by John Marshall

“ It is for the consideration of the government not of its Courts. The degree and the kind of retaliation depend entirely on considerations foreign to this tribunal. It may be the policy of the nation to avenge its wrongs in a manner having no affinity to the injury sustained, or it may be its policy to recede from its full rights and not to avenge them at all. It is not for its Courts to interfere with the proceedings of the nation and to thwart its views. It is not for us to depart from the beaten track prescribed for us, and to tread the devious and intricate path of politics. ”

“ The most gross frauds and hostile enterprizes would be carried on under neutral disguises, and the right of search would become as utterly insignificant in practice as if it were extinguished by the common consent of nations. The extravagant premiums and freights which neutrals could well afford to pay for this extraordinary protection would enable the belligerent to keep up armaments of incalculable size, to the dismay and ruin of inferior maritime powers. Such false and hollow neutrality would be infinitely more injurious than the most active warfare. ”

“ The rule that the goods of an enemy found in the vessel of a friend are prize of war, and that the goods of a friend found in the vessel of an enemy are to be restored, is believed to be a part of the original law of nations, as generally, perhaps universally, acknowledged. Certainly it has been fully and unequivocally recognized by the United States. This rule is founded on the simple and intelligible principle that war gives a full right to capture the goods of an enemy, but gives no right to capture the goods of a friend. ”

“ 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 ”

“ It wears the habiliments of neutrality only when the sword and the armour of an enemy become useless for defence. If it be, as it undoubtedly is, a violation of neutrality to engage in the transport service of the enemy, or to carry his dispatches even on a neutral voyage, how much more so must it be to inlist all 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? ”

“ A neutral cannot employ the force of his own government, nor that of another neutral, much less that of a belligerent, to protect himself from search. If you cannot make use of the convey, you cannot take the guns of that convoy and protect yourself. It is not the modification of the force, but the force itself that is unlawful. If a neutral, insured as such, range himself under convoy, the policy is vacated.
This case is not like that of neutral goods put into a fortified town before investment: it is more like that of goods placed there after investment. ”

“ It is not true, as to neutrals, that the act of the master never binds the owner of the cargo unless the master is proved to be the actual agent of the owner. The act of the master may be, and very often is, conclusive upon the cargo, although no general agency is established. Suppose he violate a blockade, suppress and fraudulently destroy the ship's papers, or mix up under the same cover enemy interests, will not the cargo share the fate of the ship? ”

“ Why should he aid the enemy by giving extraordinary freight for belligerent ships sailing under belligerent convoy with the avowed purpose of escaping from search, and often with the concealed intention of aiding belligerent commerce, and yet claim the benefits of the most impartial conduct? ”

“ Suppose the case of a vessel and cargo wholly neutral; even she possesses a natural right to resist seizure; but her resistance must be effectual, or international law pronounces her forfeited. What injury results to the belligerent cruizer? If the cargo be really neutral, the exercise of his right of judging becomes immaterial; and if it be contraband, or otherwise subject to condemnation, what reason in nature can be assigned why the neutral owner should not throw himself upon the fortune of war, and rely upon the protection of your enemy? ”

“ A belligerent has a perfect right to arm in his own defence; and a neutral has a perfect right to transport his goods in a belligerent vessel. These rights do not interfere with each other. The neutral has no control over the belligerent right to arm-ought he to be accountable for the exercise of it? By placing neutral property in a belligerent ship, that property, according to the positive rules of law, does not cease to be neutral. ”

“ Then the principle applies as well to a belligerent as to a neutral convoy? For it is manifest that the belligerent will at all events resist search; and it is quite as manifest that the neutral seeks belligerent protection with an intent to evade it. Is it that an evasion of search, by the employment, protection, or, terror of force, is inconsistent with neutral duties? Then a fortiori the principle applies to a case of belligerent convoy, for the resistance must be presumed to be more obstinate and the search more perilous. ”

