condemned as prize; which sentence upon appeal to a su~ perior Court, was reversed: but upon further appeal, the last sentence was reversed, and the first confirmed. That the grounds of condemnation were two; 1st, That the ship Thetis refused to be searched, and resisted with force, having fired at the ship of the Spaniard, and continued firing, after the Spanish colours were hoisted: 2d, That the Thetis had no charterparty on board. The captain answers these two grounds thus : Ist, That he resisted and fired, the Spaniard having hailed himunder false colours: 2d, That he had taken the goods on board by the piece, and that she was a general ship; in which case a manifesto was sufficient, without a charter-party. The sentence of the last Court admits the ship to be neutral; for it states it to be "the ship Thetis, a Tuscan ship, &c." but condemns her as good and lawful prize. Lord Mansfield was absent at the argument of this case. Mr. Justice Willes. "This is clearly a neutral ship. Something was said in argument about barratry; but I do not think the act of the captain in this case amounts to that offence.. The second ground of condemnation is given up by the counsel; and the remaining question is, whether the captain has been guilty of such a breach of neutrality, as should affect the owners. If a ship be neutral, and she be stopped, those who stop her must pay for the detention. But it is said she must stop to be searched. I find no authority for such a position. Besides, the circumstances are very suspicious. The captain seems to have acted properly. Stoppage is always at the peril of the captors." Mr. Justice Ashhurst." I take the principle laid down at the bar to be true, that a ship warranted neutral must conduct herself so as not to forfeit her neutrality. But the facts of this case do not admit of the application. I do not find that a neutral ship must submit to be searched. It is rather an act of superior force, always resisted when the party is able; and the right falls within this position, that the searcher does it at his peril. If he find any thing contraband, or the property of an enemy, he is justified; if not, he pays costs. Is there any thing to justify the search in this case? Certainly not, for the cargo Mr. Justice Buller." It is not necessary to give an opinion as to barratry; but I take it to mean a wilful act of the captain to the injury of the owners. This would have been barratry, if it had been an act, which forfeits the neutrality. Vide supra. I do not agree that the property must continue neutral during Garrels v. 8 Term Rep. 230. the whole voyage. If it be neutral at the time of sailing, it is sufficient; and if a war break out next day, the underwriter is liable. The answer given to the claim of search is conclusive, that the party does it at his peril; just like the case of Customhouse officers. The practice of the Admiralty confirms it; for they give costs in cases of improper detention: which they would not do, if neutral ships were, at all events, liable to be stopped. Detention by particular ordinances, which do not form a part of the law of nations, is a risk within the policy. At first I compared this case in my own mind to that of an illegal voyage; but they are no way similar; for a ship is only bound to take notice of the laws of the country she sails from, and of that to which she sails; but not the particular ordinances of other powers." Judgment was accordingly given for the plaintiff. This case, thus decided, came under the consideration of Kensington, the Court of King's Bench in the year 1799. It was an action on a policy on goods in the ship Dispatch, warranted Danish ship and property. The loss was alleged to be by capture. A sentence of a British Court of Admiralty was produced, stating, that the said neutral ship Dispatch, with the cargo, being Danish property, had been under the authority of the law of nations and of war, and agreeably to existing treaties, stopped and detained by the commander of one of His Majesty's ships, and by him sent towards the port of Mole S. Nicholas, for for the purpose of being legally examined, under the command of Barrett, a midshipman, and two seamen; and that on the near approach to the port, the master, supercargo, and crew of the said ship, had, in direct violation and breach of their neutrality as Danish subjects, and contrary to the law of nations and the faith of treaties, forcibly rescued and taken and kept possession thereof till again captured by a French privateer, and she was again captured by one of His Majesty's ships; and the said neutral ship and cargo were therefore adjudged good prize. The Court was of opinion, that the sentence of the Court of Admiralty was conclusive that this vessel had so conducted herself as to forfeit her neutrality; by acting in violation of that neutrality, and contrary to the law of nations and faith of treaties. That