ing the path indicated by that tribunal, have defined it as "limited war in its nature similar to a prolonged series of reprisals." The result of that partial limited war, the result of the negotiations for settlement, the agreement reached by the two parties which made the government of the United States liable over to its citizens we have heretofore considered so much in detail that we shall not now repeat it, and we need only state briefly the result heretofore reached by us, and in which we, after re-examination, are confirmed, that the acts of France now in question, whether called "reprisals" or acts of limited warfare, were contended by the United States to be illegal, were admitted so to be by France; that France stood ready to make the compensation made by England and Spain for similar acts on their part, provided we would admit certain claims of her own; which we declined to do; and finally, by the substitution of the existing second article of the treaty for that agreed upon by the negotiators, these claims were surrendered in consideration of a release from the French demand.

It will thus be seen that the character of these claims, whether considered as reprisals or otherwise, have heretofore been considered by this court and a conclusion reached adverse to the claimants, i. e., that the captures were illegal and so conceded to be by France.

If the captures from 1796 to 1800 be treated as reprisals justifying resistance, the United States did not elect to regard such captures as acts of war unless the acts of Congress referred to be so considered, and if they be so considered then war prevailed and the captures became lawful prizes of war. But Congress, in whom the power resides, did not see fit to declare war, and the actual hostilities carried on were not only limited but were of a defensive character; so that the court must adhere to its former rulings respecting the liability of France for the illegal capture of American vessels.

That is to say, the liability of France under the act of our jurisdiction must be determined upon the basis of her illegal acts, the United States in their capacity as a neutral recognizing the belligerent right of France to visit and search American vessels; and that such right can not be transformed into a wrong by means of resistance thereto, whether such resistance be successful or otherwise. Hence, resistance to search renders a vessel liable to confiscation, the degrees of which the court can not differentiate without invading the right of the belligerent to protect itself against the possible unlawful acts of a neutral, as was held in the case of the Schooner Jane, 37 C. Cls., 24, 30.

The convention of September 30, 1800, 8 Stat. L., 178, was based on the desire to terminate not war but "the differences which have arisen between the two states." France recognized her liability for the illegal acts of her privateers, and was willing to release her claim against

the United States in consideration of the release by the United States of the liability of France to American citizens. Upon this theory the act of our jurisdiction, 23 Stat. L., 283, was passed. Congress did not thereby recognize them as claims originating in war. On the contrary, section one of the act provides:

That such citizens of the United States, or their legal representatives, as had valid claims to indemnify upon the French government arising out of illegal captures, detentions, seizures, condemnations, and confiscations prior to the ratification of the convention between the United States and the French Republic concluded on the thirtieth day of September, eighteen hundred, the ratifications of which were exchanged on the thirty-first day of July following, may apply by petition to the Court of Claims, within two years from the passage of this act, as hereinafter provided.

Therefore, in the consideration of these French spoliation claims the court has followed the executive and political departments of the gov ernment in treating them as claims arising out of the illegal acts of France and not as claims originating in war.

Now, to apply what we have said: On Oct. 11, 1799, while sailing under convoy from Demarara by the way of Martinico, St. Kitts, and Tortola, and after leaving the latter place and after parting from the convoy, the schooner Endeavor, whose master bore a letter of marque, was fired upon by a French privateer, La Victor, Mace, master, under French national colors, after which the master of the Endeavor "put himself in the best order of defense and commenced firing his stern chaser; that upon his firing the second gun the privateer struck national and hoisted the bloody flag." The master of the Endeavor " then struck his colors, hoisted out his boat, and went on board the privateer with his papers," and a prize master and crew were placed on board the Endeavor. The master of the Endeavor and his crew were then transferred to the privateer and the prize master was ordered to conduct the Endeavor to Porto Rico, and while on the way thither the Endeavor was retaken by an English frigate, who took out a salvage of one-eighth of the estimated value of the cargo in coffee and then turned her over to her mate. On November 15, 1799, the Endeavor was again taken by a French privateer, The Alliance, who put five men on board and ordered her to Porto Rico, where she arrived three days later. Upon the arrival of the vessel at Porto Rico the mate who had succeeded to the duties of the master, Brig George, 1 Sumner R., 151, 156, was im

priscned without money or friends and on December 24, 1799, at St. Thomas, after being released, he entered a protest, and from thence he returned to his home in Norfolk, Va.

The Endeavor and her cargo were then subsequently 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 Basseterre, in the Island of Guadeloupe, in the month of January, 1800, and thereby became a total loss to the owners. One of the grounds of condemnation recited in the decree was that the vessel did not have on board a rôle d'équipage in due form as required by the treaty of 1778, and, further, the condition of vessels as regards their character as neutral or enemy shall be determined by their cargoes, and if found at sea and loaded in whole or in part with merchandise the product of England or her colonies will be declared good prize no matter who may be the owners of said goods or merchandise.

Now, while we reach the conclusion that the resistance of the master at the time of the first capture would have justified the captor in taking the vessel in for adjudication, such capture did not per se operate, as between enemies, to divest the title of the captured property; and that until legally condemned, the possession of the property by the government of the captor was in trust, The Flad Oyen, 1 C. Rob., 135; 3 C. Rob., 97; The Henrick and Maria, 4 C. Rob., 43, 53.

