seems to think that the absence of a passport is a necessary cause of confiscation, and that it cannot be replaced by any other document. But Hautefeuille, Pistoye and Duverdy, and others, do not consider it as indispensable, and such has been the decision of the French courts. According to English and American decisions, the neutral character of a vessel may be sustained without her having on board either register or passport; although, in the absence of both, the presumption would be against her. Si aliquid ex solemnibus deficiat, cum aequitas poscit, subveniendum est. As already stated, the presence of all the usual documents would not be conclusive in her favour.1

of French

§ 21. As the French decisions on this subject have differed, Decisions in some respects, from our own, we will give a synopsis of a prize few of the most important. In the case of 'Le Nisus' c. 'Le courts Mansouré et Le Rouge,' it was held that a merchant coasting vessel, without documents aboard, was not a good prize, where not required by the laws and usages of its own government; but in the 'Mistick Grec' c. 'La Junon,' where such vessel was armed, it was condemned as good prize. In the case of La Notre-Dame du Pilier,' it was held that the evidence of the crew, as to the hostile character of the vessel, must prevail over the neutral character of the papers found aboard. The same decision was confirmed in 'Le Munster' c. 'Le Brave,' and 'La Nancy 'c. 'L'Enjôleur.' In 'Le Saint-Antoine' et al. c. 'L'Audacieux,' where the vessels were furnished with double documents, French and belligerent, further evidence was resorted to, which evidence established their hostile character, and they were condemned. In 'La Molly' c. ' L'Ecole,' notwithstanding the neutral and regular character of the documents found aboard, the vessel was condemned as hostile on other evidence. In the case of 'Le Winyan' c. 'L'Ariège,' regular neutral papers were shown, but others showing the hostile character of the vessel were also found aboard, and she was condemned. In the case of 'Le Reysiger' c. 'Le Courageux,' two neutral passports were found aboard, one for coasting and the other for a certain destination; it being shown that the second was to be used only on the expiration of the first, the

1 Massé, Droit Commercial, liv. ii. tit. i. § 342; Hautefeuille, Des Nations Neutres, tit. xii.; Merlin, Répertoire, verb. Prises Maritimes,' § 3; Abreu, Traité des Prises, pt. i. ch. ii. § 17.

vessel was restored. In the case of 'La Fredricka' it was held, that the effect of documents was not to be determined by their title, but by their contents, and that, where the instruction du propriétaire 1 to the captain contained everything that the charter party, invoice, bill of lading, and manifest usually contain, it would serve as a substitute for them all. The character of the vessel, as friendly or neutral, must, as a general rule, be determined by the documents found aboard and the testimony of the captors, but in case of French vessels having simulated enemy papers aboard for the purpose of deceiving the enemy, papers not on board have been admitted as evidence to exempt such vessels from confiscation, as was decided in the cases of 'Le Censor 'c. 'L'Entreprise' and 'Les Deux Charlottes' c. 'Le Flibustier.' In the case of 'Le Jonge Cornelis'c. L'Actif' et al. the vessel of an ally was allowed to prove her nationality by documents not on board at the time of capture. In the case of the Swedish vessel 'L'Eleonora ' it was held that lettres de franchise were a good substitute for the passport; and in the case of 'La Carolina Wilhelmina' c. 'Le Dragon' it was held that, in the Baltic, a certificate of ownership would serve the same purpose. In 'Le ChristiernSwerin' and 'La Paix' c.' Le Général Moreau' it was held that a neutral passport, to be available, must be renewed as often as the vessel returns to ports of her own country; but (in ‘Le Quintus' c. 'L'Epervier' and 'La Bagatelle' c. ‘Le Basque') this rule does not apply to coasting vessels or Levant traders. In the case of 'La Constance' c. 'Les Deux Amis,' where the passport was found to be null and void, the neutrality of the vessel was determined by other documents found aboard. Passports to vessels absent from the country at the time of their issue are not in general available; vide 'Le Haabet' c. 'L'Heureux,' 'Le Munster Doris' c. Le Brave,' La Constance' c. Les Deux Amis,' 'La Famille,' 'Le Zénodore' c. 'La Charitas.' But vessels purchased by one neutral, in the ports of another neutral power, are exceptions to this rule; vide 'L'Engel-Elisabeth' c. Le Bon Ordre' et al., and L'Atten

1 It is a master's duty to produce all his papers, and least of all to withhold his instructions, which are very important papers. (The 'Concordia,' I Rob., 120.)

To make a voyage fairly alternative it should appear on the papers to be so; for otherwise it must mislead the cruisers of the belligerent countries. (The 'Juffrau Anna,' 1 Rob., 124.)

tion' c. Le Deucalion.' Other special exceptions were made in the cases of 'La Notre-Dame de Bon Conseil' c. 'Le Coureur,' and 'L'Amitié' c. 'Le Camus.' A passport issued by a public officer of a neutral state, residing in an enemy country, he being part owner, was held, in Le Wikilladge' c. 'L'Emilie,' to be null, and the vessel a good prize. A passport from America to Africa and back is not available for trading voyages between Africa and Europe, and a passport for a neutral port is not good for an enemy's port; vide ‘Le Frédéric c. L'Ariège,' and 'L'Ami de Boston' c. 'La Bellone.' A neutral vessel with a neutral passport, but commanded by a captain born in the enemy's country, is a good prize, although he has been naturalised a neutral after the declaration of war; this is especially so when he has not been domiciled in neutral country, but when he has long resided in neutral country he is regarded as neutral and the ship is safe; vide 'L'Actéon' c. Le Friendship,' 'L'Arms' c. 'La Mascarade,' and 'Le Ruby' c. ' Le Bougainville.' Bills of lading signed by the shippers, but not by the captain, are available to prove the neutral character of goods, if the captain has signed the duplicate, delivered to the shippers; vide 'La Constance' c. 'Les Deux Amis,'' La Louise-Auguste' c. Le Bonaparte,' and 'L'Anna.' It was, also, held, in the same cases, that the want of the captain's signature to the duplicates in his own hands was no cause of capture, as he could have signed them at any time. Where the charter party does not contain a manifest of the cargo, the bills of lading are necessary to prove its neutral character; vide 'L'Anna.' Where there is no particular bill of lading for a part of the cargo, but the manifest has all the formalities required for bills of lading, it is to be regarded as a general bill of lading, and is sufficient to cover the whole cargo; vide 'Le Wilhelm' c. 'Le Juste.'1

