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Mensaje del Vice-presidente de la República en ejercicio del P. E., al honorable Congreso de la nación al abrir sus sesiones. Abril de 1909. Asunción. 41 p.
Relaciones exteriores, justicia y beneficencia, Memoria de los actos del ejecutivo en los departamentos de, presentada a la honorable Asamblea nacional el dia 29 de Febrero de 1908. t. 1, 1906–7, 770 p.; t. 2, 19078, 329 p. Ministerio de relaciones exteriores.
Immigracion y colonizacion, Leyes y decretos sobre. 1908. Departamento de ganaderia y agricultura. Leyes de organización diplomática y consular, Reglamentos. 1907.
. 115 p. Ministerio de relaciones exteriores.
NATIONAL PEACE CONGRESS
Proceedings of the second National peace congress, Chicago, May 2 to 5, 1909. Chicago, 1909.524 p.
PHILIP DE WITT PHAIR.
The schooner Endeavor, whereof Nathaniel Griffin was then master, being an armed vessel carrying a commission issued by the President of the United States under the act of July 9, 1798 (1 Stat. L., 578), sailed on a return commercial voyage from Demerara on the 11th day of October, 1799, bound to Boston, stopping en route at several of the West Indian islands. While peacefully pursuing said voyage, on the 6th day of November, 1799, she was seized by the French privateer Victor, Captain Mace, after resistance to visitation and search, and combat, and ordered to Porto Rico.
After leaving the privateer, and while on her way to Porto Rico, the Endeavor was retaken by an English frigate, whose commander, under a claim of salvage, took out part of her cargo at sea and gave up said vessel to her mate, together with two men to help navigate her to Boston. On November 15 the Endeavor was again taken by the French, who put on board five men and ordered her to Porto Rico, where she arrived on the 18th of said month, where the mate was imprisoned without money or friends. Both said captures and the recapture were while the Endeavor was sailing on the same voyage.
Subsequently the Endeavor and her cargo were condemned as good prize for the benefit of the owners and crew of the Alliance by decree of the tribunal of commerce and prizes sitting at Basse-Terre in the island of Guadeloupe, January 7, 1800, and thereby became a total loss to the owners thereof.
The claims of the owners were not embraced in the convention between the United States and the Republic of France, concluded on the 30th of April, 1803. They were not claims growing out of the acts of France,
1 This is one of the cases coming under the head of " French spoliations.”
allowed and paid in whole or in part under the provisions of the treaty between the United States and Spain, concluded on the 22nd of February, 1819, and were not allowed, in whole or in part, under the provisions of the treaty between the United States and France, of the 4th of July, 1831.
PEELLE, Ch. J., delivered the opinion of the court:
The question of law presented arises on the claimants' motion for a new trial, assigning as ground therefor, error of the court in its conclusion on the facts found, that the claimants were not entitled to indemnity.
The findings originally filed are withdrawn and the new findings, as above set forth, are now filed with this opinion.
The question as stated by the claimant is: Did the resistance of an American merchantman, between the years 1796 and 1800, to search by the crew of an armed ship flying the French flag, raise a conclusive presumption of her guilt as a carrier of contraband of war for Great Britain, the enemy of France ?
The question, though revivified by able argument, is not a new one, and has heretofore been considered by this court, but we will review the authorities and further consider the question.
In the case of The Nancy, 27 C. Cls. R., 99, the vessel sailed from Baltimore in 1797 and was captured by an English ship and sent to St. Nicholas Mole, from which port the master was ordered not to depart without a convoy. Afterwards The Nancy sailed under the escort of an English privateer for Jeremie and on her return to the Mole under escort was captured by a French privateer, in respect to which the court said:
The question whether a neutral vessel laden with a neutral cargo is liable to condemnation if captured under enemy convoy has never been directly determined; but on a review of the cases and elementary writers, it is now held that if captured when actually and voluntarily under the protection of an enemy she is liable.
Had The Nancy been sailing under the convoy of an American vessel of war she might not have been subject to visitation, Hall's Int. L., sec. 272; but that question was not before the court, as the vessel had sailed under the convoy of an English vessel, which was of course for protection against seizure by France and necessarily against the right of search. The Nancy had associated herself with a hostile force, and upon that she relied for protection and was, therefore, pro hac vice to be considered as an enemy. The Fanny, 1 Dodson, 448; Hall's Int. L., sec. 275.
