character,―nor is this all. In relation to his commerce he is bound to submit to the belligerent right of search, and he cannot lawfully adopt any measures whose direct object is to withdraw that commerce from the most liberal and accurate search, without the application, on the part of the belligerent, of superior force. If he resists this exercise of lawful right, or if, with the view to resist it, he takes the protection of an armed neutral convoy, he is treated as an enemy, and his property is confiscated. Nor is it at all material whether the resistance be direct or constructive. The resistance of the convoy is the resistance of all the ships associated under the common protection without any distinction whether the convoy belong to the same or a foreign neutral sovereign; for upon the principles of natural justice, a neutral is justly chargeable with the acts of the party, which he voluntarily adopts, or of which he seeks the shelter and protection."

§ 22. The question, whether neutral vessels under enemy's convoy are liable to capture and condemnation, has been frequently raised and most elaborately discussed. The lords of appeal in England decided, in the case of the 'Sampson,' that sailing under enemy's convoy was a conclusive ground of condemnation. There has been no direct decision on this subject by the Supreme Court of the United States. The question was not directly involved in the case of the 'Nereide,' but Justice Story in his dissenting opinion said: 'My judgment is, that the act of sailing under belligerent convoy is a violation of neutrality, and the ship and cargo, if caught in delicto, are justly confiscable; and further, that if resistance is necessary, as in my opinion it is not, to perfect the offence, still the resistance of the convoy is, to all purposes, the resistance of the association.' Chancellor Kent is clear, that the very act of sailing under the protection of a belligerent convoy, for the purpose of resisting search, is a violation of neutrality.' Duer, in his able work on Insurance, fully coincides in this opinion. Wheaton limits himself to a statement of his own

Kent, Com. on Am. Law, vol. i. p. 157; Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 32; Duer, On Insurance, vol. i. pp. 731, 732; the Nereide,' 9 Cranch. R., 438; the 'Catharine Elizabeth,' 5 Rob. R., 232; Rayneval, De la Liberté des Mers, t. i. ch. xviii.; Kluber, Droit des Gens Mod. § 293; Massé, Droit Commercial, liv. ii. ch. ii. sec. ix.; Ortolan, Diplomatie de la Mer, liv. iii. ch. vii.; Heffter, Droit International, § 170; Hautefeuille, Des Nations Neutres, tit. xi. ch. iii.; De Cussy. Droit Maritime, liv. i. tit. iii. § 15.

arguments, as the advocate of the claims of American merchants against Denmark for condemnation, under the ordinance of 1810, for having made use of English convoy. The strongest point of his argument is, that being found in company with an enemy's convoy, even if presumptive evidence, certainly should not be regarded as conclusive of an intention to resist the search of a duly commissioned belligerent cruiser. This presumption,' he says, 'is not of that class of presumptions called presumptiones juris et de jure, which are held to be conclusive upon the party, and which he is not at liberty to controvert. It is a slight presumption only, which will yield to countervailing proof. One of the proofs which, in the opinion of the American negotiator, ought to have been admitted by the prize tribunal to countervail this presumption, would have been evidence that the vessel had been compelled to join the convoy; or that she had joined it, not to protect herself from examination by Danish cruisers, but against others, whose notorious conduct and avowed principles render it certain, that capture by them would inevitably be followed by condemnation. It followed then, that the simple fact of having navigated under British convoy could be considered as a ground of suspicion only, warranting the captors in sending in the captured vessel for further examination, but not constituting in itself a conclusive ground of confiscation.' This argument of Mr. Wheaton was ably answered by the Danish authorities, who held that the only point to be established is, whether the neutral was voluntarily under enemy's convoy.' If so, condemnation must inevitably follow. The negotiation finally terminated in a treaty to pay the American claimants, generally, a fixed sum, ez bloc; but without any admission by either party of the correctness of the other's views on this question of international law. The English commentators on this discussion regard the Danish ordinance as in perfect conformity with the law of nations. Hautefeuille states the arguments of both parties without expressing his own opinion. Ortolan admits that the act of a neutral navigating under the convoy of a belligerent may be irregular and even illegal, and that such a convoy cannot always exempt from search. Mais,' he says. 'si le neutre se joint en pleine mer à un ou à plusieurs navires de guerre belligérants et navigue de concert avec ces

navires, sans prétendre à aucune protection de leur part, dans la seule espérance de pouvoir échapper pacifiquement et par la fuite à la visite, à la faveur d'une rencontre et d'un combat possible entre les seuls belligérants, c'est là de sa part une ruse innocente qui ne peut lui être imputée à délit, et qui ne peut pas, à elle seule, entraîner la confiscation.' Perhaps the foregoing remarks of Ortolan are too strongly expressed, for, in the very case he describes, the neutral merchant vessel uses the force of the belligerent convoy to escape search. It is not only a constructive but a virtual resistance. The case, however, is very different where the merchant vessel has left the convoy prior to the appearance of, or attempted search by, the belligerent cruiser; as, for example, where the convoy was used on the outward voyage, and the capture made during the return voyage. This distinction is forcibly presented by Mr. Wheaton, in his argument in favour of the American claimants for indemnity for Danish captures under the ordinance of 1810. We know of no judicial decision directly upon this question.'

