Duvall v. United States

reviewing the facts found to be established, delivered the opinion of the court:

The decree, reciting that the brig and cargo were lawful prize, declares that it was proven to the prize court that the clearance of the brig was simulated; that the true destination was the island of Antigua, “ but that it is a sequel of shipments of provisions for the British Army.” When we take into consideration the location of the brig at the time of capture, as well as other circumstances in the case, it cail not be and is not disputed that the brig in question was actually destined for the island of Antigua.

With this statement of the case the question for decision is whether the capture and the condemnation were illegal or otherwise.

As the island of St. Bartholomew, to which the brig was nominally bound, was a Swedish island, and thus neutral, no harm was done to France by the simulation of the voyage of the brig, and under the decision of this court in the case of the Betsey & Polly, 38 C. Cls., 30, that fact does not justify the seizure and condemnation and needs no further consideration.

*131The seizure and condemnation of the brig took place in March, 1797, and while the treaty of 1778 between this country and France was still in force, so that the- determination of the issues of law in this case depends upon the rules of international law as modified by that treaty.

Article XXIY of that treaty is as follows:

“ The liberty of navigation and commerce shall extend to all kinds of merchandises, excepting those only which are distinguished by the name of contraband, and under this name of contraband or prohibited goods shall be comprehended arms, great guns, bombs with the fuses, and other things belonging to them, cannon balls, gunpowder, match, pikes, swords, lances, spears, halberds, mortars, petards, granades, saltpeter, muskets, musket ball, bucklers, helmets, breastplates, coats of mail, and the like kinds of arms proper for arming soldiers; musket rests, belts, horses with their furniture, and all other warlike instruments whatever. These merchandises which follow shall not be reckoned among contraband or prohibited goods; that is to say, all sorts of cloths, and all other manufactures woven of any wool, flax, silk, cotton, or any other materials whatever, all kinds of wearing apparel, together with the species whereof they are used to be made, gold and silver, as well coined as uncoined; tin, iron, latten, copper, brass, coals; as also wheat and barley, and any other kind of corn and pulse; tobacco and likewise all manner of spices; salted and smoked flesh, salted fish, cheese and butter, beer, oils, wines, sugars, and all sorts of salts; and in general all provisions which serve for the nourishment of mankind and the sustenance of life; furthermore, all kinds of cotton, hemp, flax, tar, pitch, ropes, cables, sails, sailcloths, anchors and any parts of anchors,also ships’ masts, planks, boards, and beams of what trees soever; and all other things proper either for building or repairing ships, and all other goods whatever which have not been worked into the form of any instrument or thing prepared for war by land or by sea shall not be reputed contraband, much less such as have been already wrought and made up for any other use; all which shall be wholly reckoned among free goods; as likewise all other merchandises and things which are not comprehended and particularly mentioned in the foregoing enumeration of contraband Soods; so that they may be transported and carried in the ?eest manner by the subjects of both confederates, even to places belonging to an enemy, such towns or places being only excepted as are at that time besieged, blocked up, or invested.” 8 Stat. L., 26.

*132A careful examination of this article leads us to the conclusion that the contracting parties thereby modified the rules of international law as then recognized in two important particulars: (1) It made innocent or noncontraband a list of naval stores therein enumerated, such as tar,’ ropes, sailcloths, anchors, etc., which had theretofore been considered contraband. (2) It allowed free shipment by either party to ports of belligerents of the other party, all merchandise not therein specified as contraband, only excepting such places as were “ blocked up or invested.”

Even if we accept the witty statements accredited to some diplomatists that the language of diplomacy is used to conceal the real meaning and intention, it would seem that the language used in said article relating to the freedom of commerce with belligerent powers was so plain and unambiguous that it was not intended to and could not be misunderstood. If it did not mean that commerce in all of the non-contraband articles therein specified should be free with all ports of the enemy of either party to the treaty not blockaded or invested it did not mean anything.

In the Cole case, 27 C. Cls., 116, Nott, Chief Justice, commenting upon another provision in this treaty, said:

“ It is manifest that the purpose of a treaty of amity and commerce between two friendly maritime powers must have been to mitigate, and not to augment, the severities of international law.” Id. 121.

But this article was under consideration by the contracting parties in 1795, and no doubt was left as to the understanding of its meaning by this Nation. Under date of June 30, 1795, the minister plenipotentiary of the French Republic addressed a letter to Mr. Randolph, our then Secretary of State, calling attention to the fact that the so-called Jay treaty, which shortly previous to that time had been negotiated between this country and Great Britain, specified as contraband of war as between the contracting parties the same naval stores that were declared noncontraband in article 24 of the treaty between this Nation and France. Among other things he said:

“ The United States, therefore, in virtue of these acts, may freely transport to England hemp, flax, tar, peltry, cordage, *133cables, sails, sailcloth, etc., and every other thing proper for the construction or repair of vessels, without apprehending any hindrance on our part, while, by the articles of the treaty with England, the United States can not carry to us any of the articles proper for the construction of vessels, since the English have the power of seizing them. The United States have therefore granted to England a right which we have not and which in the course of the present war inclines the balance in favor of England.” America State Papers, vol. 1, p. 594.

