that this insurance is not binding, unless the warranty of the plaintiffs, that the vessel and cargo were neutral, was complied with; neither is it binding, unless the insured take care that he do not by any act forfeit his neutrality; if he does, the policy is avoided, and there can be no recovery. There is no evidence but that this property was neutral property. I shall take it to be such; but I hold, that there was a forfeiture of neutrality by the rescue of the vessel. The sentence of condemnation, on that ground, is conclusive evidence of the fact of the rescue; and thus depends upon the question, are neutral ships bound to submit to visitation and search? On this subject I entertain no doubt that they are;-all I contend for is, that it is not barratry.

I find nothing in opposition to this opinion in the books, except only, an opinion expressed in the case of Saloucci v、 Johnson. It must be admitted, that the opinion of the court was, that a neutral ship is not bound to submit to be searched. They also observe, that a ship is not bound farther than to notice the law of nations, and not the particular ordinances of other powers. This observation is doubtless correct; and the sentence in the Spanish court, states that the ship refused to be searched, and refused with force, having fired on the Spanish ship, contrary to the Spanish cruising orders. The court seem to suppose, that it was not therefore, by the force of the law of nations, that she was condemned, but because she violated the cruising orders of Spain; but if the cruising orders were in conformity to the law of nations, the resistance would be a forfeiture. The judgment in the case of Saloucci v. Johnson, it seems to me, may be correct without adopting the opinion there adopted by the court, that a neutral is not obliged to submit to be searched. What is the sentence of the Spanish court? That she had refused to be searched, and resisted with force, having fired upon the Spanish ship contrary to the cruising orders of Spain. It is not said in violation of her neutrality, or contrary to the law of nations. What is the evidence which we have, that she refused to be searched, &c.?

The sentence tells us, because she fired upon a Spanish ship; but is this conclusive evidence of a breach of neutrality? Does not the master's answer repel the conclusion, that being hailed under false colours, he supposed that the Spanish ship was a Barbary corsair? There is nothing in the sentence to contradict the idea; and under such circumstances, it could be no breach of neutrality, or violation of the law of nations. All that is said, is, that it was contrary to the Spanish cruising orders. What they were does not appear in the sentence; and if they were any way different from the law of nations, they were not binding upon neutrals.

The opinion there given is a solitary one. All the writers that I have seen, recognise the right of search. Grotius and Bynkershock speak of it as the known law of nations; and it seems to me idle to say, it being a matter of force, it may be resisted; for although it be a matter of force, yet it must be admitted, that it is lawful force. In all arrests it is a matter of force; but to admit the idea, that therefore, the officer who arrests may be resisted, would be to introduce confusion, and subvert all regular government.

On this point, Vattel, a writer of the highest authority, is decided. He maintains the right of search in the belligerent and lays it down as incontrovertible law, that a neural ship which should resist such visitation, may be seized and condemned on that account.

In the case of Garrels v. Kensington, 8 Term Rep. 230, the question is settled, that every belligerent cruiser has a right to visit and search a neutral, and that resistance to it is a forfeiture of neutrality. This is no new opinion, adopted to answer a particular purpose, but one that isperfectly conformable to the ancient and most approved authors on maritime law.

Such also, is the decision in the case of the Maria a Swedish vessel, reported in Marshall on Insurance 311. Vid. 1 Rob. Adm. Rep. 287. A more luminous decision, and supported by more irrefragable arugments, I do not remember to have seen. I conclude, therefore, that the belligerent has a right

to visit and search, and use the force necessary; and it being a lawful force, it cannot be lawfully resisted; and if resisted, it is a forfeiture of neutrality, and a good ground for condem nation; and by means whereof, the insured having, by their policy, warranted the property neutral, and by their own act forfeited all benefit from that neutrality, cannot recover on the policy.

The only doubt that has arisen in my mind, in the investigation of this subject, is, whether the right of the belligerent extended any farther than to visit and search; provided no property was found but neutral property, and the attempt to send into port was of course unlawful. In such case the point, however, was adjudged in the case of Garrels v. Kensington, which was the case of a ship with neutral property, captured and sent into port for adjudication, and rescued from the prizemaster and seamen, put on board by the master and crew of the capturing ship, and again recaptured; and for this rescue the ship and cargo were condemned.

