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The findings originally filed are withdrawn and the new findings, as above set forth, are now filed with this opinion.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 deter mined; 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 delin

quencies 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 neutrali. 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 subsequent 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 Inter

66

national 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

1796 to 1800 by French privateers during the war between France and England were in the nature of reprisals.

The case was argued with great force and learning, counsel reviewing the history of the times from 1754, when Washington, kindling "the first great war of revolution," fought the battle of Great Meadows, down through our Revolutionary period and the war between England and France, which culminated with Waterloo in 1815. Reference was made to the struggle of the colonies with Great Britain and the alliance with France by the treaty of 1778, which latter, he says, was abandoned by the United States in their treaty with Great Britain in 1795; that the losses to France by reason of the treaty of 1795 caused, if they did not justify, France in adopting the policy of seizing American merchantmen on the high seas by way of reprisal.

In respect to the defense of resistance to search the claimant says: Throughout this litigation it appears to have been assumed that the relations of America toward France during this period from 1796 to 1800 were solely those of a neutral toward a belligerent, and that if America suffered injury from France it was because France abused her belligerent rights. The

fallacy of the contention of the government lies in the proposition which is im plied in every argument, that nations must either be at war or at peace, and that if America was not at war with France she must have been at peace with France, and therefore had no right to resist the French claim as a belligerent to search for contraband of war in American ships.

Setting aside for the moment the legal limitations of the right of search and the manner in which France disregarded these limitations, I submit that it is a fundamental misconception of law to assume that nations must be at war or absolutely at peace. There is a perfectly recognized and well-established intermediate condition known as a condition of reprisals, which is subject to its own code. This condition of reprisals arises when a nation which conceives itself to be wronged by another proceeds to redress its own injuries by seizures. Necessarily, differences arise which lead to armed collisions. The relations be tween the two states then become equivocal. If war follow, then the declaration of war is held to be a declaration of animus from the outset, and all claims for damages are merged in one general loss by war. If, on the contrary, the reprisals be terminated by a reconciliation, then the peaceful animus relates back. and mutual compensation for loss is provided for. This was the doctrine laid down by Lord Stowell in the Boedes Lust, 5 C. Robinson, 233. It is also the theory of general international law as expounded by Wheaton, who has thus described reprisals:

"Among the various modes of terminating the differences between nations, by forcible means short of actual war, are the following:

"4. By making reprisals upon the persons and things belonging to the offending nation, until a satisfactory reparation is made for the alleged injury.

"General reprisals are when a state which has received, or supposes it has received, an injury from another nation, delivers commissions to its officers and subjects to take the persons and property belonging to the other nation wherever the same may be found.'

"The effects thus seized are preserved, while there is any hope of obtaining satisfaction or justice. If the two nations upon this ground of quarrel come to an open rupture, satisfaction is considered as refused from the moment that war is declared, or hostilities commenced; and then, also, the effects seized may be confiscated." Elements of International Law, Wheaton, §§ 290, 291, 292. The Boedes Lust, 5 C. Robinson, 246.

To justify reprisals some specific wrong must be committed and the seizure must be made by way of compensation in value for such wrong. In other words, as a means of satisfaction without resort to actua! war letters of marque are, or were formerly, issued by the state to certain of her citizens authorizing them to seize and take the person and property of the citizens of the offending state wherever found. But such reprisals when thus made will not become complete, justifying confiscation, until after hope of satisfaction has ceased or actual war has begun. Vattel, book 2, section 342 et seq.

In adjusting the claims under the act of our jurisdiction we must consider the questions in their relation to the actual state of facts existing at the time the losses occurred and as they were subsequently considered and determined by France and the United States by their treaty of September 30, 1800.

While reprisals are acts of war in fact, it is for the state affected to determine for itself whether the relation of actual war was intended by them; and if it so elects to regard such acts then the property so seized becomes liable to confiscation at once; otherwise it is to be held until hope of satisfaction has ceased.

As a matter of fact, however, neither France nor the United States treated the captures by French privateers as reprisals looking to indemnity for wrongs committed by the United States, but were, so far as we are advised, made upon the theory that American vessels were carrying contraband to aid England in her war with France, or were violating some treaty obligation between the United States and France. or some regulation of the French government against carrying English