glish ship, with a French cargo on board, by non-commissioned persons who were not assailed. The ship was restored to her owner, but the cargo was condemned as a droit, and the whole proceeds, of small amount, were decreed to the captors. Another protected and rewarded piracy!

In the case of the Melomasne, Rob. Adm. Rep. vol. 5, p. 41, the law is laid down without any exception, and in the most precise terms, that a capture by a non-commissioned vessel is rightful, although it enures to the benefit of the king in his office of admiralty, in the manner already explained. Exclusively of the consideration that the court, in laying down the general rule in that case, does not limit it to the case of defence, as it would undoubtedly have done if it had conceived the rule to be subject to that limitation, even if the case in which it was pronouncing its judgment was not that of an attack, it is decisive that by its sentence it sustains the capture as a droit, by the non-commissioned captor, who was the sole assailant, and rejects the claim of Captain Aylmer of the Dragon, a king's ship, who claimed the prize against the admiralty, as having been made under his authority, which authority was considered by the court, however, as amounting to no authority at all, and therefore as leaving the case to be dealt with as that of a capture by a non-commissioned boat, and consequently a capture for the benefit of the crown.

enough in the actual state of the world without its aid? It is with you to sanction this anomaly if you choose, and if you do sanction it, the nation must bear the consequences; but I have a firm persuasion that we shall not hastily be saddled with a doctrine so fatal in its tendency, especially as the authority of your judg ment, great as it is, will not, undoubtedly will not, obtain for us a reciprocal sacrifice in any country upon earth.

He then proceeded to consider the opposite argument, that the text writers on the law of nations, having made no exception to the general right of neutrals to carry their goods in enemy ships, this right must extend even to armed vessels.

The learned gentlemen refer us, in the first place, to Bynkershoek, and Ward, and Azuni,* and other writers upon the law of nations, who are imagined to have given opinions upon this point. These writers do certainly concur in declaring that neutrals cannot be prevented from employing the vessels of either of the belligerents for the purpose of continuing their lawful commerce; but they lend no color to the doctrine that the armed vessels of a belligerent may, by being so employed, be made the means of withdrawing the cargo from the inspection of the other belligerent, as well as of augmenting the perils to which the unarmed trade of that belligerent would otherwise be exposed. The treatises which have been referred to would be very good authorities to prove, if it were denied that enemy ships do not necessarily make enemy goods. They go so far and no farther. The single purpose of their authors was to investigate and condemn the sweeping rule, adopted by several maritime I could, if it were necessary, cite many other States, and at one time approved by Grotiuscases, some of which will be found in the ap-"ex navibus res prædo subjiciuntur." And pendix to the second volume of Dr. Brown's this purpose did not call upon them to settle, Civil and Admiralty Law, but I hold this matter or even consider, the matter of the present disto be too clear to be gravely contested in a tri-cussion. The question whether a hostile flag bunal like this.

It would be idle upon such a point, to accumulate authorities. It is sufficient to say that the high court of Admiralty of England, which has for many years been adorned by the most illustrious of jurists, and one of the most amiable of mankind, has been in the habit of offering bounties to piracy and temptations to licentious plunder, if my learned friend be warranted in his doctrine.

ought of itself to infect with a hostile character I assume, then, the truth of the position with the goods of a friend, may be answered in the which, in this branch of the argument, I com- negative, without in the least affecting the menced, and I ask with confidence, if it is to question whether, if a hostile force be added to be endured, that neutrals shall assemble, on the flag, a neutral can advisedly hire it without the high road of trade for the purposes of any responsibility for the consequences. The first commerce, whether altogether their own, or question looks exclusively to the national charpartly their own and partly that of a bellige-acter of a commercial vehicle; the second to a rent, as would seem to be the case on this occa- military adjunct, which in no degree contrision, ships fitted for warlike purposes as well as butes to constitute that character, or to form for defence, belonging to, and commanded and managed by, the subjects of a belligerent, and therefore having power, as far as it goes, and inclination without limit or control, to harm the opposite belligerent by annoying his trade, as well as by resisting his right of search? I ask if it is to be endured, that neutrals shall thus make themselves the allies of the English law of droits, an important portion of the English system of naval hostility, tremendous

that vehicle. A ship is as much an enemy ship, and as completely a conveyance for neutral commodities, without an armament as with it. An armament makes her more than a mere commercial conveyance for the purposes of a

* Bynk. Quæst. Jur. Pub. l. 1, c. 18. Azuni, vol. 2, p. 194,

196, (Mr. Johnson's Translation.) Vattel, Droit des Gens, 1. 3. c, 7, s. 116, et seq. Grotius, de J. Bac. P. 1. 8, c. 6. Ward on Contraband, p. 136.

neutral, by superinducing warlike accompani- | tui; sed mihi redde quod meum est, quia amiments, and worse than such a conveyance, by introducing an incumbrance unfriendly, nautically speaking, to speed and safety. In a word, the general proposition that the character of the bottom does not, "ipso jure," fix the character of the goods, is entirely wide of a proposition which asserts the effect of hostile equipment and resistance, let the bottom be what it may; and, consequently, nothing is gained to the prejudice of the latter proposition, by showing that jurists are agreed in favor of the former.

