by belli gerent in charge of neutral property. officer commanding a convoy. The English and American Courts, which alone seem to have had an opportunity of deciding in the matter, are agreed in looking upon the resistance of a neutral master as involving goods in the fate of the vessel in which they are loaded, and of an officer in charge, as condemning the whole property placed under his protection. 'I stand with confidence,' said Lord Stowell, 'upon all fair principles of reason, upon the distinct authority of Vattel, upon the institutes of other great maritime countries, as well as those of our own country, when I venture to lay it down, that by the law of nations as now understood a deliberate and continued resistance to search, on the part of a neutral vessel, to a lawful cruiser, is followed by the legal consequences of confiscation.' 1 But the rules accepted in the two countries differ with regard to property placed in charge of a belligerent. Lord Stowell, in administering the law as understood in England, held that the immunity of neutral goods on board a belligerent merchantman is not affected by the resistance of the master; for while on the one hand he has a full right to save from capture the belligerent property in his charge, on the other the neutral cannot be assumed to have calculated or intended that visit should be resisted.2 But if the neutral puts his goods on board a ship of force which he has every reason to presume will be defended against the enemy by that force, the case then becomes very different. He betrays an intention to resist visitation and search, and so far he adheres to the belligerent. If a party acts in association with a hostile force, and relies on that force for protection, he is pro hâc vice to be considered as an enemy.' 1 The Maria, i. Rob. 377. 3 3 The Fanny, i. Dodson, 448. J. Story, dissenting from the majority of the Supreme Court, the American courts. The American Courts carry their application of Doctrine of the principle that neutral goods in enemy's vessels are free to a further point, and hold that the right of neutrals to carry on their trade in such vessels is not impaired by the fact that the latter are armed. According to Chief Justice Marshall, 'the object of the neutral is the transportation of his goods. His connexion with the vessel which transports them is the same whether that vessel be armed or unarmed. The act of arming is not his, it is the act of a party who has a right to do so. He meddles not with the armament nor with the war;' and the belligerent suffers no injury from his act, for 'if the property be neutral, what mischief is done by its escaping a search ?' versy be mark and The same doctrine was applied by the Govern- Controment of the United States in a controversy with tween DenDenmark which sprung out of the use of English the United convoys by American vessels trading to the Baltic States. during war between Denmark and Great Britain. Large numbers of such vessels were in the habit, after receiving cargoes of naval stores in Russia, of assembling on the coasts of Sweden, where they met British men of war, by which they were protected until they were out of danger. As the nature of the cargoes exposed the intention with which this practice argued strenuously in favour of the view taken by the English Courts. It is necessarily known to the convoyed ships that the belligerent is bound to resist, and will resist until overcome by superior force. It is impossible, therefore, to join such convoy without an intention to receive the protection of a belligerent force in such manner and under such circumstances as the belligerent may choose to apply it. To render the convoy an effectual It was carried on to extreme suspicion, the Danish Government issued an ordinance in 1810, declaring all neutral vessels availing themselves of belligerent convoy to be good prize. Several stragglers were captured, without actual resistance being made, and were condemned by the Danish Courts, it being considered that an intention to resist had been sufficiently manifested by joining the convoy. was argued by the American Government that though a neutral may not escape from visit by the use of force or fraud, he may use any means of simple avoidance; it was apparently implied that the act of joining a convoy, being open, could not be fraudulent; and it was urged that an actual participation in resistance must be required to involve the neutral in its consequences. intention to resist, not carried into effect, had never, it was said, in the case of a single ship been considered to entail the penalty of confiscation; and the two cases in no way so differed as to call for the application of a different principle. The Danish Government on its part seem in effect to have maintained that not only is a settled intention to resist equivalent to actual resistance, but that he who causes himself to be protected by an enemy's convoy, ranges himself on the side of the protector, and thus puts himself in opposition to the enemy of the protector, and evidently renounces the advantage attached to the character of a friend to him against whom he seeks protection.' The United States, after a negotiation extending over twenty years, succeeded in obtaining a treaty, under which Denmark, while expressly declaring that its concession was not to be looked upon as a precedent, agreed to pay a sum en bloc by way of indemnity to the American subjects whose property had been seized. 