as completely to the cargo as to the ship, for the master Rescue. acted as agent of the owner of the cargo, and his resistance was a fraudulent attempt to withdraw it from the rights of war'. [The doctrine just stated requires a little explanation, at least with reference to the position of the state to which the rescued ship belongs, and its obligations towards that of the captor. ture. The rule itself is thus stated, and correctly, by Mr Rescue J. Story:"The rights of capture are completely devested after cap by a hostile recapture, escape, or a voluntary discharge of the captured vessel. And the same principle seems applicable to a hostile rescue; but if the rescue be made by a neutral crew of a neutral ship it may be doubtful how far such an illegal act, which invites the penalty of confiscation, would be held in the courts of the captor's country to devest his original right in case of a subsequent recapture." The consequences of such an act attach to the ship and cargo, and through the misconduct of the master or crew the owners will be affected, but beyond that there is no further responsibility; for, as Earl Russell very truly stated the law in a case already referred to in another part of this work, "Acts of forcible resistance to the rights of belligerents, such as rescue from capture, &c., however cognizable or punishable as offences against International Law in the prize-courts of the captors administering such law, are not cognizable by the municipal law of a country, and cannot by that law be punished either by the confiscation of the ship or by any other penalty" At the same time the warning uttered by Sir W. Scott should never be lost sight of by neutral masters disposed to attempt the unlawful act of recapture; for if such acts are persisted in the conduct of belligerents must be proportionately severe and harsh.] ments re A neutral is bound not only to submit to search, but Docuto have his vessel duly furnished with the genuine docu- quisite to ments requisite to support her neutral character. The support most material of these documents are, the register, pass- character. 1 The Catharina Elizabeth, 5 Rob. 232. The Emily St Pierre, Parly. Papers, North America, 186. No. XI. p. 5. See the same principle upheld in the case of the Helen, 35 L. J. Adm. 2 and L. R. 1 Adm. and Ecc. 1. 3 Answer to the Prussian Memorial, 1753. neutral Docu ments re support neutral port, sea-letter, muster-roll, log-book, charterparty, inquisite to voice, and bill of lading'. The want of some of these papers is strong presumptive evidence against the ship's character. neutrality; yet the want of any one of them is not absolutely conclusive. Si aliquid ex solemnibus deficiat, cum equitas poscit, subveniendum est. And therefore with re [The register or certificate of registry is the paper that specifies the name, occupation, and residence of every owner, the ship's name, place to which she belongs, tonnage, master's name, time and place of build or of condemnation, her rig and the description of her stern, and on the back is endorsed, with the owners' names, the number of 64th shares held by each. (See the forms in the Appendix to the Merchant Shipping Act, 17 and 18 Vict. c. 94, and in the Appendix to Pratt's edition of Story On Prize Courts, 1854). The passport or sea-letter is a permission from the neutral state to the master of the vessel to proceed on the intended voyage, and usually contains his name and residence, the name, description and destination of the vessel, with such other matter as the local law and practice require. The muster-roll, or rôle d'équipage, contains the names, ages, quality and national character of every person of the ship's company. The log-book or ship's journal contains an accurate account of the ship's course, with a short history of the occurrences during the voyage. The charterparty is the written statement of the contract by which an entire ship, or at least the principal part of it, is let for a determined voyage. Invoices contain the particulars and prices of each parcel of goods, with a statement of the charge thereon, which are usually transmitted from the shipper to the consignee. And the bill of lading is the instrument by which the master acknowledges the receipt of the goods specified therein, and promies to deliver them to the consignee or his order. There are usually several duplicates, of which one is delivered to the master, one retained by the shipper, and one sent to the consignees.] 2 Danish Instructions, 28th March, 1810. Martens, Nouveau Recueil, Gottingen, 1817, T. v. p. 495. 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. [By the 17 and 18 Vict. ch. 104, § 102, It is enacted that no officer of customs shall grant a clearance or transire for any ship until the master of such ship has declared to such officer the name of the nation to which he claims that she belongs, and such officer shall thereupon inscribe such name on the clearance or transire, and if any ship attempts to proceed to sea without such clearance or transire, any such officer may detain her until such declaration is made. With us in England the certificate of registry of a ship is, it seems, the authentic evidence to such of her Majesty's officers as are entitled to interfere in these character: gard to what among other things may constitute probable Ship's cause for captors, it may be observed that if the ship neutral pretend to be neutral and has not the usual documents how supof a neutral ship on board, the captors are justified in ported; bringing in the ship and cargo for adjudication'. The concealment of papers material for the preservation of the how emneutral character, justifies a capture, and carrying into perilled. port for adjudication, though it does not absolutely require a condemnation. It is good ground to refuse costs ard damages on restitution, or to refuse further proof to relieve the obscurity of the case, where the cause labours under heavy doubts, and there is prima facie ground for condemnation independent of the concealment. The spoliation of papers is a still more aggravated and infamed circumstance of suspicion. That fact may exclude further proof, and be sufficient to infer guilt; but it does no; 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. 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 labour's 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 no permitted to supply. The observation of Lord Mansield in Bernardi v. Motteaux' was to the same mattes of her national character and compliance with the law. See 1 and 18 Vict. ch. 104, §§ 19, 40, 45, 50, and Maclachlan's Law of Merchant-Shipping, p. 80.] 1 The Anna, 5 Rob. 382. Story On Prize Law, by F. T. Pratt, D.C.). 1854, p. 36. As to the consequence resulting from the simuation of papers see the remarks of Erle (J.) in Hobbs v. Henning 34 L.J. C. P.at p. 122, upon the language of Sir W. Scott in the case of the Franklin, 3 Rob. Adm. 217. Livingston and Gilchrist v. Mar. Ins. Co. 7 Cranch, 544. The Pizarro, 2 Wheaton, 227. 2 Doug. 581. Ship's effect. By the Maritime law of all countries, he said. character. throwing papers overboard was considered as a strong neutral Captors bound for fair and safe cus tody. presumption of enemy's property; but, in all his expe- 1 See the cases collected in Story On Prize Law, pp. 36, 8. CHAPTER X. OF TRUCES, PASSPORTS, AND TREATIES OF PEACE, HAVING considered the rights and duties appertaining to a state of war, we proceed to examine the law of nations relative to negotiations, conventions and treaties which either partially interrupt the war, or terminate in peace. (1.) A truce, or suspension of arms, does not terminate Truces. the war, but it is one of the commercia belli which suspends its operations. These conventions rest upon the obligation of good faith, and as they lead to pacific negotiations, and are necessary to control hostilities, and promote the cause of humanity, they are sacredly observed by civilised nations'. A particular truce is only a partial cessation of hostilities, as between a town and an army besieging it. But a general truce applies to the operations of the war; and if it be for a long or indefinite period of time, it amounts to a temporary peace, which leaves the state of the contending parties, and the questions between them, remaining in the same situation as it found them. A partial truce may be made by a subordinate commander, and it is a power necessarily implied in the nature of his trust; but it is requisite to a general truce, or suspension of hostilities throughout the nation, or for a great length of time, that it may be made by the sovereign of the country, 1 Klüber, Droit des Gens, 2de Partie, Tit. II. § ii. ch. i. §§ 277 278. Wheaton's Elements of International Law, Vol. 11. Pt. iv. ch. ii. §§ 19-22. Bluntschli, L. viii. §§ 687-696. Calvo, D. Int. T. ii. Partie ii. L. vii. §§ 976--983. |