thus stated the further question upon which the Court was obliged to render a judgment:

The remaining question in the case is whether The Panama came within the class of vessels described in the fourth clause of the President's proclamation of April 26, 1898, as "Spanish merchant vessels," and not as "Spanish vessels having on board any officer in the military or naval service of the enemy, or any coal (except such as may be necessary for their voyage), or any other article prohibited or contraband of war, or any despatch of or to the Spanish Government."

On the part of the claimant, it was argued that the arms which The Panama carried, under the requirements of her mail contract and for the protection of the mails, are not to be regarded as contraband or munitions of war, within the sense of this clause; that "contraband," as therein referred to, means contraband cargo, not contraband portion of the ship's permanent equipment; and that, if the furnishings of a ship could be regarded as contraband, every ship would have contraband on board.

On the other hand, it was contended, in support of the condemnation, that the arms which The Panama carried, belonging to her owner, were contraband of war, and rendered her liable to capture; and that by reason of her being so armed, and of the provisions of her mail contract with the Spanish Government, requiring her armament, and recognizing the right of that Government, in case of a suspension of the mail service by war, to take possession of her for warlike purposes, she cannot be considered as a merchant vessel, within the meaning of the proclamation, but must be treated like any regular vessel of the Spanish Navy under similar circumstances.1

On the first part of this question Mr. Justice Gray thus said for the Court:

The claimant much relied on a case decided in 1800 by the French Council of Prizes, in accordance with the opinion and report of Portalis, himself a high authority. (Wheaton, 8th ed., p. 460; De Boeck, sec. 81.) In the case referred to, an American vessel, carrying ten cannon of various sizes, together with muskets and munitions of war, had been captured by French frigates; and had been condemned by two inferior French tribunals, upon the ground that she was armed for war, and had no commission or authority from her own government. The claimants contended that their ship, being bound for India, was armed for her own defense, and that the munitions of war, the muskets and the cannon that composed her armament did not exceed what was usual in like cases for long voyages. Upon 176 U. S., Reports, p. 543.

this point, Portalis, acting as commissioner of the French Government, reported his conclusion on the question of armament as follows: "For my part, I do not think it is enough to have or to carry arms, to incur the reproach of being armed for war. Armament for war is of a purely offensive nature. It is established when there is no other object in the armament than that of attack, or, at least, when everything shows that such is the principal object of the enterprise; then a vessel is deemed enemy or pirate, if she has no commission or papers sufficient to remove all suspicion. But defense is a natural right, and means of defense are lawful in voyages at sea, as in all other dangerous occupations of life. A ship which had but a small crew, and a considerable cargo, was evidently intended for commerce, and not for war. The arms found on this ship were evidently intended, not for committing acts of rapine or hostility, but for preventing them; not for attack, but for self-defense. The pretext of being armed for war therefore appears to me to be unfounded." The Council of Prizes, upon consideration of the report of Portalis, adjudged that the capture of the vessel and her cargo was null and void, and ordered them to be restored, with damages. (The Pégou, or Pigou, 2 Pistoye et Duverdy, Prises Maritimes, p. 51; S. C. 2 Cranch, pp. 96-98, and note.)

But in that case the only question at issue was whether a neutral merchant vessel, carrying arms solely for her own defense, was liable to capture for want of a commission as a vessel of war or privateer. That the capture took place while there was no state of war between France and the United States is shown by her being treated, throughout the case, as a neutral vessel; if she had been enemy's property, she would have been lawful prize, even if she had a commission, or if she were unarmed. She was not enemy's property, nor in the enemy's possession, nor bound to a port of the enemy; nor had her owner made any contract with the enemy by which the enemy was, or would be, under any circumstances, entitled to take and use her, either for war, or for any other purpose.

1

After saying that, "generally speaking, arms and ammunition are contraband of war," and invoking the authority of The Peterhoff (5 Wallace, p. 28), the learned justice thus continued:

1

Yet it must be admitted that arms and ammunition are not contraband of war, when taken and kept on board a merchant vessel as part of her equipment, and solely for her defense against "enemies, pirates, and assailing thieves," according to the ancient phrase still retained in policies of marine insurance.2

1U. S., Court of Claims Reports, pp. 543-545.

2 Ibid., pp. 545-546.

SECTION 2. VISIT AND SEARCH

It is perhaps not too much to say that the question of visit and search, which was thought to have been as well settled as any principle of international law and recognized in the practice of Nations, has proved to be the most troublesome question with which neutrals have been confronted during the war, and that the failure to comply with the requirements of visit and search as hitherto understood and practiced has caused the United States to slip from its neutral moorings and to range itself with the Allies against the Imperial German Government. The cause of the trouble seems to be due to the fact that the new weapon, the submarine, which the Imperial German Government has introduced and upon which it has pinned its hopes of victory, is so frail in structure and so small in size that it cannot expose itself to the danger of attack from a merchant ship which a surface cruiser would overhaul, and it cannot take on board the passengers and crew of the merchant vessel, which it is unable to carry into port and which it therefore destroys. It is every-day experience that we must take the bad with the good, the loss with the profit, or, as this principle is expressed in Roman law and incorporated in every system of jurisprudence, cujus est commodum, ejus est periculum.

