Effect of resistance of neutral master presented by Wheaton, in his argument in favour of the American claimants for indemnity for Danish captures under the ordinance of 1810. We know of no judicial decision directly upon this question.2 § 23. The resistance of a neutral master,' says Sir Wm. Scott, in the Catherina Elizabeth," before quoted, 'will undoubtedly reach the property of the owner; and it would, I think, extend also to the whole property entrusted to his care, and thus fraudulently attempted to be withdrawn from the operation of the rights of war.' 'Confiscation,' says Chancellor Kent, '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.' Duer holds that a forcible resistance to a lawful search is a distinct and substantial course of condemnation, and involves all the property under the charge of the neutral master; not merely that of its owners, but of the shippers, although between them and himself no relation of principal and agent can be said to exist. 'The goods may be wholly innocent, in their nature, and from their destination, and their true character, and that of the ship as neutral may be undoubted, but the unlawful resistance, from the time it is attempted, stamps on them all an illegal character, and involves them all in its fatal penalty.' The offence being regarded as of a greater criminality and more dangerous in its effects than the transportation of contraband or the violation of a blockade, the severity of the penalty is the greater. The forcible resistance of an enemy master will not, in general, affect neutral property laden on board an enemy's merchant vessel; for an attempt on his part to rescue his vessel from the possession of the captor is nothing more than the hostile act of a hostile person, who has a perfect right to make such an attempt.' 'If a neutral master,' says Sir William Scott, 'attempts a rescue, or to withdraw himself from search, he violates a duty which is imposed on him by the law of nations, to submit to search, and to come in for enquiry as to the property of the ship or cargo; and if he 1 See Laurence's Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 32. Riquelme, Derecho Púb. Int., lib. i. tit. ii. cap. xiv.; Martens, Nouveau Recueil, tome viii. p. 350; Elliot, American Diplomatic Code, vol. i. p. 453; the 'Nereide,' 9 Cranch. R., 442. 3 5 Rob., 232. violates this obligation by a recurrence to force, the consequence will undoubtedly reach the property of his owner, and it would, I think, extend also to the whole property entrusted to his care, and thus fraudulently attempted to be withdrawn from the operation of the right of war. With an enemy master, the case is very different; no duty is violated by such an act on his part-lupum auribus teneo, and if he can withdraw himself he has a right to do so.' § 24. The Supreme Court of the United States has Neutral applied the same rule to neutral property in an armed enemy in enemy's property vessel, and in the case of the 'Nereide,' decided in 1815, it vessels was held that a neutral had a right to charter and lade his goods on board a belligerent armed merchant ship without forfeiting his neutral character, unless he actually concurred and participated in the enemy master's resistance to capture. This doctrine was re-affirmed in 1818, in the case of the 'Atalanta,' notwithstanding the contrary opinion of Sir William Scott in the case of the 'Fanny,' decided contemporaneously with that of the 'Nereide.' The reasoning of the Supreme Court most ably sustains its decision, notwithstanding the powerful arguments in the dissenting opinion of Mr. Justice Story, supported as it is by the opinions of Kent and Duer, among American writers, and by the decision of Sir William Scott in the case of the 'Fanny' and the authority of English publicists generally. The question does not seem to have arisen in the Continental courts. Hautefeuille sustains, on principle, the American decision against that of Sir William Scott, while Ortolan merely states the contradiction between the English and American decisions on this question, without expressing any opinion of his own upon the particular question involved.' ments neutral § 25. The acknowledged belligerent right of visitation Docuand search draws after it a right to the production and ex- required amination of the ship's papers. With respect, however, to to prove the nature and character of the papers which the neutral is bound to have on board, there is some difference of opinion. A list of papers usually to be expected is given at p. 98, in chapter xxii. Some Continental writers contend that the 'The 'Nereide,' see p. 285; the 'Fanny,' I Dod. Ad. R., 443; the 'Atalanta,' 3 Wheat. R., 409; Hautefeuille, Des Nations Neutres, tit. xi. ch. 420; Ortolan, Diplomatie de la Mer, tome iii. ch. vii. character Concealment of papers ordinary sea letter or passport is all that is required, as that must establish the nationality of the vessel. If, however, it has been agreed between the belligerent and neutral, that certain papers executed in a particular form shall be carried, the absence of such papers, so executed, may be good ground of seizure. But English and American writers, as well as the decisions of the prize courts of the two countries, have held that the neutral vessel may be required to have on board, and to produce when visited, such other documentary evidence as is usually carried, and deemed necessary to establish the character of the ship and its cargo; and that the absence or non-production of such papers may, or may not, be good cause for capture and condemnation, according to the particular circumstances of the case. The rule is very clearly stated by Chancellor Kent. 