again, where the party justifies the act upon the plea of distress, it must not be a distress which he has created himself, by putting on board an insufficient quantity of water or of provisions for such a voyage; for there the distress is only a part of the mechanism of the fraud, and cannot be set up in excuse for it; and in the next place, the distress must be proved by the claimant in a clear and satisfactory manner. It is evidence which comes from himself, and from persons subject to his power, and probably involved in the fraud, if any fraud there be, and is, therefore, liable to be rigidly examined." A vessel and cargo were condemned under the non-importation laws, during the war between the United States and Great Britain. of 1812. The defense set up was an entry under stress of weather. The question was one of fact. The condemnation was affirmed, Mr. Justice Johnson dissenting. Mr. Justice Livingston, delivering the opinion of the court, said that under the strong circumstances of suspicion existing in the case, the court would require "the most satisfactory proof of the necessity" which was urged by the defence. The ostensible destination of the ship was Havana, but it appeared that the ship left Liverpool without any chart of Havana or the adjacent coast, and that, two days after her departure, the master ordered the supercargo to proceed off the port of Wiscasset, which was accordingly done. Her passage was long and boisterous, but the principal, if not the only, witnesses produced as to the necessity of entrance were the master and supercargo. No seamen were examined, nor any person residing at the place where the vessel discharged; and no survey was produced, though the master, in his testimony, said that one had been made. The court discredited the supercargo's testimony, because of his "incredible" statement that he had no written instructions, but merely verbal ones. The Eolus (1818), 3 Wheaton, 392. That the burden of proof is on the party setting up necessity, see The Article VIII. of the treaty between the United States and Spain of 1795 provides for cases where ships belonging to the inhabitants of either country are forced through stress of weather, pursuit of pirates. or enemies, or any other urgent necessity to seek shelter in the ports of the other. It was contended that this article was applicable to the case of the Spanish schooner Amistad, which was taken possession of in August, 1839, by the U. S. S. Washington, within a mile and a half of the shore of Long Island, the schooner being then in the possession of negroes, who had killed the captain at sea. The negroes were ultimately set free, on the ground that they were kidnapped Africans and were not slaves under the Spanish law. The court, in the course of its opinion, referring to the argument that Art. VIII. required the restoration of the negroes to the Spanish claimants, said: "There may well be some doubt entertained, whether the present case, in its actual circumstances, falls within the purview of this article. But it does not seem necessary, for reasons hereafter stated, absolutely to decide it." United States v. Schooner Amistad, 15 Pet. 518, 592. For a history of this case see Moore on Extradition, I. § 389, pp. 588-592. A Spanish-owned vessel on her way from New York to Havana, being in distress, put, by leave of the admiral commanding the squadron, into Port Royal, S. C., then in rebellion, and blockaded by a Government fleet, and was there seized as a prize of war and used by the Government. She was afterward condemned as prize, but ordered to be restored. She never was restored, damages for her seizure, detention, and value being awarded. It was held that she was not prize of war, or subject of capture, and that her owners were entitled to fair indemnity, although it might be well doubted whether the case was not more properly a subject for diplomatic adjustment than for determination by the courts. The Nuestra Señora de Regla, 17 Wall. 30. See further, as to this case, Moore, Int. Arbitration, II. 1016-1018. On the requisition of the British minister, a British vessel and cargo which have been wantonly and feloniously Official opinions. taken into an American port in violation of our revenue laws and there seized by the officers of the port for such violation, should be restored to an innocent owner. The forfeitures and penalties prescribed by our laws have never been inflicted on owners of vessels which have been brought within our jurisdiction by others' crime. Wirt, At. Gen. (1821), 1 Op. 509. "Herewith you will receive a copy of a letter to this Department from the Messrs. Whitehorne, of Newport, Rhode Island, complaining of an exaction of transit duties upon the cargo of the ship Erie, which put in Rio de Janeiro, in distress, and asking that you might be instructed to demand their repayment. If, therefore, you should not have addressed the Brazilian Government upon the subject before the receipt of this communication, you will present the claim and urge its prompt adjustment. Several cases of the kind occurred during the mission of your predecessor, and the procrastination he experienced in the settlement of them was vexatious in a high degree and inconsistent with that regard for the United States which has uni formly been professed by the Brazilian Government. You will intimate that the President is particularly solicitous for the faithful observance of the tenth article of the treaty, because the position of Rio de Janeiro and the safety and convenience of its harbor, render it a place of resort for those of our vessels that may experience stress of weather on their way to and from the Pacific and Indian oceans, or that may require refreshment or repairs." Mr. Forsyth, Sec. of State, to Mr. Hunter, chargé d'affaires to Brazil, June 23, 1835, MS. Inst. Brazil, XV. 22. See, also, same to same, April 15, 1837, id. 47. An award in favor of the claimants in this case was made by the commis sioner appointed to distribute the Brazilian indemnity under the convention between the United States and Brazil of Jan. 27, 1849. (Moore, Int. Arbitrations, V. 4609, 4623.) May 20, 1864, the Russian minister at Washington communicated to the Department of State a copy of a decision of the council of the Empire to the effect that vessels putting into Russian ports, not for the purpose of carrying on commercial operations, but under compulsion, such as stress of weather, chase by an enemy, want of provisions or, in case of a steamer, of coal, should be exempt from all navigation dues. He inquired whether a similar law existed in the United States, and in case there should be none, offered to negotiate on the subject. His note was referred to the Treasury Department, and he was afterwards advised "that a similar exemption from navigation dues is extended by existing law to all foreign vessels in the ports of the United States." Mr. Seward, Sec. of State, to Mr. Stoeckl, Russ. min., June 4 and