The question of visit and search has to be considered from two points of view, from the standpoint of the belligerent and from the standpoint of the neutral, or, expressed in other terms, when a belligerent and a neutral merchantman are involved. While a belligerent man-of-war possesses the right to overhaul any merchantman of any nationality irrespective of the flag it flies, its rights against enemy and neutral vessels are very different. It may capture and, under exceptional circumstances, destroy the one; it may detain and, through judicial procedure, condemn the other. Because of this it behooves the belligerent cruiser to determine whether the vessel is enemy or neutral, lest the undoubted right in the one case become. an actionable wrong in the other.

To obviate mistake and the liability for its consequences, to corfine belligerent operations to the enemy and not, by a policy of aggression, convert the neutral into an opponent, the law of Nations, common to all, and similar if not identical in practice, prescribes that the belligerent cruiser shall by visit and search ascertain the character of the vessel before it takes action. The right of visit and search is strictly a belligerent right. It does not exist in time of

peace. Although no authority is needed on this point, the following statement from the opinion of Mr. Justice Story in The Marianna Flora (11 Wheaton 1), decided in 1826, is quoted:

In considering these points, it is necessary to ascertain, what are the rights and duties of armed, and other ships, navigating the ocean, in time of peace. It is admitted, that the right of visitation and search does not, under such circumstances, belong to the public ships of any nation. This right is strictly a belligerent right, allowed by the general consent of nations, in time of war, and limited to those occasions.

Upon the ocean, then, in time of peace, all possess an entire equality. It is the common highway of all, appropriated to the use of all; and no one can vindicate to himself a superior or exclusive prerogative there. Every ship sails there with the unquestionable right of pursuing her own lawful business, without interruption; but whatever may be that business, she is bound to pursue it in such a manner as not to violate the rights of others. The general maxim in such cases is, sic utere tuo, ut non alienum laedas.'

In deciding this case Mr. Justice Story referred to and relied upon that of Le Louis (2 Dodson 210), decided in 1817, by Sir William Scott, later Lord Stowell, whose language is so pertinent that it may well serve as a conclusion to this general statement and as an introduction to the discussion which is to follow, as it lays down principles which were fundamental when uttered and which must remain fundamental and be respected if nations are ever to live in peace and harmony.

A French vessel, Le Louis, was taken upon the high seas by a British cruiser in time of peace pursuant to an act of Parliament condemning as piracy the slave trade, in which the French vessel was engaged. On the case as thus presented and on the question whether the right of visit and search existed under these circumstances in time of peace, his Lordship said:

Upon the first question, whether the right of search exists in time of peace, I have to observe, that two principles of public law are generally recognized as fundamental. One is the perfect equality and entire independence of all distinct states. Relative magnitude creates no distinction of right; relative imbecility, whether permanent or casual, gives no additional right to the more powerful neighbor; and any advantage seized upon that ground is mere usurpation. This is the great foundation of 1 11 Wheaton, p. 42.

public law, which it mainly concerns the peace of mankind, both in their politic and private capacities, to preserve inviolate. The second is, that all nations being equal, all have an equal right to the uninterrupted use of the unappropriated parts of the ocean for their navigation. In places where no local authority exists, where the subjects of all states meet upon a footing of entire equality and independence, no one state, or any of its subjects, has a right to assume or exercise authority over the subjects of another. I can find no authority that gives the right of interruption to the navigation of states in amity upon the high seas, excepting that which the rights of war give to both belligerents against neutrals. This right, incommodious as its exercise may occasionally be to those who are subjected to it, has been fully established in the legal practice of nations, having for its foundation the necessities of self-defense, in preventing the enemy from being supplied with the instruments of war, and from having his means of annoyance augmented by the advantages of maritime commerce. Against the property of his enemy each belligerent has the extreme rights of war. Against that of neutrals, the friends of both, each has the right of visitation and search, and of pursuing an inquiry whether they are employed in the service of his enemy, the right being subject, in almost all cases of an inquiry wrongfully pursued, to a compensation in costs and damages.1

The nature and the extent of the right of the belligerent to visit and search the vessels of the neutral have been stated in terms which have become classic by Lord Stowell in his judgment in the case of The Maria, decided in 1799, shortly after his advent to the bench. In this early judgment he apparently felt the necessity of declaring the principles by which he should be guided in cases of this kind. They were, in his opinion, three in number:

1st. That the right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestable right of the lawfully commissioned cruisers of a belligerent nation. I say, be the ships, the cargoes, and the destinations what they may, because, till they are 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 these points that the necessity of this right of 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 inquiry whether there is property that can legally be captured, it is impossible to capture.

12 Dodson, p. 243.

21 C. Robinson, p. 340.