blockade of any of the possessions of Great Britain, and hence that there could be no rightful condemnation of American vessels or cargoes on the ground of destination to a blockaded port.1

These captures, especially in the West Indes, where most of the clams arise, were made almost exclusively by privateers, of which the French Government commissioned a vast number, owing to the small number of vessels which the French Government herself possessed, to cope with the large and well-appointed British Navy. The privateers were built more for speed than for strength. Their object was to prey primarily upon merchantmen of their enemy, the British, and secondarily upon neutral commerce, including American.

On encountering a British man-of-war these privateers invariably took to their heels, failing in which they proved a ready capture to the British vessel. Any attempt on their part to blockade a British port would have been as futile as the paper pretense of doing so would have been ridiculous.

CONTRABAND.

At the time of the occurrence of these claims there was much confution in the understanding and practice of nations as to what was contraband as well as what was the consequence of the carriage of contraband as regards the ship and the rest of the cargo.

The treaty of 1778 between the United States and France settled this question by making a very clear and definite list of goods which shall be regarded as contraband and those which shall not. It also declared that nothing but the contraband goods themselves shall be confiscated, and that the rest of the cargo, as well as the ship herself, shall be free from confiscation on account of the contraband goods.

Congress, however, by act of July 7, 1798,2 declared that, on account of the repeated violation of the treaties by France, they should no longer be regarded as legally obligatory on the Government or citizens of the United States. Up to the date of this act the court has regarded all cases as governed by the terms of the treaty. After this date, however, the court has taken general principles of international law, as understood at the time, as the sole guide for the decision of

cases.

One of the questions most frequently arising has been in regard to horses. "Horses with their furniture" are expressly included by the treaty (art. 24)3 as within the description of contraband goods. The court has held in general horses must be regarded as contraband even after the abrogation of the treaty as well as while it was in force.⭑

On the other hand, in a case where after the abrogation of the treaty five horses, constituting a small proportion of the cargo, were carried by a vessel they could not be regarded as contraband.

On the question whether contraband articles "infect," as the expression is used, other articles also, the court has inclined to the view, as the one prevailing at the date of these grievances, that contraband infects other articles belonging to the same owner, as well as the ship

1 Schooner John (22 C. Cls., 408, 440-449).

21 Stat. L., 578.

Public Treaties of the United States, 1875, p. 210.

Schooner Atlantic (37 C. Cls., 17); Brig Lucy (37 C. Cls., 97). 5 Brig Juno (38 C. Cls., 465).

herself, provided she belongs to the same owner as the contraband goods.1

This view, however, would not apply to cases arising previously to July, 1798, while the treaty was in force, as that treaty expressly exempts from all penalties of contraband all other property than the contraband itself, whether belonging to the same or a different owner.2

LAND SEIZURES.

Although the terms of the jurisdictional act are broad enough to embrace all captures made under authority of the French Government, whether on land or sea, it has been decided that it was the intent of the act to confine the jurisdiction of the Court of Claims to captures made at sea. The court therefore disallowed a claim for American property seized by authority of the French Government in 1796 on Italian soil.3

RESISTANCE TO SEARCH.

It is a well-recognized rule of international law that in time of war a belligerent cruiser or privateer is empowered to visit and search any merchant vessel encountered on the high seas for the purpose of ascertaining whether the ship and her cargo are belligerent or neutral, as well as whether she is committing any offense against international law which might render her liable to capture, such as carrying contraband or sailing to a blockaded port.

The exercise of this right on the part of the belligerent implies a corresponding duty on the part of the neutral merchantman to submit peaceably to the visitation and search of the belligerent.

The violations and disregard of neutral rights which characterized the conduct of the French cruisers and privateers during this period were such as to cause Congress to pass several acts modifying, as far as it was competent for Congress to do so, this established rule of international law.

With this view, Congress, by act of June 25, 1798,* authorized “the commander and crew of any merchant vessels of the United States" to "oppose and defend against any search, restraint, or seizure which shall be attempted ""under the authority of the French Republic." The Court of Claims, in numerous decisions, has held that while the mere fact of an American merchant vessel carrying an armament under the provisions of this act did not render her lawfully liable to capture by French cruisers, yet resistance to search rendered her liable to capture by the French vessel, and invalidates any claim which might otherwise be preferred under the act of 1885.5

It seems hard that a vessel of the United States should be held to be acting in violation of international law for doing only what the laws of the United States permitted her to do. Yet the view of the court

1 Schooner Bird (38 C. Cls., 228).

2 Public Treaties of the United States, 1875, treaty of 1778 with France, art. 13, p. 207.

8 The Leghorn Seizures (27 C. Cls., 224).

41 Stat. L., 572.

5 Schooner Industry (22 C. Cls., 1, 37); Schooner John (22 C. Cls., 408, 426-440); Schooner Nancy (27 C. Cls., 99); Ship Rose (36 C. Cls., 290); Ship Amazon (36 C. Cls., 378); Schooner John (37 C. Cls., 24); Schooner Mary (37 C. Cís., 33); Schooner Endeavor (44 C. Cls., 242).

was that, whatever be the domestic laws of the United States, a claim could not arise against France if the conduct of the captured vessel amounted to a violation of international law, and that if such claim could not arise against France it can not against the United States, who assumed only the liability of France.