June 13, 1864, MS. Notes to Russ. Leg. VI. 156, 157. See U. S. Rev. Stats. §§ 2891, 2892, 2893, 2894; Treasury Regulations, 1884, Art. 177. "Were there no treaty relations whatever between the United States and Great Britain, were the United States fishermen without any other right to visit those coasts than are possessed by the fishing craft of any foreign country simply as such, the arrest and boarding of the Grimes, as above detailed, followed by forcing her into the port of Shelburne, there subjecting her to fine for not reporting, and detaining her until her bait and ice were spoiled, are wrongs which I am sure Her Majesty's Government will be prompt to redress. No Governments have been more earnest and resolute in insisting that vessels driven by stress of weather into foreign harbors should not be subject to port exactions than the Governments of Great Britain and the United States. So far has this solicitude been carried that both Governments, from motives of humanity, as well as of interest as leading maritime powers, have adopted many measures by which foreigners as well as citizens or subjects arriving within their territorial For this purpose waters may be protected from the perils of the sea. not merely light-houses and light-ships are placed by us at points of danger, but an elaborate life-saving service, well equipped with men, boats, and appliances for relief, studs our seaboard in order to render aid to vessels in distress, without regard to their nationality. Other benevolent organizations are sanctioned by Government which bestow rewards on those who hazard their lives in the protection of life and property in vessels seeking in our waters refuge from storms. Acting in this spirit the Government of the United States has been zealous, not merely in opening its ports freely, without charges, to vessels seeking them in storm, but in insisting that its own vessels, seeking foreign ports under such circumstances, and exclusively for such shelter, are not under the law of nations subject to custom-house exactions. "In cases of vessels carried into British ports by violence or stress of weather [said Mr. Webster in instructions to Mr. Everett, June 28, 1842] we insist that there shall be no interference from the land with the relation or personal condition of those on board, according to the laws of their own country; that vessels under such circumstances shall enjoy the common laws of hospitality, subjected to no force, entitled to have their immediate wants and necessities relieved, and to pursue their voyage without molestation.' "In this case, that of the Creole, Mr. Wheaton, in the Revue Française et Étrangère (ix, 345), and Mr. Legaré (4 Op., 98), both eminent publicists, gave opinions that a vessel carried by stress of weather or forced into a foreign port is not subject to the law of such port; and this was sustained by Mr. Bates, the umpire of the commission to whom the claim was referred (Rep. Com. of 1853, 244, 245): "The municipal law of England [so he said] can not authorize a magistrate to violate the law of nations by invading with an armed force the vessel of a friendly nation that has committed no offense, and forcibly dissolving the relations which, by the laws of his country, the captain is bound to preserve and enforce on board. These rights, sanctioned by the law of nations, viz, the right to navigate the ocean and to seek shelter in case of distress or other unavoidable circumstances, and to retain over the ship, her cargo, and passengers, the law of her country, must be respected by all nations, for no independent nation would submit to their violation." "It is proper to state that Lord Ashburton, who conducted the controversy in its diplomatic stage on the British side, did not deny as a general rule the propositions of Mr. Webster. He merely questioned the applicability of the rule to the case of the Creole. Nor has the principle ever been doubted by either Her Majesty's Government or the Government of the United States; while, in cases of vessels driven by storm on inhospitable coasts, both Governments have asserted it, sometimes by extreme measures of redress, to secure indemnity for vessels suffering under such circumstances from port exactions, or from injuries inflicted from the shore. "It would be hard to conceive of anything more in conflict with the humane policy of Great Britain in this respect, as well as with the law of nations, than was the conduct of Captain Quigley towards the vessel in question on the morning of October 8th. "In such coasts, at early dawn, after a stormy night, it is not unusual for boats, on errands of relief, to visit vessels which have been struggling with storm during the night. But in no such errand of mercy was Captain Quigley engaged. The Marion Grimes, having found shelter during the night's storm, was about to depart on her voyage, losing no time while her bait was fresh and her ice lasted, when she was boarded by an armed crew, forced to go seven miles out of her way to the port, and was there under pressure of Captain Quigley, against the opinion originally expressed of the collector, subjected to a fine of $400 with costs, and detained there, as I shall notice hereafter, until her voyage was substantially broken up. confident Her Majesty's Government will concur with me in the opinion that, as a question of international law, aside from treaty and other rights, the arrest and detention under the circumstances of Captain Landry and of his vessel were in violation of the law of nations as well as the law of humanity, and that on this ground alone the fine and the costs should be refunded and the parties suffering be indemnified for their losses thereby incurred. Mr. Bayard, Sec. of State, to Mr. Phelps, Nov. 6, 1886, For. Rel. 1886, 362, 364-365. "The Rebecca, an American schooner, cleared at Morgan City, La., on the 30th January, 1884, with a cargo of lumber for Tampico, Mexico, and having also on board six cases of merchandise to be left on the way at Brazos Santiago, Tex., and which were not on the manifest of the cargo for Tampico. While on her voyage, and off the bar at Brazos, a storm arose, which increased in violence until the vessel, which was then awaiting a favorable opportunity to enter the port of Brazos, was driven a considerable distance to the southward, and so seriously damaged by the storm that the captain, deeming it unsafe to attempt to return to Brazos Santiago, made for the port of Tampico, which he entered with his vessel, in a leaking and seriously disabled condition. "When the Rebecca began to leak at sea the six cases of merchandise intended to be landed at Brazos Santiago, and which had been reached by the water, were broken open, and the packages, thirty in number, contained in the cases, were so stored as to be protected from damage by the sea. On the arrival of the vessel at Tampico, the master immediately noted a protest of distress with the United Stated consul. On |