other, nor anything whatever to a place blockaded by its enemy," proceeds to define these "implements" as follows:

"There does not exist perhaps a nation, in our common hemisphere, which has not made a particular enumeration of them in some or all of their treaties under the name of contraband. It suffices for the present occasion to say that corn, flour, and meal are not of the class of contraband, and consequently remain articles of free commerce. A culture which, like that of the soil, gives employment to such a proportion of mankind, could never be suspended by the whole earth, or interrupted for them, whenever any two nations should think it proper to go to war. * * * If any nation whatever has a right to shut up to our produce all the ports of the earth except her own and those of her friends, she may shut up these also, and so confine us within our own limits. No nation can subscribe to such pretensions; no nation can agree, at the mere will or interest of another, to have its peaceable industry suspended and its citizens reduced to idleness and want. * * It is not enough for a nation to say we and our friends will buy your produce. We have a right to answer that it suits us better to sell to their enemies as well as their friends. Our ships do not go to France to return empty. They go to exchange the surplus of one product which we can spare for surpluses of other kinds which they can spare and we want; which they can furnish on better terms and more to our mind than Great Britain or her friends. We have a right to judge for ourselves what market best suits us, and they have none to forbid us the enjoyment of the necessaries and comforts which we may obtain from any other independent country.'

*

Mr. Randolph, denying that food can be universally ranked "among military engines," admitted that corn, meal, and flour are so in case of "blockade, siege, or investment." In the late Franco-Chinese war France endeavored to make "rice" contraband, and referring to this contention Mr. Kasson, our minister in Berlin, wrote as follows to the Secretary of State:

* * * "But more especially I beg your attention tot he importance of the principle involved in this declaration, as it concerns our American interests. We are neutrals in European wars. Food constitutes an immense portion of our exports. Every European war produces an increased demand for these supplies from neutral countries. The French doctrine declares them contraband, not only when destined directly for military consumption, but when going in the ordinary course of trade as food for the civil population of the belligerent government. If food can be thus excluded and captured, still more can clothing, the instruments of industry, and all less vital supplies be cut off on the ground that they tend to support the efforts of the belligerent nation. Indeed, the real principle involved goes to this extent, that everything the want of which will increase the distress of the civil population of the belligerent country may be declared contraband of war. The entire trade of neutrals with belligerents may thus be destroyed, irrespective of an effective blockade of ports. War itself would become more fatal to neutral States than to belligerent interests.

"The rule of feudal times, the starvation of beleaguered and fortified towns, might be extended to an entire population of an open country. It is a return to barbaric habits of war. It might equally be claimed that all peaceful men of arms-bearing age could be deported, because otherwise they might be added to the military forces of the country.'

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.

We do not consider that a provision-laden ship bound for Martinique was properly condemned on the ground alone that she was bound to a British port, nor do we consider the fact that the port had once been French complicates the situation. There is nothing in the law of nations which justifies or makes valid as against neutrals such decrees as those issued during this war by the French and English. Russia admitted these decrees were contrary to the law of nations. France promised to pay for captures made under them. England and Spain did pay the United States. (See authorities cited in Gray, adm'r, v. U. S., 21 C. Cls. R., p. 340.) If either party desired to reduce the other by starvation there was a plain and acknowledged legal method to obtain that end; that is, by the establishment of an effective blockade. That neither was able to take this course, is not a reason that the commerce of neutrals should be suspended on the penalty of having their merchant vessels and cargoes confiscated. To admit such a doctrine would be to impose in time of war a worse burden upon the neutral than that borne by either belligerent, and would shut it up in its own ports, or oblige it to furnish, in protection of its commerce, a naval force competent to compete with the belligerent,

which by paper decrees unsupported by effective acts, by its municipal law attempts to interfere with the recognized and natural rights of neutral trade.

