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fiscation.' This penalty is not averted by the orders of the neutral Sovereign to resist the visitation and search of the belligerent cruiser. The law of nations,' says Duer, 'does not permit the sovereign power of a neutral State to interpose its authority for such a purpose, so as to vary the legal rights of the belligerent. . . . Hence, the obedience of the neutral subject to the unlawful orders of his Government, so far from justifying his conduct, will impress him with the character of an enemy.' The resistance of the neutral cannot, therefore, be protected by any orders or instructions from his own Government, but the act must be judged of according to its own character.'

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§ 17. Nor, according to the opinion of Sir William Scott, can the interposition of the authority of the neutral Sovereign, by the presence of an armed convoy, deprive the lawfully commissioned cruiser of the legal right of visitation and search. His language on this point is very clear and decided. Two Sovereigns,' he says, may unquestionably agree, if they think fit, as in some late instances they have agreed, by special covenant, that the presence of one of their armed ships along with their merchant ships, shall be mutually understood to imply that nothing is to be found in that convoy of merchant ships inconsistent with amity or neutrality; and if they consent to accept this pledge, no third party has a right to quarrel with it, any more than any pledge which they may agree mutually to accept. But surely no Sovereign can legally compel the acceptance of such a security by mere force. The only security known to the law of nations upon this subject, independently of all special covenant, is the right of personal visitation and search, to be exercised by those who have the interest in making it.'

§ 18. This question leads to an examination of the powers, duties, and exemptions of public armed vessels on the high seas. The belligerent right of visitation and search, whatever its extent or limitation, is undoubtedly confined exclusively to private merchant vessels, and does not apply to ships of The immunity of such vessels on the high seas, from the exercise of any right of visitation and search, or of any other belligerent right, has been uniformly asserted and con

war.

1 The 'Elsabe,' 4 Rob. R., 40S.

ceded. A contrary doctrine,' says Kent, 'is not to be found in any jurist or writer on the law of nations, or admitted in any treaty, and every act to the contrary has been promptly met and condemned.' 'A public vessel,' says Wheaton, 'belonging to an independent Sovereign, is exempt from every species of visitation and search, even within the territorial jurisdiction of another State; à fortiori, must it be exempt from the exercise of belligerent rights on the ocean, which belongs exclusively to no one nation.' '

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§ 19. One of the most common, as well as one of the most important duties of public ships of war, is the convoy or protection of merchant vessels on the high seas. Can such convoying ships exempt the merchant vessels, under their protection, from the exercise of the right of visitation and search, from which they themselves are exempt? If so, may neutral vessels place themselves under such protection, and lawfully resist any attempt on the part of belligerent cruisers, to subject them to such visitation and search? In other words, is the opinion of Sir William Scott, before referred to, a true exposition of the law of nations on this subject. If private merchant vessels, so convoyed, are exempt from visitation and search, there can be no doubt that no resistance on their part to an attempt to visit or search them can draw after it any penalty; for in doing so, they violate no duty. This question is properly divided into two parts: First, the case of convoy, by ships of war, of private vessels of the same State; and second, the case of convoy of merchant vessels of other

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Kent, Com. on Am. Law, vol. i. p. 157; Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 18.

The right of search does not apply to vessels of war, Thurloe's State Papers, vol. ii. 503; Mr. Canning to Mr. Munroe, August 3, 1807: American State Papers, vol. vi. p. 89; nor to civil or criminal process in ports, although this exemption is not founded on any absolute right, but upon principles of public convenience and the comity of nations. The 'Prins Frederik,' 2 Dods., 451; the 'Exchange,' 7 Cranch. 116. Further, it would seem that this concession may be withdrawn by the local authorities, and that although the ship and equipage existing as a ship of war, remain exempt, persons not forming part of the crew, and prize or other property, may become subject to the local authority. Opinions of the Attorneys General of the United States, vol. i. 47; vol. vii. 131; vol. viii. 79.

The captain of a merchant steamer when brought to by a vessel of war, is not privileged by the fact that he has a government mail on board, from sending, if required, his papers on board the boarding vessel for examination; on the contrary, he is bound by that circumstance to the strictest performance of neutral duties and to special respect of belligerent right.-The Peterhoff,' 5 Wall., 28.

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neutral States. The discussions of publicists have been mainly confined to the first class of cases, although some have claimed that the convoying ship extends its own exemption to all neutral merchant vessels under its protection. Before examining into this distinction, we will give a brief summary of the various treaties on the subject of convoy, and the opinions of text-writers.