§ 23. The resistance of a neutral master,' says Sir Wm. Scott, in the Catharina Elizabeth,' 2 before quoted, 'will undoubtedly reach the property of the owner; and it would, I think, extend also to the whole property entrusted to his care, and thus fraudulently attempted to be withdrawn from the operation of the rights of war.' 'Confiscation,' says Chancellor Kent, 'is applied, by way of penalty, for resistance to search, to all vessels without any discrimination as to the national character of the vessel or cargo, and without separating the fate of the cargo from that of the ship.' Mr. Duer holds that a forcible resistance to a lawful search is a distinct and substantial course of condemnation, and involves all the property under the charge of the neutral master; not merely that of its owners, but of the shippers, although between them and himself no relation of principal and agent can be said to exist. 'The goods may be wholly innocent, in their nature, and from their destination, and their true character, and that of the ship, as neutral may be undoubted,

1 Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 32; Riquelme, Derecho Pub. Int. lib. i. tit. ii. cap. xiv.; Martens, Nouveau Recueil, tome viii. P. 350; Elliot, American Diplomatic Code, vol. i. p. 453; the 'Nereide,' 9 Cranch. R., 442.

25 Rob., 232.

but the unlawful resistance, from the time it is attempted, stamps on them all an illegal character, and involves them all in its fatal penalty.' The offence being regarded as of a greater criminality and more dangerous in its effects than the transportation of contraband or the violation of a blockade, the severity of the penalty is the greater. The forcible resistance of an enemy master will not, in general, affect neutral property laden on board an enemy's merchant vessel; for an attempt on his part to rescue his vessel from the possession of the captor is nothing more than the hostile act of a hostile person, who has a perfect right to make such an attempt.' 'If a neutral master,' says Sir William Scott, ' attempts a rescue, or to withdraw himself from search, he violates a duty which is imposed on him by the law of nations, to submit to search, and to come in for inquiry as to the property of the ship or cargo; and if he violates this obligation by a recurrence to force, the consequence will undoubtedly reach the property of his owner, and it would, I think, extend also to the whole property intrusted to his care, and thus fraudulently attempted to be withdrawn from the operation of the right of war. With an enemy master, the case is very different; no duty is violated by such an act on his partlupum auribus teneo, and if he can withdraw himself he has a right to do so.'

§ 24. The supreme court of the United States have applied the same rule to neutral property in an armed enemy vessel, and in the case of the 'Nereide,' decided in 1815, it was held that a neutral had a right to charter and lade his goods on board a belligerent armed merchant ship without forfeiting his neutral character, unless he actually concurred and participated in the enemy master's resistance to capture. This doctrine was re-affirmed in 1818, in the case of the 'Atalanta,' notwithstanding the contrary opinion of Sir William Scott in the case of the 'Fanny,' decided contemporaneously with that of the 'Nereide'; it may therefore be regarded as the settled opinion of our highest court on this question of international law. The reasoning of the supreme court most ably sustains its decision, notwithstanding the powerful arguments in the dissenting opinion of Mr. Justice Story, supported as it is by the opinions of Kent and Duer, among American writers, and by the decision of

Sir William Scott in the case of the 'Fanny' and the authority of English publicists generally. The question does not seem to have arisen in the Continental courts. Hautefeuille sustains, on principle, the American decision against that of Sir William Scott, while Ortolan merely states the contradiction between the English and American decisions on this question, without expressing any opinion of his own upon the particular question involved.'

§ 25. The acknowledged belligerent right of visitation and search draws after it a right to the production and examination of the ship's papers. With respect, however, to the nature and character of the papers which the neutral is bound to have on board, there is some difference of opinion. Some Continental writers contend that the ordinary sea-letter or passport is all that is required, as that must establish the nationality of the vessel. If, however, it has been agreed between the belligerent and neutral, that certain papers executed in a particular form shall be carried, the absence of such papers, so executed, may be good ground of seizure. But English and American writers, as well as the decisions of the prize courts of the two countries, have held that the neutral vessel may be required to have on board, and to produce when visited, such other documentary evidence as is usually carried, and deemed necessary to establish the character of the ship and its cargo; and that the absence or non-production of such papers may, or may not, be good cause for capture and condemnation, according to the particular circumstances of the case. The rule is very clearly stated by Chancellor Kent. 'A neutral is bound,' he says, 'not only to submit to search, but to have his vessel duly furnished with the genuine documents requisite to support her neutral character. The most material of these documents are, the register, passport or sea-letter, muster-roll, log-book, charter-party, invoice, and bill of lading. The want of some of these papers is strong presumptive evidence 1 The 'Nereide,' see p. 314; the 'Fanny,' I Dod. Ad. R., 443; the 'Atalanta,' 3 Wheat. R., 409; Hautefeuille, Des Nations Neutres, tit. xi. ch. 420; Ortolan, Diplomatie de la Mer, tome iii. ch. vii.

Two or three Danish ships of war were, during the war, seized by the Spaniards, carrying stores to Gibraltar. On the remonstrance of the Danish minister at Madrid, it was answered that they were not men-of-war that were stopped, but vessels which had made themselves merchantmen for the time. August 15, 1798.—Nelson, vol. ii. p. 241.