As to the reasoning, it manifestly stops at the point I have mentioned. "Licet mihi cum hoste tuo commercia frequentare; quod si liceat, The title of this book is "An Essay on Contraband: licebit quoque cum eo quoscunque contractus being a continuation of the Treatise of the Relative Rights celebrare, emere, vendere, locare, conducere, and Duties of Belligerent and Neutral Nations in Maritime atque ita porro." "Cape quodcunque est hostis | Affairs."

not mean to dispute, although it was once disputed, that friendly goods are not prize merely because taken in a vessel belonging to the enemy. It is impossible to make any thing like an authority, for the doctrine of the learned counsel, out of any or all of these loose "dicta," the subject of which was, as I have already said, the effect of the flag and ownership of the vessel upon the character of the cargo. The other passage in Azuni which the counsel refers to is no more to his purpose than that which I have examined.

"Belligerents have no right over the effects of friends and neutrals, in whatever place they may be found, though within the territory or in the vessels of enemies. For this reason, when a maritime city is taken by assault, or in any other way, the belligerent cannot seize the neutral vessels found in the port, nor their cargoes, unless they are contraband of war, and unless the captains have taken up arms or voluntarily seconded the enemy in their resistance. For a stronger reason ought the goods of neutrals found on board the ship of an enemy, to be considered as free, since it cannot be regarded as the territory of the enemy."

and conduct they had been impotent and harmless, or had not been there at all: suppose, in a word, that he is not only the tenant of them, but the creator of all that constitutes their faculty to mischief his friends, and that he has left the command of them to those who are at public enmity with these friends, without reserving any power in himself to counteract the effects of that enmity, and that then he has placed his property and himself under their auspices! Will the learned gentleman tell us that he and his property would then be neutral in the view of those by whom the place is assailed and captured, and against whom it has used the power which he has furnished, or contributed to furnish to it? I am sure he will not. Yet this is the analogous case. The Nereide was a movable fortress which the claimant brought upon the seas. She would not have been there but for him. Her armament was his armament. Her power was his power. He drew that armanent and that power into conflict, or into the opportunity of conflict with the opposite belligerent with a thorough conviction that conflict and opportunity would, and must be the same thing. From the master to the meanest sailor, every man on board fought at his cost and by his original procurement. But in the other case it is assumed by Azuni that the neutral has nothing to do with the matter. He entered the place before it was attacked. He had the clearest right to do so. He sought no protection from the force on which it relied for its defence. He did nothing towards the organization or maintenance of that force. He made no covenant with it or its owners. He did not employ it or assist in its operations: and, consequently had no more connection with it than if he and his property had been on the opposite point of the globe. The place would not have been the less attacked if he and his property had not been in it, nor would it have been better or worse defended. The whole transaction passes without involving or touching him in the slightest manner.

Now there is nothing in this passage which requires to be noticed, save only what relates to neutral vessels and cargoes found in the port of a captured city, which seems to be much confided in by the learned counsel as favorable to his case! I shall concede that the law is as Azuni states it. I only marvel that it is thought to have any bearing upon the present subject. It cannot be doubted that a neutral who is found on a lawful errand, in a captured place on land with which he has contracted no hostile obligations of any sort, (as is supposed in the case put by Azuni,) is innocent in every view, and cannot be the lawful object of hostility: if it were otherwise, every belligerent maritime city would be in a state of constructive blockade of a perfectly new invention. The supposed position of the neutral relatively to the captured place necessarily excludes the idea of penalty. He has not given or contributed We have then, at the threshold, a wide disto give to that place the military capacity which tinction between Azuni's case and ours; but it has exerted. He did not erect or assist in this is not all, although it is sufficient. The reerecting its fortifications, in levying or paying sistance of a city attacked by its enemies cannot its garrison, in furnishing its arms or stores. be inconsistent with the obligations of a neutral He has not hired those fortifications with their who finds himself there, unless he mixes in it. appendages, or in any way produced or increas- What right of the assailing power is that resisted their means of annoyance or defence. He ance calculated to violate with regard to him? has no connection with the place, further than Certainly none. The right of visitation and that he is in it upon a fair and altogether neu-search, (the only one that can be imagined to tral motive, not injurious to any body, or capable of becoming so. But suppose that for the purposes of his trade, or for any other purpose, he had hired the fortresses, the troops, the cannon, the ammunition, the provisions and all the means and implements of war, with which, as with a military force, he had united himself and his concerns. Suppose that the fortifications had been erected for his accommodation, or being erected before, had become his by special covenant; that but for his views

be material in this view,) does not apply to the subject. He is for the present rightfully out of the reach of it; and can, in fact, do nothing to facilitate visitation and search otherwise than by taking his goods out of port to the assailant, or by co-operating with the assailant to subdue the place. The first, undoubtedly, he is not obliged to do, and probably cannot and will not be permitted to do, even if there be time for it. The second would make him a traitor to the city which had hospitably received him.