True, the resistance to search was at the time of the first capture, and it was not made a ground of condemnation at the time of the second capture, doubtless for the reason that the capture being made by a different privateer it was unknown to the second captor at the time. it was a defense which would have been available to France and is, therefore, under the rulings of this court, now available as a defense by the United States. Ship Joanna, 24 C. Cls., 198, 203. In that case a vessel carrying contraband had been condemned on another ground, and the United States interposed the defense of contraband, which would have been available to France at the time, in respect to which the court said:

So in this court, under this peculiar jurisdiction, the defendants are at liberty to show that, while the specific reason set up by the prize court was not valid, as perhaps based upon a statute in derogation of the law of nations, still other facts appeared which, while not pressed in the prize tribunal, constituted a good defense to a diplomatic claim. The United States here is entitled to the defense which would have belonged to France at the time these claims were assumed.

Furthermore, on the second capture it is questionable whether the master, as against France, could have escaped the consequences of his resistance on the first capture, The Maria, 1 C. Rob., 340, 376. This court, in the case of the Ship Galen, 37 C. Cls., 89, 93, held that " a neutral may forfeit her neutral character by the fraudulent conduct of the master, by false destination, by resisting search." See also The Baigorry, 2 Wal., 474, 481.

In the present case the capture, recapture, and subsequent capture were while the Endeavor was on her return voyage to the United States; and the master, in addition to sailing from Demerara with an armed vessel, under convoy (though separating from the latter before capture), carried a commission issued by the President of the United States under the act of July 9, 1798, 1 Stat. L., 578, which commission gave the owners of the vessel the same authority for subduing, seizing, and capturing any armed French vessel and to recapture vessels, goods, and effects belonging to the people of the United States as the public armed vessels of the United States had under section 1 of said act.

In the case of The Brig Joseph, 8 Cranch, 451, the vessel sailed from Boston with a cargo of freight April 6, 1812, on a voyage to Liverpool and the north of Europe and thence directly or indirectly to the United States. The vessel arrived in Liverpool and there discharged her cargo; on June 30 following with another cargo taken in at Hull she sailed for St. Petersburg under protection of a British license granted June 8, 1812, which authorized the exportation to St. Petersburg and the importation of a cargo into England. The vessel arrived at St. Petersburg and there received the news of the war between the United States and Great Britain. October 20, 1812, the vessel sailed from St. Petersburg to London with a cargo consigned to merchants in London, having wintered in Sweden; in the spring of 1813 she sailed under convoy instructions from a British ship for London, where she arrived and delivered her cargo. May 29 she sailed for the United States in ballast under a British license and was captured on July 16, 1813, near Boston light-house by an American privateer and taken into Salem for adjudication and was condemned. The capture was held valid, and in the syllabus (on the margin of that case) it appears that "if an American vessel be captured on a circuitous voyage to the United States, in a former part of which voyage she has been guity of conduct subjecting her to confiscation, though at the time of capture she is committing no illegal act, she must be condemned." That quotation is cited with

approval as par. 147 in the Digest, United States Supreme Court Reports, by the Lawyers Co-operative Publishing Co., vol. 4, p. 4738.

In referring to the ancient rule respecting the condemnation of a vessel for carrying contraband goods, the court, in the case of Carrington and others v. The Merchants Insurance Company, 8 Pet., 495, 520, by Justice Story, following the case of The Neutralitet, 3 Rob. R., 295, said:

The policy of modern times has, however, introduced a relaxation on this point, and the general rule now is that the vessel does not become confiscated for that act. But this rule is liable to exceptions. Where a ship belongs to the owner of the cargo, or where the ship is going on such service under a false destination or false papers, these circumstances of aggravation have been held to constitute excepted cases out of the modern rule, and to continue them under the ancient rule. The cases in which this language was used were cases of capture upon the outward voyage. The same doctrine was afterwards held by the same learned judge to apply to cases where the vessel had sailed with false papers, and a false destination upon the outward voyage, and was captured on the return voyage. And, finally, in the cases of the Rosalia and the Elizabeth, in 1802, 4 Rob. R., (note to table of cases), the lords of appeal in prize cases held that the carriage of contraband outward with false papers will affect the return cargo with condemnation. The belligerent has a right to require a frank and bona fide conduct on the part of neutrals in the course of their commerce in times of war; and if the latter will make use of fraud and false papers to elude the just rights of the belligerents, and to cloak their own illegal purposes, there is no injustice in applying to them the penalty of confiscation. The taint of the fraud travels with the party and his offending instrument during the whole course of the voyage and until the enterprise has, in the understanding of the party himself, completely terminated.

*

See also the case of The Nereide, 9 Cranch, 388.

Respecting resistance to search, where the master had sailed under instructions to prevent inquiry and search by force, the court in the case of The Maria, 1 C. Rob., supra, by Sir William Scott, said:

However that might be, the present fact is that the commander sails with instructions to prevent inquiry and search by force, which instructions he is bound to obey, and which he is prevented from acting upon to their utmost extent only by an irresistible force. Under such circumstances how does the pre sumption of abandonment arise? If it does, mark the consequences. If he meets with a superior force, he abandons his hostile purpose. If he meets with an inferior force, he carries it into complete effect. How much is this short of the ordinary state of actual hostility? What is hostility? It is violence where you can use violence with success; and where you cannot, it is submission and strik ing your colors. Nothing can be more clear, upon the perusal of these attesta