Under date of July 6, 1795, Mr. Randolph replied to this communication, in which he showed that by the Jay treaty we had not enlarged the list of contraband articles under international law and had “therefore willfully surrendered no right relative to contraband,” and further said:

“Nor is the treaty with France contravened by this acknowledgment of contraband. It stipulates that if France be at war and the vessels of the United States carry naval stores to her enemy, French cruisers shall not capture them. The proposed treaty admits the right of Great Britain to seize such vessels going to. her enemy. The inference is that France has relaxed her strict rights in consideration that the United States have relaxed theirs in this respect, but that Great Britain will not relax hers. The treaty with France, therefore, remains uninfluenced by the proposed compact with Great Britain.” American State Papers, vol. 1, p. 595.

It will thus be seen that both this Nation and France then took the position that article 24, as between the contracting parties, made noncontraband what was contraband under international law. That was unquestionably true, and being so, why did not the same article, as between the parties, change the rules of international law relating to commerce with the ports of a belligerent of either party in noncon-traband goods, including, of course, foodstuffs, unless such ports were either “ blockaded or invested ” ? It seems to us that there is but one answer to this question, and that is that it did, and from which it would follow that the seizure and condemnation of the claimant vessel and cargo was illegal.

We do not consider it necessary at this time to enter into a historical discussion of the question of the proper observance by either of the contracting parties of the treaties of alliance and commerce between France and the United *134States of February 6, 1778. That was done in a most complete and scholarly manner by the late Judge Davis in Gray's case, 21 C. Cls., 340, and Hooper’s case, 22 C. Cls., 408, and those opinions may well be referred to as classics upon that subject. The conclusion reached is found in the following statement:

“ The treaties of 1778, particularly the treaty of commerce, which is the important one for our purposes, were in existence until the passage of the abrogating act. Whatever disputes occurred between this country and France during the disturbed period following the conclusion of the Jay treaty arose from differences of interpretation of various clauses of the Franco-American treaty, and on neither side do we find seriously advanced a contention that the treaties were not in existence and were not binding upon both nations. The United States distinctly urged their enduring force, while the French departed from this position only in this (if it be a departure), that the Jay treaty introduced a modification into their treaty with us, of which they were entitled to the benefit.

“ We are of opinion that the treaties of 1778, so far as they modified the law of nations, constituted the rule by which all differences between the two nations were to be measured after February 6, 1778, and before July 7, 1798.” Hooper’s case, 416.

That ruling has been followed by this court in the consideration of this class of cases ever since and is not open to serious discussion at this time.

Without taking into consideration the treaty of 1778 we think the seizure and condemnation of the brig in question was illegal under the rules of international law. The question involved is under what circumstances are foodstuffs liable to seizure and condemnation as contraband when shipped between neutrals and belligerents, and this question is particularly important to this country at the present time.

The only fact found in the decree of condemnation was that the brig was destined for Antigua. It is said that it is a “ sequel ” of shipments of provisions for the British Army; in other words, that was an inference, and only an inference, which the prize court drew from the fact that the brig was bound for Antigua; but this court has the same right to draw its inference from the facts in the case as the prize *135court had. Neither was the false documentation of the brig any evidence of intention to supply provisions to the British Army if the brig could properly have been documented to the island of Antigua, as we think can be shown.

When the decree of condemnation of a prize court comes up for consideration in another court, the facts stated as the reason for the decree will be examined and passed upon. Hobbs v. Henning, 7 C. B., 791; Calvert v. Bovill, 7 T. R., 523.

At this time Antigua was one of the most important of the Leeward Caribbean Islands and contained about 60,000 acres of fertile land, mostly devoted to the cultivation of sugar, cotton, and tobacco, 1 Edwards, 484. Even in 1774 it produced 17,000 hogsheads of sugar, id., 485. In 1787 there was shipped from Antigua in 71 ships to the United States 375, 150 gallons of rum, besides more than 3,300 tons of sugar, id., 506. The population of Antigua in 1791 was 2,590 whites, 37,808 slaves, besides a considerable number of persons of mixed blood and native free blacks, % Edwards, 2. The value of the imports of this island from Great Britain alone was over a million dollars, and of exports over two million dollars, 5 Edwards, Appendix, 31. Edwards says that no islands in that part of the West Indies could boast of so many excellent harbors, only two of which were fortified, 1 Edwards, 486.

These facts are stated to show that the island of Antigua was an island of some importance and devoted entirely to agriculture, raising principally sugar, cotton, and tobacco, with a considerable population in need of food from outside of its own limits. Let us see further what the facts were regarding this food supply.

In 1778 there was a scarcity of crops in Antigua, and we are told all of the negroes there would have perished had it not been for corn and flour imported from America, 1 Edwards, 485. For some time before the conclusion of the Jay treaty between this country and Great Britain in 1794 foodstuffs were not allowed to be imported into the West India Islands in American bottoms, and in consequence we are told there was great suffering there for want of food. The inhabitants petitioned Parliament to restore this com*136merce with America, representing that there was danger of the slaves dying of hunger, 2 Edwards, 496-497. The complaint of this restriction of commerce with America and consequent lack of foodstuffs was bitter, and great joy was ex-pressed when the Jay treaty was concluded and these troubles and dangers removed, % Edwards, 524; and thereafter the West India Islands received the most of their food and lumber from the United States, 5 Edwards, Appendix, 48.

