forfeiture, and no explanation can be required of circumstances of suspicion, not sufficient in themselves to constitute a ground of forfeiture. The captor takes the hazard of mistake, sustains the burden of proof, and if he fails to offer at least probable cause for the seizure, must be subjected to damages. The claim of damages will be greatly affected, perhaps destroyed by circumstances of suspicion, by flight, by concealment and spoliation of papers, as furnishing in themselves probable cause for seizure, but they cannot constitute a ground of forfeiture, except upon the strict belligerent claim.

Pirates are at war with all nations, and with every individual, and the rights of war are in full force against them; but there is no belligerent right to visit and search a vessel suspected to be a pirate, that does not wholly depend upon the event for justification, or probable cause as an excuse. The reason is apparent. Piracy is a crime which must be proved, and cannot be presumed, and individuals are not involved in any of the penal consequences of piracy, unless the piratical character can be fixed upon them.

But when certain nations are at war, whilst others are at peace, there is a peculiar complication of rights. Each bel- . ligerent nation has a deep interest in preventing its enemy from strengthening itself by means of the resources of a neutral. So far as it regards that enemy, it has a right to cut off and prevent all neutral intercourse. The neutral nation, however, has a right to continue its commercial intercourse with each of the belligerents, and this right is an absolute one, and not dependent upon the existence of peace. The two rights, however, are in conflict. The belligerent nation has sometimes sustained her claim to intercept all commercial intercourse on the part of neutrals with her enemy. To sustain her right, a neutral nation has often made common cause with one of the belligerent partics, but more often there has been mutual compromise and

concession The basis of the compromise, which in modern times has been tacitly acted upon, or settled by treaties, has been on the part of the belligerent, the indulgence of all commercial intercourse between her enemy and the neutral nation, except the trade in articles which are contraband of war. As the object of this compromise is to exempt the neutral from liabilities, which are the consequences of the belligerent right wholly to suspend intercourse, the neutral vessel is required to furnish evidence of the true character of its trade. If this evidence is not satisfactory, the belligerent cruiser is justified in capturing the vessel and bringing her in to be passed upon by a court of admiralty. It is one of the conditions, and of the very essence of this compromise between the neutral and belligerent right, that the onus probandi shall devolve upon the neutral trader. Belligerent cruisers cannot, from the nature of the case, determine the character of the trade in which the neutral ship is engaged, except by examination. The indulgence extended by a belligerent power to a part of the trade with her enemy is but an exception to the general rule, which is the foundation of the right to intercept it. It is perfectly consistent with principle, that the neutral should furnish evidences that her trade is within the exception.

As it is the duty of the commander of a neutral vessel to show the real nature of his trade, so it is the right of the belligerent cruiser to examine the evidence produced, and this right of examination is the right of search. It would be an idle mockery and an invitation to fraud, if this inquiry terminated with an examination of the ship's papers. The belligerent has a right to that evidence which is furnished by an inspection of the cargo itself. In all this there is no departure from principle, or invasion of right. It is just that the neutral should establish a right, modified by convention, and resting upon compromise, and show that the restriction is not exceeded.

Grotius' gives an account of the struggle between neutral and belligerent nations of Europe, principally in the latter part of the sixteenth century, to sustain their respective rights. The right of intercepting all neutral trade was sometimes claimed and acquiesced in. But when neutrals had sufficient power to support their pretensions, they claimed that their trade should be entirely free, of whatever character. After the peace of Vervins, concluded between France and Spain, queen Elizabeth claimed the right of searching French ships, to ascertain whether contraband articles were on board for the use of Spain, with which power she was at war, but France refused to yield the right of search, even for that purpose. The respective claims of belligerents and neutrals have since that period been in a great degree settled. The existing law of nations on this subject appears to be, however, altogether conventional, or customary. The right of visitation and search, so far as it relates to merchant vessels and their cargo, has generally been acquiesced in, and is stated by publicists as a substantive right, without reference to the principle of compromise upon which it rests; and it has sometimes been supposed, that the claim depended upon an arbitrary exercise of the law of force, or that at most it was only justifiable on the ground of necessity. But this we conceive to be a misapprehension of the principle upon which the claim is founded. There are indeed many cases in which it is necessary to the success of the war to restrain neutral commerce with an enemy, and as one nation has a right, so far as it regards her enemy, to intercept the commerce of another nation with that enemy, the right may be exercised, at the peril, however, of being involved in war with the

1 Lib. 3. ch. 1.

"Nihil comperire potuimus, ea de re, jure voluntario gentium esse constitutum." Grotius.

neutral nation also. By a compromise of conflicting rights, a part only of the neutral trade is interdicted, namely, that which would furnish immediate aid to the hostile operations of the enemy, or relieve him from the pressure of hostilities. That commercial intercourse, which aids an enemy only by remotely increasing his internal resources, is permitted to continue. The law of necessity required that the trade in contraband should be prohibited, but there is no imperative necessity, which, in discriminating between lawful and unlawful intercourse, required that the rules of evidence should be reversed, or that a cause of forfeiture should be presumed because a contrary presumption was not established. The right of visitation for the purpose of investigating the character of neutral trade does not rest upon any such ground. It is the duty of the neutral trader to establish his right merely because it is restricted and conventional, and not a general right. He is bound to furnish evidence to the belligerent cruiser of his real character, on the same principle that he would be required to produce a license, if his trade derived its sanction from belligerent authority, or as he would be required to show that he had conformed to the conditions of a permit to enter a blockaded port.

The considerations suggested above are applicable to the case where a neutral vessel has an acknowledged destination for a belligerent port. But suppose two nations, France and England, are at war, and that the vessel of a neutral nation, the United States, for example, sails with a destination for a port in Spain, another neutral country, and is met on the high seas by a British cruiser, on what ground is the latter justified in visiting the neutral vessel, for the purpose of ascertaining her national character and destination? There is in this case no presumption that the vessel is enemy's property, as when sailing from or entering an enemy's port, in which case it might be necessary to rebut

that presumption. The right of visitation and detention would appear in such cases to rest strictly upon necessity. A belligerent nation has no right to require evidence of the nature of any commercial intercourse, except with her enemy, but she has a right to assail her enemy under whatever disguises on the high seas, and if her enemy's vessels could find security under a neutral flag they would be effectually protected. The exigencies of war, therefore, render it necessary for the belligerent nation to exact from the neutral vessel evidences of her real destination and character.

The controversies, which have arisen on the subject of the right of search, have related principally to the acknowledged trade with the enemy, and not to such investigations as have been made relative to the national character of the vessel herself, for the purpose of ascertaining whether she is enemy's property. The necessity on the part of the belligerent, to put aside the neutral veil and ascertain the hostile character, if indeed it exists, is so manifest, that it has been universally acknowledged, and whilst angry controversies have arisen in regard to the right to intercept any part of the neutral trade with the belligerent, it has been acknowledged as a settled rule in the laws of nations, that neutral vessels shall carry evidences of their national character, and submit to visitation and an examination of their papers. From a view of the cases in the prize jurisdiction, however, it appears that very different rules apply to captures where vessels have been brought in for adjudication, on suspicion of being enemy's property, and cases of capture where the neutral has not furnished satisfactory evidence of the character of his trade. In cases of the former class, the burden of proof rests upon the captor, and he may be responsible in damages if he fails to establish the cause of forfeiture.' In cases of the latter class the

1 Miller v. The Resolution, 2 Dallas's Rep. 19.