rects that instructions to this effect be transmitted to the several officers commanding United States blockading squadrons." Mr. Seward, Sec. of State, to Mr. Welles, Sec. of Navy, May 21, 1863, 60 "The rule in Mr. Seward's instructions of 31st October, 1862, reates only to public mails duly authenticated; and the capturing government reserves the right to make sure of the genuineness of the authentication. When the vessel is a private one, but carrying mails under a government contract, like the Cunard or Peninsula and Oriental steamers and the lines subsidized by the United States for that purpose, a government mail agent is usually on board, having them in charge. Although this fact does not in law protect the mails from search, yet it affords opportunity for general arrangements between nations, and makes special arrangements between the captors and the mail agent, in particular cases, more probable." Dana's Wheaton, § 504, note 228, p. 660. In May, 1898, a sealed package of mails from the Spanish consulate at Ponce, Porto Rico, addressed to the Spanish consulate at New York, found its way into the hands of the postmaster in New York City. The Postmaster-General expressed the opinion that the postal treaties had no bearing upon the question of its disposition. With reference to the general question of the disposition of mails found on board captured vessels, the Postmaster-General said: "Our treaty obligations in connection with them are contained in the Universal Postal Convention of Vienna, Article IV. (sec. 1) of which provides that the right of transit is guaranteed throughout the entire territory of the Union.' This provision is held to insure the safe transit under any conditions of closed mails passing from one country of the Postal Union to another country of the Union; but has no bearing on mails passing from one post-office to another postoffice in the same country." Mr. Smith, P. M. Gen., to the Sec. of State, June 1, 1898, MS. Misc. Letters. 4. RESISTANCE TO OR EVASION OF SEARCH. § 1202. "A persistent resistance by a neutral vessel to submit to a search renders it confiscable, according to the settled determinations of the English Admiralty. It would be much to be regretted if any of our vessels should be condemned for this cause, unless under circumstances which compromitted their neutrality.” Mr. Marcy, Sec. of State, to Mr. Buchanan, min. to England, April 13, 1854, H. Ex. Doc. 103, 33 Cong. 1 sess, 12, 13. "A vessel under any circumstances resisting visit, destroying her papers, presenting fraudulent papers, or attempting to escape, should be sent in for adjudication." U. S. Instructions to Blockading Vessels and Cruisers, General Orders, "14. Irrespective of the character of the cargo, or her purported destination, a neutral vessel should be seized if she "(1) Attempts to avoid search by escape; but this must be clearly evident. "(2) Resists search with violence. "(3) Presents fraudulent papers. "(4) Is not supplied with the necessary papers to establish the objects of search. "(5) Destroys, defaces, or conceals papers. "The papers generally to be expected on board of a vessel are: "(1) The register. "(2) The crew list. "(3) The log book. "(7) Bills of lading." Instructions to U. S. Blockading Vessels and Cruisers, General Orders, Stockton, in his Naval War Code, art. 23, gave the following as the 66 papers generally expected to be on board of a vessel:" (1) Register (2) crew and passenger list, (3) log book, (4) bill of health, (5) manifest of cargo, (6) charter-party, if the vessel is chartered; (7) invoices and bills of lading. The British steamship Regulus was seized off Sagua la Grande, Cuba, by a United States cruiser. It appeared that the steamer was cleared for Vera Cruz, Mexico, or Kingston, Jamaica, and not for Sagua la Grande; that certain of the papers were missing, and that the master, when the vessel was seized, refused to state what was the nature of the cargo delivered by him to the Spanish authorities at Sagua la Grande. It subsequently developed that his orders were to proceed to Sagua la Grande, if not blockaded, and otherwise to Kingston, in accordance with his clearance, for orders. The United States district attorney agreed to the release of the vessel on the pay ment by her of costs and expenses. The Department of Justice, although holding that under the circumstances the condemnation should not be enforced, expressed the opinion that the seizure was justified, and that the costs and expenses were properly imposed on the vessel, but agreed, as the prize court had very full discretion as to costs, to resubmit the question of costs to the court. Mr. Day, Sec. of State, to Sir Julian Pauncefote, British amb., No. 1179, If a vessel has a Spanish register, and sails under Spanish colors, and has on board accounts describing her as Spanish property, there is probable cause for seizing her as belonging to Spanish subjects. Del Col v. Arnold, 3 Dall. 333. "It is certainly the duty of neutrals to put on board of their ships sufficient papers to show the real character of the property, and if their conduct be fair and honest, there can rarely occur an occasion to use disguise, or false documents. At all events, when false or colouring documents are used, the necessity or reasonableness of the excuse ought to be very clear and unequivocal to induce a court of prize to rest satisfied with it. To say the least of it, the excuse is not, in this case, satisfactory; for the disguise is as strongly pointed to elude American, as British or Spanish capture." The Dos Hermanos (1817), 2 Wheat. 76, 89, Mr. Justice Story delivering the opinion of the court. Under the Spanish treaty of 1795, stipulating that free ships shall make free goods, the want of such a sea letter, passport, or such certificates as are described in the seventeenth article of the treaty, is not a substantive ground of condemnation. It only authorizes capture and sending in for adjudication, and the proprietary interest in the ship may be proven by other equivalent testimony. The Spanish character of the ship being ascertained, the proprietary interest of the cargo can not be inquired into, unless so far as to ascertain that it does not belong to citizens of the United States, whose property, engaged in trade with the enemy, is not protected by the treaty. The Pizarro, 2 Wheat. 227. "A certificate under the authority of the United States must be taken by foreign powers as genuine, and can be impeached by them only by application to the Government of the United States." Wharton, Int. Law Digest, § 409, quoted in The Conrad (1902), 37 Ct. Cl. 459. Though under the treaty of amity and commerce with France of 1788 (arts. 25, 27) an American ship on the high seas having a pass 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 lawfully 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 "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. |