We do not understand that in the negotiations of 1800 the French denied the justice of claims similar in principle to the one now suggested, and the treaty of 1778 in terms conceded the right to trade with the enemy. The commerce of the United States was principally in agricultural products, certainly not in munitions of war. A most important complaint was as to that part of the belligerant decrees which directed seizure of neutral property on the sole ground of destination to an enemy port without regard to the character of the cargo. (See Treaty Commerce 1778, Articles XII, XIII, XXIII, XXIV.)

It seems to us clear that this class of claims was contemplated by the treaty of 1800 and the act of 1885.

BURDEN OF PROOF IN PRIZE PROCEEDINGS.

The burden of proof in prize proceedings is on the seized vessel. The authorities concur in this general statement, but the principle is not technical and is not to be pushed beyond its proper natural intent. Seized vessels always appear before the court under the taint of suspicion; that taint it is incumbent upon them to remove, as it is in their power alone to do so. What the court looks for is the fact. If it appear that the vessel was innocently pursuing an honest and legal voyage, whether that appear by papers or otherwise, then the vessel should be released. No particular papers, no specified character of evidence is marked out and defined as indispensable to attain this end. A case is easily supposable in which a merchant vessel has lost its papers by an accident, or by theft, or by robbery committed by a pirate or privateer, or through suppression by the captor, and it would not be admitted the fact of their non-production being explained, and the vessel's honest character being shown-that because some particular document was not on board she therefore should be condemned and confiscated. The onus probandi is on the captured vessel; which means no more than that she must explain away suspicious circumstances.

REPRISALS.

The learned counsel for the defense contend that the United States first violated the treaties of 1778 by the proclamation of neutrality of 1793, by refusing to guarantee the French possessions, by refusing to grant the promised harbor privileges, and by concluding the Jay treaty. Therefore "it was the right of France to retaliate upon the United States for these violations; and whatever she did, or whatever was done by her authority in such retaliation prior to and during the limited war existing between the two countries, whether by captures, seizures, condemnations, or confiscations of American property, vessels or cargoes, was justifiably done."

In another form substantially the same contention is made, defendants claiming that the acts of France complained of by the United States were authorized by the law of nations; that whether reparation was to be made by France depended upon compliance with her demands; that as the United States did not acquiesce in those demands, but by the annulling act of July, 1798, practically notified France that they would not do so, “from that moment France owed no compensation for those confiscations and the matter was res judicata."

In considering these propositions it will strike any one who has studied the correspondence or will refer to the extracts made from it by us in this and our previous opinions on the spoliations question, that France never took this point. It will be remembered that the decrees at the outset were admitted by all parties to be illegal, and excusable only on the ground of necessity; that while this admission was not by any means consistently adhered to, still England and Spain came back to it in effect when they compensated the United States for losses-England through a commission organized under the provision of the Jay treaty, Spain in the treaties relative to the Florida purchase.

France did not seriously ask us to enforce the guarantee and apparently did not wish us to do so, however much we may have feared such a demand on her part, and however much some of her agents and her colonists may have desired it. The vital point of difference was the Jay treaty. We have already discussed that instrument and stated that it was in conflict with the provisions in the Franco-American treaties of 1778. France did not contend that the Jay treaty abrogated the treaties of 1778; on the contrary, her whole argument, down to the ratification of the treaty of 1800, was based upon the premise that these treaties were of enduring force. The decree itself which ordered seizure of neutral property bound in United States vessels to enemy ports, set forth as a reason for its enactment that the Jay treaty modified, not annulled, the treaties with France, and that France was entitled under the treaties to any benefit this modi fication might give her.

France did not deny at any point of the nogotiations which led to the treaty of 1800 her liability for claims known by the generic name of "spoliations," but claimed in return for payment recognition of treaties, a demand which was not granted, and the contention remained embodied in the second article, which was stricken out. Thus was completed what Madison called the "bargain" by which we released "spoliations" in consideration of release from all obligations founded upon the treaties of 1778. A striking illustration of the French position, if any is needed after the detailed statement of the negotiations which has heretofore been made, is found in Article IV of the treaty of 1800, which agrees to return prizes captured under the decrees, now termed by the defense decrees of retaliation, when those prizes had not been already definitively condemned.

