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Commentaries on American Law (1826-30)

Chancellor James Kent

LECTURE 7
Of Restrictions upon Neutral Trade

THE principal restriction which the law of nations imposes on the trade of neutrals, is the prohibition to furnish the belligerent parties with warlike stores, and other articles which are directly auxiliary to warlike purposes. Such goods are denominated contraband of war; but in the attempt to define them the authorities vary, or are deficient in precision, and the subject has lone been a fruitful source of dispute between neutral and belligerent nations.

In the time of Grotius, some persons contended for the rigor of war, and others for the freedom of commerce. As neutral nations are willing to seize the opportunity which war presents, of becoming carriers for the belligerent powers, it is natural that they should desire to diminish the list of contraband as much as possible. Grotius distinguishes1 between things which are useful only in war, as arms and ammunition, and things which serve merely for pleasure, and things which are of a mixed nature, and useful both in peace and war. He agrees with other writers in prohibiting neutrals from carrying articles of the first kind to the enemy, as well as in permitting the second kind to be carried. As to articles of the third class, which are of indiscriminate use in peace and war, as money, provisions, ships, and naval stores, he says that they are sometimes lawful articles of neutral commerce, and sometimes not; and the question will depend upon circumstances existing at the time. They would be contraband if carried to a besieged town, tamp, or port. In a naval war, it is admitted, that ships, and materials for ships, become contra., band, and horses and saddles may be included.2 Vattel speaks with some want of precision, and only says, in general terms,3 that commodities particularly used in war are contraband, such as arms, military and naval stores, timber, horses, and even provisions, in certain junctures, when there are hopes of reducing the enemy by famine. Loccenius,4 and some other authorities referred to by Valin, consider provisions as generally contraband; but Valin and Pothier insist that they are not so, either by the law of France or the common law of nations, unless carried to besieged or blockaded places.5 The marine ordinance of Louis XIV6 included horses, and their equipage transported for military service, within the list of contraband, because they were necessary to war equipment, and this is, doubtless, the general rule. They are included in the restricted list of contraband articles mentioned in the treaty between the United States and Colombia in 1825.

Valin says, that naval stores have been regarded as contraband from the beginning of the last century, and the English prize law is very explicit on this point. Naval stores, and materials for ship building, and even corn, grain, and victuals of all sorts, going to the dominions of the enemy, were declared contraband by an ordinance of Charles I in 1626.7 Sailcloth is now held to be universally contraband, even on a destination to ports of mere mercantile naval equipment;8 and in the case of the Maria,9 it was held, that tar, pitch, and hemp, and whatever other materials went to the construction and equipment of vessels of war, were contraband by the modern law of nations, though, formerly, when the hostilities of Europe were less naval than at the present day, they were of a disputable nature. The executive government of this country has frequently conceded, that the materials for the building, equipment, and armament of ships of war, as timber and naval stores, were contraband.10 But it does not seem that ship timber is, in se, in all cases, to be considered a contraband article, though destined to an enemy’s port. In the case of the Austrian vessel Il Volante, captured by the French privateer L’Etoile de Bonaparte, and which was carrying ship timber to Messina, an enemy’s port, it was held, by the Council of Prizes at Paris, 1807, upon the opinion of the Advocate General, M. Collet Descotils, that the ship timber in that case was not contraband of war, it being ship timber of an ordinary character, and not exclusively applicable to the building of ships of war.11

Questions of contraband were much discussed during the continuance of our neutral character, in the furious war between England and France, commencing in 1793, and we professed to be governed by the modern usage of nations on this point.12 The national convention of France, on the 9th of May, 1793, decreed, that neutral vessels, laden with provisions, destined to an enemy’s port, should be arrested, and carried into France; and one of the earliest acts of England in that war,13 was to detain all natural vessels going to France, and laden with corn, meal, or flour. It was insisted, on the part of England,14 that, by the law of nations, all provisions were to be considered as contraband, in the case where the depriving the enemy of those supplies was one of the means employed to reduce him to reasonable terms of peace; and that the actual situation of France was such, as to, lead to that mode of distressing her, inasmuch as she had armed almost the whole laboring class of her people, or the purpose of commencing and supporting hostilities against all the governments of Europe. This claim on the part of England was promptly and perseveringly resisted by the United States; and they contended, that corn, flour, and meal, being the produce of the soil and labor of the country, were not contraband of war, unless carried to a place actually invested.15 The treaty of commerce with England, in 1794, in the list of contraband, stated, that whatever materials served directly to the building and equipment of vessels, with the exception of unwrought iron, and fir planks, should be considered contraband, and liable to confiscation; but the treaty left the question of provisions open and, unsettled, and neither power was understood to have relinquished the construction of the law of nations which it had assumed. The treaty admitted, that provisions were not generally contraband, but might become so, according to the existing law of nations, in certain cases, and those cases were not defined. It was only stipulated, by way of relaxation of the penalty of the law, that whenever provisions were contraband, the captors, or their government, should pay to the owner the full value of the articles, together with the freight and a reasonable profit. Our government has repeatedly admitted, that as far as that treaty enumerated contraband articles, it was declaratory of the law of nations, and that the treaty conceded nothing on the subject of contraband.16

