port and manifest was exempt from search, a ship without either is not subject to condemnation, being simply without the benefits of the treaty, but subject to the rules of international law.

The Venus (1892), 27 Ct. Cl. 116; Cole v. United States, ibid.

The act of Congress of July 9, 1798, 1 Stat. 578, which authorized merchant vessels to carry arms for protection, could not change the rule of international law which gave a belligerent the right of search, nor save a vessel from lawful confiscation for resisting such right.

The Jane (1901), 37 Ct. Cl. 24.

It was held in this case that where an American vessel attempted flight from an unknown vessel, but, after discovering that the latter was a French cruiser, hove to, and, after being fired into with ball and musketry, returned the fire, it was resistance to search.

5. USE BY NEUTRAL OF ARMED ENEMY SHIP.

$1203.

P., a Spanish subject, chartered a British ship, called the Nereide, mounting ten guns and manned by sixteen men, to make a voyage from London to Buenos Ayres and return, with cargo each way. It was stipulated that she should, after taking in cargo, sail with the first convoy from Great Britain for Buenos Ayres; and she sailed accordingly, under convoy, in November, 1813, with a cargo belonging partly to P. and partly to British subjects. The Nereide, however, became separated from the convoy, and in December, 1813, was captured, after an action of fifteen minutes, by a United States privateer. P. was at the time on board, but he retired into the cabin at the beginning of the action and took no part in it. He had taken no part in equipping or arming the ship; but it was maintained that his conduct had been such as to impress upon him a hostile character-that, as charterer of the whole ship, he was responsible for her resistance to capture. The evidence showed, however, that the only control which P. had over the ship ended with her lading, and that otherwise she remained under the direction of the owner; and, as he took no part in the action, the case was reduced to the question whether a neutral might put his goods on board an armed belligerent merchantman.

Marshall, C. J., delivering the opinion of a majority of the court, said it was admitted that a neutral might law fully place his goods on board a belligerent ship for conveyance, and the rule was laid down in terms which comprehended an armed as well as an unarmed vessel. Indeed, as belligerent merchant vessels rarely sailed unarmed, the exception, if any existed as to armed vessels, would be greater H. Doc. 551—vol 7—32

than the rule; and it was noteworthy that the rule related back to a time when almost every merchantman was in a condition for selfdefense. The belligerent had a perfect right to arm in his own defense, and this right did not interfere with that of the neutral to transport his goods in a belligerent vessel. But, it was argued that by depositing goods on an armed belligerent the right of search might be impaired, perhaps defeated. The right of search was, however, but a means to an end; and, if the property was neutral, what mischief was done by escaping its exercise? While the neutral could not justify the use of force or fraud, he might avail himself of means, lawful in themselves, to 66 escape this vexatious procedure." Nor was it true that the neutral assumed a hostile character by placing his goods in an armed vessel of the enemy. Whether the vessel was armed or unarmed, his object was merely the transportation of his goods; and in either case he paid freight. So, in either case, it was the duty of the carrier to avoid capture and to prevent a search; and in neither case was any resistance on the part of the vessel chargeable to the goods or their owner, he having taken no part in it. In the case of the Swedish convoy, all that was decided was that a neutral may arm, but can not by force resist a search. The case of the Catharine Elizabeth approached more nearly to that of the Nereide, because in that case there were neutral goods and a belligerent vessel. But it was the reasoning of the judge, and not his decision, of which the claimants would avail themselves. The judge distinguished between the effect which the employment of force by a belligerent owner or by a neutral owner would have on neutral goods; and from a marginal note it appeared that the reporter understood the case to decide in principle that resistance by a belligerent vessel would not confiscate the cargo. Moreover, if the neutral character of the goods was forfeited by the resistance of the belligerent vessel, why was not the neutral character of the passengers forfeited by the same cause? On the whole, the property of P. must be restored.

Johnson, J., delivered a concurring opinion. He said that he would not express an opinion upon the abstract case of an individual neutral to all the world. P. was liable to capture both by the French and the Carthagenians. This justified him in placing himself under British protection; and if in so doing he had incidently impaired the exercise of the United States' right of seizure for adjudication, there was nothing to complain of. The charter party gave him the occupation of the hold of the ship, and of two berths in the cabin, but no more. Though he had an incidental interest, as a freighter, in the defense of the vessel and in her fate, he had no power over the conduct of the master and crew; nor did it appear that he had ever acted under the impression that he possessed such power,

The Nereide (1815), 9 Cranch, 388.

Story, J., dissenting maintained that there was a clear distinction between putting goods on an armed and on an unarmed vessel, though the elementary writers, whose works were deficient in many important doctrines of every-day application, might not have expressed it. The neutral must preserve a perfect impartiality. He must submit to the belligerent right of search; and if he resisted it, or, with a view to resist it, sought "the protection of an armed neutral convoy," he was treated as an enemy. (The Maria, 1 Rob. 340; the Elsebe, 5 Rob. 173.) The argument that he might avail himself of "the resistance of a belligerent ship" or convoy, because such resistance was lawful, assumed the very ground of controversy. An act perfectly lawful in a belligerent, might be flagrantly wrongful in a neutral. A belligerent may lawfully resist search; a neutral is bound to submit to it, and the character of the act was to be judged not merely by that of the parties who immediately committed it, but also by the character of those who, having cooperated in, assented to, or sought protection from it, would yet withdraw themselves from its penalties. The principle that the resistance of a neutral convoy communicated itself to all the associated ships as an unlawful opposition to the right of search, applied a fortiori to the case of a belligerent convoy, for the resistance must be presumed to be more obstinate and the search more perilous. The sailing under convoy is "an act per se inconsistent with neutrality." (See case of the Sampson, Barney, observations of Sir W. Scott; also argument of Sir W. Scott, then advocate-general, in Smart r. Wolff, 3 T. R. 323, 332.) Such seemed to be the sense of the European sovereigns, as might be inferred from the fact that none of them had called in question the assertion of the principle by Denmark in the case of the American vessels captured while under British convoy. (State Papers, 1811, p. 527.) "It might, with as much propriety, be maintained that neutral goods, guarded by a hostile army in their passage through a country, or voluntarily lodged in a hostile fortress, for the avowed purpose of evading the municipal rights and regulations of that country, should not in case of capture be lawful plunder (a pretension never yet asserted), as that neutral property on the ocean should enjoy the double protection of war and peace."