§ 20. Whatever may have been the ancient practice with respect to the effect of neutral convoy on the exercise of the belligerent right of visitation and search, it was not till near the middle of the seventeenth century that the question assumed any considerable importance. In the war of 1653, between England and Holland, Queen Christina, of Sweden, directed her merchant vessels to take all possible advantage of the convoy of her ships of war, and ordered such convoying ships to resist, even by force, every attempt on the part of the belligerents to visit the merchant vessels placed under their protection. This ordinance, however, was never executed, and the war was terminated soon after its publication. In the succeeding war, between England and Spain, Holland, now a neutral, claimed the exemption of her merchant ships under convoy, and an English squadron was obliged to content itself with the word of De Ruyter, that the vessel under his convoy carried nothing belonging to the King of Spain. England, however, refused to acknowledge any such right of exemption, and Holland herself, whenever a belligerent, always attempted to visit merchant vessels, under neutral convoy. Even when a neutral, she admitted the duty of the convoying ships to exhibit the papers of the merchant vessel under its escort, and if found to be irregular, the right of the belligerent cruiser to visit the suspected vessel, and even to seize and conduct it into port for trial. Nevertheless, she applauded the conduct of Captain Deval, in 1762, and of Admiral De Byland, in 1780, in forcibly resisting the attempt of English men-of-war to visit merchant vessels under their convoy. None of the treaties of 1780, alluded to this question, but the resistance by the Swedish vessel of war, the 'Wasa,' in 1781, of an attempt of an English cruiser to visit a merchant vessel under convoy, revived the discussion, and the right of exemption was stipulated in a number of treaties, made soon after by Russia and Sweden, with other powers,

and especially in the convention of armed neutrality, signed December 4-16th, 1800. But in the convention of June 17, 1801, Russia herself conceded the belligerent right of ships of war to visit merchant vessels under neutral convoy. This convention was annulled in 1807. Since the peace of 1815, European treaties have generally, except where England was a party, stipulated for the exemption of merchant vessels, under the convoy of public ships of the same State. The treaties which the United States have made with foreign powers, both before and since that period, have generally provided that in case of convoy, the declaration of the commander of the convoy, that the vessels under his protection belong to the nation whose flag he carries, and when bound to an enemy's port, that they have no contraband goods on board, shall be sufficient. Such are the stipulations contained in the treaty with Sweden, of April 3, 1783; with France, of September 30, 1800; with Columbia, made October 3, 1824; with Brazil, made December 12, 1828; with Mexico, made April 5, 1831; with Chile, made May, 16, 1832; with PeruBolivia, made November 13, 1836; with Venezuela, made January 20, 1836, &c. It is worthy of remark that the orders and decrees of the belligerents in the Crimean war silent as to convoy; nor was it alluded to in the declaration of the Paris Conference, April 16, 1856.1

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21. Recent Continental publicists have generally contended that neutral convoy exempts the convoyed vessel from visitation and search. Some have stated this proposition in general terms, while others limit it to merchant vessels convoyed by ships of war of their own nation, and put it on the ground that the declaration of the commander is sufficient as to the character and cargoes of the vessels of his own country under his escort and protection. Such are the general views of Martens, Rayneval, Klüber, Heffter, Massé, and Ortolan. Rayneval, however, is of the opinion that if the belligerent vessel should inform the convoying commander that he has evidence that one or more of the vessels under his escort are liable to capture for being really enemy's vessels, or because they have on board contraband goods, destined to an enemy's port, the commander should immediately

1 Hautefeuille, Des Nations Neutres, liv. i. tit. ii. ch. xiv.; Heffter, Droit International, § 170.

proceed, in concert with the belligerent cruiser, to verify the truth of these allegations. This opinion is concurred in by Ortolan; but Hautefeuille thinks that such examination, if made, should be by the neutral officer only, and that his word, as to the character of his convoy, must suffice. This author has discussed the question of convoy at great length, and with marked ability. It must, however, be remembered, that he attempts to represent what ought to be the rule of international law on this subject, rather than what that law really is at the present time. English text-writers have adopted the opinion of Sir William Scott, with respect to the right to visit and search vessels under neutral convoy, and the effect of such convoy, when it tended to impede and defeat this belligerent right. Manning denies that neutrals, under convoy, can claim, under the general law of nations, to be exempted from search, as a matter of right, but he deems it desirable that it should be accorded to them by agreement. The United States have uniformly favoured the rule of exemption, and have, whenever possible, introduced it into their treaties with other powers. It must, however, be stated that American publicists have generally admitted that the exemption cannot be claimed as a matter of law, and that an attempt in this way to impede search will incur a penalty. Chancellor Kent says that 'the very act of sailing under the protection of a belligerent or neutral convoy, for the purpose of resisting search, is a violation of neutrality.' Mr. Wheaton, in his discussion of the Danish captures under the ordinance of 1810, referring to the English decisions respecting neutral convoys, says: 'Why was it that navigating under the convoy of a neutral ship of war was deemed a conclusive cause of condemnation? It was because it tended to impede and defeat the belligerent right of search; to render every attempt to exercise this lawful right a contest of violence; to disturb the peace of the world, and to withdraw from the proper forum the determination of such controversies by forcibly preventing the exercise of its jurisdiction.' Mr. Justice Story, in the case of the 'Nereide,' says: 'It is a clear maxim of national law that a neutral is bound to a perfect impartiality as to all the belligerents. If he incorporate himself into the measures or policy of either; if he become auxiliary to the enterprises or acts of either, he forfeits his neutral

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