The question of resistance to search was first considered by this court in the case of The Ship Rose, 36 C. Cls. R., 290, 297. The Rose was armed, and her captain bore a commission from the President authorizing him to capture French armed vessels. On her voyage she encountered a French armed cruiser, and the two engaged in action for two and one-half hours, the Rose losing her mate and two men, and 14 wounded, while the French cruiser lost 25 killed and 21 wounded, though the Rose was captured and taken into Guadaloupe, where she was condemned as good prize on the ground of said commission, by virtue of which it was decreed that “said vessel not only did not obey the summons of the French privateer, but attacked it and defended himself until he was subdued by force of arms." By reason of said resistance, this court held that the vessel was lawfully condemned, and the claimants therefore were not entitled to indemnity, although no contraband was aboard.
That case was followed by the case of The Ship Amazon, 36 C. Cls. R., 378, 391. The Amazon was also an armed vessel and resisted search, and for that reason the claimants were held not entitled to indemnity.
In the case of The Schooner Jane, 37 C. Cls. R., 24, 30, the American vessel was armed and bore a commission and resisted visitation by flight from an unknown vessel until it was discovered to be a French privateer, when she hove to and was fired upon, which fire she returned and was subsequently captured, and her acts were held resistance to search justifying her condemnation.
In the case of The Schooner Mary, 37 C. Cls. R., 33, 37, the vessel had been seized by a French privateer, but on the following day her master and crew overpowered the captors and carried her into Tortola, where the master, being unable to put to sea for want of sufficient crew, sold the vessel and cargo at a sacrifice, and the owners sought indemnity for their loss. It was held that the rescue of the vessel by her master and crew was unlawful, as the right to search a neutral vessel carried with it the correlative duty of submitting to search. The Catherine Elizabeth, 5 C. Rob., 232; The Dispatch, 3 C. Rob., 278, and note.
Such have been the decisions of this court, founded, as we believe, upon sound principles of international law, as announced both by text writers and by courts. That is to say, the court recognized the rule that “to enforce the rights of belligerent nations against the delinquencies of neutrals” they may in self-preservation exercise the right of visit and search. The right is “founded upon necessity, and is strictly and exclusively a war right, and does not rightfully exist in time of peace, unless conferred by treaty.” 1 Kent Com., p. 153 et seq.
The right to visit and search a merchant vessel upon the high seas, whatever be her cargo and wherever bound, is an incontestable right belonging to the lawfully commissioned cruisers of a belligerent. On the other hand, where a vessel and cargo when examined prove to be neutral — i. e., in no way transgress the rights of a belligerent by way of resistance or otherwise the right of search is exhausted and the vessel must be permitted to proceed. Sec. 526 Wheaton's International Law.
The right of visitation and search negatives the idea of resistance, and hence resistance by the master of a vessel except in case of extreme violence threatened by a cruiser abusing his commission — would be unlawful. 1 Kent Com., supra.
As is said by Hall on International Law, section 275:
The right of capture on the ground of resistance to visit, and that of subse. quent confiscation, flow necessarily from the lawfulness of visit, and give rise to no question. If the belligerent when visiting is in the rights possessed by a state in amity with the country to which the neutral ship belongs, the neutral master is guilty of an unprovoked aggression in using force to prevent the visit from being accomplished, and the belligerent may consequently treat him as an enemy and confiscate his ship.
The only point arising out of this cause of seizure which requires to be noticed is the effect of resistance upon cargo when made by the master of the vessel, or upon vessel and cargo together when made by the officer commanding a convoy. The English and American courts, which alone seem to have had an opportunity of deciding in the matter, are agreed in looking upon the resistance of a neutral master as involving goods in the fate of the vessel in which they are loaded, and of an officer in charge as condemning the whole property placed under his protection. “I stand with confidence,” said Lord Stowell, “ upon all principles of reason, upon the distinct authority of Vattel upon the institutes of other great maritime countries, as well as those of our own country, when I venture to lay it down that, by the law of nations, as now understood, a deliberate and continued resistance to search, on the part of a neutral vessel, to a lawful cruiser, is followed by the legal consequences of confiscation.” Sec. 526, Wheaton's International Law.
See the case of The Maria, 1 C. Rob., 340, 377; The Elsabe. 4 C. Rob., 409.
The court is now asked by the claimant to reverse its ruling above announced on the ground that the capture of American vessels from