stance and the employment of an English supercargo (if he was employed) would rather show that no fraud was intended, since the annals of the prize court do not afford a single instance of a fraudulent case which was not entirely covered with the neutral garb.

The Attorney-General, in reply, insisted, that the fact of the cargo being captured on board an armed belligerent ship, raised a strong presumption, throwing the onus probandi on the claimant with more than usual weight. The only evidence to relieve this presumption was the oath of the claimant himself, unsupported by that of any other witness, or by any documentary evidence; and that, too, under an order for further proof; a mere test affidavit, without which a claimant can in no case receive restitution, but which is no evidence, or next to none, in a case of the least doubt or difficulty.

*Marshall, Ch. J., delivered the opinion [*415 of the court: This vessel was captured on a voyage from Bordeaux to Pensacola by the sloop of war Wasp, and sent into Savannah in Georgia, where she was libeled and condemned as prize of war. The cargo was claimed for Mons. Foussat a French merchant residing at Bordeaux. In the District Court the cargo was condemned as enemy's property, avowedly on the principle that this character was imparted to it by the vessel in which it was found. On an appeal to the Circuit Court, further proof was directed, and this sentence was reversed, and restitution decreed to the claimant. From this decree the captors appealed to this court.

resorted to. The case is, in that respect, distinguished to its disadvantage, from that whole class of cases, including The St. Nicholas and others, where fraud, and not force, was resorted to, in order to evade, instead of directly resisting belligerent rights. The principle of reciprocity, as a doctrine of prize law, has been overruled by the court, and, therefore, it cannot be contended that the rule of the French prize code, by which the having an enemy's supercargo on board is a cause of condemnation, is to be retaliated upon the claimant. But this fact increases the improbability that a Frenchman, who must have known the law of his own country in this respect, would have exposed his property to the risk of confiscation in the courts of a country whose prize law he could not know, because it was still unsettled. All the other circumstances of the case tend to the conclusion that it was not his property, but that of the British ship-owner. 413*] *Mr. Sergeant, contra, contended, that the case of The Fanny, even if it were not contradicted by that of The Nereide, was not directly in point. Sir W. Scott there goes on the probability or danger of condemnation in our courts, as affording a reason for giving salvage. Besides, the Fanny was a commissioned, as well as armed vessel; which the Nereide and the Atalanta were not. But it must be confessed that the decision in The Fanny was a very careless, not to say superficial, judgment. The judge agrees that the Portuguese flag was an inadequate protection, and yet holds the neutral liable to condemnation for taking shelter under a belligerent force. With all due respect to the great man by whom it was pronounced, it may be said to be tinctured with some of those peculiarities which mark the conJuct of the tribunals of a great maritime country, bent on the assertion of its pretensions by its overwhelming naval power. At all events, it does not form a law for this court, any more than the principle of retaliation which has been already repudiated by the court. The proceedings in the present case have been marked by irregularities subversive of that justice which is due to neutrals, and by a neglect of those forms which are a part of the silent compact by which they agree to submit to the exercise of the harsh and inconvenient prerogative of search. The cause was not heard in the court of first instance upon the ship's papers and 2d. Respecting the proprietary interest, much the preparatory depositions, before extraneous doubt is entertained. In addition to the extratestimony was let in, by an order for further ordinary fact of employing a belligerent carrier, proof. The salutary principles of prize prac- while a neutral *vessel belonging to [*416 414] tice, which afford a security to neu- the alleged owner of the cargo lay in port, trals in a trial in the courts of the captor, that there are circumstances in this case calculated would otherwise be grossly oppressive, have to awaken suspicion, which the claimant ought been wholly disregarded. It is a rule of jus- to clear up, so far as may be in his power. tice in admiralty courts, whether of instance or The return cargo of the Atalanta was to be prize, that where the original evidence appears in cotton, and Berkely, Salkeld & Co., the ownto be clear, the court will not indulge in extra-ers of the vessel, were also owners of large cotneous suspicions. If the employment of an armed enemy's vessel be innocent, no unfavorable inference can legally be drawn from it any more than from the employment of an unarmed belligerent carried.. Both this circum

1.-Ante, Vol. I., p. 417.

2.

The Nereide, 9 Cranch, 422.