Acts of retaliation are admitted to be justifiable under certain circumstances. They may exist when the two nations are otherwise at peace, but they are in their nature acts of warfare. They depart from the field of negotiation into that of force, and, as is war, are justified by a successful result. To term the decrees of France and the acts of their privateers under them "acts of reprisal" does not alter the facts or the legal position. That position has been defined by the Supreme Court of the United States as limited partial war. We, following the path indicated by that tribunal, have defined it as "limited war in its nature similar to a prolonged series of reprisals. The result of that partial limited war, the result of the negotiations for settlement, the agreement reached by the two parties which made the Government of the United States liable over to its citizens, we have heretofore considered so much in detail that we shall not now repeat it, and we need only state briefly the result heretofore reached by us, and in which we, after re-examination, are confirmed, that the acts of France, now in question, whether called "reprisals" or acts of limited warfare, were contended by the United States to be illegal, were admitted so to be by France; that France stood ready to make the compensation made by England and Spain for similar acts on their part, provided we would admit certain claims of her own, which we declined to do; and finally, by the substitution of the existing second article of the treaty for that agreed upon by the negotiators, these claims were surrendered in consideration of a release from the French demand.

SALVAGE.

The case of the Two Brothers presents a claim for salvage paid an American manof-war for rescue from a French privateer.

The broad principle of prize law forbids an allowance by way of salvage to the captor of a neutral in possession of a belligerent. The reason of the rule is plain: Salvage is remuneration for aid in case of danger, and a neutral vessel in the hands of a civilized belligerent is not in danger, for it is to be presumed that, if innocent, she will be discharged by the prize court with damages for detention. Some of the prizecourts in France were at certain times during the disturbed period between 1792 and 1801 very fair and just in their treatment of neutral property. We have in our opinions on the spoliations cited instances of a reasonable judicial application of the law. Unfortunately, however, the fair administration of justice, which before the Revolution and since has characterized the learned and able officials who have there filled the offices of the magistrature, was interrupted during the period now under consideration. Setting aside the charges made of ulterior and improper motives on the part of individual magistrates, of which illustrations are found in the letters of Monroe, Mountflorence, and Pickering (supra), we need only recall that the decrees of the French or colonial governments were binding upon the prize tribunals, and those tribunals were obliged to enforce them. Many of the decrees were in conflict with the law of nations and were an invasion of the rights of neutrals. The position assumed by the French authorities placed neutrals prosecuting innocent voyages in a most dangerous position. If taken by a French privateer they were not to expect a trial under the recognized law of nations, but a trial under arbitrary and illegal municipal enactments; a trial which would necessarily result in condemnation, even if the local tribunal were above suspicion of improper prejudice.

Under these circumstances the reason fails for the rule as to salvage in case of recapture of a neutral from a belligerent. As the neutral was in danger of condemnation, so the recapturing vessel was entitled to salvage. We have already cited the opinion of Lord Stowell, who, at the time of the occurrences from which these claims arose, found it just and necessary to adopt this rule.

The Supreme Court of the United States have declared that to support a demand for salvage two circumstances must concur-the taking must be lawful, and there must be a meritorious service rendered to the recaptured. Commenting on Lord Stowell's opinion as to the necessity for meritorious service the court say:

"The principle is that without benefit salvage is not payable; and it is merely a consequence from this principle which exempts recaptured neutrals from its payment. But let a nation change its laws and its practice on this subject; let its legislation be such as to subject to condemnation all neutrals captured by its cruisers, and who will say that no benefit is conferred by a recapture. In such a course of things the state of the neutral is completely changed. So far from being safe, he is in as much danger of condemnation as if captured by his own delcared enemy. A series of decisions, then, and of rules founded on his supposed safety, no longer apply. Only those rules are applicable which regulate a situation of actual danger. This is not, as it has been termed, a change of principle, but a preservation of principle by a practical application of it according to the original substantial good sense of the rule.

