a of the vessels. If the neutral has acted with candour and good faith, and the inquiry has been wrongfully pursued, the belligerent cruiser is responsible to the neutral in costs and damages, to be assessed by the prize court which sustains the judicial examination. The mere exercise of the right of search involves the cruiser in no trespass, for it is strictly lawful; but if he proceeds to capture the vessel as prize, and sends her in for adjudication, and there be no probable cause, and before a voluntary landing of the slaves on board, to dissolve the relation of master and slave. Two cases, in which this interesting subject was discussed, are cited from Ortolan, Regles Internationales de la Mer, tome i. in Wheaton's Elements, 3d ed. pp. 152-154, in which it was decided by the council of state, in 1806, in the French courts, that foreign private vessels in French ports, for the purpose of trade, were exempted from the local jurisdiction, as to acts of mere international discipline of the vessel, and even as to crimes and offences committed by a person forming a part of its officers and crew, against another person belonging to the same, when the peace of the port is not disturbed. But the local jurisdiction is properly asserted as to crimes committed on board the vessel against persons not forming part of its officers and crew, or by any other than a person belonging to the same, or those committed by the officers and crew upon each other, if the peace of the port be thereby disturbed; and the jurisdiction, also, is exercised as to civil contracts made with persons not belonging to the vessel. These were the cases of The Newton, at Antwerp, and of The Sally, at Marseilles. These cases show a liberal relaxation of the strict rights of the local jurisdiction, and so they are regarded by Mr. Wheaton. Another important principle of international jurisprudence was declared by the French Court of Cassation, in 1832, in the case of The Carlo Alberto, (Sirey, Reçueil Général de Jurisprudence, tome xxxii. p. 578, cited from Wheaton's Elements, 3d edit. 154,) viz., that by the law of nations, a foreign vessel, allied or neutral, is considered as part of the territory of the nation to which it belongs, and entitled to the privilege of the inviolability of the territory; but that privilege ceases to protect her when having committed acts of hostility in the French territory inconsistent with its character of ally or neutral, and that even the pretext of putting into port in distress, will not exclude the jurisdiction of the local tribunals of a charge of high treason against the persons found on board. The Anna Maria, 2 Wheaton, 327. The right of visitation and search is sometimes laid under special restrictions, by convention between maritime states. See, for instance, art. 17 of the convention of navigation and commerce between the United States and the Peru-Bolivian Confederation, May, 1838. (1) (1) Treaties made by the United States with Guatemala, March 3d, 1849, and with Peru, July 25th, 1851, embody most of the liberal provisions for international privileges, and the preservation, during war, of neutral rights, which the neutral nations of Europe have long sought to secure. See these treaties for provisions, as, trade with enemies; definition of blockade; regulation of visitation and search; exemption of confiscation on the commencement of hostilities; reciprocal rights in the citizens to successions and inheritances, &c. 11 VOL. I. documents. L he is responsible. It is not the search, but the subsequent capture, which is treated in such a case as a tortious act. If the capture be justifiable, the subsequent detention for adjudication is never punished with damages; and in all cases of marine torts, courts of admiralty exercise a large discretion in giving or withholding damages.b *157 *A rescue effected by the crew after capture, and when the captors are in actual possession, is unlawful, and considered to be a resistance within the application of the penalty of confiscation, for it is delivered by force from force.c And where the penalty attaches to all, it attaches as completely to the cargo as to the ship, for the master acted as agent of the owner of the cargo, and his resistance was a fraudulent attempt to withdraw it from the rights of war.d Neutral A neutral is bound, 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 documents are, the register, passport or sea-letter, muster-roll, log-book, charter-party, 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 poscit subveniendum est. The concealment of papers material for the preservation of the neutral character, justifies a capture, and carrying into port for adjudication, though it does not absolutely require a condemnation. It is good ground to refuse costs and damages 2 Mason's Rep. 439. Story, J., 11 Wheaton, 54-56. • The Despatch, 3 Rob. Rep. 295. Brown v. Union Ins. Co. 5 Day's Rep. 1. The Catherina Elizabeth, 5 Rob. Rep. 232. • Answer to the Prussian Memorial, 1753. Hubner, de la Saisie des Batimens neutres. Danish Instructions, 10th March, 1810. The register of a vessel is the only document which need be on board a vessel in time of universal peace, to prove national character. Catlette v. Pacific