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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 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. 117 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.

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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

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tions, than that this gentleman abandoned his purpose merely as a subdued person in an unequal contest. The resistance is carried on as far as it can be, and when it can maintain itself no longer, fugit indignata.

In the case of Maley v. Shattuck, 3 Cranch, 457, 488, respecting the grounds upon which a vessel may forfeit her neutral character, the court, by Chief Justice Marshall, said:

It is well known that a vessel libeled as enemy's property is condemned as prize if she act in such manner as to forfeit the protection to which she is entitled by her neutral character. If, for example, a search be resisted, or an attempt be made to enter a blockaded port, the laws of war, as exercised by belligerents, authorize a condemnation as enemy's property, however clearly it may be proved that the vessel is in truth the vessel of a friend.

So here, where the master by force attempted to prevent visitation and search, he thereby forfeited his neutral character; and that being so, shall he, while on the same voyage, be dealt with by France as having reestablished his neutrality by yielding without force to a subsequent capture? We think not. And, therefore, we must hold that the resistance of the master to visitation and search at the time of the first capture was available to France as a defense at the time of the second capture, though no illegal act was then committed; and being a defense available to France at the time, it is now available to the United States under the act of our jurisdiction.

But the claimant contends that because the master of the vessel was spirited away, as shown in the findings, and was not examined in preparatorio or permitted to be present at the trial, the proceedings were ex parte and, therefore, illegal, notwithstanding the master's resistance to search. Furthermore, that the mate who succeeded to the duties of the master was imprisoned and not represented at the trial.

In the case of The Anne, Barnabeu, 3 Wheat., 435, 447 (a British ship captured by an American privateer during the war between England and the United States in March, 1815), Mr. Justice Story, speaking for the court, said:

A capture made within neutral waters is, as between enemies, deemed, to all intents and purposes, rightful; it is only by the neutral sovereign that its legal validity can be called in question; and as to him and him only, is it to be considered void. The enemy has no rights whatsoever; and if the neutral sovereign omits or declines to interpose a claim, the property is condemnable, jure belli, to the captors. This is the clear result of the authorities; and the doctrine rests on well-established principles of public law.

(In a footnote on that same page it is stated : “ The same rule is adhered to in the prize practice of France.”)

That case was cited with approval in the case of The Florida, 101 1. S., 37, 42, where it was said:

A capture in neutral waters is valid as between belligerents. Neither a bel. ligerent owner nor an individual enemy owner can be heard to complain. But the neutral sovereign whose territory has been violated may interpose and demand reparation, and is entitled to have the captured property restored.

Furthermore, it is there stated that: The title to captured property always vests primarily in the government of the captors.

The rights of individuals, where such rights exist, are the results of local law or regulations. Here the capture was promptly disavowed by the United States. They, therefore, never had any title.

In the case of the Schooner Good Intent, 36 C. Cis. R., 262, it is in substance held that the owners of a vessel have the right to defend their property, to show such facts as will establish the illegality of the seizure, and that if they are deprived of that right the condemnation is illegal.

In the case of the Brig Sally, 37 C. Cls. R., 74, 78, it was held that if the capture of the vessel was legal “ it was the duty of the captain of the capturing vessel to afford the captain of the Sally every reasonable opportunity to assert and maintain his rights in the proceedings to condemn the vessel founded upon capture.” Again it was there held that “it is not the seizure which confers the right of property upon a seizing vessel, but it is a judicial determination of the question of the liability of the ship founded upon such seizure.”

In the case of the Snow Thetis, 37 C. Cls. R., 470, it was held: Where the decree of the prize tribunal is silent as to the presence of the parties in interest, and there is neither protest nor proof equivalent to it showing that the owners or their agents were denied a hearing, the presumption is that they were present and given an opportunity to defend. But where it can be gathered from the action of the prize court or from proof contemporaneous with the transaction that the proceeding was one of those which justified the American complaint of that period respecting condemnations without notice to vessel owners, no effect will be given to the summary disposition of a vessel under such a decree.

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In the case of the Schooner Maria, 39 C. Cls. R., 147, 152, it was in substance held that while the seizure and condemnation of a vessel may have been for good cause, it was the right of the master to be present at the

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trial; and if prevented by imprisonment from so doing the proceeding was ex parte and wholly void. “Nor can it be held that the decree under the circumstances of this case was conclusive on that point, as the condemnation was ex parte and the proceedings illegal.”

In the present case, aside from the master having by his resistance forfeited his neutral character, we think the owners of the property were represented at the trial. The decree, after stating the capture of the Ship Endeavour from Boston, Nathaniel Griffin, master, recites that “the examination made on Frimaire 2d last, on the occasion of said seizure, by Citizen Bébian, delegate in Porto Rico; the analysis of said vessel's papers in English compared and signed Bébian, by Citizen Menard, assistant sworn interpreter of said language," from which it may be inferred that the mate, acting master, was examined in preparatorio; but if not, then the decree “is silent as to the presence of the parties;” and as it is not recited in the protest that the mate was denied a hearing the presumption is, as held in The Snow Thetis, supra, that he was given an opportunity to defend. The burden is upon the claimant to show that he was not. The mate, though imprisoned at Porto Rico, thereafter in the island of St. Thomas on December 24th, made his protest, while the condemnation did not take place until January 7th following: he was at liberty, so far as appears by the record, to attend the trial in person if he had só desired. We must therefore hold that the condemnation was legal, and the motion for a new trial is overruled. The former findings are withdrawn and new findings now filed.

The findings herein together with this opinion will be certified to Congress.

GEORGIA V. TENNESSEE COPPER COMPANY

Supreme Court of the United States, 1907

(206 U. S. 230, 236) MR. JUSTICE HOLMES delivered the opinion of the court.

This is a bill in equity filed in this court by the State of Georgia, in pursuance of a resolution of the legislature and by direction of the Governor of the State, to enjoin the defendant Copper Companies from discharging noxious gas from their works in Tennessee over the plaintiff's territory. It alleges that in consequence of such discharge a wholesale destruction of forests, orchards and crops is going on, and other injuries

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