No. 398.
Mr. Evarts to Mr. Christiancy.

No. 23.]

Sir: Your dispatch (No. 15) of the 20th ultimo has been received. It relates to the right of foreign-built ships purchased by American citizens to carry the flag of the United States. The views upon this subject expressed in your letter to Mr. Osborn, of the 19th of May, are approved.

It is notorious that a maritime war scarcely ever occurs when at least one of the belligerents does not seek to protect more or less of its shipping [Page 885] by a neutral flag. In some instances this may honestly be done, but sales of vessels of belligerents to neutrals in apprehension of war, or when hostilities may have actually broken out, are always more or less liable to suspicion, and such transactions justify the strictest inquiry on the part of the belligerent who thereby may have been defrauded of his right to capture enemy’s property. There are various circumstances tending to show the good faith, or the reverse, of such transfers. Prominent among these is the ability of the alleged purchaser to pay for his bargain.

If, prior to the sale, he was notoriously incapable of making any such purchase, or if his previous pursuits did not fit him for the use of the property, these and other obvious circumstances will tend to show a want of that good faith which alone can impart the rights of a neutral to a vessel so acquired. I am sorry to say that instances are not wanting where impecunious citizens of the United States have claimed to be the purchasers of foreign craft, and in some of them have actually had the hardihood to apply to this department for its interposition, when the terms of their contract may not, in their opinion, have been complied with by the other party.

The acceptance of the pretended ownership of a foreign-built ship has undoubtedly proved profitable to many American citizens. This was particularly the case during the great wars between maritime states, growing out of the French revolution, when the United States were at peace. Ship-owners of this country, also, probably found a neutral flag a convenient cover for their property during our last war with Great Britain, and especially during the war of the rebellion in this country. It is understood, however, that when these hostilities were brought to a close, Congress rejected the application of parties who asked to have those of their vessels renationalized which had been transferred under the circumstances referred to.

It may have been the intention of Congress when it prescribed the national flag, that it should be used only by vessels of the United States, as defined by law. No such intention, however, is expressed in any statute. As a citizen is not prohibited from purchasing and employing abroad a foreign-built ship, when such purchase is made in good faith, there is no reason why he should not fly the flag of his country as an indication of ownership. This is frequently and constantly done, especially in Chinese and other Eastern waters. It also appears from Mr. Osborn’s letter to you that there are American vessels of foreign build frequenting Chilian ports, which were bought years ago. The right of these vessels to display the flag of the United States will not be questioned by this department, and probably would be respected by any court of admiralty.

It must be confessed that the regulations in authorizing a consul to authenticate and record a bill of sale of a foreign-built vessel, bestow a great power and responsibility on that officer in making him, in the first instance, at least, the sole judge of the good faith of the transaction. There must have been, and may be, times and occasions when the temptation to abuse such a power may have been, and may be, irresistible. Although the validity of the transfer may, in the end, be judicially inquired into, much harm might result from a simulated sale, before a final decision on the subject could be reached. Still the possible abuse of power by a consul is not a sufficient reason for abrogating the power, especially if Congress should abstain from forbidding the purchase and use abroad of foreign-built ships by American citizens.

I am, &c.,