Mr. Bayard correctly stated the law regarding nationality in the passage from his letter quoted on page 42, folio 30, of the British argument:

the citizens or subjects

By the law of nations of a particular country, who are the owners of a ship, are entitled to carry on such ship when at sea the flag of such country, and such flag is to be regarded by all foreign sovereigns as the badge of nationality.

Even Hall says that the flag is only the apparent sign of the nationality of a ship, if a ship of private ownership. Its master is not an agent of the State, as in the case of a public vessel.

In The Sisters (5 C. Rob., 155; see 3 Kent, 130) Lord Stowell said:

A bill of sale is the proper title to which the maritime courts of all countries would look. It is the universal instrument of the transfer of ships in the usage of all maritime countries.

The flag, then, the outward symbol of ownership, should properly correspond with the bill of sale. (11 Atty. Genl. Op., 72, 1866.)

And, finally, we have on the question Judge Story, an authority on international law, received by British publicists and jurists, as well as by the entire world, as in the front rank, where there are but two-the great Lord Stowell and Story.

We have him, too, on this question, not as a text writer, but from the bench of the Supreme Court of the United States, delivering the judgment of that court as to the law in such case in time of peace. (See 15 Peters, pp. 518-543 supra; U. S. v. Armisted.)

This was the case of a Spanish registered and doeumented ship. Not only was she documented as a Spanish ship and as Spanish owned, but, by treaty between the nations, certain privileges were guaranteed ships of either nation so documented.

It was held that the registry and documents-the ship's papers-were but prima facie evidence of Spanish ownership, and the language of the court was that if a vessel under those circumstances "should in reality belong to the subjects of another nation not entitled to any such privileges, and the proprietors were endeavoring by fraud to cover their own illegal acts under the flag of Spain, there can be no doubt that it would be the duty of our courts to strip off the disguise."

This was in time of peace, and Mr. Justice Story comments upon that, and says that the above is the rule in time of peace.

The authorities submitted on this subject (at pp. 44-45) of the British argument are not in point, and are reviewed as follows:

(a) 16 Peters, 215-Hosey v. Buchanan.

This was a domestic litigation between a judgment creditor and another, and involved the question of whether the registry of a transfer of a ship under a Federal statute was a prerequisite to a change of ownership as against creditors. The decision was that it was not, and the court proceeded to say that registry as contemplated by the Federal law was only for the purpose of conferring certain privileges on a ship as a national ship.

(b) 16 Wall., 610, Crapo r. Kelley.

This was also a domestic suit, involving a conflict between a bankruptcy assignee and an attaching creditor. The bankruptcy assignee was appointed in Massachusetts, and the creditor attached the ship in New York. It was held "for the purposes of the suit" that the ship was a portion of the territory of Massachusetts, and the bankruptcy assignment passed the title as against the attachment. Nothing else was decided. (c) Catlett v. The Pacific Company (I Paine's C. C., 594).

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It appears distinctly from the decision of the court, in the opinion printed, that there the question was whether the implied warranty in a policy of insurance that the ship was an American vessel had been complied with. It appeared, as stated, that she was (1) Owned by American citizens;" and (2) It was "conceded" that if she also had an American register on board, it would have been a compliance with the warranty. The essential thing disputed, evidently, was the question of American ownership, and the effect of registry was not in issue.

If this case is supposed to decide that an American registry is conclusive of ownership, it may be said in passing that the case was cited as shedding some light on the subject (and to that extent probably it is here) in the United States Supreme Court on the argument in 15 Peters, 518, supra, where the contention there and here was distinctly overruled.

(d) The texts quoted from in all of folio 50 (pp. 44-45), British argument, do not appear to be cited, but it is assumed that they refer to the Virginius case already discussed in this argument.

(e) Direct issue is taken with the British argument (p. 45) in the position that the same principle of conclusiveness applies to the registry of a ship as to naturalization papers, and if the quotation from Wharton (2 Whart. Dig., 354)-from which the fragment from the communication of Mr. Evarts is taken-had been continued, it would have been seen that the inviolability of naturalization papers was put upon entirely different ground.

That ground was this: That naturalization was a decree or judgment issued by a competent court of the United States, and that therefore the executive department of the Government could not for itself, or through any authority to an international commission

authorize an inquiry going behind the judgment of such a court.

It is not within the power of the Secretary of State to vacate a decree of naturalization issued by a competent court of the United States. The judgment of a

court granting to an individual the rights of citizenship is entitled to receive the respect given to all other judgments rendered by courts of competent jurisdiction, and if not impeachable for fraud, is conclusive as to all the facts necessarily passed upon. (The Secretary of State to Mr. Hamlin, 2 Whart. Dig., p. 355.)

This doctrine is familiar in the United States from the leading case in the Supreme Court-"Spratt's Case."

This is quite a different principle from that which would be applied to the registry of a ship, with which no judicial or quasi-judicial authority has anything

to do.

The executive position of the United States as to what is a test of nationality is stated in 6 AttorneyGeneral's Opinions at pages 649-652, and there it is found in agreement with the Judiciary of the United States that the test of nationality is private ownership.

It follows on British and American authority alike, that ownership, and bona fide ownership, and not registry, confers the right to carry the flag.*

The position of the United States here, as always, may again be repeated.

That nation asserts without qualification, and with emphasis, that where the flag floats over a ship in time of peace, any other nation invades the deck under it at its peril.

*The British argument confuses registry with "ship's papers," embrac ing and especially meaning the "sea letter" or "Ship's pass," issued by the sovereign authority only after official investigation as to actual ownership.

The flag and not the registry should be prima facie evidence of ownership. If it should turn out, however, that the flag does not truly represent the actual ownership, there is no ground for reclamation on behalf of the owners who turn out to be actual citizens or subjects of the nation so invading the ship.

Whatever there may be of affront to the flag in such a case is wholly a question between nations, with which private persons have nothing to do and for which they can make no profit.

To do so would be to elevate the incidental inferior private interest into the place of the of the paramount public one.

To do so in cases where satisfaction for offended dignity is due would be to demand for one individual the reparation owing to all the people of a great nation. Take the case of the British ship Trent, where an American cruiser took from under the British flag the American citizens Mason and Slidell. This being an act of a public ship of the United States, that country was, of course, responsible for it. The proceeding was variously designated as "wanton," as a "wanton insult," "piratical attack,"* and so on. An apology was demanded by Great Britain and a return of Mason and Slidell to the protection of the British flag. But the suggestion was never dreamed of that Mason and Slidell could have had any claim through Great Britain or otherwise for damages, for their imprisonment and treatment, from the United States.

The case of The Caroline. The vessel was an American ship under the American flag and in American waters. Great Britain sent her military force under McLeod into the territory of the United States and destroyed the ship.

* See Brit. For. State Papers, "Trent."

See full history of the case (1 Sir Sherston Baker's Halleck, p. 477, and Wharton's Dig., 21, 350).