sometimes have impressed on them a hostile character while their owners are friendly or neutral, sometimes from their origin, character, or use, and sometimes from the acts of their owners, of the ship in which they are carried, or of the master in charge of them. These questions will be more particularly discussed in the following chapters, and more especially in that on the determination of national character.1 § 18. In determining the national character of property, courts of prize generally look only to the legal title; and when, from the papers, the right of property in a captured ship or cargo appears to be vested in an enemy, no equitable or secret liens of a neutral or a subject can be made the foundation of a claim to defeat or vary the rights of the captors. The only exception to this rule, is where the lien is immediately and visibly incumbent upon the property, and consequently, is one which the party claiming its benefit has the means of enforcing without resort to legal process. Of such a nature is the freight due to the owner of the ship, for the ship-owner has the cargo in his possession, subject to his demand of freight money, by the general law, independent of any contract. The distinction between the two classes of liens is properly expressed in the language of the civil law, by regarding one as a jus ad rem, and the other as a jus in re.2 § 19. It is stated by Mr. Wheaton that, in addition to the certificate of registry, which is the proof naturally to be looked The 'Vrow Anna Catharina,' 5 Rob. 161; the Magnus,' 1 Rob. 31 ; the 'Fortuna,' 1 Dod. R. 87; the 'Success,' 1 Dod. R. 131; the Princessa,' 2 Rob. 49; the 'Anna Catherina,' 4 Rob. 107; the 'Rendsborg,' 4 Rob. 121; the Commercen,' I Wheaton R. 382; the 'Phoenix,' 5 Rob. 20; the 'Drie Gebroeders,' 4 Rob. 232; the Industrie,' Spinks R. 444. A great distinction has always been made, by the nations of Europe, between ships and goods. Some countries have gone so far as to make the flag and pass of a ship conclusive on the cargo also, but the Courts of Great Britain have never carried the principle to that extent. They hold the ship to be bound by the character imposed on it, by the authority of that Government from which all the documents issue, but that goods, which have no such dependence upon the authority of the State, may be differently considered. As to the further question, whether the Courts will make the separation, it may be said, that in time of peace such separations will generally be made, but that in time of war a more strict principle may become necessary. See the 'Elizabeth' (5 Rob. 2), and post, ch. xxiii. § 19, the distinction drawn by the Supreme Court of the U.S. between that case and the 'Julia' (8 Cranch. 181). 2 The San José Indiano,' 2 Gallis. R. 284; the 'Frances,' 18 Cranch. 418; the Tobago,' 5 Rob. 218; the 'Marianna,' 6 Rob. 24. to for the national character of the ship, the following proofs of property in a vessel and cargo are usually required: '1st, the Passport, or Sea-Letter. This is a permission from the neutral State to the master of the vessel to proceed on the intended voyage, and usually contains his name and residence, the name, description, and destination of the vessel, with such other matter as the local law and practice require.' 2nd, the Muster Roll, or Rôle d'Equipage, containing the names, ages, quality, and national character of every one of the ship's company.' '3rd, the Charter Party; if the vessel has been let to hire.' '4th, the Bills of Lading, by which the master acknowledges the receipt of the goods specified therein, and promises to deliver to the consignee or his order.' ' 5th, the Invoices, which contain the particulars and prices of each parcel of the goods, with a statement of the charges thereon.' '6th, the Log-book, or ship's Journal, which contains an accurate account of the vessel's course, with a short history of the occurrences during the voyage.' 