1 for frau acts. § 72. The occasions on which a vessel may be Capture seized for illicit acts affecting itself, or because its dulent cargo is liable to confiscation, have for the most part been already specified." But there still remains to be noticed as affecting it with penalties, a class of fraudulent or ambiguous acts of the owner or master, consisting in the destruction or concealment of papers, or in the provision of false documents. The existence of false documents is somewhat leniently regarded, because it is as likely that they are provided for safeguard against the enemy of the captor as against him; but by the law of most nations the 'spoliation' of papers is theoretically an offence of the most serious nature, the presumption being that 1 Wheaton, Elem., Pt. iv. chap. iii. § 32. Mr. Wheaton was the negotiator of the treaty, and is naturally prejudiced in favour of the views which he was employed in pressing; but his annotator, Mr. Lawrence, appears to take a different view. Woolsey (Introd. § 193), Dana (note to Wheaton, § 535), and Kent (Comm., Lect. vii.) assert the English doctrine as unquestionable. Ortolan (ii. 275) adopts the same opinion, subject only to the reservation that if a neutral vessel meeting a belligerent convoy attaches itself to it, her conduct may be looked upon as an innocent ruse to escape the inconvenience of a visit, and not as implying an intention to resist. The contrary doctrine has no more respectable defender than M. Hautefeuille, tit. xi. chap. iii. sect. 2. 2 Comp. aut. pp. 124, 128, 152, 157, 160. 3 3 Pistoye et Duverdy, ii. 73, citing the case of La Fortune. But in the case of the Apollos, the rule was pressed with extreme rigour. A prize was wrecked at the entrance of the port of Ostend; at the moment when it grounded the captain snatched the ship's papers from the prize master, and on getting to shore at once lodged them with the juge de paix. They established the neutrality of the ship and cargo, and there was no reason to believe that any of the number had been abstracted, but it being possible that in the confusion some might have been destroyed, the penalty of proved destruction was inflicted. Pistoye et Duverdy, ii. 81. The Dutch Regulations of 1781 prescribed confiscation in all cases in which ship's papers were irregular, irrespective of the cause of irregularity. Calvo, § 1235. Duties of a captor. it is effected for the purpose of fraudulently suppressing evidence which if produced would cause condemnation. The French Regulations of 1704, repeated in 1744 and 1778, declared to be good prize all vessels, with their cargoes, on simple proof of the fact that papers had been destroyed, irrespective of what the papers were; but the severity of the rule has been tempered in practice, it being commonly required that the destroyed papers should be proved to be such as in themselves to entail confiscation In England and America a milder practice is in use; and spoliation or concealment of papers, if all the other circumstances are clear,' only affects the neutral with loss of freight; but it is a cause of grave suspicion, and shuts out the guilty person from any indulgence of the court, as for example, from permission to bring further proof if further proof be necessary.1 § 73. In the absence of proof that he has rendered himself liable to penalties, a neutral has a right to the benefit of those presumptions in his favour which are afforded by his professed neutrality. His goods are primâ facie free from liability to seizure and confiscation; and a captor must establish, before the appropriate tribunal, that he has been justified in the violent measure to which he has had recourse. is therefore bound to conduct his visit and capture with as much regard for neutral persons and for the safety of neutral property as the necessities of the case may allow ;2 he must use all reasonable speed 1 The Rising Sun, ii Rob. 106 ; The Hunter, i Dodson, 487; Livingston v. The Maryland Ins. Cy. vii Cranch, 544; The Commercen, i Wheaton, 386; The Pizarro, ii Wheaton, 241; The Johanna Emilie, Spinks, 22. 2 The Anna Maria, ii Whea He ton, 332. The crew must not be put in irons or handcuffed except in extreme cases; if this be unnecessarily done the courts will decree damage to the injured parties. The Vrow Johanna, iv Rob. 351; The San Juan Baptista, v Rob. 23. |