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to perceive any solid foundation on which to rest a dis- THE tinction between the resistance of a neutral and of an NEREIDE, enemy master. The injury to the belligerent is in both BENNETT, cases equally great, for it equally withdraws the neutral MASTER. property from the right of search, unless acquired by superior force. And until it is established that an enemy protection legally suspends the right of search, it cannot be that resistance to such right should not be equally penal in each party. I have, therefore, no difficulty in holding that the resistance of the ship is, in all cases, the resistance of the cargo, and that it makes no difference whether she be armed or unarmed, commissioned or uncommissioned. He who puts his property on the issue of battle, must stand or fall by the event of the contest. The law of neutrality is silent when arms are appealed to in order to decide rights; and the captor is entitled to the whole prize won by his gallantry and valor. This opinion is not the mere inference, strong as it seems to me to be, of general reasoning. It is fortified by the consideration that in the earliest rudiments of prize law, in the great maritime countries of Great Britain and France, confiscation is applied by way of penalty for resistance of search to all vessels without any discrimination of the national character of the vessels or cargoes. The black book of the admiralty expressly articulates that any vessel making resistance may be attacked and seized as enemies; and this rule is enforced in the memorable prize instructions of Henry VIII. Clerk's Praxis 164, Rob. Collect. Marit. p. 10, and note, and p. 118. The ordinance of France of 1584, is equally broad; and declares all such vessels good prize; and this has ever since remained a settled rule in the prize code of that nation.

Valin informs us that it is also the rule of Spain; and that in France it is applied as well to French vessels and cargoes as to those of neutrals, and allies, Coll. Marit, 118, Valin Traits des Prizes, ch. 5, § 8, p. 80. There is not to be found in the maritime code of any nation, or in any commentary thereon, the least glimmering of authority that distinguishes, in cases of resistance, the fate of the cargo, from that of the ship. If such a distinction could have been sustained, it is almost incredible that not a single ray of light should have beamed upon it during the long lapse of ages, in which maritime war

THE fare has engaged the world. And if any argument is NEREIDE, to be drawn from the silence of authority, I know not BENNETT, under what circumstances it can be more forcibly apMASTER. plied than against the exception now contended for.

But even if it were conceded that a neutral shipper in a general ship might be protected, the concession would not assist the present Claimant. His interests were so completely mixed up and combined with the interests of the enemy; the master was so entirely his agent under the charter party, that it is impracticable to extract the case from the rule that stamps Mr. Pinto with a hostile character. The whole commercial enterprize was radically tainted with a hostile leaven. In its very essence it was a fraud upon belligerent rights. If, for a moment, it could be admitted that a neutral might lawfully ship goods in an armed ship of an enemy, or might charter such a ship, and navigate her with a neutral crew, these admissions would fall far short of succouring the Claimant. He must successfully contend for broader doctrines, for doctrines which, in my humble judgment, are of infinitely more dangerous tendency than any which Schlegel and Hubner, the champions of neutrality, have yet advanced into the field of maritime controversy. I cannot bring my mind to believe that a neutral can charter an armed enemy ship, and victual and man her with an enemy crew, (for though furnished directly by the owner they are in effect paid and supported by the charterer) with the avowed knowledge and necessary intent that she should resist every enemy; that he can take on board hostile shipments on freight, commissions and profits; that he can stipulate expressly for the benefit and use of enemy convoy, and navigate during the voyage under its guns and protection; that he can be the entire projector and conductor of the voyage, and co-operate in all the plans of the owner to render resistance to search secure and effectual; and that yet, notwithstanding all this conduct, by the law of nations he may shelter his property from confiscation and claim the privileges of an inoffensive neutral. On the contrary, it seems to me that such conduct is utterly irreconcileable with the good faith of a friend, and unites all the qualities of the most odious hostility. It wears the habiliments of neutrality only when the sword and the armour of an enemy become

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useless for defence. If it be, as it undoubtedly is, a vi- THE olation of neutrality to engage in the transport service NEREIDE, of the enemy, or to carry his dispatches even on a neu- BENNETT, tral voyage, how much more so must it be to inlist all MASTER. our own interests in his service, and hire his arms and his crew in order to prevent the exercise of those rights which, as neutrals, we are bound to submit to? The doctrine is founded in most perfect justice, that those who adhere to an enemy connexion shall share the fate of the enemy.