All of the foregoing goes to negative any presumption that foodstuffs destined for the island of Antigua were for the supply of a few troops stationed there. In fact, we are told that in the West Indies, where at that time the slaves greatly outnumbered the whites, as we have seen they did in Antigua, a considerable number of troops were constantly kept to suppress possible slave revolts, 1 Edwards, 280, 281; from which it follows that at least the militia in Antigua at the time of the condemnation in this case were for that purpose.

A brief revieAv of the leading cases upon the question as to when foodstuffs carried in neutral vessels to belligerent ports will be considered as contraband is thought to be proper for the purposes of this case.

In the case of Jonge Margaretha, 1 C. Rob., 189, it appears that the cargo was destined for Brest, carrying Dutch cheeses from Amsterdam. The vessel was neutral, but was carrying a cargo of provisions not the product of its own country, but the product of a country which was at that time an ally of France. It is stated in the opinion in that case that in the port of Brest at that time there was a considerable French fleet in a state of preparation for sallying forth on a hostile expedition, and that this cargo of cheese was being taken there for the purpose of supplying this fleet. In discussing this question Sir William Scott said:

“ The nature and quality of the port to which the articles were going is not an irrational test. If the port is a general commercial port, it shall be understood that the articles were going for civil use, although occasionally a frigate or other ships of war may be constructed in that port. Contra, if the great predominant character of a port be that of a port of naval military equipment it shall be intended that the articles were going for military use, although merchant ships resort to the same place and although it is possible that the articles might have been applied to civil consumption.”

*137Further along he refers to the case of the Endraught, cited by the claimant in that case, the destination of which was Bordeaux, and in which case the seizure was declared illegal. Upon that case he remarks:

“ Though smaller vessels of war may be occasionally built and fitted out there it is by no means a port of naval military equipment in its principal occupation in the same manner as Brest is universally known to be.”

In the case of the Edward, 4 C. Rob., 68, the ship was Prussian, with a cargo of wines claimed for Prussian subjects on a voyage from Bordeaux ostensibly to Emden, a neutral port in Hanover, but the court found in that case that there was an evident intention on the part of the master to carry the cargo into Brest, a French port, “ where there was notoriously a large armament lying very much in want of articles of this kind — articles of an indispensable nature” — and it was found in that case that wines, which constituted a large part of the cargo of the vessel, were to be considered as naval stores, which were especially needed by the fleet at Brest, as the latter port was not within a wine country.

The Commercen, 1 Wheat., 382, is the leading case in this country upon this question. That was a Swedish vessel on a voyage from Limerick in Ireland to Bilboa in Spain, and was captured on the 16th day of April, 1814. Bilboa at that time was the rendezvous for the British forces in Spain (and Great Britain had no other citizens there), and it was found in that case by the official papers of the customhouse, as well as by the private letters of the shippers, that the cargo was shipped for the sole use of His Britannic Majesty’s forces then in Spain. In the opinion in that case Justice Story says:

“ But if such goods are destined for the direct and avowed use of the enemy’s army or navy, we should be glad to see an authority which countenances this exemption from forfeiture.”

And further along states:

“ Here is a cargo of provisions exported from the enemy’s country with the avowed purpose of supplying the army of the enemy.”

*138In all of these cases it appeared that the facts found showed that the vessels were unquestionably destined to supply either the enemy’s naval or military equipment, and it by no means follows that because the belligerent power may have some forces, either naval or military, stationed at the port for which the vessel was bound, that that fact alone makes the cargo subject to condemnation, but that it must further appear that the cargo was intended for the supply of such naval or military forces. In other words, because a few naval vessels may be stationed at a port or a small military force may be located there does not deprive the inhabitants of that port or locality of the privilege of receiving necessary food from neutral nations.

The following language, quoted from Hall on Int. Law, page 619, is here applicable:

“ To divert food from a large population when no immediate end is to be served, because it may possibly be intended to form a portion of supplies which in almost every case an army or a squadron could complete from elsewhere with little inconvenience, would be to put a stop to all neutral trade in innocent articles. But writers have been satisfied with a broad statement of principle, and they have overlooked an exceptional and no doubt rare case, in which, as it would seem, provisions may fairly be detained or confiscated. If supplies are consigned directly to an enemy’s fleet, or if they are sent to a port where the fleet is lying, they being in the latter case such as would be required by ships, and not ordinary articles of import into the port of consignment, their capture produces an analogous effect to that of commissariat trains in the rear of an army. Detention of provisions is almost always unjustifiable, simply because no certainty can be arrived at as to the use,which will be made of them; so soon as certainty is in fact established, they and everything else which directly and to an important degree contributes to make an armed force mobile, become rightfully liable to seizure. They are not less noxious than arms; but except in a particular juncture of circumstances their noxiousness can not be proved.”

We also quote from Taylor's Int. Law, page 737:

“ Despite the suggestion made by Lord Stowell in the case of the Ranger, that a claim might legally be made to condemn all provisions whether intended for military consump*139tion or not, the sounder view undoubtedly is that provisions can only be contraband when intended for military use, or when sent to ports actually besieged or blockaded.”

Some international law writers even went so far as to say that foodstuffs never should be declared contraband. Blunt-schli, sec. 807.