The doctrine of the English admiralty, on the subject of provisions being considered contraband, was laid down very fully and clearly, in the case of the Jonge Margaretha.17 It was there observed, that the contraband had varied very much, and, sometimes, in such a manner as to make it difficult to assign the reasons of the variations, owing to particular circumstances, the history of which had not accompanied the history of the decisions. In 1673, certain articles of provision, as corn, wine, and oil, were deemed contraband, according to the judgment of a person of great knowledge and experience in the practice of the admiralty; and, in much later times, many other sorts of provisions have been condemned as contraband. In 1747 and 1748, butter and salted fish, and rice, were condemned as contraband; and those cases show that articles of human food have been considered as contraband, when it was probable they were intended for naval or military use. The modern established rule is, that provisions are not generally contraband, but may become so, under circumstances arising out of the particular situation of the war, or the condition of the parties engaged in it. Among the circumstances which tend to preserve provisions from being liable to be treated As contraband, one is, that they are of the growth of the country which produces them. Another circumstance to which some indulgence is shown by the practice of nations, is when the articles are in their native and unmanufactured state. Thus, iron is treated with indulgence, though anchors and other instruments, fabricated out of it, are directly contraband. Hemp is more favorably considered than cordage; and wheat is not considered so noxious a commodity, when going to an enemy’s country, as any of the final preparations of it for human use. The most important distinction is, whether the articles were intended for the ordinary use of life, or even for mercantile ships’ use, or whether they were going with a highly probable destination of military use. The nature and quality of the port to which the articles are going, is not an irrational test. If the port be a general commercial one, it is presumed the articles are going for civil use, though occasionally a ship of war may be constructed in that port. But if the great predominant character of that port, like Brest in France, or Portsmouth in England, be that of a port of naval military equipment, it will be presumed that the articles were going for military use, although it is Possible that the articles might have been applied to civil consumption. As it is impossible to ascertain the final use of an article ancipitis usus, it is not an injurious rule, which deduces the final use from the immediate destination; and the presumption of a hostile use, founded on its destination to a military port, is very much inflamed, if, at the time when the articles were going, a considerable armament was notoriously preparing, to which a supply of those articles would be eminently useful.

These doctrines of the English prize law were essentially the same with that adopted by the American Congress in 1775, for they declared, that all vessels, to whomsoever belonging, carrying provisions, or other necessaries, to the British army or navy, within the colonies, should be liable to seizure and confiscation.18 They were likewise fully adopted by the Supreme Court of the United States, when we came to know and feel the value of belligerent rights, by becoming a party to a maritime war. In the case of the Commercen,19 a neutral vessel, captured by one of our cruisers, in the act of carrying provisions for the use of the British armies in Spain, the court held, that provisions, being neutral property, but the growth of the enemy’s country, and destined for the supply of the enemy’s military or naval force, were contraband. The court observed, that, by the modern law of nations, provisions were not generally contraband, but that they might become so on account of the particular situation of the war, or on account of their destination. If destined for the ordinary use of life, in the enemy’s country, they were not contraband; but it was otherwise if destined for the army or navy of the enemy, or for his ports of military or naval equipment. and if the provisions were the growth of the enemy’s country, and destined for the enemy’s use, they were to be treated as contraband, and liable to forfeiture, even though the army or navy were in a neutral port, for it would be a direct interposition in the war.

This case followed the decisions of Sir William Scott, and carried the doctrine of contraband, as applied to provisions, to as great an extent. It held the voyage of the Swedish neutral so illegal, as to deserve the infliction of the penalty of loss of freight.

It is the usus bellici which determine an article to be contraband, and as articles come into use as implements of war, which were before innocent, there is truth in the remark, that as the means of war vary and shift from time to time, the law of nations shift with them; not, indeed, by the change of principles, bit by a change in the application of them to new cases, and in order to meet the varying uses of war. When goods are once clearly shown to be contraband, confiscation to the captor is the natural consequence. This is the practice in all cases, as to the article itself, excepting provisions; and as to them, when they become contraband, the ancient and strict right of forfeiture is softened down to a right of preemption, on reasonable terms.20 But, generally, to stop contraband goods, would, as Vattel observes,21 prove an ineffectual relief, especially at sea. The penalty of confiscation is applied, in order that the fear of loss might operate as a check on the avidity for gain, and deter the neutral merchant from supplying the enemy with contraband articles. The ancient practice was, to seize the contraband goods, and keep them, on paying the value. But the modern practice of confiscation is far more agreeable to the mutual duties of nations, and more adapted to the preservation of their rights. It is a general understanding, grounded on true principles, that the powers at war may seize and confiscate all contraband goods, without any complaint on the part of the neutral merchant, and without any imputation of a breach of neutrality in the neutral sovereign himself.22 It was contended, on the part of the French nation, in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles, contraband of war, to the belligerent powers. But it was successfully shown, on the part of the United States, that neutrals may lawfully sell, at home, to a belligerent purchaser, or carry, themselves, to the belligerent powers, contraband articles, subject to the right of seizure in transitu.23 This right has since been explicitly declared by the judicial authorities of this country.24 The right of the neutral to transport, and of the hostile power to seize, are conflicting rights, and neither party can charge the other with a criminal act.

