subrogated to their own rights. Their claim was allowed in the court below; but the majority of the Supreme Court found that the face of the papers and the transactions so far as they were shown presented evidence of an enemy interest which called upon the asserted neutral owners to prove beyond question their right and title, which they had not sufficiently done within the rules and requirements established by the authorities reviewed.

The decree of the lower court was reversed and a decree of condemnation was entered. The court adverted to the fact (without deciding the question) that provisions by the modern law of nations may become contraband although belonging to a neutral, on account of the particular situation of the war or on account of their destination, as for military use at ports of naval or military equipment, and that in this instance the concentration and accumulation of provisions at Havana might be considered a necessary part of Spanish military operations imminente bello, and these particular provisions as especially appropriate for Spanish military use.

The syllabus is:

The Carlos F. Roses, a Spanish vessel, owned at Barcelona, Spain, sailed from that port for Montevideo, Uruguay, with a

cargo which was discharged there and a cargo of jerked beef and garlic taken on board for Havana, for which she sailed March 16, 1898. On May 17, while proceeding to Havana, she was captured by a vessel of the United States and sent to Key West, where she was libeled. A British company doing business in London laid claim to the cargo on the ground that they had advanced money for its purchase to a citizen of Montevideo, and had received bills of lading covering the shipments. The vessel was condemned as enemy's property, but the proceeds of the cargo, which had been ordered to be sold as perishable property, was ordered to be paid to the claimants. Held,

(1) That as the vessel was an enemy vessel, the presumption was that the cargo was enemy's property, and this could only be overcome by clear and positive evidence to the contrary;

(2) That on the face of the papers given in evidence, it must be presumed that when these goods were delivered to the vessel, they became the property of the consignors named in the invoices;

(3) That the British company got the legal title to the goods and the right of possession only if such were the intention of the parties, and that that intention was open to explanation, although the persons holding the papers might have innocently paid value for them;

(4) That in prize courts it is necessary for the claimants to show the absence of anything to impeach the transaction, and at least to disclose fully all the surrounding circumstances, and that the claimant had failed to do so;

(5) That the right of capture acts on the proprietary interest of the thing captured at the time of the capture, and is not affected by the secret liens or private engagements of the parties;

(6) That in this case the belligerent right overrides the neutral claim, which must be regarded merely as a debt and the assignment as a cover to an enemy interest.

United States v. Mrs. Gue Lim. (176 U. S., 459.)

In this case the question was raised whether a wife, or minor children, of Chinese merchants who are already domiciled in this country, may enter the United States without the certificates prescribed by section 6 of the act of July 5, 1884. The court held that a certificate is not necessary in either case, resting the decision upon the following interpretation of the law:

To hold that a certificate is required in this case is to decide that the woman can not come into the country at all, for it is not possible for her to comply with the act, because she can not in any event procure the certificate even by returning to China. She must come in as the wife of her domiciled husband or not at all. The act was never meant to accomplish the result of permanently excluding the wife under the circumstances of this case, and we think that, properly and reasonably construed, it does not do so. If we hold that she is entitled to come in as the wife, because the H. Doc. 9- -3