In the case of the brig Lydia Allison, decided by this court at the last term, the facts in the case as to destination of the vessel, false route, cargo, etc., were almost exactly identical with those in the instant case, and this court decided the seizure and condemnation to be illegal.

In the Hooper case, 22 C. Cls., 408, the vessel was documented for Martinique, a British port, and was laden with food and lumber; she was seized in February, 1800, which was after the abrogation of the treaty of 1778, and destroyed. This court decided the seizure to be illegal, and in the course of the court’s opinion in that case it was said:

“ Martinique was neither blockaded nor besieged. It undoubtedly had a British garrison and was a refuge and sometimes a rendezvous for British armed vessels; at the same time it had a large civil population to be fed then, as it is now, largely by the products of the temperate zone. Its predominant character was not that of a port of naval or military equipment.”

This question was raised between the United States and Great Britain during the Boer War, in connection with the seizure of the vessels Beatrix, Maria, and Mashona, which were taken by British cruisers to Del ago a Bay. In the course of the correspondence Lord Salisbury, one of the greatest and most learned statesmen of Great Britain during the last century, thus defined the position of the British Government on the question of contraband:

“Foodstuffs with a hostile destination can be considered contraband of war only if they are supplies for the enemy's forces. It is not sufficient that they are capable of being so used. It must be shown that this was in fact their destination at the time of seizure?

This statement by Lord Salisbury is in harmony with what is laid down in Holland’s Manual of Naval Prize Law, issued by the British administration in 1888.

*140In the war between Russia and Japan the Russian Government issued to its naval officers instructions in which foodstuffs were designated as contraband of war. The British Government protested against this prohibition, which included rice and provisions as unconditional contraband, this being regarded as “ inconsistent with the law and policy of nations.” The British Government, it was declared, did not contest that “ in particular circumstances provisions may acquire a contraband character, as, for instance, if they should be consigned direct to the army or fleet of a belligerent or to a port where such fleet may be lying,” but it could not admit that “if such provisions were consigned to the port of a belligerent (even though it should be a port of naval equipment) they should therefore be necessarily regarded as contraband of war.” The true test appeared to be “whether there are circumstances relating to any particular cargo to show that it is destined for military or naval use.” John Bassett Moore, Contraband of War, p. 35.

August 30, 1904, Mr. John Hay, our then Secretary of State, sent a letter of instructions to Mr. McCormick, our ambassador at St. Petersburg, regarding this same matter, in which he used the following language:

“When war exists between powerful States it is vital to the legitimate maritime commerce of neutral States that there should be no relaxation of the rule — no deviation from the criterion for determining what constitutes contraband of war, lawfully subject to belligerent capture, namely, warlike nature, use, and destination. Articles which, like arms and ammunition, are by their nature of self-evident warlike use, are contraband of war if destined to enemy territory; but articles which, like coal, cotton, and provisions, though ordinarily innocent are capable of warlike use, are not subject to capture and confiscation unless shown by evidence to be actually destined for the military or naval forces of a belligerent.”

From all these authorities it appears that it must affirmatively be found, in order to make foodstuffs contraband (except in case of blockade or investment), that the food was destined to supply the belligerent’s army or naval forces, and no such presumption arises simply from the fact that there is either a naval or army equipment at the destination, *141if there are noncombatants there in need of food; and any other rule would be cruel and inhuman.

As was said in the Resolution, 2 Dallas, 19:

“A question is made: On whom lies the onus probandi? We think the captors. There can be no condemnation without proof that the ship or cargo is prize.” Id., 22.

War is severe enough without adding to it by imposing suffering and starvation upon defenseless human beings who are so unfortunate as to be living in belligerent territory where there happens to be a few soldiers quartered. Instead of there being any presumption or fear of a “ sequel ” that this considerable shipload of corn and flour was going to Antigua for the supply of the few troops stationed there, there was every presumption, amounting almost to a certainty, that it was being carried there as a food supply for the inhabitants of the island. Certainly that presumption should prevail until there is something more than a mere suspicion to the contrary, based entirely upon the fact that a few troops happened to be stationed at one or two of the numerous ports on the island. See Resolution, supra.

But what are the facts in this case ? The cargo, consisting entirely of foodstuffs and a few staves, was destined not to any particular port, but generally to the island of Antigua, where there were ten times as many noncombatants in need of food as soldiers; and there is nothing to show that it was destined to either of the two fortified ports among the many ports of that island. And what if it was? We know of no case where it has been held that the inhabitants of fortified towns can not be fed by neutral vessels. All important seaport towns are more or less fortified.

dissenting:

The brig Sally, whereof John Beaty was master, sailed on a commercial voyage from Baltimore documented for and with instructions to land at St. Bartholomew, a Swedish island. The vessel was seized to the leeward of Antigua by *142a French privateer, taken as good prize to the tribunal of commerce sitting at Basse-Terre, and by the prize court condemned with its cargo. Under the act of January 20, 1885, 23 Stat.L., 283, the present proceeding was instituted against the United States for what is now claimed to be an illegal condemnation. The cargo of the brig consisted of 2,604 bushels of corn, 532-J barrels of flour, and 1,500 staves. The ground of condemnation translated from the French (but incorrectly set forth in the findings of the court) is as follows:

“ It is proven by the letters found hidden on board and addressed by the owners to Henry Anderson at Antigua on February 8 and 18,1797, that the clearance of the brig Sally for St. Bartholomew is simulated; that the true destination is the island of Antigua; that it is a sequel of shipments of provisions for the British Army; that the passport issued for the island of St. Bartholomew has thus been infringed.”