Ins. Co. 1 Paine's Rep. 594. By the convention of navigation and commerce between the United States and the PeruBolivian Confederation, May, 1838, art. 18, the vessels of each power are to be furnished in time of war with sea-letters or passports, describing the name, property and burden of the ship, and name and residence of the commander. So they must also be provided with certificates, containing the particulars of the cargo, and the place whence the ship sailed, signed by the officers of the port. on restitution, or to refuse further proof to relieve the obscurity of the case, where the cause laboured under heavy doubts, and there was prima facie ground for condemnation independent of the concealment. The spoilation of papers is a still more aggravated and inflamed circumstance of suspicion. That fact may exclude further *proof, and be *158 sufficient to infer guilt; but it does not, in England, 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.b The Supreme Court of the United States has followed the less rigorous English rule, and held that the spoilation 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 labours 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,d 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. Livingston & Gilchrist v. Marine Ins. Co. 7 Cranch, 544. • The Pizarro, 2 Wheaton, 227. Doug. Rep. 581. truce. LECTURE VIII. OF TRUCES, PASSPORTS AND TREATIES OF PEACE. HAVING considered the rights and duties appertaining to a state of war, I proceed to examine the law of nations relative to negotiations, conventions and treaties, which either partially interrupt the war, or terminate in peace. Effect of a (1.) A truce or suspension of arms does not terminate the war, but it is one of the commercia belli which suspends its operations. These conventions rest upon the obligation of good faith, and as they lead to pacific negotiations, and are necessary to control hostilities, and promote the cause of humanity, they are sacredly observed by civilized nations. A particular truce is only a partial cessation of hostilities, as between a town and an army besieging it. But a general truce applies to the operations of the war; and if it be for a long or indefinite period of time, it amounts to a temporary peace, which leaves the state of the contending parties, and the questions between them, remaining in the same situation as it found them. A partial truce may be made by a subordinate commander, and it is a power necessarily implied in the nature of his trust; but it is requisite to a general truce, or suspension of hostilities throughout the nation, or for a great length of time, that it may be made by the sovereign of the country, or by his special authority. The general prin*160 ciple on the subject *is, that if a commander makes a compact with the enemy, and it be of such a nature that the power to make it could be reasonably implied from the nature of the trust, it will be valid and binding, though he ■ Vattel, b. 3. c. 16. sec. 233-238. Grotius, b. 8. c. 21. abuse his trust. The obligation he is under not to abuse his trust, regards his own state, and not the enemy.a A truce binds the contracting parties from the time it is concluded, but it does not bind the individuals of the nation so as to render them personally responsible for a breach of it, until they have had actual or constructive notice of it. Though an individual may not be held to make pecuniary compensation for a capture made, or destruction of property, after the suspension of hostilities, and before notice of it had reached him, yet the sovereign of the country is bound to cause restoration to be made of all prizes made after the date of a general truce. To prevent the danger and damage that might arise from acts committed in ignorance of the truce, it is common and proper to fix a prospective period for the cessation of hostilities, with a due reference to the distance and situation of places.b A truce only temporarily stays hostilities; and each party to it may, within his own territories, do whatever he would have a right to do in time of peace. He may continue active preparations for war, by repairing fortifications, levying and disciplining troops, and collecting provisions and articles of war. He may do whatever, under all the circumstances, would be deemed compatible with good faith and the spirit of the agreement; but he is justly restrained from doing what would be directly injurious to the enemy, and could not safely be done in the midst of hostilities. Thus, in the case of a truce between the governor of a fortified town and the army besieging it, neither party is at liberty to continue works, constructed either for attack or defence, and which could not safely be done if hostilities had *continued; for *161 this would be to make a mischievous and fraudulent use of the cessation of arms. So, it would be a fraud upon the rights of the besieging army, and an abuse of the armistice, for the garrison to avail themselves of the truce to introduce provisions and succours into the town, in a way, or through passages, which the besieging army would have been Rutherforth, b. 2. c. 9. Vattel, b. 3. c. 16. sec. 261. Grotius, b. 3. c. 22. вес. 4. Vattel, b. 3. c. 15. sec. 239. 244. |