Contraband articles are said to be of an infectious nature, and they contaminate the whole cargo belonging to the same owners. The innocence of any particular article is not usually admitted, to exempt it from the general confiscation. By the ancient law of Europe the ship, also, was liable to condemnation; and such a penalty was deemed just, and supported by the general analogies of law, for the owner of the ship had engaged it in an unlawful commerce, and contraband goods are seized and condemned ex delicto. But the modern practice of the courts of admiralty, since the age of Grotius, is milder; and the fact of carrying contraband articles is attended only with the loss of freight and expenses, unless the ship belongs to the owner of the contraband articles, or the carrying of them has been connected with malignant and aggravating circumstances; and among those circumstances, a false destination and false papers are considered as the most heinous. In those cases, and in all cases of fraud in the owner of the ship, or of his agent, the penalty is carried beyond the refusal of freight and expenses, and is extended to the confiscation of the ship, and the innocent parts of the cargo.25 This is now the established doctrine; but it is sometimes varied by treaty, in like manner as all the settled principles and usages of nations are subject to conventional modification.26

A neutral may also forfeit the immunities of his national character by Violations of blockade; and, among the rights of belligerents, there is none more clear and incontrovertible, or more just and necessary in the application, than that which gives rise to the law of blockade. Bynkershoek27 says, it is founded on the principles of natural reason, as well as on the usage of nations; and Grotius28 considers the carrying of supplies to a besieged town, or a blockaded port, as an offense exceedingly aggravated and injurious. They both agree, that the neutral may be dealt with severely; and Vattel says, he may be treated as an enemy.29 The law of blockade is, however, so harsh and severe in its operation, that, in order to apply it, the fact of the actual blockade must be established by clear and unequivocal evidence; and the neutral must have had due previous notice of its existence; and the squadron allotted for the purposes of its execution, must be fully competent to cut off all communication with the interdicted place or port; and the neutral must have been guilty of some act of violation, either by going in, or attempting to enter, or by coming out with a cargo laden after the commencement of the blockade. The failure of either of the points requisite to establish the existence of a legal blockade, amounts to an entire defeasance of the measure, even though the notification of the blockade had issued from the authority of the government itself.30

A blockade must be existing in point of fact, and, in order to constitute that existence, there must be a power present to enforce it. All decrees and orders declaring extensive coasts, and whole countries, in a state of blockade, without the presence of an adequate naval force to support it, are manifestly illegal and void, and have no sanction in public law. The ancient authorities all referred to a strict and actual siege or blockade. The language of Grotius31 is oppidum obsessum vel Portus clausus, and the investing power must be able to apply its force to every point of the blockaded place, so as to render it dangerous to attempt to enter, and there is no blockade of that part where its power cannot be brought to bear.32 The definition of a blockade given by the convention of the Baltic powers in 1780, and again in 1801, and by the ordinance of Congress in 1781, required that there should be actually a number of vessels stationed near enough to the port to make the entry apparently dangerous. The government of the United States have uniformly insisted, that the blockade should be effective by the presence of a competent force, stationed, and present, at or near the entrance of the port; and they have protested with great energy against the application of the right of seizure and confiscation to ineffectual or fictitious blockades.33

The occasional absence of the blockading squadron, produced by accident, as in the case of a storm, and when the station is resumed with due diligence, does riot suspend the blockade, provided the suspension, and the reason of it, be known; and the law considers an attempt to take advantage of such an accidental removal, as an attempt to break the blockade, and as a mere fraud.34 The American government seemed disposed to admit the continuance of the blockade in such a case;35 and the language of the judicial authorities in this state has been in favor of the solidity and justness of the English doctrine of blockade on this point.36 But if the blockade be raised by the enemy, or by applying the naval force, or part of it, though only for a time, to other objects, or by the mere remissness of the cruisers, the commerce of neutrals to the place ought to be free. The presence of a sufficient force is the natural criterion by which the neutral is enabled to ascertain the existence of the blockade. He looks only to the matter of fact, and if the blockading squadron is removed when he arrives before the port, and he is ignorant of the cause of the removal, or if he be not ignorant, and the cause be not an accidental one, but voluntary, or produced by an enemy, he may enter, without being answerable for a breach of the blockade. When a blockade is raised voluntarily, or by a superior force, it puts an end to it absolutely; and if it be resumed, neutrals must be charged with notice de novo, and without reference to the former state of things, before they can be involved in the guilt of a violation of the blockade.37