During the contention of two hostile forces, neither of which he has raised up, or fostered, or adopted, he is justified in remaining a mere spectator, and is bound to do so. The right of visitation and search, therefore, of which, indeed, the ocean is the only theatre, is not infringed on this occasion. What other right, then, is violated? I know of none: I have heard of none. But this is not so in our case, if we have succeeded or should yet succeed in proving that the claimant acted unlawfully, from the first preparation of his expedition to its last catastrophe; that he violated his neutral duties by employing hostile force at all; and that when this hostile force resisted the visitation and search of an American cruiser the climax of illegality was completed.

It is said, however, that Mr. Pinto, as a merchant of Buenos Ayres, had a peculiar justifica- | tion for this armament in the danger to his property and himself produced by the cruisers of Carthagena; that it was the usage of this trade and the only adequate mode of carrying it on before the breaking out of the war between the United States and England; and that Mr. Finto intended no resistance to United States cruisers.

resistance would be made, even if he should forbid it, to the right of that cruiser to examine his property; and that if he was met by an unarmed American vessel of sufficient value to tempt the commander of the Nereide, that vessel would be assailed. The first of these consequences has happened, and by every system of law known to mankind would be visited with penalty.

The right of Mr. Pinto to make a provision of defensive force against Carthagena cruisers, cannot serve him in this cause. If he armed for limited purposes, it was for him to take care that he suited his armament to those purposes, and that its exertions were confined to them. He could not arm in such a way as to give uncontrollable power, where there already existed the desire, to exceed those purposes to the injury of those against whom he had no right to arm. If he does so arm, all that I insist is, that he does it at his peril. If his purpose is exceeded from causes palpably inherent in the nature of the armament, and the direction under which it is placed, it cannot be unreasonable to say that he must at least answer for that surplus, if it were only upon the maxim "respondeat superior;" a maxim as universal in the law As to his intentions, I do not profess to know of prize as any maxim can be: for although in with certainty what they were, and I suppose the municipal law, it generally imports only that his counsel know as little of the matter as civil responsibility, in the "jus gentium" it I do. It may be very well for them and him produces confiscation. Even in the municipal to say that it was not his intention that the pri- law, it is a cardinal rule "sic utere tuo ut vateers of the United States should be resisted alienum non lædas;" and this rule, applied to when they could be resisted with a prospect of Mr. Pinto, would, of itself, restrict his right of success, and thus be prevented from interrupt-arming, to a mode that would be compatible ing a voyage which promised to be so lucrative by the capture of the vessel in which he was performing it; but I am not apprised of the proofs by which he could be judicially exculpated from such an intention if I choose, as my learned colleague has done, to press it against him. I do not think it material, however. For let his intentions in this particular have been what they might, the law infers from his conduct all that my argument requires. Mr. Pinto set in motion upon the Atlantic a warlike force, hostile by notorious duty to the United States, a duty which he was bound to know he could not neutralize and the effects of which he was also bound to know he could not check. Every man must be taken to intend, where intention is important, the natural and ordinary results of his own acts. The municipal law of our country, and every civilized country proceeds upon that rule so as always to create responsibility for those results. The particular intention does not need to be inquired into. It is enough that the result in question ought to have been foreseen. Thus, (to put a familiar case,) if a man rides a horse accustomed to strike, into a crowd, upon an errand ever so lawful, he is liable for the mischief which ensues whether he intended that mischief or not.

The natural consequences of Mr. Pinto's acts were, that if an American cruiser, (not of an overwhelming force,) met him in his voyage

with the rights of others. He who should go into the streets accompanied by a mastiff of a surly and ungovernable temper, and accustomed to bite, (I mean no slur upon any body by this homely comparison,) even although he goes upon lawful business, and makes the dog his companion, with a view to his defence against some ruffian who has threatened him, must abide the consequences, if his associate bites those who are his master's friends, and who have, moreover, a right to stop him on his way for the purpose of some inquiry, and who have been bitten in the attempt to exercise that right.

As to what is said of the manner of carrying on this trade before the breaking out of the war between the United States and Englandis it meant to tell us that a trader continues after the breaking out of a war to have all the rights which he possessed before, merely because he is a neutral? That the war does not affect all his previous rights or habits, I admit; but it does affect them largely, nevertheless; and it affects them exactly as far as his former rights and habits would now, in their exercise and continuance, be an interference in the war. Thus before the commencement of hostilities, he could carry articles usually denominated contraband of war. After hostilities commence, he does so at the hazard of seizure and confiscation, even if his peace-traffic had been to a great extent, or altogether in such articles.