lupum auribus teneo, and if he can withdraw himself he has a right to do so." (Duer, On Insurance, vol. 1, p. 733; Phillimore, On Int. Law, vol. 3, § 339; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 30; The Catharina Elizabeth, 5 Rob. Rep., p. 232; Wildman, Int. Law, vol. 2, p. 222.)

§ 24. The supreme court of the United States have applied the same rule to neutral property in an armed enemy vessel, and in the case of The Nereide, decided in 1815, it was held that a neutral had a right to charter and lade his goods on board a belligerent armed merchant ship without forfeiting his neutral character, unless he actually concurred and participated in the enemy master's resistance to capture. This doctrine was re-affirmed in 1818, in the case of The Atalanta, notwithstanding the contrary opinion of Sir Wm. Scott in the case of The Fanny, decided contemporaneously with that of The Nereide; it may therefore be regarded as the settled opinion of our highest court on this question of international law. The reasoning of the supreme court most ably sustains its decision, notwithstanding the powerful arguments in the dissenting opinion of Mr. Justice Story, supported as it is by the opinious of Kent and Duer, among American writers, and by the decision of Sir Wm. Scott in the case of The Fanny and the authority of English publicists generally. The question does not seem to have arisen in the continental courts. Hautefeuille sustains, on principle, the American decision against that of Sir Wm. Scott, while Ortolan merely states the contradiction between the English and American decisions. on this question, without expressing any opinion of his own upon the particular question involved. (Duer, On Insurance, vol. 1, pp. 730, 731; Kent, Com. on Am. Law, vol. 1, pp. 132, 133; The Nereide, 9 Cranch. Rep., p. 388; The Fanny, 1 Dod. Ad. Rep., p. 443; The Atalanta, 3 Wheaton Rep., p. 409; Wildman, Int. Law, vol. 2, p. 126; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 313; Hautefeuille, Des Nations Neutres, tit. 11, ch. 420; Ortolan, Diplomatie de la Mer, tome 3, ch. 7; Phillimore, On Int. Law, vol. 3, § 341.)

§ 25. The acknowledged belligerent right of visitation and search draws after it a right to the production and examination of the ship's papers. With respect, however, to the

nature and character of the papers which the neutral is bound to have on board, there is some difference of opinion. Some continental writers contend that the ordinary sea letter or passport, is all that is required, as that must establish the nationality of the vessel. If, however, it has been agreed between the belligerent and neutral, that certain papers executed in a particular form shall be carried, the absence of such papers, so executed, may be good ground of seizure. But English and American writers, as well as the decisions of the prize courts of the two countries, have held, that the neutral vessel may be required to have on board, and to produce when visited, such other documentary evidence as is usually carried, and deemed necessary to establish the character of the ship and its cargo; and that the absence or nonproduction of such papers, may, or may not, be good cause for capture, and condemnation, according to the particular circumstances of the case. The rule is very clearly stated by Chancellor Kent. "A neutral is bound," he says, "not only to submit to search, but to have his vessel duly furnished with the genuine documents requisite to support her neutral character. The most material of these document are, the register, passport or sea-letter, muster-roll, log-book, charterparty, invoice, and bill of lading. The want of some of these papers is strong presumptive evidence against the ship's neutrality, yet the want of any one of them is not absolutely conclusive. Si aliquid ex solemnibus deficiat, cum equitas pascit subveniendum est." (Kent, Com. on Am. Law, vol. 1, p. 157; Duer, On Insurance, vol. 1, pp. 734, 735; The Two Brothers, 1 Rob. Rep., p. 131; The Rising Sun, 2 Rob. Rep., p. 104; Pizarro, 2 Wheaton Rep., p. 241; The Ann Green, 1 Gallis. Rep., p. 281; Bello, Derecho Internacional, pt. 2, cap. 8, §11; Hautefeuille, Des Nations Neutres, tit. 12, ch. 1; Martens, Essai sur les Armateurs, ch. 2, § 22; Massé, Droit Commercial, liv. 2, tit. 1, ch. 2; Pistoye et Duverdy, Des Prises, tit. 6, ch. 2, sec. 4; De Cussy, Droit Maritime, liv. 1, tit. 3, § 15.)

§ 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 offense 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 labored under heavy doubts, and there was prima facie ground for condemnation independent of the concealment." (Kent, Com. on Am. Law, vol. 1, p. 161; Duer, On Insurance, vol. 1, p. 735; The Two Brothers, 1 Rob. Rep., p. 131; The Rising Sun, 2 Rob. Rep., p. 104; The Polly, 2 Rob. Rep., p. 362; Bello, Derecho Internacional, pt. 2, cap. 8, §§ 10, 11; Hautefeuille, Des Nations Neutres, tit. 12, ch. 1; Pistoye et Duverdy, Des Prises, tit. 6. ch. 2, sec. 4.)

§ 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 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 labors 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." (Kent, Com. on Am. Law, vol. 1, p. 158; Duer, On Insurance, vol. 1, p. 738; Bernardi v. Motteaux, Doug. Rep., p. 581; Livingston v. Gilchrist, 7 Cranch. Rep., p. 544; The Hunter, 1 Dodson Rep., p. 480; The Pizarro, 2 Wheaton Rep., p. 227; The Rising Sun, 2 Rob. Rep., p. 108; Bello, Derecho Internacional, pt. 2, cap. 8, § 11; Pistoye et Duverdy, Des Prises, tit. 6, ch. 2, sec. 5; De Cussy, Droit Maritime, liv. 1, tit. 3, § 15.)

§ 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." (Duer, On Insurance, vol. 1, p. 738; The Eliza and Katy, 6 Rob. Rep., p. 192; The Juffrow Anna, 1 Rob. Rep., p. 124; The Ann Green, 1 Gallison Rep., p. 275; The Sally, 1 Gallis. Rep., p. 401; The Alexander, 1 Gallis. Rep., p. 536; The Betsey, 2 Gallis. Rep., p. 384; The Fortuna, 3 Wheaton Rep., p. 245; The St. Nicholas, 1 Wheaton Rep., p. 417; Blaze v. N. Y. Ins. Co., 1 Caines Rep., p. 565; Phœnix Ins. Co. v. Pratt, 2 Binney Rep., p. 308; The Vrouw Hermina, 1 Rob. Rep., p. 163; The Calypso, 2 Rob. Rep., p. 154; The Carolina, 3 Rob. Rep., p. 75; The Rosalie and Betty, 2 Rob. Rep., p. 343; The Nancy, 3 Rob. Rep., p. 122; The Jonge Tobias, 1 Rob. Rep., p. 329; The Convenientia, 4 Rob. Rep., p. 201; The Johanna Thalen, 6 Rob. Rep., p. 72; The

Mars, 6 Rob. Rep., p. 79; The Phonix, 3 Rob. Rep., p. 186; The Enrom, 2 Rob. Rep., p. 9; The Graaff Bernstorf, 3 Rob. Rep., p. 109; The Zulema, 1 Act. Rep., p. 14.)

§ 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, coöperated 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