On the whole, in every view which I have been able to take of this subject, I am satisfied that the claim of Mr. Pinto must be rejected, and that his property is good prize to the captors. And in this opinion I am authorized to state that I have the concurrence of one of my brethren. It is matter of regret that in this conclusion I have the misfortune to differ from a majority of the Court, for whose superior learning and ability I entertain the most entire respect. But I hold it an indispensable duty not to surrender my own judgment, because a great weight of opinion is against me, a weight which no one can feel more sensibly than myself. Had this been an ordinary case I should have contented myself with silence; but believing that no more important or interesting question ever came before a prize tribunal, and that the national rights, suspended on it, are of infinite moment to the maritime world, I have thought it not unfit to pronounce my own opinion, diffident indeed of its fullness and accuracy of illustration, but entirely satisfied of the rectitude of its principles.

1815.

February 22d.

In the sales of

PRATT, AND OTHERS, Original Complainants,

บ.

THOMAS LAW, AND WILLIAM CAMPBELL,
Original Defendants.

THOMAS LAW, Original Complainant,

บ.

PRATT, AND OTHERS, Original Defendants.

PRATT, AND OTHERS, Original Complainants,

บ.

WM. M. DUNCANSON, AND SAMUEL WARD,
Original Defendants.

AND

WILLIAM CAMPBELL, Original Complainant,

v.

PRATT, AND OTHERS; AND DUNCANSON AND
WARD, Original Defendants.

THESE several suits in chancery in the Circuit lots, in the city Court for the county of Washington, in the district of of Washing Columbia, being involved in each other and relating to are not charge- the same property, were heard and argued as one cause.

ton, the lots

able for their

proportion of

the internal al

the common

The first of these suits, in the order of time, was that ley laid out for of Pratt and others v. Duncanson and Ward, which was benefit of those instituted on the 24th of March, 1801. The bill prayed lots; although that Duncanson and Ward might be enjoined from sellthe practice so to charge them ing certain squares in the city of Washington, which has been here- had been mortgaged by Morris, Nicholson and Greentofore univer- leaf, to Duncanson, to indemnify him against the return sally acquiesced in by pur- of certain bills of exchange which he had drawn for their chasers; and if accommodation, to the amount of 112,000 sterling, a part has acquiesced whereof, viz: 17,600, it was alleged, had been taken in that practice up by Ward, who claimed payment from Duncanson, and and has receiv- persuaded him to advertize the mortgaged property for ance accord sale. The bill alleged that although the bills had been ingly, without taken up by Ward, he had done it as the agent of Greenhe does not leaf, one of the mortgagors, and with his funds; and

a purchaser

ed a convey

objection, yet

1

prayed for general relief. The squares which were PRATT thus mortgaged to Duncanson, were included in a pre- & OTHERS vious mortgage to Thomas Law.

บ.

LAW

The next suit in order of time, was that of Pratt and & CAMPothers v. Thomas Law and William Campbell. 'The bill BELL. was filed on the 14th of December, 1804.

thereby ac

proportion of

Its objects were to compel Law to release to the quire a fee Complainants, who were assignees of Morris, Nicholson simple in such and Greenleaf, certain squares in the city of Washing- the alley, and ton which had been mortgaged by them to secure to may, in equity, recover back him the conveyance of certain lots and squares, in the the purchase same city, which they had contracted to convey to him, money which he has paid and which he was to select from a larger number which therefor. they had purchased of the commissioners of the city; If a purchaser to compel Law to complete his selection; and to vacate of city lots stipulates to build certain releases made by him, at the solicitation of within a limitCampbell, who had attached the equity of redemption of ed time, a some of the squares, which were included in the mortgage to Law.

house on every third lot purchased, or in that proportion, and re

greater part

build in pro

The third suit, in the order of time, was that of Tho- ceives conveymas Law v. Pratt and others. The bill was filed on the ances for the 4th of October, 1805, and its object was to foreclose of the lots, he the mortgage given to secure to Law the conveyance of is not bound to 2,400,000 square feet of land in the city of Washington, portion to the agreeably to a certain contract between him and Morris, lots conveyed, Nicholson and Greenleaf; because about 400,000 square unless the feet, which Law contended he had selected agreeably to ber be conveyhis contract, had not been conveyed to him.

whole num

ed.

In a case where

it would be dif

the sum in da

The last of these suits, in the order of time, was that ficult to ascerof William Campbell v. Pratt and others, (assignees of tain the injury resulting from Morris, Nicholson and Greenleaf,) and W. M. Duncan- the breach of son and Samuel Ward. The bill was filed in June, 1806, contract, or and was in the nature of a bill of interpleader. Its ob- mages by ject was to obtain a release, from Duncanson, of the which the inmortgage given to him by Morris, Nicholson and Green- jury might be compensated, leaf, to indemnify him against the return of certain bills this court will of exchange drawn by him for their accommodation, and not themselves which Campbell alleged had been taken up by them, or injury nor the some of them; which release, if made, would enure to damages, nor the benefit of Campbell, in as much as he had attached, quantum damand under the proceedings upon the attachment, had nificatus. VOL. IX.

58

ascertain the

direct an issue

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