Thus it appears that the vessel was carrying foodstuffs, not to a neutral port but to an island of one of the belligerents for the use of the British Army, and that 'belligerent an enemy of France.

Out of the language of the decre» the majority think that the only fact found in the decree of condemnation was that the brig was destined for Antigua; in other words, “ sequel ” as used in the decree was only an inference which the prize court drew because the brig was going to Antigua, but that this court has the same right to draw its inferences from the single fact in the case as the prize court on its knowledge of the situation had. Further, that a false documentation of the brig was not evidence of the intention to supply provisions to the British Army. There were no qualifying words in the decree. The use of the word “but” in the findings of this court does not conform to the prize court decree.

For cases of this class the Court of Claims is neither a court of appeals to set aside the findings of. the prize court nor a court of errors to destroy the effect of the findings which condemned the ship.

Surprise.was expressed by the Supreme Court in the recent case of The John li Estate v. Brown, 235 U. S., that courts *143of another jurisdiction, sitting long after the action of another court, should know its duties and powers so much better than there shown as to be entitled to pronounce the proceedings in the court of first jurisdiction void, adding that the caution required in such a venture has been stated and restated from the case of United States v. Percheman, 7 Pet., 95, to Michigan Trust Co. v. Ferry, 228 U. S., 354.

In cases relating to the burden of proof the innocent purpose must be shown by claimant where any doubt exists as to the intention — carrying out the general rule asserted in The Dolphin, 27 C. Cls. R., 276; The Tom, 29 Ibid., 96, and The John, 22 Ibid., 454. In Hooper’s case, 22 Ibid., this court stated the general rule that the burden of proof in prize proceedings is on the vessel. So there is nothing to show that this vessel cleared itself of the causes assigned for the prize court’s decree.

Finding I, as stated by the majority of the court, should be amended so as to show that the vessel was not bound “ for the island of St. Bartholomew or the island of Antigua.” The finding should show that the vessel was falsely documented to St. Bartholomew, but was captured while undertaking to go to Antigua, thus proving the false documentation and sustaining the prize court decree, not only in going to Antigua but for the purpose stated in the decree that the cargo was designed to supply the British Army on that island.

The prize tribunal was a court of competent jurisdiction, with the right to draw its conclusions by stating the ultimate fact from all the evidence before it. This court is without jurisdiction to state anything in the nature of an ultimate fact in the present case, except upon proof of the most preponderating character that the vessel was not taking a cargo to a belligerent enemy and also upon proof that the vessel was carrying the proper certificate under Article XXV of the treaty. In all cases where the decree of a prize court is assailed the ground of the condemnation must appear to be insufficient under international law or under a treaty where applicable. On the facts recited in the decree the burden of disproving the recitals is always upon those disputing the allegations, and this proof must be of the *144most satisfactory character before a decree can be set aside on facts sufficiently appearing in the decree. Any other rule would provoke conflicts between nations at war and neutrals. No country with power enough to resist would tolerate any different rule. We can not go behind the recitals of the decree and its results. The right here is restricted to the effect of the recitals, with no power to deny that the shipment was to the enemy of the French.

“ Sequel ” as used in the decree meant nothing else but that the voyage was the succession of a series of shipments for the same unlawful purpose of supplying the troops of the belligerent enemy, the dictionaries including within the definition of the word “sequel” that this voyage was but the “ continuation ” of the previous practice in that regard.

The proof upon which the decree was predicated consisted of letters hidden on board the captured vessel. One of the owners, the Henry Anderson named in the record, was on board. Another owner gave instructions to the master to go to St. Bartholomew and sell that part of the cargo which was perishable and deliver all of it to Henry Anderson. These instructions were either fraudulent or Henry Anderson, the owner on board and the master, fraudulently violated the instructions of the home office. At the time of the capture the ship was to the leeward of Antigua. The majority opinion affirms the record fact that the vessel was making for Antigua and not St. Bartholomew. The protest of the master is silent as to the reasons assigned by the decree respecting the hidden papers, the false documentation, and the true destination. Neither master nor the owner on board, nor anyone else, denied the charge of the simulated purpose of the shipment in the face of the decree with which they were familiar when they made their protests and which decree recited the fact that the shipments were intended for the military use of the British Army. Thus, the privateer had proof that the cargo was being carried for a purpose, not to supply the foodstuffs to the civil population of Antigua, which may have been lawful, but to feed the enemy forces, which was certainly unlawful.

