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such alternate destination be fair and not fraudulent.1
All the papers should be produced. If any are kept back, it furnishes just ground of suspicion, and authorizes detention.8
The production of false papers has always been held a just cause of suspicion, justifying seizure, • although under some peculiar circumstances it has been held not to be such conclusive proof as warrants condemnation, if the circumstances are clearly explained.
The spoliation of papers has been considered a circumstance of a much more aggravated nature, which may exclude proof, and be sufficient of itself to establish guilt. But in the courts, both of England and the United States, the spoliation of papers has not been regarded, as in other maritime countries, as sufficient to create an absolute presumption, juris et de jure, and they have allowed proof that such spoliation was the result of accident, of necessity or of superior force.8 But such explanatory proof, to repel the presumption, must be prompt and frank, without prevarication or any evidence of bad faith.4
The question whether the right of search could Tl10 ris?ht of be exercised by belligerents upon neutrals sailing chant vessels under convoy, underwent much discussion about af^jj^ <under century since. In 1762 it was contended by the
1 The Juffrau Anna, 1 Rob., 120; The Eenrom, 1 Rob., 6; The Odin, 1 Rob., 122; The Vigilantia, 1 Rob., 1. » The Calypso, 2 Rob., 158. 3 The Pizarro, 2 Wheat., ^27.
* The Two Brothers, 1 Rob., 133; vide Bernardi vs. Motteaux, Doug., 581; The Adriam, t Rob., 317.
Dutch government, that merchant vessels sailing under convoy were exempted from search. After much altercation it resulted in a treaty stipulation, recognizing the exemption. Such treaty stipulations have been entered into from time to time between several maritime nations;—between Sweden and the United States in 1783, between the United States and Prussia in 1785, between the United States and Morocco in 1787, and between the United States and France in 1800. Indeed, at the close of the last century, the doctrine of exemption of merchant vessels sailing under convoy, was recognized by all the principal maritime nations, with the exception of Spain and Great Britain.
In 1787 an attempt was made by a Swedish claimant to enforce the exemption in the British courts of admiralty, in a case in which a capture was made of a fleet of Swedish merchantmen, sailing under convoy, by a British squadron in the English channel, under command of Commodore Lawford, for a resistance to search. This was the case, before alluded to, in which Lord Stowell, so elaborately and with such masterly ability and learning, discusses the entire doctrine of the belligerent right of search. Upon this point he says, as a conclusion: "With regard to the question of convoy, the authority of a sovereign of a neutral country, being interposed in any manner of mere force, cannot legally vary the right of a lawfully commissioned belligerent cruiser. Two sovereigns may unquestionably agree, as they have agreed, in some late instances, that the presence of one of their armed ships along with merchant ships, shall be mutually understood to imply that nothing is to be found in that convoy of merchant ships, inconsistent with amity and neutrality, and if they consent to accept this pledge, no third party has a right to quarrel with it, any more than with any other pledge, which they agree mutually to accept. But surely, no sovereign can legally compel the acceptance of such a security, by mere force. The only security known to the law of nations, upon this subject, independent of all special covenant, is the right of personal visitation and search, to be exercised by those who have an interest in making it."
In the spring of 1800, a collision on the same subject, took place between Great Britain and Denmark.1 A Danish frigate convoying merchantmen resisted the search of a British frigate near Gibraltar, and the Danes having fired upon the boats sent to effect the search, reparation was demanded of the Danish government by the British minister at Copenhagen. A long and interesting diplomatic correspondence resulted between the two governments, pending which, or directly upon its expiration, another cause of complaint occurred between the same governments upon the same subject, by a resistance to search by Danish merchantmen under convoy, which resulted in a short engagement, and a surrender of the Dane to the British squadron as prize of war. Negotiations again ensued between the two governments. Terms of settlement of the immediate occasion of the difficulties were agreed upon, without any stipulation upon the question of the belligerent right of search of merchant vessels
1 The Maria, 1 Rob., 340, 378.
under convoy, referring that to ulterior discussion; but before the convention was signed, the emperor of Russia succeeded in securing the agreement of the governments of Prussia, Sweden and Denmark, to unite with Russia in an aimed neutrality against Great Britain, and in August, 1800, an embargo, without notice, in violation of the treaty between Russia and Great Britain of 1760, was laid by Russia on British property in Russian ports. After much intermediate correspondence, resulting in no measures of pacification, on the 14th of January, 1801, the British government laid an embargo on Russian, Danish and Prussian vessels in her ports. To this succeeded various measures, more or less hostile in their character, between the contending parties, culminating in the battle of Copenhagen on the 2d of April, 1801, which laid the Danish capital at the mercy of Great Britain. An armistice succeeded, during which it was agreed that the connection of Denmark with the armed neutrality should be suspended. Paul, the emperor of Russia died about the same time, and being succeeded by Alexander, friendly negotiations were immediately entered into with Great Britain, in which the principle of "free ships, free goods," theretofore claimed by Russia, was abandoned, and the principle that the presence of ships of war as a convoy, should protect neutral- merchants from search, was recognized by Great Britain. A treaty with these stipulations was concluded, and acceded to by Sweden on the 30th of March, and by Denmark on the 23d of October, 1802.
A resistance to the right of search by a neutral, as we have seen, subjects both vessel and cargo to confiscation; but a resistance to search by an enemy does not entail the penalty of confiscation upon neutral cargo on board the vessel, because such a resistance violates no belligerent duty on the part of the master, who is justified in escaping if he can.1
In 1810 the Danish government passed an ordinance, by which they declared subject to condemnation, " such vessels as, notwithstanding their flag is considered neutral, as well with regard to Great Britain, as with the powers at war with the same nation, still, either in the Atlantic or Baltic, have made use of English convoy."
Several American vessels, sailing under British convoy, were captured for violation of this ordinance, and, together with the cargoes, were condemned. An interesting correspondence ensued between Denmark and the United States, for a detailed statement of which, the student is referred to the valuable treatise of Dr. Wheaton.2 The difficulty was settled by a payment of a sum by Denmark, accepted as sufficient to liquidate American claims, but no decision was agreed to upon the question of the right claimed by Denmark, it being stipulated that the settlement should not be invoked as a precedent by either party.
The right of searching neutral merchant vessels The ri.gh* of for the purpose of ascertaining if any persons owing ships of war. allegiance as subjects or citizens to the nation of the searching vessel are employed on board, has been made the subject of angry discussion and national conflicts.
1 The Catherina. Elizabeth, 5 Rob., 232.
* Wheaton's Elements of International Law, II., 260, 278.