vessels. Subject to this modification, the pretension of resisting by means of convoy the exercise of the belligerent right of search was surrendered by Russia and the other northern powers, and various regulations were provided to prevent the abuse of that right to the injury of neutral commerce. As has already been observed, the object of this treaty is expressly declared by the contracting parties, in its preamble, to be the settlement of the differences which had grown out of the armed neutrality by 66 an invariable determination of their principles upon the rights of neutrality in their application to their respective monarchies. The 8th article also provides that "the principles and measures adopted by the present act shall be alike applicable to all the maritime wars in which one of the two powers may be engaged, whilst the other remains neutral. These stipulations shall consequently be regarded as permanent, and shall serve as a constant rule for the contracting parties in matters of commerce and navigation." (a) Forcible § 528. In the case of The Maria, the resistance of the convoying ship was held to be a resistance of the whole my master. fleet of merchant vessels under convoy, and subjected the whole to confiscation. This was a case of neutral property condemned for an attempted resistance by a neutral armed vessel to the exercise of the right of visitation and search, by a lawfully commissioned belligerent cruiser. But the forcible resistance by 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 W. Scott," attempts a rescue, or to withdraw himself from search, resistance by an ene bonâ fide abandonment of the original intention with which the vessel took convoy, and being satisfied that there was only a yielding to a present superior force, he decided that there was not such an abandonment, without deciding whether, if there had been an abandonment, the fact of having sailed with such an intent, under convoy so instructed, would still have been conclusive against the vessel.] — D. (a) The question arising out of the case of the Swedish convoy gave rise to several instructive polemic essays. The judgment of Sir W. Scott was attacked by Professor J. F. W. Schlegel, of Copenhagen, in a treatise on the visitation of neutral ships under convoy, transl. London, 1801; and vindicated by Dr. Croke in "Remarks on M. Schlegel's Work," 1801. See also "Letters of Sulpicius on the Northern Confederacy," London, 1801. "Substance of the Speech of Lord Grenville in the House of Lords, Nov. 13, 1801," London, 1802. Wheaton's Hist. Law of Nations, 390-420. he violates a duty which is imposed upon 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 rights of war. With an enemy master, the case is very different; no duty is violated by such an act on his part-lupum auribus teneo, and if he can withdraw himself he has a right so to do." (a) Right of a neutral to carry his goods in an armed ene § 529. The question how far a neutral merchant has a right to lade his goods on board an armed enemy vessel, and how far his property is involved in the consequences of resistance by the enemy master, was agitated both in my vessel. the British and American prize courts, during the last war between Great Britain and the United States. In a case adjudged by the Supreme Court of the United States, in 1815, it was determined, 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. (a) Contemporaneously with this decision of the American court, Sir W. Scott held directly the contrary doctrine, and decreed salvage for the recapture of neutral Portuguese property, previously taken by an American cruiser from on board an armed British vessel, upon the ground that the American prize courts might justly have condemned the property. (b) In reviewing its former decision, in a subsequent case adjudged in 1818, the American court confirmed it; and, alluding to the decisions in the English High Court of Admiralty, stated, that if a similar case should again occur in that court, and the decisions of the American court should in the mean time have reached the learned judge, he would be called upon to acknowledge that the danger of condemnation in the United States courts was not as great as he had imagined. In determining the lastmentioned case, the American court distinguished it both from those where neutral vessels were condemned for the unneutral act of the convoying vessel, and those where neutral vessels had been (a) The Catherina Elizabeth, Robinson's Adm. Rep. v. 232. (b) The Fanny, Dodson's Adm. Rep. i. 443. condemned for placing themselves under enemy's convoy. With regard to the first class of cases, it was well known that they originated in the capture of the Swedish convoy, at the time when Great Britain had resolved to throw down the glove to all the world, on the contested principles of the northern maritime confederacy. But, independently of this, there were several considerations which presented an obvious distinction between both classes of cases and that under consideration. A convoy was an association for a hostile object. In undertaking it, a State spreads over the merchant vessels an immunity from search which belongs only to a national ship; and by joining a convoy, every individual vessel puts off her pacific character, and undertakes for the discharge of duties which belong only to the military marine. If, then, the association be voluntary, the neutral, in suffering the fate of the entire convoy, has only to regret his own folly in wedding his fortune to theirs; or if involved in the resistance of the convoying ship, he shares the fate to which the leader of his own choice is liable in case of capture. (c) (c) The Atalanta, Wheaton's Rep. iii. 409. [248 Neutral Goods in Armed Enemy Merchantmen.· The author has failed to notice the fact that, in the Nereide, the court was divided, — three judges against two, and that Judge Story gave an elaborate dissenting opinion. On the other hand, this opinion is cited by Wildman as if it were the decision of the court. It is further to be observed, that the court consisted of seven judges; of whom, two did not sit in the case; two sustained the general principle in favor of the neutral shipper; two sustained the general principle against him; and the majority for restitution was obtained by the course of Judge Johnson, who went a good deal upon peculiar grounds and on the special circumstances, as he more fully explained afterwards in his opinion in the case of the Atalanta (Wheaton, iii. 417). The opinions in the Nereide of those two masters of international law, Marshall and Story, carefully written out by themselves, after arguments by the most eminent counsel, Pinkney and Emmett, which professional traditions place among the foremost of forensic successes, - are remarkable instances of the application of original power to the examination of general principles of law and the natural presumptions from facts. In Judge Story's Life, vol. i. p. 256, is a letter, in which he says: "I have been lately engaged in drawing up my dissenting opinion in the case of the Nereide. I have now completed it; and never, in my whole life, was I more entirely satisfied that