Antigua was an English island on which there were 10 forts, 2 batteries, .and numerous guardhouses. Before the *145capture the military establishment, consisting of two regiments of infantry, two regiments of foot militia, with a squadron of dragoons and a battery of artillery, had been established on the island as a part of the armament of England. Edwards' History of West Indies, vol. 1, p. 484, 2d ed. English shipping rendezvoused around Antigua for the protection of this establishment and in furtherance of the hostile operations against the French in that part of the world. The white population was small, numbering only about 2,600, with nearly 40,000 slaves, besides a large number of native blacks free and persons of mixed blood. 1 Ed-wardssupra. The importance of the island grew out of its nearness to other islands under the dominion of England and other countries. The military establishment was necessary to prevent the uprisings of the black population as well as to operate when necessary against the contiguous group of islands in the neighborhood. In view of all these facts, it is unreasonable to indulge in the presumption that the foodstuffs were destined for anybody else but the British forces according to the language of the decree, as well as the surrounding circumstances which led to the decree.

The injection of the international-law rule into the discussion is irrelevant if the neutral was protected by a treaty. Both propositions must be noticed by me in their order.

It is universally conceded that, if a belligerent has reason for believing that a cargo is bound directly for the use of an enemy force the belligerent authority has the right to take the vessel of a neutral in for examination and trial before a prize court of the country to which the belligerent captor belongs; and to make a decree thereon arising out of the presumptions from the proven facts.

Destination for the enemy country and for use of conditional contraband for the people in general for articles conditionally contraband is lawful, but destination for the use of such articles by an enemy Government or its armed forces is not lawful.

Here the cargo in itself was relative contraband. Foodstuffs, classed as conditional contraband, may lawfully be shipped to territories of belligerents when, in fact, not *146destined or intended as supplies for the belligerent Government or its armed forces. Shipments to enemy forces are by every stated rule in the law of nations declared to be unlawful. That rule was stated by Grotius, sometimes called the father of international law; decided by the greatest enun-ciator of admiralty law, Sir William Scott; passed on to Lord Salisbury; adopted by the Supreme Court of the United States; and in this day and time, while Europe is aflame with war, correctly stated by Sir Edward Grey and accepted by the American Government. According to Lord Salisbury the rule was and is that “ foodstuffs with a hostile destination can be considered contraband of war only if they are supplies for the enemy’s forces * * It must be shown that this was in fact their destination at the time of seizure. What else can we make out of an admitted decree to that effect than that the goods being shipped in this neutral were strictly for the use of the British Army. The decree so saying can not be whittled away by construction.

In Jonge Margaretha, 1 C. Rob., 189, Sir William Scott said that if the predominant character of the port to which the neutral was going was a port of naval military eguipment it shall be intended that the articles are going for military use, and notwithstanding merchant ships resort to the same place; although “ it is possible that the articles might have been applied to civil consumption.”

In the Edward, 4 C. Rob., 68, the same judge “ inferred ” an intention on the part of a Prussian ship in going into a French port, and said that inasmuch as no reason was assigned why the vessel should have been found where she. was described to be, but, on the contrary, where the ordinary rules of navigation required a different course the court was obliged to “ infer ” that the change of course was had without justifiable cause, and that the intention of getting into a port to which there was no documentation to supply an enemy was unlawful, though wines were not an article generally contraband per se. The French port named in that case was Brest, where there was notoriously an armament, and wines were to be considered articles of an indispensable nature. This case was founded upon the decision in the Jonge Margaretha, supra, and is sustained by the case of the *147Franklin, 3 C. Rob., 217; Zelden Rust, 6 C. Bob.; and The Ranger, 6 Ibid., 125.

In The Commercen, 1 Wheat., 598, the Supreme Court said: “ If the neutral be guilty of fraudulent or unneutral conduct, by carrying articles destined for military use, that is, destined for the army or navy of the enemy, or for his ports of naval or military equipment, such articles are to be deemed contraband.” The court added that if such goods are destined for the direct or avowed use of the enemy army or navy the court would be glad to see an authority which countenanced this exemption from forfeiture, even though the property of a neutral. That case presented the question of the forfeiture of freight.

In Carrington v. Merchants’ Ins. Co., 7 Pet., 518, Mr. Justice Storv, in reviewing the cases, declared for the Supreme Court that “ 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 use papers to elude the just rights of belligerents and cloak their own illegal purposes there is no injustice in applying to them the penalty of confiscation.” The court thought that the general features of the transaction must be taken into consideration in determining whether the neutral owner intended or did not intend by consenting to the transportation, to mix in the war.

Who could better judge of this than the French prize tribunal that condemned the neutral in the case at bar for taking enough part in the war between France and England to carry foodstuffs to the army on and the navy around the island, with .no opportunity on the part of the belligerent enemy to get supplies except from the agricultural population of Antigua or from neutrals willing to offend against the laws of nations ?

In the Peterhoff, 5 Wall., 59, the Supreme Court said that merchandise which may be and is used for purposes of war or peace was contraband “ when actually destined to the military or naval use of a belligerents That is this case.

These authorities uphold Lord Salisbury’s doctrine that foodstuffs may be held up “when destined to an enemy force,” because such a cargo was unlawful.

*148Sir Edward Grey recently stated that foodstuffs should not be put into a prize court without presumption that they are intended for the armed forces of the enemy or their government. Our Government admitted this doctrine not only as to foodstuffs but as to other articles of common use known as relative contraband; that is, if destined for inhabitants generally, such conditional contraband should not be seized, but if designed for the enemy’s use or his armed forces seizure and detention became lawful.