RIGHT OF DEFENSE BEFORE CONDEMNATION.

In a number of cases brought before the Court of Claims it appeared that the conduct of the captors was such as to prevent the master of the captured vessels from appearing before the tribunal or from interposing any defense to the proceedings to condemn the vessel and cargo. These acts of violence, preventing any effective defense against the proceedings of the captors, have been of various kinds.

In one case1 these facts appear:

On arriving at the port of Basse Terre the master and crew of the vessel were imprisoned until after the condemnation of the vessel, when they were put on board a vessel carrying a flag of truce, which conveyed them to the island of St. Christopher. By the action of the French authorities the master and owners of the vessel and cargo were prevented from appearing before the prize court and of defending the rights of the owners against the claim of the captors; and it does not appear that the master or the owners were in any way represented before said prize court or given an opportunity to be heard.

In another 2 the officers and crew were taken off of the captured vessel and she was taken to Guadeloupe by a prize crew. When the privateer with the captured officers and crew on board got to Guadeloupe they found the vessel and her cargo already condemned and sold. Some part of the crew were put in prison. Others got liberty to work.

The Thetis was then ordered to Port au Paix, where the privateer belonged; that the captured vessel sailed in company with the privateer and a brig until spoken by a Spanish frigate, when the privateer left them; that they proceeded on the voyage, but came to anchor in company with the brig in the Bay of Monte Christe, where the prize master obtained a pilot and proceeded to Fort Dauphin; from thence the master went to Cape Francois to put in a claim for the vessel and cargo, being the only officer left on board the Thetis; and thereupon the mate applied to the American consul at the cape for relief, and in company with the consul waited upon the French administration, but neither were permitted to see the authorities; thereupon they sent a petition in writing to the administration, but obtained no answer, and afterwards the prize master disclosed to the mate the condemnation of the vessel and the cargo. In still another it was found:

The sloop Townsend, Daniel Campbell, master, sailed on a commercial voyage August 28, 1798, from Boothbay, Mass. (now Me.), bound for the English island of Antigua. While peacefully pursuing said voyage she was seized on the high seas, about the 1st of October, 1798, by the French privateer Le Pelletier and carried to the island of Guadeloupe, and her master was thrown into prison, with the loss of all his sea clothes, books, and papers, where he remained for a period of about three months. He was examined in preparatory on the 10th day of October, 1798, while in prison, in which it was shown that the cargo consisted of boards, staves, shingles, and codfish.

She was there condemned by the Tribunal of Commerce and Prizes, sitting at Basse Terre, on said island, and condemned on the ground of a want of rôle

1 Schooner Good Intent (36 C. Cls., 262).

2 Brig Sally (37 C. Cls., 74).

3 Snow Thetis (37 C. Cis., 470, 471).

4 Sloop Townsend (42 C. Cls., 134, 136).

d'équipage and an invoice of the cargo, whereby the same became a total loss to the owners.

Again, in the case of The Brig Resolution1 it appeared—

That the master and crew were imprisoned at Pointe a Pitre and were held as prisoners of war, and that the master was not given an opportunity to be heard by the court.

In the case of The Schooner Rebecca 2 it was found:

Second capture.-Said schooner Rebecca again sailed from Baltimore August 30, 1796, under the command of Capt. John Hall, bound for St. Thomas and St. Bartholomew. On the 4th of October, 1796, while making her course for St. Bartholomew, she was visited and boarded by the French schooner of the Republic, L'Hirondelle (the Swallow), Capt. Caneray, of Guadeloupe, who, having examined all her papers and found them in the most perfect regularity, allowed the Rebecca to continue her course. The next day the Rebecca was again boarded, this time by a French privateer called the Passe Partout, Capt. Lange Doucet. This vessel captured her and first conducted her to the French island of St. Martin, with her officers and crew on board. At that place they took the captain and supercargo off their vessel and transferred them to a French pirogue, in which they were taken to Basse Terre, Guadeloupe. They arrived at that port on the 14th of October, 1796, and were there placed in prison.