3. The Octavia, 1 Wheat. 23, note e.

It has been contended that this cargo ought to be condemned as enemy's property, because, 1st. It was found on board an armed belligerent. 2d. It is, in truth, the property of British subjects.

On the first question, the case does not essentially differ from that of The Nereide. It is unnecessary to repeat the reasoning on which that case was decided. The opinion then given by three judges is retained by them. 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 so long as the principle shall be acknowledged, this court must reject constructions which render it totally inoperative.

ton plantations, the produce of which might readily be shipped from Pensacola. The papers show that the Atalanta sailed from Liverpool, where her owners reside, with a cargo for Bordeaux, a part of which, about equal in value to the cargo taken in at Bordeaux, belonged to Berkely, Salkeld & Co., and that her ultimate destination at the time of sailing was Pensacola, or the Havanna.

Within a day or two after her arrival at Bordeaux, she was chartered by the claimant for the voyage on which she was captured, and the cargo he now claims was put on board. A Mr. Pritchard sailed in the vessel, who was a British subject, and who has been represented in some of the testimony as a supercargo.

also satisfactorily explained. It was in strict pursuance of her original destination; on her arrival at Bordeaux she was put up for Pensacola, and chartered by this claimant for the voyage. The instructions to the captain show that it was not fixed, whether, on her return voyage, she should be laden on owners' account There are, undoubtedly, circumstances to or not; and it probably depended upon the diminish the suspicion which must be excited contingency of her being taken up at Bordeaux by those that have been mentioned. The pro- for a return freight. As to the facts that ceedings have been very irregular; no examina- Pritchard, the supercargo to Bordeaux, continued tions in preparatorio have been taken. The in that capacity on the voyage to Pensacola; captain, and probably the mate, with the al- that Ramez, the consignee, was the agent leged supercargo, were carried on board the of the ship owner; and that the present cargo Wasp, and have perished at sea, and Mr. Fous- was purchased with the freight and cargo to sat, whose character is unexceptionable, has Bordeaux, I am now satisfied that they are unsworn positively to his interest. Yet, this in- supported by the *evidence. That [*419 terest can be, and therefore ought to be, proved Pritchard should continue to be designated by 417*] by other testimony, and it is in the the appellation of supercargo among the crew, power of Mr. Foussat to explain circumstan- was to be expected from his having been ces, which, as they now appear, cannot be dis-known among them by that epithet on the voyregarded. The court, therefore, requires fur-age to Bordeaux, and that Ramez, who had ther proof, which Mr. Foussat is allowed to produce, to the following points:

1st. To his proprietary interest in the cargo. To show how and when it was purchased. 2d. To produce his correspondence with Berkely, Salkeld & Co., if any, respecting this

voyage.

3d. To explain the circumstances relative to the original destination to Pensacola, when the Atalanta sailed from Liverpool.

been recommended to Berkely, Salkeld & Co., for his integrity by their agent, should be by them, or by some other, recommended to the patronage of Foussat, was perfectly consistent with ordinary mercantile intercourse; and in the total absence of proof, that the freight, or proceeds of the outward cargo of the ship ever came to the hands of Foussat, there is no sufficient reason for conjecturing that the cargo laden on board for Pensacola was purchased with those funds.

4th. To explain the character of Mr. Pritchard, and his situation on board the Atalanta. I am, therefore, of opinion, that the propri 5th. To establish the genuineness of the let-etary interest is sufficiently established. But, ter of the 28th of August, and say by what vessel it was sent.

6th. To show to whom that part of the cargo of the Atalanta, on the voyage from Liverpool to Bordeaux, which belonged to Berkely, Salkeld & Co., was consigned, and how it was disposed of.

7th. To produce copies of the letters of Berkely, Salkeld & Co. relative to this transaction, or account for their non-production.

as the proprietary interest is altogether immaterial, if lading a neutral cargo on board an armed belligerent is, per se, a ground of condemnation, it becomes necessary to consider that question.

It has long been with me a rule of judicial proceeding, never, where I am free to act, to decide more in any case than what the case itself necessarily requires; and so far only, in my view, can a case be considered as authority. Accordingly, when the case of The Nereide was before this court, I declined expressing my 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 our belligerent [*420 rights, or putting off his neutral character when placing himself under the protection of an armed belligerent, when sailing, as that shipper was, between Sylla and Charybdis, he might accept of the aid or protection of one belligerent, without giving just cause of offense to another.