Who now can doubt that the vessel named in this case was violating the laws of neutrality; that she was pretending to go to a neutral port whilst actually sailing to belligerent ports; that her hidden papers were intended to deceive; that she was aiding one of the belligerents to the injury of another? Who can doubt that she came within the rule declared by Dr. Taylor that her cargo was intended for military use and exclusively designed for military purposes? Taylor’s Int. Law, 737.

Antigua was in possession of an enemy force, and, according to the Supreme Court, the prize court rightly assumed that the cargo was intended to feed the forces of the enemy in possession, and therefore it was contraband “by destination.” The Prize Oases, 2 Black., 671, 672; Desty on Shipping, sec. 423; The Peterhoff, 5 Wall., 59. Destination is specially important, declared Chief Justice Chase in the Peterhoff, supra, and why should this court now “ assume ” something different from what the prize court had a right to assume and did assume in finding the purpose of the false documentation? English gold was expected for the contraband stuff; nothing was expected from a starving population.

The rights of commerce are important, but not more so than the rights of belligerents struggling for national existence. There will ever be a conflict on the one hand in the assertion of the absolute commercial right to buy and sell whatsoever may be offered for transport, and, on the other hand, the right of the belligerent to prevent the import and export of goods that commerce has chosen to barter for purposes of gain. No rule ever existed in the law of nations, or *149under any treaty, which took from a belligerent the right to prevent the carriage of goods which enabled another warring Government to carry on its war.

The majority rely upon the right of this neutral to aid the English enemy of France by falling back upon Article NXIY of the treaty of 1778 between the United States and France, because, it is alleged, that article of the treaty allowed free shipment by either party to ports of belligerents of the other party of all merchandise not therein specified as contraband, only excepting such places as were blockaded or invested.

That treaty was not in actual force. It had become a dead letter. It was obsolete.

When the treaty was enacted the world was at peace. The treaty was entered into with no expectation on the part of our Government that the United States would be at war with anybody and might suffer from the acts of neutrals in the carrying trade. So when the treaty was executed France had no expectation of seeing neutrals from this country aiding her future English adversary by feeding that adversary’s forces.

From the time neutrals began to violate the laws of neutrality and the French began the seizure of our ships (some with great reason and some without reason, as the records of this court show) the treaty had no practical application. The aggressions may have been mutual, but it is certain that there was much in the French contention that privateers were put upon the high seas by the French to prevent the carrying of contraband, absolute or conditional, to the naval armaments and military establishments of Great Britain. The French contention was that the traffic was illegal and that cargoes carrying contraband ceased to be neutral goods, but became “ enemy’s property.” Ships and shipowners aided the British, and such neutral owners became pro hae vice the enemy, 3 Wash. C. C. R., 183. Our Supreme Court said in the Prize Gases that the word “ enemy ” was a technical phrase peculiar to prize courts and depending upon principles of public policy as distinguished from the common law.

*150Generally speaking, goods carried under tbe flag of a country, whether that flag waves on land or sea, is entitled to the protection of the Government whose flag it is. When a merchantman of this country steams into a foreign port and unloads the cargo, the owner places it under the protection of the foreign power, and the obligation of our Government is to see that he receives the full measure of protection which the foreign Government accords to its own citizens. The obligation to protect can not be extended in cases where the flag has become unneutral.

France had the incontestable right to prevent shipments of conditional contraband, if being carried to aid her English enemy.

It was so at the time of this condemnation, and it is so now. The right of seizure and confiscation is being successfully asserted in the war now going on by the nation having the strongest sea power, and the same rule would obtain by the nations deficient in naval equipment could they overcome the present mastery of the sea. The Supreme Court of the United States declared the true rule in the case of the Bermuda, 3 Wall., 514. There it was said that neutral trade was entitled to protection in the courts; but neutrals in their own country might sell to belligerents whatever belligerents chose to buy. One of the exceptions to this rule, said the court, was that neutrals must not sell to one belligerent what they refuse to sell to the other; and another exception is that a neutral may convey in neutral ships from one neutral port to another any goods, whether contraband or not, “ if intended for actual delivery at the port of destination to become pari of the common stock of the country.” This authority excludes the right of a neutral to supply foodstuffs to a belligerent government or to its armed forces, just as in this case.

The act conferring jurisdiction upon this court, 23 Stat., 283, for the class of claims of which the case at bar is one, directed the court to determine the legality or the illegality of seizures and condemnations “ according to the rules of law, municipal and international, and the treaties of the United States applicable to the same.”

*151There were two treaties between France and the United States February 7, 1778, one being the treaty of alliance and the other the treaty of amity and commerce, 8 Stat., 6. They were one. Gray's case, 21 C. Cls., 341. These were abrogated by act of Congress July 7,1798, 8 Stat., 6. The parties were not able to agree respecting these treaties, and the two Governments, acting together, finally agreed to abrogate their terms by the convention of September 30,1800, Art. II, 8 Stat. L., 178. Article XXIV, treaty of 1778, must be taken in conjunction with Article XXY of the same treaty and by the terms of the contemporaneous treaty of alliance.