On the voyage from St. Martin to Guadeloupe the captain and supercargo were kept in irons, fed only on bread without water, and kept on deck exposed to the sun and rain as well as to the sea washing over the vessel. On arrival at Guadeloupe the supercargo was put in prison and the captain not allowed to communicate with him. The vessel and cargo were condemned by decree of a court sitting at Pointe a Pitre in the absence of the captain and supercargo, and no knowledge was had by them of the proceedings or decree until it was shown to Capt. Hall by the Secretary of Victor Hugues, then governor of Guadeloupe.

The condemnation was on the sole ground that the supercargo, Leon Haraneder, was a Frenchman by birth and had become naturalized in the United States, and that it appeared by his certificate of naturalization, which was taken from his possession and was examined by the prize court, that he renounced all allegiance and fidelity to all powers whatever and particularly to the French Republic, and that he was therefore an enemy of the French Republic, and being such enemy the schooner was good prize.

In the case of The Schooner Juno, William Burgess, master, the captain "was treated like a dog by the French" and "was abused because he refused to let the French have his cargo at the price they offered him," and finally died.

In all these cases the court acted upon the rule laid down by Sir William Scott, afterwards Lord Stowell, in the English Admiralty (as quoted 42 C. Cls., 1750, 151):

Before the ship or goods can be disposed of by the captor there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereupon as prize in a court of admiralty, judging by the law of nations and treaties.

Such violent proceedings on the part of the nation with whom we were on terms of peace excite indignation, even at the present day, and more than justify the conclusion of the court arrived at in all of them, that proceedings so violative of every rule of international law, and, indeed, every principle of justice, must be held to give rise to a valid claim primarily against the French Government, and ultimately against the United States, who assumed. the liabilities of France.

Wherever the master or crew have been prevented by imprisonment or by enforced absence from the place of trial from making a proper

1 No. 3278, H. Doc. 89, 58th Cong., 2d sess.

2 H. Doc. 1382, 60th Cong., 2d sess.

3 H. Doc. 362, 60th Cong., 1st sess.

presentation of their case before the French tribunal acting in prize, the condemnation is thereby invalidated.

In case of The Schooner Maria (39 C. Cls., 147) the court held:

It was the right of the master to be present at the trial before the prize court to defend the owners; and where he was prevented by imprisonment from so doing the proceeding was ex parte and wholly void.

The opinion in the case of The Sloop Townsend1 thus sums up the rule:

A prize proceeding is no exception to the universal principle of justice which requires a proper legal hearing before condemnation can be ordered.

PERSONAL INJURIES.

The descriptive terms of the jurisdictional act of 1885 are "illegal captures, detentions, seizures, condemnations, and confiscations." On their face these terms seem broad enough to embrace injury to the person as well as to property. This view would have special force in view of the many indignities and personal injuries which, as we have just seen, were inflicted upon the helpless American captains and their crews.

Yet, just as we have seen that, although the terms of the act are broad enough to include land captures, they have been limited to captures at sea, so by parity of reasoning the court has concluded. that claims for the capture, detention, and confiscation of property alone were intended to be covered by the terms of the act. It has therefore disallowed all claims based upon personal injuries.2

The concluding article in the next number of the Journal will deal. with certain rules of exclusion of claims adopted by the court, as well as with the rules adopted by legislation and judicial decision, for assuring that the money allowed shall pass into the hands of the actual living next of kin of the original sufferer by French spoliations.

TREATY OF 1803 WITH FRANCE.

The jurisdictional act of 1885 provides 3

That the provisions of this act shall not extend to such claims as were embraced in the convention between the United States and the French Republic concluded on the 30th day of April, 1803.

The question has sometimes been asked whether these French spoliation claims were not pressed by our Government against France after the conclusion of the treaty of September 30, 1800, which has always been relied upon as surrendering the rights of these claimants to France for a valuable consideration.

4

We have seen that Napoleon in ratifying the convention of 1800 did so with the proviso "that by this retrenchment the two States renounce the respective pretensions, which are the object of the said article "—that is, "the indemnities mutually due, or claimed." The

142 C. Cls., 134, 151.

2 Brigs Fanny and Hope (46 C. Cls., 214).

823 Stat. L., 283; Opinions, 1912, p. 7.

The volume referred to throughout this article as "Opinions, 1912," is as follows: "Opinions of the Court of Claims in French Spoliation Cases, 1886 to 1911, Court of Claims Reports, volumes 21 to 46, and Digest of Opinions, printed for Committee on War Claims, House of Representatives, Washington, 1912."

Ante, p. 12.