The object of a blockade is not merely to prevent the importation of supplies, but to prevent export as well as import, and to cut off all communication of commerce with the blockaded port. The act of egress is as culpable as the act of ingress, if it. be done fraudulently; and a ship coming out of a blockaded port is, in the first instance, liable to seizure; and to obtain a release, the party must give satisfactory proof of the innocence of his intention.38 But, according to modern usage, a blockade does not rightfully extend to a neutral vessel found in port when the blockade was instituted, nor prevent her coming out with the cargo, bona fide purchased, and laden on board before the commencement of the blockade.39 The modern practice does not require that the place should be invested by land as well as by sea, in order to constitute a legal blockade; and if a place be blockaded by sea only, it is no violation of belligerent rights for the neutral to carry on commerce with it by inland communications.40

It is absolutely necessary that the neutral should have had due notice of the blockade, in order to affect him with the penal consequences of a violation of it. This information may be communicated to him in two ways; either actually, by a formal notice from the blockading power, or constructively by notice to his government, or by the notoriety of the fact. It is immaterial in what way the neutral comes to the knowledge of the blockade. If the blockade actually exists, and he has knowledge of it, he is bound not to violate it. A notice to a foreign government is a notice to all the individuals of that nation, and they are not permitted to aver ignorance of it, because it is the duty of the neutral government to communicate notice to their people.41 In the case of a blockade without regular notice, notice in fact is generally requisite; and there is this difference between a blockade regularly notified, and one without such notice: that, in the former case, the act of sailing for the blockaded place, with an intent to evade it, or to enter contingently, amounts, from the very commencement of the voyage, to a breach of the blockade; for the port is to be considered as closed up, until the blockade be formally revoked or actually raised; whereas, in the latter case of a blockade de facto, the ignorance of the party as to its continuance, may be received as an excuse for sailing to the blockaded place, on a doubtful and provisional destination.42 The question of notice is a question of evidence, to be determined by the facts applicable to the case. The notoriety of a blockade is of itself sufficient notice of it to vessels lying within the blockaded port. In the case of the Adelaide,43 it was the doctrine of the English admiralty, that a notification given to one state, must be presumed, after a reasonable time, to have reached the subjects of neighboring states, and it affects them with the knowledge of the fact, on just grounds of evidence. And after the blockade is once established, and due notice received, either actually or constructively, the neutral is not permitted to go to the very station of the blockading force, under pretense of inquiring whether the blockade had terminated, because this would lead to fraudulent attempts to evade it, and would amount, in practice, to a universal license to attempt to enter, and on being prevented, to claim the liberty of going elsewhere. Some relaxation was very reasonably given to this rule, in its application to distant voyages from America; and ships sailing for Europe before knowledge of the blockade reached them, were entitled to notice, even at the blockaded port. If they sailed after notice, they might sail on a contingent destination for the blockaded port, with the purpose of calling for information at some European port, and he allowed the benefit of such a contingent destination, to be rendered definite by the information. But in no case is the information as to the existence of the blockade, to be sought at the mouth of the port.44

A neutral cannot be permitted to place himself in the vicinity of the blockaded port, if his situation be so near that he may, with impunity, break the blockade whenever he pleases, and slip in without obstruction. If that were to be permitted, it would be impossible that any blockade could be maintained. It is a presumption, almost de jure, that the neutral, if found on the interdicted waters, goes there with an intention to break the blockade; and it would require very clear and satisfactory evidence to repel the presumption of a criminal intent.45

The judicial decisions in England, and in this country, have given great precision to the law of blockade, by the application of it to particular cases, and by the extent, and clearness, and equity of their illustrations. They are distinguished, likewise, for general coincidence and harmony in their principles. All the cases admit, that the neutral must be chargeable with knowledge, either actual or constructive, of the existence of the blockade, and with an intent, and with some attempt, to break it, before he is to suffer the penalty of a violation of it. The evidence of that intent, and of the overt act, will greatly vary, according to circumstances; and the conclusion to be drawn from those circumstances will depend, in some degree, upon the character and judgment of the prize courts; but the true principles which ought to govern have rarely been a matter of dispute. The fact of clearing out or sailing for a blockaded port, is, in itself, innocent, unless it be accompanied with knowledge of the blockade. Such a vessel, not possessed of such previous knowledge, is to be first warned of the fact, and a subsequent attempt to enter constitutes the breach. This was the provision in the treaty with England in 1794, and it has been declared in other cases, and is considered to be a correct exposition of the law of nations.46

