contract or Cargo. papers. there are other papers on board, which satisfactorily establish the character, property, and destination of the ship and cargo. Amongst them the most imBuilder's portant is the Builder's Contract, or the Bill of Sale Bill of Sale, in case the ship has ever changed owners; and in addition the Certificate of Registry, if the municipal law of the port, from which the ship hails, requires that she should be registered. If these two papers are on board and their bona fides is not impeached, the proof of the property as regards the ship will be sufficiently complete, so far as documentary evidence is concerned. With regard to the cargo, if the ship is a general ship, her Manifest and the Bills of Lading are the best evidence of both the ownership and the destination of the cargo. If on the other hand the vessel should be chartered, the Charter-Party should also be on board; but the absence of the CharterParty will not justify the condemnation of the ship, any more than the absence of the Invoice of the goods; but the non-production of any Ship's paper, which is in strict law documentary evidence in regard either to the ship herself or to the cargo, will justify the sending the vessel into port for enquiry 89, in order that the master may account satisfactorily before a Court of Prize for the absence of the missing document. Charterparty. 88 Right of § 95. The Right of Detention for enquiry is a Detention. corollary to the Right of Visitation and Search. If the commander of a belligerent ship of war, having examined the papers found on board a merchant 88 D'Abreu specifies nine taire des Marchandises. vessel, shall perceive just and sufficient reasons for detaining her in order to proceed to a further examination, he may order a prize crew to go on board of her and conduct her to the nearest and most convenient port belonging to his Nation, subject to a full responsibility in costs and damages, if this should have been done without just and sufficient cause in the opinion of a duly constituted Court of Prize. 'It is a rule of law," says Lord Stowell, that the neutral vessel shall submit to the enquiry proposed, looking with confidence to those tribunals, whose noblest office (and I hope not the least acceptable) is to relieve by compensation inconveniences of this kind, if they have happened through accident or error, and to redress by compensation and punishment injuries that have been committed by design 89." sail under § 96. Every belligerent Cruiser has a right to insist on verifying the neutral character of every ship which it meets with on the High Seas, and which carries a neutral flag; and it is a clear maxim of law, that "a neutral vessel is bound in relation to her commerce to submit to the belligerent Right of Search." A neutral merchant accordingly cannot Neutral adopt any measures, of which the direct object is to may not withdraw his commerce on the High Seas from the convoy. free exercise of the Right of Search on the part of any belligerent cruiser. It is not competent therefore for a neutral merchant to exempt his vessel from the belligerent Right of Search by placing it under the Convoy of a neutral or enemy man-of-war. "The very fact of sailing under the protection of a belligerent or neutral convoy," says Mr. Chancellor Kent, Chancellor "is a violation of neutrality." Mr. Wheaton to a 89 The Maria, I Ch. Rob. 374. 90 Mr. Justice Story in the Nereide, 9 Cranch, p. 438. 91 Commentaries, Tom. I. p. 154. Kent. similar effect, in discussing the Danish captures under the ordinance of 1810, asks, "Why was it that navigating under the convoy of a neutral ship of war was deemed a conclusive cause of condemnation? Wheaton. It was because it tended to impede and defeat the belligerent Right of Search; to render every attempt to exercise this lawful Right a contest of violence ; to disturb the peace of the world, and to withdraw from the proper Forum the determination of such controversies by forcibly preventing the exercise of its jurisdiction"." Actual resistance on the part of the convoying man-of-war is not necessary to establish the unneutral character of the act of a merchant vessel sailing under its protection. Lord Stowell in commenting on the suggestion that the intention to resist the Right of Search was never carried into effect by a neutral vessel which had sailed under convoy of a man-of-war, observes that "the intention is unchangeable, and being so, I do not see the person who could fairly contradict me, if I were to assert that the delivery and acceptance of such instructions and the sailing under them were sufficient to complete the act of hostility 93: " § 97. It is not by the Common Law of Nations a ground for confiscating the goods of a neutral merchant, that they have been shipped on board an enemy merchant vessel, even if the master of the enemy vessel should resist the exercise of the Right of Search on the part of a belligerent cruiser. The forcible resistance of the master of an enemy merchant vessel is nothing more than the hostile act of a person who is entitled to commit acts of hostility; and there is nothing per se unneutral in the conduct of the merchant who has embarked his goods on board of an unarmed vessel, 93 The Maria, 1 Ch. Rob. P. 376. 92 Elements of International Law, Part IV. c. 3. p. 597. Prize which is enemy's property. It is a proceeding which is more likely to be attended with inconvenience to the merchant, than if he had embarked his goods on board a neutral vessel, inasmuch as the enemy vessel is liable to be captured by the belligerent, in which case the merchandise may undergo a change of destination, and fail to reach its intended market. That circumstance however is for the consideration of the neutral merchant, who cannot be presumed to contemplate resistance. "If a neutral master," says Sir British William Scott, "attempts a rescue, he violates a Courts. duty which is imposed upon him by the Law of Nations, to submit to come in for enquiry, as to the property of the ship or cargo; and if he violates that obligation by a recurrence to force, the consequence will undoubtedly reach the property of his owner 95, and it would, I think, extend also to the confiscation of the whole cargo entrusted to his care, and thus fraudulently attempted to be withdrawn from the Rights of War 96. With an enemy-master the case is very different. No duty is violated by such an act on his part, lupum auribus teneo,-and if he can withdraw himself he has a right to do so." On the other hand, if a neutral merchant should ship his goods on board an armed ship belonging to the enemy, Lord Stowell Neutral has held that such an act betrays an intention on the dise in an part of the merchant to withdraw his goods from armed ship visitation and search, for it is a presumptio juris et enemy. de jure that an armed ship will resist visitation and search. If a merchant accordingly has placed his goods under the protection of a belligerent force, he must be taken to intend to receive the protection of 94 The Catherina Elizabeth, 5 Ch. Rob. p. 232. 95 The Despatch, 3 Ch. Rob. p. 278. 96 The Washington, 2 Acton, merchan of the Prize States. 188 RIGHT OF A BELLIGERENT ON THE HIGH SEAS. it in such manner and under such circumstances as the belligerent may choose to apply it 97; in other words, he abandons the protection of Neutrality, and must for the time be regarded as adhering to the Enemy. The Supreme Court of the United States has held the United 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 ChiefJustice Marshall, who with the majority of the Court decided in the case of the Nereide 98," 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 in the United States is on this point in direct conflict with the judgment of the English High Court of Admiralty. 97 The Fanny, I Dodson, P. 443. 989 Cranch, p. 388. This decision took place in February 99 Term, 1815, and was nearly con- |