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![handle is hein.slavery/ssactsengr0378 and id is 1 raw text is: The originals decreed to be produced.
Jan. 15th, 1800.-The captors being satisfied with the farther proof produced,
Mr. Berkeymyer's claims were restored without opposition.
THE MARIA -(Paulsen, Master). June 11, 1799.-A vessel sailing under convoy
of an armed ship for the purpose of resisting visitation and search, condemned.
[S. C. 1 Eng. Pr. Cas. 152. Affirmed on appeal, see 6 C. Rob. ix. See The Elsebe,
1803, 4 C. Rob. 408. Referred to, The Zamora, [1916] 2 A. C. 95.]
This was the leading case of a fleet of Swedish merchantmen, carrying pitch, tar,
hemp, deals, and iron, to several ports of France, Portugal, and the Mediterranean ;
and taken, Jan. 1798, sailing under convoy of a ship of war; and proceeded against
for resistance of visitation and search by British cruisers.
In December 1797, this case coming on to be argued on the original evidence,
the Court directed [341] farther information to be given by both parties, respecting
the precise acts that took place at the time of capture, the instructions under which
the convoyed ships were sailing, and also the instructions to the Swedish frigate.
On a subsequent day this information being produced, it was again argued at
much length.
On the part of the Captors, the King's Advocate and Arnold, in substance contended
-If the case of this ship and cargo were to be considered singly, and separated from
the principal question of convoy, there are many circumstances attending it of a
very noxious aspect. It was going on an asserted destination to Genoa, at a time
when that port was become almost a hostile port, by its subserviency to all the pur-
poses of the French marine, whilst our ships and cruisers were absolutely excluded.
It was going under the certificate of the French consul, in compliance with the unjust
decree of the French government (a) ; and the articles of which the cargo consisted
were articles of a contraband nature. It is [342] true they are such articles as the
Swedes are now permitted to carry in time of war under certain circumstances,
but only under a strict observance of good faith, a conduct perfectly neutral, and
in all cases subject to a right of pre-emption on the part of a belligerent nation.
And farther, the truth of this asserted destination to Genoa is exposed to great
suspicion from the discretionary power, with which the master was intrusted, of
going elsewhere.
These are circumstances unfavourable in themselves; but they assume a more dis-
tinct hostile character from the circumstance of being taken, sailing under the
protection of an armed force, and associated for the purpose of resisting visitation and
search from the cruisers of this country. The act of resistance to the lawful rights
of search is the ground on which it is principally contended that this case is subject
to confiscation : for although this fact may receive colour and complexion of a more
hostile nature from other circumstances, it is alone sufficient to incur the penalty of
confiscation. The right of visitation and search in time of war, even in the most in-
noxious cases, is an established right of belligerent powers, acknowledged and referred
to in the treaties of the states of Europe. It is admitted by all speculative writers
of the law of nations. Bynkershoek expressly admits it in these words: Velim
animadvertas eatenus utique licitum esse amicam navem sistere, ut non ex fallaci forte
aplustri, sed ex ipsis instrumentis in navi repertis constet, navem amicam esse.
Lib. i. ch. 14. And Vattel, L. iii. sect. 114, acknowledges the penalty attending the
contravention of this right by neutral ships to be confiscation. Even in cases [343]
where it is possible that this right may be wrongfully exercised by cruisers, resistance
is not the legal remedy, as there is a regular and effectual remedy, provided by all the
maritime codes of Europe, in the responsibility which cruisers lie under to make
(a) Decree 18th Jan. 1797.- L'6tat des navires en ce qui concerne leur qualit6
de neutre ou d'ennemi fera d6termin6 par leur cargaison; en consequence tout
b~timent trouv6 en mer, charg6 en tout ou en partie de marchandises provenant
d'Angleterre, ou de ses possessions, sera d6clar6 de bonne prise, quelque soit le pro-
priftaire de ces denr6es ou marchandise.-See Atcheson's Report on a Case in
King's Bench, Appendix, page 155, where the reader will see the late regulations of
the French government in matters of prize.
In consequence of this decree, all neutrals were required to take a certificate
from the French consuls that their goods were not of British produce or manufacture.
THE MARIA
199
1 C. ROB. S41.](ViewImageLocal?handle=hein.slavery/ssactsengr0378&div=1&collection=&method=preview&ext=.png&size=3)