Johnson, J. When this cause was considered in the court below, I entertained great doubts on the subject of the proprietary interest. But those doubts have here been satisfactorily cleared up. I am now satisfied, that no inference unfavorable to the claim can fairly be drawn from the circumstance of this cargo be418*] ing *laden on board an armed belligerent. If it had been intended to throw a veil of neutrality over hostile property, it is more probable that a neutral carrier would have been used than a belligerent; and as to the dangers supposed to have been unnecessarily incurred, of being captured and turned away from the destined market, it is more than probable that a chance of being captured and carried into an American port, so far from being prejudicial to the adventure would have enhanced its profits. The claimant, then, if conscious of his innocence, had no evil to apprehend from capture; on the contrary, as the cargo was calculated for an American market, it might, in case of It is true, this is not a case of a commissioned capture, have reached its destination directly; or cruising vessel, and I have no objection to whereas, if it had arrived at Pensacola, its reserving the question on such a case until it route would have been more circuitous. With shall occur, if it can be done consistently with regard the fact that the voyage in its incep- the principles upon which I found my opinion; tion was destined to Pensacola, that I think but in my view, there is no medium, and no

But a case now occurs of a vessel at peace with all the world; and to give an order for further proof without admitting the rule, that lading a neutral cargo on board an armed belligerent is not, per se, a cause of forfeiture appears to me nugatory.

necessity for a belligerent to insist on any ex- author asserts, "that if a vessel laden with neuception in his favor. On the contrary, I con- tral merchandise attack another vessel, and be sider all the evils as visionary that are dwelt captured, her cargo shall not be made prize, upon as the result of thus extending this right unless the owner of the goods, or his supercargo in favor of neutrals. No nation can be power-engage in the conflict." Now, if an actual ful on the ocean that does not possess an exten-attack shall not subject to forfeiture, much less sive commerce; and if her armed ships are to shall arming for defense; and it is fairly inferbe converted into carriers (almost, I would say, able from the passage that the author had in an absurd supposition), her own commerce his view the case of an armed belligerent carwould have the preference; so that the injury rier, or he would not have represented her as could never be of any real extent. But should the attacking vessel. it be otherwise, what state of things ought one But it is contended, that decisions have taken belligerent more devoutly to desire than that the place in the courts of other states, in analogous whole military marine of her enemy should be cases, which cannot be reconciled with the so employed, and bound down to designated principle on which the claimant rests his devoyages, from which they were not at liberty fense. On this subject I will make one general to deviate? It would be curious to see a gov- remark: I acknowledge *no decision as [*423 421*] ernment thus involving *itself with mer-authority in this court but the decisions of the chant shippers in questions of affreightment, assurance, deviation, average, and so forth; the possibility may be imagined, but the reality will never exist.

The general rule in this case, it will be observed, is controverted by no one; nor is it denied that it is incumbent on the captor to maintain the exception contended for. It is for him to prove that the acknowledged right of the neutral to employ a belligerent carrier does not include the right of employing an armed belligerent carrier.

In order to support this proposition, arguments are usually adduced, from the silence of writers upon the subject; from decisions in analogous cases; and from its general inconsistency with the belligerent right of search or adjudication.

court, as far as necessary, to the case decided; and the decisions of the state courts, as far as they go to fix the landmarks of property; and generally, the lex loci of the respective states. All other decisions I will respect for as much as they are worth in principle.