It has been a question in the courts in this country, whether they ought to admit the law of the English prize courts, that sailing for a blockaded port, knowing it to be blockaded, was, in itself, an attempt, and an act sufficient to charge. the party with a breach of the blockade, without reference to the distance between the port of departure and the port invested, or to the extent of the voyage performed when the vessel was arrested.47 But in Yeaton v. Fry,48 the Supreme Court of the United States coincided essentially with the doctrine or the English prize courts, for they held, that sailing from Tobago for Curracoa, knowing the latter to be blockaded, was a breach of the blockade; and, according to the opinion of Mr. Justice Story, in the case of the Nereide,49 the act of sailing with an intent to break a blockade, is a sufficient breach to authorize confiscation Thee of, fence continues, although, at the moment of capture, the vessel be, by stress of weather, driven in a direction from the port, for the hostile intention still remains unchanged. The distance, or proximity, of the two ports, would certainly have an effect upon the equity of the application of the rule. A Dutch ordinance, in 1630, declared, that vessels bound to the blockaded ports of Flanders, were liable to confiscation, though found at a distance from them, unless they had voluntarily altered the voyage before coming in sight of the port; and Bynkershoek contends for the reasonableness of the order.50 What that distance must be is not defined; and if the ports be not very wide apart, the act of sailing for the blockaded port may reasonably be deemed evidence of a breach of it, and an overt act of fraud upon the belligerent rights. But a relaxation of the rule has been required and granted in the case of distant voyages, such as those across the Atlantic, and the vessel is allowed to sail on a contingent destination, subject to the duty of subsequent inquiry at suitable places.51 The ordinance of Congress of 1781, seems to have conceded this point to the extent of the English rule, for it made it lawful to take and condemn all vessels, of all nations, “destined to any such Port,” without saying any thing of notice or proximity.52

The consequence of a breach of blockade is the confiscation of the ship, and the cargo is always, prima facie, implicated in the guilt of the owner, or master of the ship, and it lays with them to remove the presumption, that the vessel was going in for the benefit of the cargo, and with the direction of the owner.53 The old doctrine was much more severe, and often inflicted not merely a forfeiture of the property taken, but imprisonment, and other personal punishment;54 but the modern, and milder usage, has confined the penalty to the confiscation of the ship and goods. If a ship has contracted guilt by a breach of blockade, the offense is not discharged until the end of the voyage. The penalty never travels on with the vessel further than to the end of the return voyage, and if she is taken in any part of that voyage, she is taken in delicto.55 This is deemed reasonable, because no other opportunity is afforded to the belligerent force to vindicate the law. The penalty for a breach of blockade is also held to be remitted, if the blockade has been raised before the capture. The delictum is completely done away when the blockade ceases.56

There are other acts of illegal assistance afforded to a belligerent, besides supplying him with contraband goods, and relieving his distress, under a blockade. Among these acts, the conveyance of hostile dispatches is the most injurious, and deemed to be of the most hostile and noxious character. The carrying of two or three cargoes of stores, is necessarily an assistance of a limited nature; but in the transmission of dispatches may be conveyed the entire plan of a campaign, and it may lead to a defeat of all the projects of the other belligerent in that theatre of the war. The appropriate remedy for this offense is the confiscation of the ship, and, in doing so, the courts make no innovation on the ancient law, but they only apply established principles to new combinations of circumstances. There would be no penalty in the mere confiscation of the dispatches. The proper and efficient remedy is the confiscation of the vehicle employed to carry them; and if any privity subsists between the owners of the cargo and the master, they are involved by implication in his delinquency. If the cargo be the property of the proprietor of the ship, then, by the general rule, ob continentiam delicti, the cargo shares the same fate, and especially if there was an active interposition in the service of the enemy, concerted and continued in fraud.57

A distinction has been made between carrying dispatches of the enemy between different parts of his dominions, and carrying dispatches of an ambassador from a neutral country to his own sovereign. The effect of the former dispatches is presumed to be hostile; but the neutral country has a right to preserve its relations with the enemy, and it does not necessarily follow that the communications are of a hostile nature. Ambassadors resident in a neutral country, are favorite objects of the protection of the law of nations, and their objects is to preserve the relations of amity between the governments; and the presumption is, that the neutral state preserves its integrity, and is not concerned in any hostile design.58

In order to enforce the rights of belligerent nations against the delinquencies of neutrals, and to ascertain the real as well as assumed character of all vessels on the high seas, the law of nations arms them with the practical power of visitation and search. The duty of self-preservation gives to belligerent nations this right. It is founded upon necessity, and is strictly and exclusively a war right, and does not exist in time of peace. All writers upon the law of nations, and the highest authorities, acknowledged the right as resting on sound principles of public jurisprudence, and upon the institutes and practice: of all great maritime powers.59 And if, upon making the search, the vessel be found employed in contraband trade, or in carrying enemy’s property, or troops, or dispatches, she is liable to be taken and brought in for adjudication before a prize court.

Neutral nations have frequently been disposed to question and resist the exercise of this right. This was particularly the case with the Baltic confederacy, during the American war, and with the convention of the Baltic powers in 1801. The right of search was denied, and the flag of the state was declared to be a substitute for all documentary and other proof, and to exclude all right of search. Those powers armed for the purpose of defending their neutral pretensions; and England did not hesitate to consider it as an attempt to introduce, by force, a new code of maritime law, inconsistent with her belligerent rights, and hostile to her interests, and one which would go to extinguish the right of maritime capture. The attempt was speedily frustrated and abandoned, and the right of search has, since that time, been considered incontrovertible.