“ Elementary writers rarely explain the principles of public law with the minute distinctions which legal precision requires. Many of the most important doctrines of the prize Courts will not be found to be treated of, or even glanced at, in the elaborate treatises of Grotius, or Puffendorf, or Vattel. A striking illustration is their total silence as to the illegality and penal consequences of a trade with the public enemy. Even Bynkershoek, who writes professedly on prize law, is deficient in many important doctrines which every day regulate the decrees of prize tribunals. ”

“ As to the treaty with Spain, that the maxim 'free ships shall make free goods,' does not imply the converse, that hostile ships shall make hostile goods. There is certainly no necessary connexion between the two maxims, nor have they ever been supposed to be necessarily connected. The one is the claim of a neutral, the other of a belligerent. What is the rule of justice? That free ships should make free goods, and that free goods, in belligerent ships, should be free also. ”

“ The stipulation which subjects neutral property, found in the bottom of an enemy, to condemnation as prize of war, is a concession made by the neutral to the belligerent. It narrows the sphere of neutral commerce, and takes from the neutral a privilege he possessed under the law of nations. The one may be, and often is, exchanged for the other. ”

“ 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 ”

“ To condemn, in such case, is pushing the doctrine to a great extent, since it is acting upon the presumption, which is not permitted to be contradicted, that all the convoyed ships distinctly understood and adopted the objects of the convoy, and intimately blended their own interests with hostile resistance.
There is not, then, the slightest reason for the favorable distinction, as to the belligerent convoy, assumed by counsel. On the contrary, every presumption of hostility is, in such case, more violent, and every suspicion of unneutral conduct more inflamed. ”

“ It is that a party, neutral as to one power, may be an enemy as to another power, and he may lawfully place himself under belligerent convoy to escape from his own enemy. In such a predicament it is, therefore, always open to the neutral to explain his conduct in taking convoy, and to show, by proofs, his innocent intentions as to all friendly belligerents. ”

“ The Court has, therefore, thought it not unreasonable to apply the strict principle of law, in a case not entitled to any favor, and holds, as it does in blockade cases of that description, that the master must be taken to be the authorized agent of the cargo, that he has acted under powers from his employer, and that if he has exceeded his authority, it is barratry, for which he is personally answerable, and for which the owner must look to him for indemnification. ”

“ Where are accurately and systematically stated all the circumstances which impress upon the neutral a general, or a limited, hostile character, either by reason of his domicil, his territorial possessions, or his connexion in a house of trade, in the enemy country? The search would be nearly in vain in the celebrated Jurists whose authority has been quoted to silence the present enquiry. ”

“ But this is always done as an act of state, and not as the mere result of a judicial execution of the law of nations. It is the effect of policy, not of law. Such were the measures adopted by the orders in council of Great Britain, and the offensive decrees of France, and of other nations under the control of France, which have been mentioned on the other side. The government of a state always undertakes to punish the violation of its rights and it chooses its own means. ”

“ Whenever the two maxims have been connected in a treaty, it has been where one of the maxims was important to one of the parties as a neutral nation, and the other to the other party as a belligerent nation. ”

“ It would be strange if a rule laid down, with a view to war, in such broad terms as to have universal application, should be so construed as to exclude from its operation almost every case for which it purports to provide, and yet that not a dictum should be found in the books pointing to such construction. ”

“ But unless there be something in the nature of the rule which renders its parts unsusceptible of division, nations must be capable of dividing it by express compact, and if they stipulate either that the neutral flag shall cover enemy goods, or that the enemy flag shall infect friendly goods, there would, in reason, seem to be no necessity for implying a distinct stipulation not expressed by the parties. ”

“ The policy of this country is to extend, not to impair them. A neutral aids the belligerent much more by carrying belligerent property, than by employing a belligerent vessel to carry neutral goods; yet the neutral vessel carrying the belligerent goods, is always restored, and with freight, unless she forfeit her neutral character by her hostile conduct. The neutral character may be forfeited by fraudulent conduct of the master-by violation of blockade-by carrying contraband goods-by false destination and by resisting search. ”