'A neutral is bound,' he says, 'not only to submit to search, but to have his vessel duly furnished with the genuine documents requisite to support her neutral character. The most material of these documents are the register, passport or 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. Si aliquid ex solemnibus deficiat, quum equitas poscit, subveniendum est.'' § 26. Sometimes the neutral vessel produces the principal papers necessary to show her neutrality and the innocent character of her cargo, but conceals others which might have a contrary effect, as, for example, secret instructions relating to her destination and the landing of goods, &c. Those who deny the right of search beyond the verification of her sea letter, or manifest, justify such concealment. But English and American writers are of opinion that concealment is in itself a serious offence against the belligerent right of visit and search. The rule of international law on this question is thus stated by Chancellor Kent: The concealment of papers,' he says, 'material for the preservation of the neutral character, justifies a capture, and carrying into a port for 1 Kent, Com. on Am. Law, vol. i. p. 157; Duer, On Insurance, vol. i. pp. 734, 735; Martens, Essai sur les Armateurs, ch. ii. § 22; Massé, Droit Commercial, liv. ii. tit. i. ch. ii.; Pistoye et Duverdy, Des Prises, tit. vi. ch. ii. sec. iv.; De Cussy, Droit Maritime, liv. i. tit. iii. § 15. 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 laboured under heavy doubts, and there was primâ facie ground for condemnation independent of the concealment.' of papers § 27. The spoliation of the papers of a ship, subjected to Spoliation the visitation and search of a belligerent cruiser, is a still more aggravated circumstance of suspicion than that of their denial or concealment, and, in most countries, would be sufficient to infer guilt and exclude further proof. But it does not in England,' says Kent, '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. 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. If the explanation be not prompt and frank, or be weak and futile; if the cause labours 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, 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.'' false papers § 28. The use of false papers,' says Duer, although Use of in all cases morally wrong, is not in all cases a subject of legal animadversion in a court of prize. Such a court has no right to consider the use of the papers as criminal, where the sole object is to evade the municipal regulations of a foreign country, or to avoid a capture by the opposite belligerent. The falsity is only noxious where it certainly appears, or is reasonably presumed, that the papers were 1 Kent, Com. on Am. Law, vol. i. p. 158; Bernardi v. Motteaux, Doug. R., 581. Impressment of seamen from neutral vessels framed with an express view to deceive the belligerent by whom the capture is made, so that, if admitted as genuine, they would operate as a fraud on the rights of the captors. It is not sufficient that the papers disclose the most disgusting preparations of fraud in relation to a different voyage or transaction. The fraud must certainly, or probably, relate to the voyage or transaction which is the immediate subject of investigation.'1 § 29. In the wars immediately resulting from the French revolution, the British Government attempted to engraft upon the right of visitation and search the right of impressment of seamen by British cruisers from American merchant vessels. The deep feeling of opposition, in the United States, to this claim of Great Britain co-operated most powerfully with other causes to produce the war of 1812 between the two countries. The war was terminated by the treaty of Ghent, 1 1 Duer, On Insurance, vol. i. p. 738; the 'Eliza and Katy,' 6 Rob. R., 192; the 'St. Nicholas,' Wheat. R., 417; Blaze v. N. Y. Ins. Co., 1 Caines R., 565; Phoenix Ins. Co. v. Pratt, 2 Binney R., 308; the 'Mars,' 6 Rob. R., 79; the 'Phoenix,' 3 Rob. R., 186; the 'Zulema,' 1 Act. R., 14. 2 In 1798 not only merchantmen, but vessels of war of the United States were searched by the British ships of war. His Majesty's ship 'Carnatic,' 74, boarded an American vessel of war off Havannah. The United States Government issued orders to their vessels never to submit when they had the means of resistance, and never to part with the men unless the vessel was taken. (Brenton, vol. i.) But, on the other hand, Americans seduced British seamen, and even soldiers in their regimentals. By Art. 45 of the British Regulations of 1787 it was ordered to demand English seamen out of foreign ships wherever met with. In 1794 the Minister of the United States in England complained that a large number of American vessels had been irregularly captured and as improperly condemned, and thereby under colour of his Majesty's authority great injury had been done to American merchants. Also that citizens of the United States had been impressed into the King's service. It was explained on behalf of the British Government that, although in a naval war extending over four quarters of the globe, some inconvenience must accrue to the commerce of neutral nations which no care could prevent, his Majesty would always desire that the fullest opportunity be given to all to prefer complaints and to obtain redress and compensation, that in most cases they could be redressed by the usual judicial procedure at a very small expense, and without other interposition; but if cases should be found wherein redress could not be obtained in the ordinary way, his Majesty would readily discuss measures to be established for that purpose; that if American seamen had been impressed, it was contrary to his Majesty's desire, but that there was great difficulty in discriminating between British and American seamen, especially when there so often existed an interest and intention to deceive. A return to Congress, in 1806, states that the aggregate number of impressments of American seamen into British service, from the com |