The decisions relied on in this part of the argument are those by which neutral vessels under neutral convoy, were condemned for the unneutral act of the convoying vessel; and those in which neutral vessels have been condemned for placing themselves under protection of a hostile convoy. With regard to the first class of cases, it is very well known that they originated in the capture of the Swedish convoy, at a time when Great Britain had resolved to throw down the glove to all the world on the principle of the northern confederacy. If it be asked, why have writers, and partic- It was, therefore, a measure essentially hostile. ularly the champions of neutral rights been si- But independently of this, there are several lent on this subject? I think the answer ob- considerations which present an obvious disvious. Practically it is of very little general tinction between both classes of cases and this importance either to neutrals or belligerents, under consideration. A convoy is an associaand those who are more disposed to favor bel- tion for a hostile object. In undertaking it, a ligerent claims would naturally avoid a doc-nation spreads over the merchant vessel an imtrine which they could not maintain, whilst all munity from search, which belongs only to a who wrote for the benefit of those who are to national ship; and by joining a convoy, every read would avoid swelling their volumes with individual ship puts off her pacific character, unnecessary discussions, or raising phantoms and undertakes for the discharge of duties for the amusement of laying them. The silence which belong only to the military marine, and of the world upon the subject is, to my mind, a adds to the numerical, if not to the real, sufficient evidence that public sentiment is strength of the convoy. If, then, the association against it. It is impossible, but that in the be voluntary, the neutral, in suffering the fate course of the long and active naval wars of the of the whole, has only to regret his own folly last two centuries, cases must have occurred in in wedding *his fortune to theirs; or if [*424 which it became necessary to consider this involved in the aggression or opposition of the 422*] *question; and though it had escaped convoying vessel, he shares the fate which the the notice of jurists, it must have been elicited leader of his own choice either was, or would by the avarice of captors, the ingenuity of have been made liable to, in case of capture. To proctors, or the learned researches of courts of elucidate this idea, let us suppose the case of prize. Yet we find not one case on record of a an individual who voluntarily fills up the ranks condemnation as prize of war on the ground of of an enemy, or of one who only enters upon armament; nor a dictum in any of the books the discharge of those duties in war which that suggests such an exception. But the rule would otherwise take men from the ranks; and itself is laid down everywhere; and in my view, the reason will be obvious why he should be laying down the rule without the exception, is treated as a prisoner of war, and involved in in effect a negative to the exception. the fate of a conquered enemy. But it is not so with the goods which constitute the lading of the ship; those give neither real nor numerical strength to an enemy, but rather embarrass and impede him. And even if it be admitted that, in all cases, a cargo should be tainted with the offense of the carrying vessel, it will be seen that the reason upon which those cases profess to proceed is not applicable to the case of neu

But it is not true that this subject has altogether escaped the notice of writers on the law of prize. There is on record one opinion on this subject, and that of great antiquity and respectability, and which may have given the tone to public opinion, and thus account for the silence of subsequent writers; I allude to the dictum extracted from Casaregis, in which the

tral goods on board a hostile carrier. Resist- | in principle; and if it is left to the courts of the ance, either real or constructive, by a neutral belligerent to apply the exception to successive carrier, is, with a view to the law of nations, cases as they arise, it evidently becomes a deunlawful; but not so with the hostile carrier; stroying principle, which will soon she had a right to resist, and in her case, there- the vitals of the rule. And the neutral will fore, there is no offense committed to communi- soon consider it as a snare, not a privilege. cate a taint to her cargo.