as to the question concerning the right of searching neutrals, it was said by the Court, that before the late armed neutrality it was considered in this country, and so decided in many cases, that the right of searching neutrals was part of the law of nations: and that such right was supposed to be founded on reason. Judgment was given for the defendant. The Court, however, in the above case, said, they did not mean to overturn the case of Saloucci v. Johnson, for in that case the Court of Admiralty had not adjudged, as in the present case, that the ship had forfeited her neutrality. But the general point there mentioned that a neutral ship need not submit to be searched, cannot be supported; for it is laid down in Vattel, Vattel, that this right clearly exists, without which the commerce of b. 3. ch. 7. contraband goods could not be prevented. S. 114. Paulsen, Master, de 11th June 1799, and Besides which, in a late case in the Court of Admiralty, The Maria, Sir William Scott thus states the law: "That the right of visiting and searching merchant ships upon the high seas, cided the whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestible right of the lawfully com- the report published by missioned cruizers of a belligerent nation; because till they Dr. Robinare visited and searched, it does not appear what the ships, or the cargoes, or the destinations are; and it is for the purpose of ascertaining those points, that the necessity of this right of visitation 0 0 4 son. visitation and search exists. This right is so clear in principle that no man can deny it, who admits the legality of maritime capture; because if you are not at liberty to ascertain by sufficient enquiry whether there is property that can legally be captured, it is impossible to capture. Even those who contend for the inadmissible rule, that free ships make free goods, must admit the exercise of this right at least for the purpose of ascertaining whether the ships are free ships or not. The right is equally clear in practice, for practice is uniform and universal upon the subject. The many European treaties which refer to this right, refer to it as pre-existing, and merely regulate the exercise of it. All writers upon the law of nations unanimously acknowledge it, without the exception even of Hubner himself, the great champion of neutral privileges. In short, no man in the least degree conversant in subjects of this kind, has ever, that I know of, breathed a doubt upon it. The right must unquestionably be exercised with as little of personal harshness and of vexation in the mode as possible; but soften it as much as you can, it is still a right of force, though of lawful force, something in the nature of civil process, where force is employed, but a lawful force, which cannot lawfully be resisted." In another place, this very learned person adds, "The penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search." (a) These are the cases which have been decided, relative to the judgments of foreign courts being conclusive, and the effects which they have upon the contract of insurance: and from all of them it should seem, that this general doctrine may be collected: That wherever the ground of the sentence is manifest, and it appears to have proceeded expressly upon the point in issue between the parties; or wherever the sentence is general, and no special ground is stated, there it shall be conclusive and binding, and the courts here will not take upon themselves, in a collateral way, to review the proceedings of a (a) I am sorry that I cannot transcribe more of this judgment, so fraught with learning, and so eloquent in its composition: but it is the less to be lamented, as Dr. Robinson has gratified the public by publishing it entire, as pronounced, in a pamphlet intituled A Report of the Judgment, &c. on the Swedish Convoy. forum, forum, having competent jurisdiction of the subject-matter. But if the sentence be so ambiguous and doubtful, that it is difficult to say on what ground the decision turned; there evidence will be allowed in order to explain. And if the sentence upon the face of it be founded upon partial ordinances alone, the insured shall not be deprived of his indemnity; because, to use the words of Mr. Justice Buller, any detention, by particular ordinances or decrees, which contravene, or do not form a part of the law of nations, is a risk within a policy of insurance. v. Sheddon, 2 New Rep. 228. and see Stat. If an insured declare upon a total loss by capture, and after Thellusson proving a capture shew that a re-capture took place, upon which proceedings were had in the Admiralty, the Court of Common Pleas held he cannot recover even the amount of the salvage, proceedings, and sale from the insurers, without proving the proceedings in the Admiralty under the seal of that Court, if the insurer chuses to insist upon it. 43 Geo. 3. ch. 160. S. 40. |