Nothing in any of these treaties or in the convention can be applied to make a legal claim out of the seizure of the vessel and cargo in the case at bar, because—

(1) Passports were required. Ships laden with cargoes were to be provided with passports and with certificates to include the statement of true destination, so that it might be known whether any contraband goods were being carried for the use of an enemy belligerent. The master of this neutral substituted an untruthful passport and certificate for one not intended tó be used in the documentation to a neutral port when he was going to an enemy island. In the case of the Edward, 4 C. Rob., 68, Sir Wm. Scott held that the ordinary rules of navigation required a reason to be assigned by the captured ship for the change of course (which this ship never gave), and.on that decided that the court was under the necessity of “ inferring ” that the change of course was made without justifiable cause and with an intention. That in this case in the intention to do an unneutral act.

(2) President Washington proclaimed neutrality in 1793, and this proclamation remained in force until peace was concluded between England and France, in 1802, by the treaty of Amiens. 1 American St. Pap., Foreign Relations, 140; 1 Wait's Am. St. Pap., 44; Ex. Doc., No. 102, 19th Cong., 1st sess., 249. This proclamation materially aided in keeping this country out of actual war with France, despite the unneutral conduct of some of our citizens. The troubles of the period did result in what the Supreme Court declared in Bas v. Tingy, 4 Dall., 37, an imperfect war between France and *152the United States. The proclamation had the force of law to the extent of withdrawing protection from those persons who carried goods, absolute contraband or conditional, to aid an enemy or his forces.

(3) Article XXIV of the treaty of 1778 is without application here because there was bad faith evidenced by hidden papers and by fraud of the kind mentioned in history. Around the time of this capture American skippers, as.neutrals, were free to go where they pleased. “ They fetched cargoes of every kind from every quarter of the globe; put in with them at American ports in order that they might there be reshipped, and took them thence to their destinations as neutral goods in neutral bottoms. The products of both Indies poured in at the ports of Holland, Spain, and France without let or hindrance- if only Yankee skippers brought them, and made their way by river and canal to the markets of every kingdom and principality ” whose resources Bonaparte was using to subdue the world. 3 Wilson’s History American People, 188. This author adds from history that those who fought the ruler named seemed defeated by neutral trade and by means of what seemed to them merely war disguised — “a veritable fraud of neutral flags by which the rules of war were annulled.”

The findings and decisions of this court show that frauds were perpetrated all along our seaboard in the carrying not only of contraband per se, but in the transportation of foodstuffs to sustain the English in the West Indies and elsewhere. England at the time mentioned had control of the sea and was the principal beneficiary in the violation by some of our people of the neutrality laws which Washington’s proclamation undertook to prevent.

(4) By the convention between the French Republic and the United States of September 30, 1800, supra, the United States conceded the correctness of the French demand. This demand of the French was predicated upon the charge that the United States had violated its treaty of alliance as well as its contemporaneous treaty of amity and commerce of 1778. The one involved the allegation that the United States had endeavored to evade the duty of protecting France in *153case of war. Next, that the citizens of the United States had violated the laws of neutrality which the President’s proclamation had undertaken to stop. France denied the liability of its Government for the depredations of French privateers. Napoleon suggested the “equiponderating” character of the national claims of France and the individual claims of our American citizens. The adoption of the suggestion was an admission by the convention of 1800 that the one class of claims were of as much value as the other. When the Supreme Court came to deal with the act providing for the investigation of the spoliation claims that tribunal said that Congress, by the act of January 20, 1885, 23 Stat., 283, purposely brought the class of claims of which this is one within the category of payments by way of gratuity and of grace and not of right. This statement proves at least that our people were as much at fault in the violation of the treaty of 1778 as the French were at fault in depredating upon the commerce of our shippers and the seafaring people of the United States.

A complete answer to the question as to what are “ valid claims to indemnity upon the French Government ” under the spoliation act is found in the very comprehensive opinion of the Court of Claims speaking by Judge Davis (in review of Gray's case, 21 C. Cls.) in Cushing, Admr., v. United States, 22 C. Cls. R., 1. The court there decided that the question “ is to be measured by rules which relate to the rights and obligations of nations.”

In Hooper, Admr., v. United States, 22 C. Cls. R., 408, the court did not decide that a provision-laden ship bound to a British port to supply British enemy forces was legal undei the treaties of 1778. There is no decision which I have anywhere been able to find which holds any such doctrine.

Though this claim is ancient it may become the subject of an appropriation if it be found by Congress that the condemnation was illegal and that thereby the claim became valid. Our obligation is discharged when we report. A sense of duty constrains me to say that the claim is not valid unless we also admit that the neutral had the right to carry the supplies to a belligerent’s enemy forces; and unless we *154also admit that President Washington was without power to issue this Government’s neutrality proclamation.

Note. — Extract from French decree of condemnation:

“ Qu’il est prouvé par les lettres trouvés caches a bord, addresses par les armateurs á Henry Anderson á Antigües les huit et dix-huit fevrier mil sept cent quatre-vingt-dix-sept que l’expédition du brick Sally pour St. Barthélmy est simulée, -que la veritable destination est pour la dite ile d’Antigues, que e’est une suitte d’envoyes d’approvisionne-ments pour l’armée anglaise, qu’il a été ainsi contrevenu au passe-port accordé pour la dite ile St. Barthélmy et en outre que le capitaine est irlandais naturalise seulement depuis dix mois.”

concurring:

I fully concur in the decision that the question is determined by the treaty of 1778.