The whole doctrine was very ably discussed in the English High Court of Admiralty, in the case of the Maria;60 and it was adjudged, that the right was incontestable, and that a neutral sovereign could not, by the interposition of force, vary that right. Two powers may agree among themselves, that the presence of one of their armed ships along with their merchant ships, shall be mutually under= stood to imply that nothing is to be found, in that convoy of merchant ships, inconsistent with amity or neutrality.

But no belligerent power can legally be compelled, by mere force, to accept of such a pledge; and every belligerent power who is no party to the agreement, has a right to insist on the only security known to the law of nations on this subject, independent of any special covenant, and that is the right of personal visitation and search, to be exercised by those who have an interest in making it. The penalty for the violent contravention of this right, is the confiscation of the property so withheld from visitation; and the infliction of this penalty is conformable to the settled pray Lice of nations, as well as to the principles of the municipal jurisprudence of most countries in Europe. There may be cases in which the master of a neutral ship may be authorized, by the natural right of self-preservation, to defend himself against extreme violence threatened by a cruiser, grossly abusing his commission; but., except in extreme cases, a merchant vessel has no right to say for itself, and an armed vessel has no right to say for it, that it will not submit to visitation or search, or to be carried into a proximate court for judicial inquiry. Upon these principles, a fleet of Swedish merchant ships, sailing under convoy of a Swedish ship of war, and under instructions from the Swedish government to resist, by force, the right of search claimed by British lawfully commissioned cruisers, was condemned. The resistance of the convoying ship was a resistance of the whole convoy, and justly subjected the whole to confiscation.61

The doctrine of the English admiralty on the right of visitation and search, and on the limitation of the right, has been recognized in its fullest extent by the courts of justice in this country.62 The very act of sailing under the protection of a belligerent, or neutral convoy, for the purpose of resisting search, is a violation of neutrality. The Danish government asserted the same principle in its correspondence with the government of the United States, and in the royal instructions of the 10th of March, 1810;63 and none of the powers of Europe hare called in question the justice of the doctrine.64 Confiscation is applied by way of penalty for resistance to search to all vessels, without any discrimination as to the national character of the vessel or cargo, and without separating the fate of the cargo from that of the ship.

This right of search is confined to private merchant vessels, and does riot apply to public ships of war. Their immunity from the exercise of any jurisdiction but that of the sovereign power to which they belong, is uniformly asserted, claimed, and conceded. A contrary doctrine is not to be found in any jurist or writer on the law of nations, or admitted in any treaty, and every act to the contrary has been promptly met and condemned.65

The exercise of the right of visitation and search must be conducted with due care, and regard to the rights and safety of the vessel.66 If the neutral has acted with candor and good faith, and the inquiry has been wrongfully pursued, the belligerent cruiser is responsible to the neutral in costs and damages, to be assessed by the prize court which sustains the judicial examination. The mere exercise of the right of search involves the cruiser in no trespass, for it is strictly lawful. But if he proceeds to capture the vessel as prize, and sends her in for adjudication, and there was no probable cause, he is responsible. ft is not the search, but the subsequent capture, which is treated in such a case as a tortious act.67 If the capture be justifiable, the subsequent detention for adjudication is never punished with damages; and in all cases of marine torts, courts of admiralty exercise a large discretion in giving or withholding damages.68

A rescue effected by the crew, after capture, and when the captors are in actual possession, is unlawful, and considered to be a resistance within the application of the penalty of confiscation, for it is a delivery by force from force.69 And where the penalty attaches at all, it attaches as completely to the cargo as to. the ship, for the master acted as agent of the owner of the cargo, and his resistance was a fraudulent attempt to withdraw it from the rights of war.70

A neutral is bound not only to, submit to search, but to have his vessel duly furnished with the genuine documents requisite to support her neutral character.71 The most material of these documents are, the register, passport, sea letter, muster roll, log book, charter-party, invoice, and bill of lading. The want of some of these papers, is strong presumptive evidence against the ship’s neutrality; yet the want of any one of them is not absolutely conclusive.72 Si aliquid ex solemnibus deficiat, cum equitas poscit, subveniendum est. The concealment of papers material for the preservation of the neutral character, justifies a capture, and carrying into port for adjudication, though it does not absolutely require a condemnation. It is good ground to refuse costs and damages on restitution, or to refuse further proof to relieve the obscurity of the case, where the cause labored under heavy doubts, and there was prima facie ground for condemnation independent of the concealment.73 The spoliation of papers is a still more aggravated and inflamed circumstance of suspicion. That fact may exclude further proof, and be sufficient to infer guilt; but it does not in England, as it does by the maritime law of other countries, create an absolute presumption juris et de jure; and yet, a case that escapes with such a brand upon it, is saved so as by fire.74 The Supreme Court of the United States has followed the less rigorous English rule, and held that the spoliation of papers was not, of itself, sufficient ground for condemnation, and that it was a circumstance open for explanation, for it may have arisen from accident, necessity, or superior force.75 If the explanation be not prompt and frank, or be weak and futile; if the cause labors under heavy suspicions, or there be a vehement presumption of bad faith, or gross prevarication, it is good cause for the denial of further proof; and the condemnation ensues, from defects in the evidence, which the party is not permitted to supply The observation of Lord Mansfield, in Bernardi v. Motteaux,76 was to the same effect. By the maritime law of all countries, he said, throwing papers overboard was considered as a strong presumption of enemy’s property; but in all his experience, he had never known a condemnation on that circumstance only.