consume

Again, the proposition is that the neutral But it is contended that the right to use a may employ a hostile carrier; but the indishostile, armed carrier, is inconsistent with the pensable attributes of a state of hostility are belligerent's right of search, or of capture, or of the right of armament, of defense, of attack, adjudication; for on this point the argument is and of capture; if, then, you strip the belligernot very distinct, though I plainly perceive it ent of any one, or more of these characteristics, must be the right of adjudication, if any, that the proposition is falsified, for he can no longer is impaired. The right of capture applies only *be called a hostile carrier; he assumes [*427 to enemy ships or goods; the right of search to an amphibious anomalous character; for which 425*] *enemy goods on board a neutral car- there is no epithet applicable unless it be that rier; and therefore it must be the right of ad- of semi-hostile. And what becomes of the interjudication that is supposed to be impaired, est of the neutral? It is mockery to hold out which applies to the case of goods found either to him the right of employing a hostile carrier, on board of a neutral or belligerent, and this when you attach to the exercise of that right mere scintilla juris is at last the real basis upon consequences which would make it absurd for which the exception contended for must rest. a belligerent to enter into a charter-party with But in what manner is this right of adjudica- | him. If resistance, arming, convoying, caption impaired? The neutral does not deny the turing, be the acknowledged attributes and right of the belligerent to decide the question characteristics of the belligerent, then deprive of proprietary interest. If it be really neutral, him of these attributes, and you reduce him to of what consequence is it to the belligerent who a state of neutrality, nay, worse than a state of is the carrier? He has no right to capture it. neutrality; for he continues liable to all the And if it be hostile covered as neutral, the bel- danger incident to the hostile character, without ligerent is only compelled to do that which he any of the rights which that character confers must do in all ordinary cases-subdue the ship upon him. What belligerent could ever be inbefore he gets the cargo. It cannot be expected duced to engage in the transportation of neutral that the belligerent will rest his complaint goods, if the consequence of such an underupon the humiliating ground of his inability to taking be that he puts off his own character subdue his enemy; and if he should, the neu- and assumes that of the neutral, relinquishes tral may well reply it is his affair or his mis- his right of arming, or resisting, without acfortune, but ought not in any of its conse- quiring the immunities or protection of the neuquences to affect the rights of the neutral. Nor tral character. It is holding out but a shadow is it at all certain that lading on board an of a benefit to the neutral. enemy carrier is done at all times with an intent to avoid capture; it may be to solicit it; as in the case of the late war, when British goods, though neutral owned, could only be brought into our market through the medium of capture. There, instead of capture being a risk of the voyage, it was one of the chances of profit. And the hostile carrier may have been preferred to the neutral, with the express view of increasing the chances of capture.

When we come to analyze, and apply the 426*] arguments *of the defenders of this exception, I think it will be found that they expose themselves to the imputation of unfairness, in professing to sustain an exception, when they mean to aim a blow at the whole neutral right of using a belligerent carrier; or they do not follow up their reasoning in its consequences, so as to be sensible of the result to which it leads. The exception which exhausts the principle rule must be incorrect, if the rule itself be admitted as a correct one; it is, in fact, an adverse proposition, and it appears to demonstrate that all the arguments urged in favor of the exception, now under consideration, if they prove anything, prove too much, and obviously extend to the utter extinction of the rule itself, or the destruction of every beneficial consequence that the neutral can derive from it. Thus, if it be unlawful to employ an armed belligerent carrier, then what proportion of armament or equipment will render it unlawful? Between one gun and one hundred, the difference is only in degree, not

Some confusion is thrown over this subject by not discriminating carefully between the cases where a neutral shipper, and a hostile carrier, are the parties to the contract, and those in which both shipper and carrier are hostile. In the latter case, the carrier, when armed, may fairly be understood to have undertaken to fight as well as to carry. But when a neutral is the shipper, the carrier (independently of specific contract) is left to fight, or not, as he shall deem proper. *Thus, if a neutral [*428 shipper charter an unarmed belligerent, he would not be released from his contract, should the belligerent put arms or men into his ship; otherwise taking ordinary and prudent precaution for the safety of his vessel, precautions which would in general lessen the insurance on the cargo itself, would be a violation of the master's contract. And on the other hand, a belligerent master would be under no obligation to the neutral to fight, if met by an enemy on the ocean, even though particularly required by the neutral shipper. There is, then, nothing in that argument which is founded on the supposition that the neutral is assisting in expediting a naval hostile equipment, when he employs a belligerent carrier; on the contrary, he either embarrasses the belligerent in, or detaches him from, the operations of war.

It makes no difference in my view, whether the right of using a hostile carrier be considered as a voluntary concession in behalf of neutrals or as a conclusion from those principles which form the basis of international law.

We find it emanating from the same source as the right of search and adjudication, and it is of equal authority. If in practice it should ever be found materially detrimental to acknowledged national rights, it may be disavowed or relinquished; or should our own legislative power ever think proper to declare against the right, it can impose a law upon its own courts. But until it shall be so relinquished, or abrogated, we are bound to apply it with all the beneficial consequences that it was intended to produce.

