rent 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, he is responsible. It is not the search, but the subsequent capture, which is treated in such a case as a tortious act. (a) 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) 1 1 A rescue effected by the crew after capture, and *157 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) A neutral is bound, not only to submit to search, Neutral but to have his vessel duly furnished with the genuine documents. documents requisite to support her neutral character. (e) most material of these documents are, the register, passport, or The (a) 2 Mason's Rep. 439. (b) Story, J. 11 Wheaton, 54-56. (c) The Dispatch, 3 Rob. Rep. 278. Brown v. Union Ins. Co. 5 Day's Rep. 1. (d) The Catherina Elizabeth, 5 Rob. Rep. 232. (e) Answer to the Prussian Memorial, 1753. Hübner, de la Saisie des Batimens Neutres. 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. 1 Honest mistake, though induced by the act of their government, will not relieve captors from a liability to costs and damages: for the court imposes these not as a punishment, but by way of indemnity to the neutral for the loss and damage which he has sustained by the wrongful detention. The Ostsee, 33 E. L. & Eq. 28. 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. (a) 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 on restitution, or to refuse further proof to relieve the obscurity of the case, where the cause labored under heavy doubts, and there was prima facie ground for condemnation independent of the concealment. (b) The spoliation of papers is a still more aggra vated and inflamed circumstance of suspicion. That * 158 fact may exclude further proof, and be 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. (c) The Supreme Court of the United States has followed the less rigorous English rule, and held that the spoliation 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. (d) If the explanation be not prompt and frank, or be weak and futile; if the cause labors 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 evi (a) 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. Catlett v. Pacific Ins. Co. 1 Paine's Rep. 594. By the convention of navigation and commerce between the United States and the Peru-Bolivian 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. (b) Livingston & Gilchrist v. Maryland Ins. Co. 7 Cranch, 544. (c) The Hunter, 1 Dodson's Adm. Rep. 480. (d) The Pizarro, 2 Wheaton, 227. dence, which the party is not permitted to supply. The observation of Lord Mansfield, in Bernardi v. Motteux, (a) 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. (a) Doug. Rep. 581. 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. truce. 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 *160 authority. (a) The general principle 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 abuse his trust. The obligation he is under not to abuse his trust regards his own state, and not the enemy. (b) (a) Vattel, b. 3, c. 16, sec. 233-238. Grotius, b. 8, c. 21. (b) Rutherforth, b. 2, c. 9. Vattel, b. 3, c. 16, sec. 261. Grotius, b. 3, c. 22, sec. 4. 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. (a) 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 this would be to make a * 161 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 succors into the town, in a way, or through passages, which the besieging army would have been competent to prevent. (b) The meaning of every such compact is, that all things should remain as they were in the places contested, and of which the possession was disputed, at the moment of the conclusion of the truce. (c) VOL. I. (a) Vattel, b. 3, c. 15, sec. 239, 244. |