A British armed ship was captured in 1814 on a voyage from Bordeaux to Pensacola by the United States man-of-war Wasp, and sent to Savannah, Georgia, where she was liable to condemnation as prize. The cargo, which was claimed for a French merchant, was also condemned, but, on appeal, the circuit court ordered further proof, and then decreed restitution. From this decree an appeal was taken to the Supreme Court. Marshall, C. J., delivering the opinion of the court, said that the case did not differ essentially from that of the Nereide; that the opinion then given by three judges was retained by them; that the "principle of the law of nations, that the goods of a friend are safe in the bottom of an enemy, may be, and probably will be changed, or so impaired as to leave no object to which it is applicable;" but that, so long as the principle should be acknowl

edged, the court "must reject constructions which render it totally inoperative."

Mr. Justice Johnson, who delivered a concurring opinion in the case of the Nereide, said that it had always been the rule with him never to decide more in any case than what the case itself necessarily required. Accordingly, he had declined in the case of the Nereide to express an opinion upon the general question, because the cargo, considered as Spanish property, was exposed to capture by the Carthagenian and other privateers, and, considered as belonging to a revolted colony, was liable to Spanish capture. The neutral shipper, therefore, could not be charged with evading the belligerent rights of the United States in availing himself of the protection of an armed belligerent when sailing between "Scylla and Charybdis.” But the cause now before the court was one " of a vessel at peace with all the world." He thought that the evils which were apprehended from allowing neutrals to put their goods in armed belligerent vessels were "visionary." It was not likely that a belligerent's armed ships would be converted into carriers. Nothing could be more desired by the enemy. The subject had not altogether escaped the notice of publicists. He alluded to a dictum of Casaregis, saying "that if a vessel laden with neutral merchandise attack another vessel, and be captured, her cargo shall not be made prize, unless the owner of the goods, or his supercargo, engage in the conflict." Mr. Justice Johnson thought the present case different from that of vessels under neutral convoy, a case which had been so often invoked. Such a convoy might be considered as an association of neutrals for a hostile object. But the hostile vessel had a right to resist. It did not impair any right of search, or of capture, or of adjudication. The right of capture applied only to enemy ships or goods; the right of search to enemy goods on board a neutral carrier. Neither of these rights was impaired. Nor was the right of adjudication impaired. The neutral did not deny the right of the belligerent to decide the question of proprietary interest. If the property was really neutral, it did not matter to the belligerent who carried it. The Atalanta, Mar. 4, 1818, 3 Wheat., 409. Further proof was ordered on the question of proprietary interest. Justices Todd and Duvall did not sit in the case.

"The Supreme Court of the United States has held that there is no valid distinction of right between the act of a neutral merchant who loads his goods on board an enemy merchant ship, and the act of a neutral merchant who ships his goods in an armed vessel belonging to the enemy. The opinion of Chief Justice Marshall, who with the majority of the court decided in the case of the Nereide, ‘ that a neutral merchant had a right to charter and lade his goods on board

a belligerent armed vessel without forfeiting his neutral character,' is entitled to great weight, not merely from the authority which attaches to the opinions of that eminent judge, but also from the solidity of the reasoning upon which his judgment in that case proceeded. But the opinion of Mr. Justice Story was the other way, and coincided with the view of Lord Stowell. The Supreme Court of the United States, in February term, 1818, maintained the same view in the case of the Atalanta as it had previously maintained in the Nereide; so that the decisions of the highest tribunal of the United States is on this point in direct conflict with the judgment of the English high court of admiralty."

Twiss, Law of Nations in War (2d ed.), 188.

Sir William Scott drew a clear distinction between the case of neutral goods on an enemy merchantman and that of neutral goods on an enemy armed vessel. In the former case, he held that the resistance of the master to search did not render the neutral goods liable to capture, for the double reason (1) that the master had the full right to save himself from capture if he could, and (2) that the neutral could not be assumed to have calculated or intended that the master should resist visit. (The Catharina Elizabeth, 5 C. Rob. 232.) "But," said the same judge, “if he [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, which he could not do by putting them on board a mere merchant vessel, and so far as he does this he adheres to the belligerent; ... If a party acts in association with a hostile force, and relies upon that force for protection, he is, pro hâc rice, to be considered as an enemy." (The Fanny, 1 Dodson, 443, 448.)

A merchant vessel which was armed strictly for defense, and whose only object was trade, was not liable to seizure by French cruisers and to condemnation as prize, although she was licensed to carry arms by the act of Congress of June 25, 1798, or by the act of July 9, 1798, authorizing her to capture armed French vessels, and to recapture American vessels captured by the French.

Hooper r. United States, 22 Ct. Cl. 408; Cushing r. United States, 22
Ct. Cl. 1.

6. CONVOY.

(1) NEUTRAL.

$1204.

The neutral claim of convoy was not included in the armed neutrality of 1780, but forms an article in that of 1800. Although the United States can not but befriend it as favorable to the security and interest of neutral commerce, yet the plausible objections made to the