'As the whole of these papers may be fabricated,' says Mr. Wheaton, their 'presence does not necessarily imply a fair case; neither does the absence of any of them furnish a conclusive ground of condemnation, as has been most unjustly provided by the ordinances of certain belligerent powers. As they furnish presumptive evidence only of the property in the vessel and cargo belonging to those to whom it purports to belong; so, on the other hand, their absence affords only presumptive evidence of the existence of enemy interests, which may be rebutted by other proof of a positive nature, accounting for the want of them, and supplying their place, according to the circumstances of each particular case.' At one period it was customary for the government of the United States to issue sea-letters and certificates of ownership to vessels owned by American citizens, whether entitled or not to registry and enrolment. But, since the Acts of March 26 and June 30, 1810, these particular documents are not often issued. With respect to ships which have been transferred abroad, a bill of sale is the proper evidence of ownership. A bill of sale,' says Lord Stowell, 'is the proper title to which the maritime courts of all countries would look. It is the universal instrument of the transfer of ships in the usage of all maritime countries." Kent, Com. on Am. Law, vol. i. p. 130; Wheaton, On Captures, pp. § 20. There seems to be some difference in the laws of different states, as well as in the decisions of their courts and in the opinions of their text-writers, with respect to the character of the documents requisite to prove the neutrality of a vessel, and with respect to the effect of those documents even when their genuineness is unimpeached. Bello is of opinion that the passport, or sea-letter, is absolutely indispensable for the security of the vessel. Article 2 of the French Ordonnance of July 26, 1778, requires that neutral vessels shall prove their neutral character by 'passe-ports, connaissements, factures et autres pièces d'abord, l'une desquelles au moins constatera la propriété neutre,' etc. And Article 6 of the Ordonnance of 1861, says: Seront encore de bonne prise les vaisseaux, avec leur chargement, dans lesquels il ne sera trouvé chartes-parties, connaissements, ni factures. Abreu was of opinion that these words were to be taken collectively and not distributively. But this is evidently erroneous, for another provision of the Ordonnance is (Article 13) that no friendly or neutral vessel is to be made prize, if the captain produces the 'charte-partie ou police de chargement,' which latter word signifies the same as connaissement. Massé seems to think that the absence of a passport is a necessary cause of confiscation, and that it cannot be replaced by any other document. But Hautefeuille, Pistoye and Duverdy, and others, do not 65, 66; Duer, On Insurance, vol. i. pp. 55o, 551; the 'Sisters,' 5 Rob. 155; the Pizzaro,' 2 Wheaton R. 227; the 'Amiable Isabella,' 6 Wheaton R. 1; the 'Nereide,' 9 Cranch. 388. A Bill of Health, or certificate properly authenticated, that the ship comes from a place where no contagious distemper prevails, and that none of the crew, at the time of her departure, were infected with such distemper, is to be found among the papers of the ships of many nations. It is a master's duty to produce all his papers, and least of all to withhold his Instructions, which are very important papers.-The 'Concordia,' I Rob. 120. To make a voyage fairly alternative it should appear on the papers to be so; for otherwise it must mislead the cruisers of the belligerent countries.-The 'Juffrau Anna,' 1 Rob. 124. If it be clearly evident that a vessel, although without papers, is neutral, her detention by a ship of war is not justifiable, but in the absence of that clear evidence, a ship of war is justified in detaining a ship when the more important papers of the latter are wanting; the same, if those papers are irregular or inconsistent with each other, or with the statements of the master. The Sarah,' 3 Rob. 330; the 'Anna,' 5 Rob. 383; Nuestra Signora de Piedade,' 6 Rob. 43. As to regularity of papers, false papers, and spoliation, see post, cc. 23 and 27; as to endorsement of a ship's papers, see the 'Hendrick and Maria,' 1 Rob. 82, and 4 Rob. 53; as to marks on British ships, see 39 & 40 Vict. c. 80. VOL. II. L consider it as indispensable, and such has been the decision of the French courts. According to English and American decisions, the neutral character of a vessel may be sustained without her having on board either register, or passport; although in the absence of both, the presumption would be against her. Si aliquid ex solemnibus deficiat, cum aequitas poscit, subveniendum est. As already stated, the presence of all the usual documents would not be conclusive in her favour.' § 21. As the French decisions on this subject have differed, in some respects, from our own, we will give a synopsis of a few of the most important. In the case of 'Le Nisus' c. 