merchantman and raked her fore and aft. To suppose that against such overwhelming force a paltry little vessel like the Jane would heave to, lose her steerage way, and then resist search is to suppose that her master and crew suddenly went mad. Probably the firing of the shotted gun into the Jane was one of those casualties which are classified as the playing with edged tools by children. The blunder of a gunner, a misunderstanding of some order, a spark falling from a heated firing iron, may have caused the shot. But, nevertheless, it was a shot fired, not at this merchantman, but on the American flag; and such shots continued until the schooner hauled down her colors, as enemies surrender in time of war. France owed an explanation of the act to the United States, but that was a matter which belonged and still belongs entirely to the diplomatic realm. On the 22d June, 1807, a British admiral undertook to apply the British doctrine of the right of search to an American man-of-war, and out of it came what has been known as the affair of the Chesapeake and the Leopard. The Chesapeake had just left the navy-yard at Washington, and her armament was found to be in a disgraceful condition. For twenty minutes the Leopard fired into her without her being able to return a single shot. As her flag was coming down, one of her officers, Lieutenant Allen, seized a burning ember in his ungloved hand and fired the only shot fired at the Leopard. (2 Cooper Naval History, 104.) This act of Lieutenant Allen was supposed at that time to be for the honor of his flag; that it should not be said that an American man-of-war surrendered without firing a shot. I do not know that a sense of honor required the master of this little schooner to fire his one shot before he hauled down his flag, but I think I may say with tolerable certainty that no case can be found in judicial decisions, or in elementary writers, or in diplomatic correspondence, where the right of search, even as defined by the two great maritime nations of the earth in the eighteenth century, is held to be or is claimed to be a doctrine so sacred as to obliterate the natural right of self-defense. It remains to be noted that (as appears from the proceedings before the French prize court) the captain of the Alliance made no charge of resistance to search by his prize; that the tribunal of commerce and prizes made no condemnation upon that ground; that the Jane was condemned because she had on board two trunks of English ginghams and her papers did not conform to French laws; and that it was not so much as heard of that the vessel resisted search until, more than one hundred years after the event, the counsel for the United States first formulated that defense. In the most of these French spoliation cases the illegality of the condemnation was in the fact that the French prize courts condemned vessels under French laws instead of releasing them under international law. In this case the illegality of the seizure was supplemented by an outrage upon the neutral flag which the vessel carried. I regret that I must dissent from the majority of the court, but I can not regard that outrage as something which can render an illegal condemnation legal. THE SHIP JAMES AND WILLIAM1 [AND OTHER CASES] [French Spoliations, 1197, 1089, 3817. Decided March 3, 1902] The James and William sails from Norfolk bound for London in January, 1798, laden with tar and turpentine. She is captured and condemned because the treaty 1795 with Great Britain declares tar and turpentine to be contraband. I. By the treaty 1778 with France it was declared that tar and turpentine "shall not be reputed contraband." Until the abrogation of the treaty by the Act of July 7, 17982 (1 Stat. L. 578), French condemnations on the ground that tar and turpentine were contraband were illegal. II. The treaty 1795 with Great Britain did not release France from any obligation of the treaty of 1778. III. The decree of the French Government abrogating so much of the treaty of 1778 as related to contraband goods on neutral vessels justified its own cruisers in seizing and its own courts in condemning vessels, but did not abrogate any treaty right of the United States. IV. The "the most-favored nation" clause in treaties relates to duties and rights and benefits in the ports of the parties. Provisions which declare what shall be regarded as contraband or non-contraband, relate to the procedure of the two nations in time of war, and are not affected by a treaty of either with another power. V. Where an American vessel carried the passport or sea letter prescribed by the treaty of 1778 (Art. XXV) it was a case where free ships made free goods under Art. XXIII. The cargo could not be condemned for want of evidence of its neutrality. 1 Court of Claims Reports, vol. 37, page 303. 