ade, carry goods that are contraband of war, or engaged in other illicit trade, the goods are liable to condemnation, on principles having no relation to this case. But if employed in lawful commerce, where is the injury done to the belligerent? There is no partiality exhibited on the part of the neutral; for the belligerents are necessarily excluded from each other's ports, and cannot be employed, except each in the commerce of his own country; and so far from violating any belligerent right, the neutral *tempts the ship of the enemy from a [*431 I do not, however, consider it as a mere volun- place of safety to expose her to hostile capture, 429*] tary *concession in favor of neutral com- or detaches her from warlike operations, and merce. Were it now, for the first time, made engages her in pursuits less detrimental to the a question whether a neutral should be permit-interest of her enemy than cruising or fighting. ted to use a hostile carrier, I should not hesitate To the neutral the right of employing a hostile to decide that it would be exceedingly harsh carrier may be of vital importance. The port and unreasonable to deny to the neutral the ex- of the enemy may be his granary; he may have ercise of such a right. The laws of war and no ships of his own, no other carrier may be of power already possess sufficient advantages found there; no other permitted to be thus emover the claims of the weak, the wise, and ployed, or no other serve him as faithfully, or pacific. I am, in sentiment, opposed to the on as good terms. So, also, with regard to the extension of belligerent rights. Naval warfare, produce of his own industry, his only market as sanctioned by the practice of the world, I may be in the port of one of the belligerents, consider as the disgrace of modern civilization. and his only means of access to it through the Why should private plunder degrade the priv- use of the carriers of that port. ileges of a naval commission? It is ridiculous, at this day, to dignify the practice with the epithet of reprisal. If it be reprisal, we may claim all the benefit of the example of the savages in our forests, to whom the practice is familiarly known, but we must yield to them in the reasonableness of its application, for they really do apply the thing taken to indemnify the party injured. The time was when war, by land and by sea, was carried on upon the same principles. The good sense of mankind has lessened its horrors on land, and it is scarcely possible to find any sufficient reason why an analogous reformation should not take place upon the ocean. The present time is the most favorable that has ever occurred for effecting this desirable change. There is a power organized upon the continent of Europe that may command the gratitude and veneration of posterity by determining on this reformation. It must take effect when they resolve to en-resources. Should a similar case ever again

force it.

A case has been referred to in the argument the case of The Fanny in Dodson's Reportsin which the Court of Admiralty in England granted salvage upon goods shipped on board an armed enemy carrier captured by an American privateer, and recaptured by the British. The ground on which the court professes to proceed, according to the report, is, that these goods were in danger of being condemned in our courts, on the ground that the shipper had quit the protection of his neutrality, and resorted to the protection of arms.

Had the question decided in that case been one of forfeiture, and not of salvage, that decision would have been in point. But even then I should have claimed the privilege exercised by the learned judge who presides in that court with so much usefulness to his country, and honor to himself, of founding my own *opinions upon my own researches and [*432

occur in that court, and the decisions of this 430*] *We find the law of nations unfortu- court have passed the Atlantic, that learned nately embarrassed with the principle that it is judge will be called on to acknowledge that the lawful to impose a direct restraint upon the in- danger of condemnation was not as great as he dustry and enterprise of a neutral, in order to had imagined; and that independent of the produce an incidental embarrassment to an ene- question agitated in this case, this court would my. In its original restricted application, this have had respect to the embarrassing state of principle was of undoubted correctness, and did warfare in which the people of Buenos Ayres little injury; but in the modern extended use were involved, and adjudged that the precauwhich has been made of it, we see an exempli- tions for defense were intended against their fication of the difficulty of restraining a bellig- enemies rather than their friends. With reerent in the application of a convenient prin- gard to the award of salvage, it is well known ciple, and an opposite illustration of one of the that the grant of salvage upon the recaption of objections to admitting the exception unfavor- a neutral was the favorite offspring of that able to the use of an armed hostile carrier. But judge's administration; until then no contribusurely there must be some limit to the exercise tion had been levied upon neutral commerce to of this right by a belligerent. And it is incum- give activity to hostile enterprise. When a bent upon him to show that the restraint im- question of salvage on such a recapture shall posed upon the neutral, is indispensable to the occur in this court those adjudications will exercise of his own acknowledged right, or the come under review; but this case cannot be punishment inflicted on him to be justly due to considered in point until this court is called on the violation of his neutral obligations. Now, to decide whether the British example shall what violation of belligerent right or neutral prevail or the obvious dictate of reason, that obligation can result from the employment of the neutral should be liberated and permitted, a hostile carrier? If employed to break a block-to pursue his voyage, or at least to decide for