'Le Mansouré et Le Rouge,' it was held that a merchant coastingvessel, without documents aboard, was not a good prize, where not required by the laws and usages of its own government; but, in the 'Mistick Grec' c. 'La Junon,' where such vessel was armed, it was condemned as good prize. In the case of 'La Notre-Dame du Pilier,' it was held that the evidence of the crew, as to the hostile character of the vessel, must prevail over the neutral character of the papers found aboard. The same decision was confirmed in 'Le Munster' c. 'Le Brave," and 'La Nancy' c. 'L'Enjoleur.' In 'Le Saint-Antoine, et al.' c. 'L'Audacieux,' where the vessels were furnished with double documents, French and belligerent, further evidence was resorted to, which evidence established their hostile character, and they were condemned. In 'La Molly' c. 'L'Ecole,' notwithstanding the neutral and regular character of the documents found aboard, the vessel was condemned as hostile on other evidence. In the case of 'Le Winyan' c. L'Ariége,' regular neutral papers were shown, but others showing the hostile character of the vessel were also found aboard, and she was condemned. In the case of 'Le Reysiger' c. 'Le Courageux,' two neutral passports were found aboard, one for coasting, and the other for a certain destination; it being shown that the second was to be used only on the expiration of the first, the vessel was restored. In the case of 'La Fredricka,' it was held, that the effect of documents was not to be determined by their title, but by their contents, and that, where the instruction du propriétaire to the captain contained everything 1 Massé, Droit Commercial, liv. ii. tit. i. § 342; Hautefeuille, Des Nations Neutres, tit. xii.; Merlin, Répertoire, verb. Prises Maritimes, § 3; Abreu, Traité des Prises, pt. i. ch. ii. § 17. that the charter-party, invoice, bill of lading and manifest, usually contain, it would serve as a substitute for them all. The character of the vessel, as friendly or neutral, must, as a general rule, be determined by the documents found aboard and the testimony of the captors, but in case of French vessels having simulated enemy papers aboard for the purpose of deceiving the enemy, papers not on board have been admitted as evidence to exempt such vessel from confiscation, as was decided in the cases of 'Le Censor' c. L'Entreprise' and 'Les Deux Charlottes' c. Le Filibustier.' In the case of 'Le Jonge Cornelis' c. L'Actif et al.,' the vessel of an ally was allowed to prove her nationality by documents not on board at the time of capture. In the case of the Swedish vessel 'L'Eleonora,' it was held that Lettres de franchise were a good substitute for the passport; and in the case of 'La Carolina Wilhelmina' c. 'Le Dragon,' it was held that, in the Baltic, a certificate of ownership would serve the same purpose. In 'Le ChristiernSwerin' and 'La Paix' c. 'Le Général Moreau,' it was held that a neutral passport, to be available, must be renewed as often as the vessel returns to ports of her own country; but (in 'Le Quintus' c. L'Epervier' and 'La Bagatelle' c. Le Basque') this rule does not apply to coasting-vessels år Levant traders. In the case of 'La Constance' c. 'Les Deux Amis,' where the passport was found to be null and void, the neutrality of the vessel was determined by other documents found aboard. Passports to vessels absent from the country at the time of their issue, are not in general available; vide 'Le Haabet' c. 'L'Heureux,' 'Le Munster Doris' c. 'Le Brave,' 'La Constance' c. 'Les Deux Amis,' 'La Famille,' 'Le Zenodore' c. 'La Charitas'; but vessels purchased by one neutral, in the ports of another neutral power, are exceptions to this rule, vide 'L'Engel-Elisabeth' c. 'Le Bon Ordre, et al.,' and 'L'Attention' c. Le Deucalion'; other special exceptions were made in the cases of 'La Notre-Dame de Bon-Conseil' c. 'Le Coureur,' and 'L'Amitié' c. 'Le Camus.' A passport issued by a public officer of a neutral state, residing in an enemy country, he being part owner, was held, in 'Le Wikilladge' c. 'L'Emilie,' to be null, and the vessel a good prize. A passport from America to Africa and back, is not available for trading voyages between Africa and Europe, and a passport for a neutral port is not good for an enemy's port; vide 'Le |