The court then inquire whether the laws of France were such as to have rendered the condemnation of a neutral in possession of a French prize crew so probable as to create a case of such real danger that her recapture must be considered as a meritorious service authorizing allowance as salvage. On this point the conclusion is reached that the danger of loss was real and imminent.

"The captured vessel was of such description that the law by which she was to be tried condemned her as good prize to the captor. Her danger then was real and imminent. The service rendered her was an essential service, and the court is therefore of opinion that the recaptor is entitled to salvage." (Talbot v. Seeman, case of the Amelia, 1 Cr., p. 1.)

We see no reason why a rule laid down by such eminent authority, so just in principle and the result of such sound judicial reasoning, should not be applied to the cases now before us.

FREIGHT.

The Nancy was under charter to sail from Baltimore to Jamaica, there to discharge cargo, reload, and return to Baltimore. While on her way to Jamaica under this charter-party she was seized on the high seas by a French privateer and lost to her owners. The question is now presented as to the basis upon which an allowance for freight should be computed.

It is evident that freight earned is an element of value in the property lost. The ship-owner has a right to expect a reasonable return upon his venture, and this return he finds only in the freight money. As between the vessel and the cargo-owner the freight is regarded as an entirety due in no part until the arrival of the vessel at the port of destination. Between these two alone does this rule prevail-as to them the law has placed a certain construction upon the contract of affreightment to which they are parties a construction well understood, admitted, and certain. As to third parties no such rule prevails, and as against them freight is often recoverable, even when the vessel does not reach her destination. In cases of tort, such as collision, Doctor Lushington says: "The party who had suffered the injury is clearly entitled to an adequate compensation for any loss he may sustain for the detention of the vessel during the period which is necessary for the completion of the repairs, and furnishing the new articles (2 W. Robinson, 279), and he allowed gross freight, less the ordinary ship's expenses necessary to earn it. As a broad rule, this is well enough, but it is not without possible exception, for we may imagine an injury at a time when the vessel is not engaged in freight earning, although even then we probably look to the market for a proper measure of damages.

The case of The Amiable Nancy (3 Wheaton, 560), and Smith v. Condry (1 How., 35), allowed only the "actual damage sustained by the party at the time and place of injury" without allowance for detention. In Williamion v. Barrett (13 Howard, 101), a collision case, the court allowed damages for demurrage, adopting the rate of freight, less expenses, as a proper measure, three justices dissenting on the ground that the majority rule introduced too much uncertainty into the case and tended to increase the "stringency, tediousness, and charges of litigation in collision cases." They therefore preferred a rule granting full damages at the time and place of collision, with legal interest on the amount thus ascertained.

The case of the Baltimore, arising from collision, was decided in 1869 (8 Wall., 377), the court holding that the suffering party is not limited to compensation for the immediate effects of the injury inflicted, but the claim for compensation may extend to loss of freight, necessary expense incurred in making repairs, and unavoidable detention. Restitutio in integram is the leading maxim in such cases, say the court, and in respect to materials for repairs where repairs are practicable there shall not, as in insurance cases, be any deduction for new materials in place of old, for this reason that "the claim of the injured party arises by reason of the wrongful act of the party by whom the damage was occasioned, and the measure of the indemnity is not limited by any contract, but is coextensive with the amount of damage. * Allowance

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*

for freight is made in such a case, reckoning the gross freight less the charges which would necessarily have been incurred in earning the same and which were saved to the owner by the accident, together with interest on the same from the date of the probable termination of the voyage.'