§ 22. Vessels of discovery, or of expeditions of exploration Vessels of and survey, sent for the examination of the Arctic regions, discovery unknown seas, islands, and coasts, are, by general consent, exempt from the contingencies of war, and therefore not liable to capture. Like the sacred vessel which the Athenians sent with their annual offerings to the temple of Delos, they are

1 Pistoye et Duverdy, Des Prises, tit. vi. ch. ii. § 4; Dalloz, Répertoire, verb. 'Prises Maritimes,' § 3; Pouget, Droit Maritime, tome i. pp. 423 et seq.

boats

respected by all nations, because their labours are intended. for the benefit of all mankind.' Thus, when Captain Cook sailed from Plymouth, in 1776, in the ship 'Resolution,' accompanied by the 'Discovery,' M. de Sartine, the French Minister of Marine, despatched a letter to the Admiralties and Chambers of Commerce throughout the kingdom, to be communicated to the owners and captains of vessels cruising as privateers or otherwise, directing them, in case they met at sea, to treat him and his vessels as neutrals and friends, provided that he, on his side, abstained from all hostility. This praiseworthy example has since been followed by all civilised powers towards vessels similarly employed. It is, however, usual and proper for the Government sending out such expeditions, to give formal notice to other powers, describing the character and object of the expedition, the number of vessels employed, the nature of their armament, &c., in order that they may issue the proper instructions to their own vessels on the high seas. Such expeditions must confine themselves most strictly to the object in view; if they commit any act of hostility they forfeit their exemption from capture.2

Fishing § 23. Fishing boats have also, as a general rule, been exempt from the effects of hostilities. Henry VI. issued orders on the subject of fishing vessels in 1403 and 1406. In 1521, while war was raging between Charles V.

1 On the same principle the Vice-Admiralty Court of Halifax restored to the Academy of Arts in Philadelphia a case of Italian paintings and prints, captured on their passage to the United States by a British ship of war in 1812, in conformity to the law of nations, as practised by all civilised countries, and because the arts and sciences are admitted to form an exception to the severe rights of warfare' (the 'Marquis de Somerueles, Stewart, Vice-Ad. R. of Nova Scotia, 482). A case of books taken on board a prize vessel was restored by the United States to a literary institution of the hostile State, on the ground that it was not the subject of a commercial adventure (the 'Amelia,' 4 Phil., 412). Lord Howe considered that the custom of nations at war with each other did not justify an officer in wantonly throwing a casket of public money into the sea (Lord Howe's Life, p. 479).

In 1793 vessels carrying mails for the English or French Post Office authorities were permitted to convey the mails between the ports of Great Britain and France, notwithstanding the war between those countries. By the Postal Convention of 1843, between France and England, in case of war, the mail packets between Dover and Calais (now extended to all mail packets of either Government by Convention of September 24, 1856) shall continue their navigation until notification be made by either Government, in which case they shall be permitted to return freely to their respective ports.

and Francis, ambassadors from these two sovereigns met at Calais, then English, and agreed that, whereas the hérring fishery was about to commence, the subjects of both belligerents engaged in this pursuit should be safe and unmolested by the other party, and should have leave to fish as in time of peace. In the war of 1800, the British and French Governments issued formal instructions exempting the fishing boats of each other's subjects from seizure. This order was subsequently rescinded by the British Government, on the ground that some French fishing boats were equipped as gun-boats (it being intended by the French to form a flotilla of some 500 or 600 of them to employ against England), and that some French fishermen, who had been prisoners in England, had violated their parole, and had gone to join the French fleet at Brest. The British restriction was afterwards withdrawn, and the freedom of fishing was again allowed on both sides. Emerigon refers to ordinances of France and Holland, in favour of the protection of fishermen during war. Fishermen were included in the treaty between the United States and Prussia in 1785, as a class of non-combatants not to be molested by either side. French writers consider this exemption as an established principle of the modern law of war; it has been so recognised in the French courts, which have restored such vessels when captured by French cruisers,2 and the French Government, for the last forty years, has absolutely prohibited their capture. The United States made a like prohibition during the Mexican war. The doctrine, however, of the English Courts is that such exceptions form a rule of comity only; for fishing vessels fall under the description of ships employed in the enemy's trade, and as such may be condemned as prize.3

§ 24. Some have contended that the rule of exemption Cases of ought to extend to cases of shipwreck on a belligerent coast, shipwreck to cases of forced refuge in a belligerent harbour by stress of weather, or want of provisions, and even to cases of entering such ports from ignorance of the war. There are exceptional cases where such exemption has been granted. Thus, when

1 Emerigon, Traité des Assurances, ch. iv. § 9, and ch. xii. § 19. * Wildman, Law of Nations, p. 152; Martens, Recueil, &c., tome vi. PP. 503, 515; De Cussy, Droit Maritime, liv. i. tit. iii. § 36; liv. ii. ch. xx.; Massé, Droit Commercial, liv. ii. tit. i. § 333.

The Young Jacob,' 1 Rob., 20.