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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.' 1

§ 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, etc. Those who deny the right of search beyond the verification of her sealetter, 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 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.'

§ 27. The spoliation of the papers of a ship, subjected to 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 maritine law of other countries, create an absolute presumption juris et ae 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

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.

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."

§ 28. The use of false papers,' says Mr. Duer, although 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 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 Kent, Com. on Am. Law, vol. i. p. 158; Bernardi v. Motteaux, Doug. K., 581.

Whenever the captors (and the rule holds in both countries, as the cases show) are justified in the capture, they are considered as having a bona fide possession, and are not responsible for any subsequent losses or injuries arising to the property from mere accident or casualty, as from stress of weather, recapture by the enemy, shipwreck, &c. They are, however, in all cases, bound for fair and safe custody, and if the property be lost from the want of proper care, they are responsible to the amount of the damage: for subsequent misconduct may forfeit the fair title of a bona fide possessor, and make him a trespasser from the beginning. If, however, the capture is made without probable cause, the captors are liable for damages, costs, and expenses to the claimant. If the captors unjustifiably neglect to proceed to adjudication, the court will, in cases of restitution, decree demurrage against them, or if they agree to restitution but unreasonably delay it. And although a spoliation of papers be made, yet if it be produced by the misconduct of captors, as by firing under false colours, it will not protect them from damages and costs.-Story on Prize, p. 40.

Duer, On Insurance, vol. i. p. 738; the 'Eliza and Katy,' 6 Rob. R.,

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 pretended right, as claimed by England, and to the practice exercised under it, 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, on the basis of the status quo ante bellum, leaving the questions of maritime law which led to the war still unsettled. It is not probable, however, after the discussions which have taken place on this subject, that the British Government will ever again attempt to enforce this alleged right of impressment; at any rate, not from American merchant vessels. The British Government seems to regard the right of impressment from neutral merchant vessels as incident to, rather than as a part of, the right of search. It is alleged that, by the English law, the subject owes a perpetual and indissoluble allegiance to the crown, and is under the obligation, in all circumstances, and for his whole life, to render military service to the crown, whenever required; and that it is a legal exercise of the prerogative of the crown to enforce this obligation of the subjects, wherever they may be found. That, the right of search being conceded by the laws of war, it gives the right of examining the crews of neutral vessels, and if, on such examination, British seamen be found among them, such seamen may be forcibly taken from the neutral vessels, and carried on board British cruisers. In reply, the American Government says that, whatever may be the obligations existing between the crown of England and its subjects, the English law cannot be enforced beyond the dominions and jurisdiction of that government; that every merchant vessel on the high seas being rightfully considered as a part of the territory of the country to which it belongs, to attempt to enforce the peculiar law of England on board such vessel, is to assert and exercise an extra-territorial authority for the law of British prerogative. 'If this notion 192; the 'St. Nicholas,' I Wheat. R., 417; Blaze v. N. Y. Ins. Co., ! 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

of perpetual allegiance,' says Mr. Webster, and the consequent power of the prerogative was the law of the world; if it formed part of the conventional code of nations, and was usually practised, like the right of visiting neutral vessels for the purpose of discovering and seizing enemy property, then impressment might be defended as a common right, and there would be no remedy for the evil, till the national code should be altered. But this is by no means the case. There is no such principle incorporated into the code of nations. The doctrine stands only as English law, not as national law; and English law cannot be of force beyond English dominion. Whatever duties and relations that law creates between the sovereign and his subjects, can be enforced and maintained only within the realm, or proper possessions, or territory of the sovereign. There may be quite as just a prerogative right to the property of subjects as to their personal services, in an exigency of the State; but no government thinks of controlling, by its own laws, property of its subjects situated abroad; much less does any government think of entering the territory of another power, for the purpose of seizing such property, and applying it to its own As laws, the prerogatives of the crown of England have no obligations on persons or property domiciled or situated abroad.''

uses.

1

Webster, Works, vol. v. p. 142; vol. vi. p. 329; Webster, Dip. and Off. Papers, p. 97. This announcement by Mr. Webster was incidentally introduced in a discussion with Lord Ashburton, concerning the boundary line of the State of Maine in 1842, but, nevertheless, the subject remained unsettled. Since the correspondence between Great Britain and the United States in 1858 relative to the right of visit and search, the claim of seizing British seamen out of the vessels of the United States, or of other nations, has virtually been abandoned by England.

But maritime States have always claimed a right of visitation and inquiry, within those parts of the ocean adjoining to their shores, which the common courtesy of nations has, for their common convenience, allowed to be considered as parts of their dominions for various domestic purposes; this has nothing in common with a right of visitation and search upon the unappropriated parts of the ocean in time of peace. Le Louis,' 2. Dods., 246.

In the message of the President of the United States in 1858, it was stated as unanimously resolved, that 'American vessels on the high seas in time of peace, bearing the American flag, remain under jurisdiction of the country to which they belong, and therefore, any visitation, molestation, or detention of such vessels by force or by the exhibition of force on the part of a foreign power, is in derogation of the sovereignty of the United States.'

In 1794 the Minister of the United States in England complained

§ 30. After a calm and dispassionate examination of the whole subject, the American Secretary of State announces to Lord Granville 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.

James, referring to this subject, in 1826, says that the crew of a vessel, armed or unarmed, sailing under the flag of the United States, usually consists of one or more of the following classes-1. Native American citizens; 2. American citizens, wherever born, who were such at the definitive treaty of peace in 1783; 3. Foreigners in general, who may or may not have become citizens of America subsequently to the treaty in question; 4. Deserters from the British army or navy, whether natives of Britain or of any other country. He considers that to the first class Great Britain cannot have the shadow of a right; and from such of the second as were British born, she barred herself by the treaty acknowledging the independence of the revolted colonies. Of the third class, the only portion which England can have any pretension to seize are the subjects of the Power or Powers with whom she may be at war, and her own native subjects. With respect to the former, the very act of entering on board a neutral implies that the foreigner has thrown off his belligerent character; he is a non-combatant of the most unequivocal description, and, as such, entitled to exemption from seizure. A passenger, especially if a military man, might be an exception.

When, by the maritime ascendancy of England, France could no longer trade for herself, America proffered her services, as a neutral, to trade for her; and American merchants and their agents, in the gains that flowed in, soon found a compensation for all the perjury and fraud necessary to cheat the former out of her belligerent rights. The high commercial importance of the United States, thus acquired, coupled with a similarity in language, and to a superficial observer, a resemblance in person, between the natives of America and Great Britain, has occasioned the former to be the principal, if not the only, sufferers by the exercise of the right of search. Chiefly indebted for their growth and prosperity to emigration from Europe, the United States hold out every allurement to foreigners, particularly to British seamen, whom, by a process peculiar to themselves, they can naturalise as quickly as a dollar can exchange masters, and a blank form, ready signed and sworn to, can be filled up. It is the knowledge of this fact that makes British naval officers, when searching for deserters from their service, so harsh in their scrutiny, and so sceptical of American oaths and asseverations.-Nav. Hist., vol. iv. 325.

By Art. 45 of the British Regulations of 1787, it was ordered to demand English seamen out of foreign ships wherever met with.

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