In case of capture the general rule is that the neutral carrier of enemy's property is entitled to his freight (Story, J., in the Comerceen, 1 Gallison, 264.) Sir William Scott held very firmly by this rule in the case of Der Mohr (3 C. Rob., 129, and 4 C. Rob., 315), a case of great hardship, appealing strongly to the sympathy of the court. In that case he said:

* *

"In an unfortunate case like the present the court would certainly be disposed to give the captor all possible relief. I need not add that no relief is possible which can not be given consistently with the justice due to the claimant. The demand of freight is, I apprehend, an absolute demand, in cases where the ship is pronounced to be innocently employed. * The freight is as much a part of the loss as the ship, for he (the captor) was bound to answer equally for both. The captor has, by taking possession of the whole cargo, deprived the claimant of the fund to which his security was fixed. He was bound to bring in that cargo subject to the demand for freight. He was just as answerable for the freight of the voyage as for the ship which was to earn it, or which was rather to be considered as having already earned it. In the room of this fund the captor has substituted his own personal responsibility, for loss accrues by the fault of his agent. I see no distinction under which I can pronounce that the claimant is not as much entitled to the freight as to the vessel." (See also 1 Gallison, 274, the Anna Green.)

Upon an open insurance policy gross freight is recoverable (2 Phillips Ins., § 1238). As to insurance, the inchoate right to freight vests directly "the ship has broken ground on the voyage described in the charter-party," and there is an insurable interest "where there is an expectancy coupled with a present existing title" (Lucena v. Crawford, 2 Bos. and Pull. N. R., 269; 1 Phillips Ins., § 334, p. 192).

Freight, then, is property insurable and collectible. It has value although the right as against the freighter may be inchoate until delivery. As to the freighter the shipowner is without redress, unless there be delivery in accordance with the contract, but as to an insurer or a tort-feasor, there is a right to redress upon the happening of an interruption of the voyage. The amount of that redress and the method of computing it in the cases now submitted to us of illegal capture are now to be decided. The ship-owner has a right to a reasonable return upon his investment, for the risk to which his property is subjected, for its depreciation while engaged in the undertaking, and for the expenses to which he is subjected in carrying it out. The measure of that return, based upon the theory of a completed voyage, he has himself fixed in his contract of affreightment. If his voyage be not completed, but be interrupted and his property lost by the act of a wrong-doer, then, as against that wrong-doer, the maxim restitutio in integrum applies. If the voyage were completed the difficulty would not be serious, for as a guide we should have a contract made by parties opposed in interest and familiar with the business. As the voyage has not been completed, an allowance of gross freight would be more than a restitutio in integrum, and would negelect a deduction for expenses necessarily to be incurred in completing the contract and in conveying the cargo to the point of delivery. To allow gross freight under these circumstances would in effect not merely reimburse the owner, but render the seizure a matter of profit to him, and we do not understand that punitive damages should be recovered in the cases now before us. The vessel having been destroyed before the completion of the voyage, has not been so long employed as the contract contemplated, her crew have received less wages, and her hull and outfit have received less deterioration. She has only earned freight pro tanto. On the other hand, the expenses of freight earning are much greater at the beginning of the voyage than at any other period, for then advances are made seamen, stores are shipped, port charges and the cost of loading have to be met. Therefore, to divide the total freight by the number of days out of port would not be fair to the ship-owner; to deduct from the total freight the cost of the voyage from the place of destruction to port of destination would be a fairer rule could those expenses be ascertained.

To compute the amount of this freight in each instance is practically impossible, so that the court is forced to the adoption of some general rule which in our opinion is fair in result. The difficulty is not a novel one, and the method of solution not without precedent. Those familiar with the proceedings of prize courts know that a substantially arbitrary rule is there often adopted in practice to enforce justice, and now, nearly a hundred years after the events from which these claims arise, when all witnesses are dead and many records destroyed, we are forced to this course, as it is evidently impossible to estimate in every instance precisely the proportion of freight