NOTES

     1.    B. 3. c. I. sec. 5.
     2.    Rutherforth’s Inst. b. 2. c. 9,
     3.    B. 3. c. 7: sec. 112.
     4.    De Jure Maritimo, lib. 1. c. 4. n. 9.
     5.    Valin’s Com. tom 2. p. 264. Pothier, de Propriete, No. 104
     6.    Des Prises, art. 11.
     7.    Robinson’s Collec. Mar. p. 63,
     8.    The Neptunus, 3 Rob. 108
     9.    I Rob. 287. Phil. ed.
   10.    Mr. Randolph’s Letter to M. Adet. July 6th, 1795. Mr. Pickering’s Letter to Mr. Pinckney, January 16th. 1797. Letter of Messrs. Pinckney, Marshall, and Gerry, to the French Minister, January 27th, 1798.
   11.    Repertoire universel et raisonne de Jurisprudence, par M. Merlin. tom. 9 tit. Prise Maritime, sec. 3. art 3.
   12.    President’s Proclamation of Neutrality, April 22nd, 1793.
   13.    Instructions of 8th of June, 1793.
   14.    Mr. Hommond’s Letter to Mr. Jefferson, September 12th, 1793, and his Letter to Mr. Randolph, 11th of April, 1794.
   15.    Mr. Jefferson’s Letter to Mr. Pinckney, September 7th, 1793, and Mr. Randolph’s Letter to Mr. Hammond, May 1st, 1794.
   16.    Mr. Pickering’s Letter to Mr. Monroe, September 12th, 1795. His Letter to Mr. Pinckney, January 16th, 1797. Instructions from the Secretary of State to the American Ministers to France, July 15th, 1797.
   17.    1 Rob. 159. edit. Phil.
   18.    Journal of Congress, vol. 1. 241.
   19.    1 Wheaton, 382.
   20.    Case of the Haabet, 2 Rob. 182,
   21.    B. 3. C. 7. sec. 113.
   22.    Vattel. B. 3. c. 7. sec. 113.
   23.    M. Adel’s Letter to Mr. Pickering, March 11th, 1796. Mr. Pickering’s Letter to M. Adet. January 20th, and May 25th, 1796. Circular Letter of the Secretary of the Navy to the Collectors, August 4th. 1793.
   24.    Richardson v. Marine Ins. Company, 6,Mass. Rep. 113. The Santissima Trinidad, 7 Wheaton. 283.
   25.    Bynk. Q. J. Pub. b. 1. ch. 12. and 14. Heinec. de Nav. ob. Vect, Merc. vetit. Com. ch. 2. sec. 6. Opera, tom. 348. The Staadt Emb. den, l Rob., 23. The Jonge Tobias, I Rob. 277. The Franklin, 3 Rob. 217. The Neutralitat, 3 Rob. 295. The Edward, 4 Rob. 68. The Ranger 6 Rob. 125.
   26.    In the treaty between the United States and the Republic cf Colombia, it is provided, that contraband articles shall not affect the rest of the cargo, or the vessel, for it is declared that they shall be left free to the owner.
   27.    Q. J. P. b. l. c. 4. sec. 11.
   28.    B. 3. c. 1. sec. 5.
   29.    B. 3. c. 7, sec. 117.
   30.    The Betsey, 1 Rob 78. 1 Chitty on Commercial Law, 450.
   31.    B. 3. c 1. sec. 5.
   32.    The Mercurius, 1 Rob. 67. The Betsey, Rob. 78. The Sterl, 4 Rob. 65. Letter of the Secretary of the Navy to Commodore Preble, February 4th, 1801.
   33.    Mr. King’s Letter to Lord Greenville, May 22d, 1799. Mr Marshall’s Letter to Mr. King, September 20th, 1799. Mr. Madison’s Letter to Mr. Pinckney, October 25th, 1801. Letter of the Secretary of the Navy to Commodore Preble, February 4th, 1804. Mr. Pinckney’s Letter to Lord Wellesley, January 4th, 1811.
   34.    The Frederick Molke, 1 Rob. 72. The Columbia, I Rob. 120. The Juffrow Maria Schroeder, 3 Rub. 155. The Hoffnung, 6 Rob. 116, 117.
   35.    Mr. Marshall’s Letter to Mr. King, September 20th, 1799
   36.    Radcliff J. 2 Johnson’s Cases. 187, Radcliff v. U. Ins. Co., 7 Johnson’s Rep. 38.