the court were wrong in their judg ment." The opinion of jurists has been about as much divided as that of the court. It should be said, however, that, in the case of the Atalanta, where the decision of the Nereide was re-affirmed, Judge Johnson gave his adherence to the general principle on which the opinion of the Chief Justice, in the Nereide, had been based. It is singular that the Chief Justice, in the Nereide, takes no notice of the fact that she was under enemy convoy, upon which the minority laid a good deal of stress. The deci sion stands upon this principle; viz., that, when belligerents accorded to neutrals the right to transport their goods in belligerent vessels, they waived whatever of advan Neutral vessels un § 530. The Danish government issued, in 1810, an ordinance relating to captures, which declared to be der enemy's good and lawful prize "such vessels as, notwithstand- convoy, líaing their flag is considered neutral, as well with regard ture. ble to cap tage for capture or search they would have possessed over the same goods in neutral vessels; and incurred the disadvantage, whatever it may be, arising from the fact that the belligerent vessel has the right, and must be expected to, avoid and resist capture and search alike, by all means of force or stratagem in its power; and that it is in vain to say now that the neutral is in fault and liable to condemnation, because the carrier of his goods, being armed, is the better able to effectuate his right to defeat search or capture. As the belligerent carrier is the subject of capture, from the fact that he is an enemy, without any other proof being necessary, and a yielding by him to visit and search of his cargo would be in fact a surrender of his vessel to capture, the according to the neutral of a right to send his cargo in a vessel in that predicament must be held to be a waiver by the belligerent of his right to an unresisted and uneluded search. It is, in truth, with the belligerent, a capture of the vessel by force of war, or it is nothing; and, in case of such capture, the neutral goods are restored, if the shipper has done no more than the act of sending them in such vessel. If he has taken active part in aiding in the resistance, his case may stand in a different position. 1 Judge Story, on the other hand, contended for the condemnation on two grounds, -first, that the shipper had stipulated for enemy convoy, was actually sailing under it until just before, and was seeking to regain it at the time of, capture. The sailing by a neutral under enemy convoy, he regards as a joint enterprise for the benefit of both, in which each assists the other against the opposite belligerent, by signals, stratagem, and force, to the injury of that belligerent's right of search and capture alike, and will justify the condemnation of the neutral for an unneutral act; second, he defines the right of the neutral to send goods in enemy ships to be simply no more than this, that the fact of his goods being found in such a ship does not taint them with hostility. The goods stand or fall upon their own character. If they are bonâ fide neutral, and are involved in no illegal act, they are restored; but, though neutral, they will be condemned if so involved. And he contends that, if the neutral voluntarily and knowingly places them in the custody of an enemy who is armed for the purpose of resisting or capturing the visiting belligerent, as the fortune of war may turn, and contributes, by freight if no otherwise, to the ability of the enemy, he cannot, if resistance is actually made and fails, claim the protection of his bare neutral nationality against the captors. But, in the case before him, he added the facts which he considered proved by the evidence, as still further coloring the unneutral conduct, and making it a different case from that of a casual shipper in general ship. He says, "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 freights, 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; that he can be the entire projector and conductor of the voyage, and co-operate in all the plans of the general owner of the vessel to render resistance to search secure and effectual; and yet, notwithstanding all this conduct, by the law of nations may shelter his property from confiscation, and claim the privileges of an inoffensive neutral. On the contrary, it seems to me that such conduct is utterly irreconcilable with the good : to Great Britain as the powers at war with the same nation, still, either in the Atlantic or Baltic, have made use of English convoy." Under this ordinance, many American neutral vessels were captured, and, with their cargoes, condemned in the Danish prize courts for offending against its provisions. In the course of the discussions which subsequently took place between the American and Danish governments respecting the legality of these condemnations, the principles upon which the ordinance was grounded were questioned by the United States government, as inconsistent with the established rules of international law. It was insisted that the prize ordinances of Denmark, or of any other particular State, could not make or alter the general law of nations, nor introduce a new rule binding on neutral powers. The right of the Danish monarch to legislate for his own subjects and his own tribunals was incontestable; but before his edicts could operate upon foreigners carrying on their commerce upon the seas, which are the common property of all nations, it must be shown that they were conformable to the law by which all are bound. It was, however, unnecessary to suppose that, in issuing these instructions to its cruisers, the Danish government intended to do any thing more than merely to lay down rules of decision for its own tribunals, conformable to what that government understood to be just principles of public law. But the observation became important when it was considered, that the law of nations nowhere existed in the written code accessible to all, and to whose authority all deferred; and that the present question regarded the application of a principle (to say the least) of doubtful authority, to the confiscation of neutral property for a supposed offence committed, not by the owner, but by his agent the master, without the knowledge or orders of the owner, under a belligerent edict, retrospective in its operation, because unknown to those whom it was to affect. Captures § 531. The principle laid down in the ordinance, as interpreted by the Danish tribunals, was, that the fact of having navigated under enemy's convoy is, per se, a justifiable cause, not of capture merely, but of condemnation in the courts of the other belligerent; and that, without faith of a friend, and unites all the qualities of the most odious hostility. It wears the habiliments of neutrality only when the sword and the armor of an enemy become useless for defence." To the argument from the fact that the armed enemy vessel had no commission or letter of marque, the learned judge answered that those were matters entirely between that vessel and her own government.] — D. under the Danish or dinance of 1810. Claims of the United States. |