There is a point of light, in which I will endeavour to place this case, which, I apprehend, will demonstrate that the insurers are not liable; that although the conduct of the master in rescuing this vessel might be considered as barratry in other cases, it could not be such in this case, as to render the insurers liable. What is the barratry in this case? It is agreed it was the rescue of the vessel; thus forfeiting the benefit of neutrality, by which means the vessel was condemned. The ground taken then is this; the masters' conduct was such, that he forfeited the benefits of neutrality. This was an unlawful act, and the very one by which the owners lost their property; and of course, barratry. It is on this ground that it is contended, and it is the only ground upon which it can be contended that the insurers are liable. We will for a moment ad. vert to the policy. Upon what condition do the insurers warrant against the hazards mentioned in the policy? on this, that the insured warrant, that their vessel and cargo are neutral, and that nothing shall be done that shall forfeit that neutrality; for No. XXIV. 3 Z

this is implied in all warranties, that the property is neutral; and if an act is done that forfeits this neutrality, the insurers are discharged. And here the very thing is done, viz: the rescue of the vessel, which forfeits the benefits of neutrality; and thus, the insurers are discharged. The same thing which it is contended is barratry, and subjects the insurers, is the very thing which, by the policy, it is agreed shall discharge the insurers. What is the language of the policy in the mouths of the parties? Is it not this; say the insurers to the insured, we will subscribe the policy and insure against the hazards there named, provided you will engage that the ship and her cargo is neutral, and that no act shall be done which forfeits her neutrality. The insured answer to this, we agree; and the insured, accordingly, engage in the policy, that if any act is done, which is a forfeiture of the vessels' neutrality, they will have no claim against the insurers. An act is done which is a forfeiture of neutrality; yet the insured claim against the insurers; because they say, that this act is barratry, against which the insurers insured; or in other words, it is true we agreed never to call upon you, if a certain event took place. That event has taken place, and we call it barratry, and you are liable. Nothing can be more absurd than to suppose the parties contemplated the forfeiture of neutrality, as the barratry insured against; for this would be to suppose, that they had agreed that the insurers should not be liable, if there was a forfeiture of the neutral character; and at the same time agreed, that in that event, they should be holden. From the nature of these warranties, on the part of the insured, they are conditions precedent. No liability attaches on the insurers, unless these warranties are sacredly performed. It was, therefore, absolutely necessary, that the vessel and cargo should be neutral, and that this neutral character be preserved, or the insurers were not liable. The language of the policy, most manifestly is, in the mouth of the insurers, if you the insured, warrant the vessel and eargo to be neutral, and that she shall preserve her neutral character, we insure against barra

try; but if you do not do this, we will not be liable. To this the insured agree, and put it on that ground, that ship and cargo are neutral, and will preserve a neutral character. Can it be conceived, that when she forfeits her neutral character, this is the barratry insured against? If it is, then the law is so, that the very act which releases the insurers from all liability, is the act which renders them liable.

Brainard, J. concurred in the opinion of judge Reeve.
New trial not to be granted.

SUPREME COURT OF PENNSYLVANIA.

1817.

The Farmers and Mechanic's Bank, vs. Wm. W. Smith. The Act of Assembly of March, 1812 is a Bankrupt Law, and is no infringement of the Constitution of the United States.

Tilghman, Ch. J. I agree with the counsel for the plaintiff in considering the act of assembly on which the question in this case arises, as a bankrupt act. Such it certainly is, in its nature, although confined in its operation to a particular part of the state. It has the leading features of a bankrupt law, the discharge from all debts in consideration of the surrender of all the property of the debtor; and it possesses the details usually found in bankrupt laws for carrying the main design into effect. The validity of this law is contested as violating the Constitution of the United States in two respects; 1st. In assuming a power which has been exclusively vested in the congress of the United States. 2d. In impairing the obligation of contracts, contrary to the express prohibition of the 10th section of the 1st article of the Constitution.

1. Congress has power "to establish uniform laws on the subject of bankruptcies throughout the United States." (Art.. 1. Sec. 8.) Hence it is contended, that no state has power to pass a law on the subject of bankruptcy.