2 Supra, p. 65. The Reporters' statement of the case: The following are the facts of the case as found by the court: I. The James and William sailed from Norfolk, Va., on the 26th of January, 1798, bound for London. On the 22d of February, she was captured on the high seas by the French privateer President Parker and carried into the port of Roscoff. On the 5th of March, 1798, she was condemned by the French tribunal of commerce at Morlaix. The grounds of condemnation set forth in the decree were that the tar and turpentine which formed the chief part of her cargo were declared to be good contraband and subject to seizure by the treaty between the United States and Great Britain, bearing date November 19, 1794, article 18, and that the ship's papers were not in proper form. But it likewise appears by the said decree that there was on board the vessel at the time of seizure a passport from the President of the United States to the master of the ship, dated the 20th of January, 1798, signed “John Adams,” President, by Timothy Pickering, Secretary of State, such as was provided for by the treaty with France, February 6, 1778 (Public Treaties, p. 203, Art. XXV), and likewise an affidavit made by the master of the ship, showing that she was a vessel of the United States and that no citizen or subject of powers then at war had any part or interest, directly or indirectly, therein. II. The James and William was a duly registered vessel of the United States; was built in Virginia in 1796, of 209 tons burden, and was owned by John Proudfit and the firm of David Stewart & Sons, citizens of the United States. III. The cargo of the James and William consisted of 1,878 barrels of turpentine and 96 barrels of tar, the property of John Cowper & Co., citizens of the United States, and of a case of deer hides and 17 barrels of gentian, for which no claimant has appeared. IV. The losses by reason of the capture and condemnation of the James and William were as follows: The value of the vessel was..... The freight earnings of the voyage were. The value of the cargo belonging to Cowper & Co.... Amounting in all..... .$ 9,405.00 3,500.00 5,922.00 .$18,827.00 V. The loss sustained by John Cowper & Co. was $5,922.00. VII. The loss sustained by the firm of David Stewart & Sons was: VIII. The said firm of John Cowper & Co. was composed of John Cowper, Josiah Cowper, William Cowper, and Robert Cowper, of which John Cowper was the surviving partner. The firm of David Stewart & Sons was composed of David Stewart, John Stewart, David C. Stewart, and William P. Stewart, of which said William P. Stewart was the surviving partner. The claimants herein have produced letters of administration for the estates of the parties for whom they appear and have otherwise - proved to the satisfaction of the court that they are the same persons who suffered loss by the seizure and condemnation of the James and William, as set forth in the preceding findings. Mr. William E. Curtis and Mr. Frank P. Clark for the claimants. Mr. Charles W. Russell (with whom was Mr. Assistant AttorneyGeneral Pradt) for the defendants. NOTT, Ch. J., delivered the opinion of the court: The vessel in this case sailed from Norfolk on the 26th of January, 1798, bound for a belligerent port, London, laden with tar and turpentine. Tar and turpentine, like horses, "belong to that disputable class of merchandise which may or may not be contraband, according to the circumstances of a case." (Brig Lucy, 37 C. Cls. 97.) By the treaty with France, 1778 (Public Treaties, p. 210, Art. XXIV), horses were declared to be contraband, and tar and turpentine, it was declared, "shall not be reputed contraband." Such was the law between France and the United States. By the treaty of 1794 with Great Britain (Public Treaties, p. 278, Art. XVIII), this policy was in part reversed, and tar and turpentine were declared to be con traband and "just subjects of confiscation whenever they are attempted to be carried to an enemy." The James and William was captured in February and condemned in March, 1798, on the ground that her cargo was contraband; that is to say, she was captured before the abrogation of the treaty with France, but after the ratification of the treaty with Great Britain. According to the terms of the two treaties, if an American vessel at that time, laden with tar and turpentine, was sailing for a French port, a British prize court was justified in condemning the cargo as contraband. If she was sailing for a British port, a French prize court was bound, according to the letter of the treaty, to pronounce the cargo non-contraband. Grounding his argument upon this diversity, the counsel for the United States contends that the treaty with Great Britain was, in this particular, a rescission and abandonment of the treaty with France; or that under the most-favored-nation provision of the treaty (Art. II) France was entitled to the benefit of the treaty with Great Britain. The counsel for the claimants contend that the treaty with France was still in force and that this provision of the treaty related to commerce and navigation, and not to any matter of neutral rights in time of war. The court is of the opinion that the United States relinquished no obligation to France by their treaty with Great Britain. A nation may abrogate a treaty as it may make a treaty on its own motion, upon its own responsibility. There is no international forum which can decree that it has no right to do so. What follows the abrogation of a treaty is a matter between the two nations. It may be followed by an interval in which they have no treaty relations, or it may be followed by war. But a nation can not at its pleasure abrogate one article of a treaty and leave all of the other obligations in effect, binding the other power. The decree of the French Government abrogating so much of the treaty of 1778 as related to contraband goods on neutral vessels justified its own cruisers in seizing vessels and its own prize courts in condemning them, but without notice to and acquiescence on the part of the United States the decree could not ex proprio vigore extend to the treaty rights of the United States. In July, 1798 (Act of July 7, 1798, 1 Stat. L. 578), the United States abrogated the treaty in toto, and thereby relieved France from all obligations under it. This court in these spoliation cases has always |