   37.    Williams v. Smith, 2 Caines, I. Letter of the Secretary of State to Mr. King, September 20th, 1799. The Hoffnung, 6 Rob. 112.
   38.    Bynk. Q. J. P. b. 1. ch. 4. The Frederick Molke, I Rob. 72. The Neptunus. I Rob. 144. The Vrow Judith, I Rob. 126.
   39.    The Betsev, 1 Rob. 78. The Vrow Judith, I.Rob. 126. The Comet, 1 Edw. 32. Olivera. V. Union Ins. Com. 3 Wheaten, 183.
   40.    The Ocean, 3 Rob. 297. The Stert, ibid. 299. note. Letter of the Secretary of State to Mr King. Sept 20th, 1799.
   41.    The Neptunus, 2 Rob. 100. The Adelaide, I Rob. 111. note.
   42.    The Columbia, 1. Rob. 130. The Neptunus, 2 Rob. 110.
   43.    2 Rob. 111 in roll,
   44.    The Spes and Irene, 5 Rob. 76.
   45.    The Neutralitat, 6 Rob. 30. The Charlotte Christine, ibid. 101. The Gute Erwartung, ibid. 182. Bynk. J.Q. Pub. b.1. c. 11. The Arthur. 1 Edw. Rep. 202. Radcliff v. U. Ins. Co., 7 Johnson’s, Rep. 47. Fitzsimmons v. Newport Ins. Co., 4 Cranch, 185.
   46.    Fitzsimmons v. Newport Ins. Co., 4 Cranch, 135 British Instructions to their fleets on the West India station, 5th of January. 1804. Letter of the Secretary of the Navy to Commodore Preble, February 4th, 1804.
   47.    Fitzsimmons v. Newport Ins. Co., 4 Cranch, 185. Voss and Graves v. U. Ins Co 2 Johnson’s Cases, 180. 469.
   48.    5 Cranch, 335.
   49.    9 Cranch.440. 440.
   50.    Q. J. P. b. 1. c 11. 3 Rob. 326. in notis.
   51.    5 Rob. 76. 6 Cranch, 29.
   52.    Journals of Congress vol. 7. p. 186.
   53.    1 Rob. 67. The Mercurius. Ibid 180. The Columbia, 3 Rob. 173. The Neptunus. 4 Rob. 93. The Alexander, 1 Edw, 39. The Exchange.
   54.    Bynk. Q. J. P. b. 1. c. 11.
   55.    Rob. 128. The Welvaart Van Pillaw. 3 Rob. 147. The Juffrow Maria Schroeder.
   56.    6 Rob.387. The Lisetto.
   57.    The Atalanta, 6 Rob, 410.
   58.    The Caroline, 6 Rob 461
   59.    Vattel, b.3. c. 7. sec. 114. The Maria, 1 Rob. 287. 2 Dodson’s Adm. Rep. 245. 11 Wheaton, 42.
   60.    1 Rob. 387.
   61.    The Maria, 1 Rob. 287. The Elsebe, 4 Rob 408.
   62.    The Nereide, 9 Cranch, 427. 438. 443. 445. 453. The Marianna Flora, 11 Wheaton, 42.
   63.    4 Hall’s L. Journal; 263. Letters of Count Rosenkrantz to Mr. Erving, 28th and 36th of June, and 9th of July, 1811.
   64.    The Austrian ordinance of neutrality of August 7th, 1083, enjoined it upon all their vessels to submit to visitation on the high seas, and not to make any difficulty as to the production of the documentary proofs of property.
   65.    Thurloe’s State Papers, vol. 2. p. 503. Mr. Canning s Letter to Mr. Monroe, August 3d, 1807. Edinburgh Review for October, 1807. art. 1
   66.    The Anna Maria, 2 W heton, 327.
   67.    2 Mason, 439.
   68.    11 Wheaton, 54-56.
   69.    The Despatch, 3 Rob. 295. Brown v. Union Ins. Co. 5 Day’s Rep. 1.
   70.    The Catharina Elizabeth, 5 Rob. 232.
   71.    Answer to the Prussian Memorial, 1753.
   72.    Danish Instructions, 10th March, 1810. 8 Term, 434. 4 Taunton, 367. The register of a vessel is the only document which. need be on board a vessel in time of universal peace, to prove national character. Catlette v. Pacific Ins. Co., 1 Paine, 594.
   73.    Livingston & GilChrist v. Mar. Ins. Co., 7 Cranch, 544.
   74.    The Hunter, 1 Dodson, 480.
   75.    The Pizarro, 2 Wheaton, 227.
   76.    Doug. 581.