there is property that can legally be captured, it is impossible to capture. Even those who contend for the inadmissible rule that free ships make free goods must admit the exercise of this right, at least for the purpose of ascertaining whether the ships are free ships or not. The right is equally clear in practice; for practice is uniform and universal upon the subject. The many European treaties which refer to this right, refer to it as pre-existing, and merely regulate the exercise of it. All writers upon the law of nations unanimously acknowledge it, without the exception even of Hübner himself, the great champion of neutral privileges."

2. That the authority of the neutral sovereign being forcibly interposed cannot legally vary the rights of a lawfully commissioned belligerent cruiser. "Two sovereigns 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 other 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."

3. That the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search. "For the proof of this I need only refer to Vattel, one of the most correct and certainly not the least indulgent of modern professors of public law. In book iii. c. 7, sect. 114, he expresses himself thus: On ne peut empêcher le transport des effets de contrebande, si l'on ne visite pas les vaisseaux neutres. On est donc en droit de les visiter. Quelques nations puissantes ont refusé en différents temps de se soumettre à cette visite. Aujourd'hui un vaisseau neutre, qui refuseroit de souffrir la visite, se feroit condamner par cela seul, comme étant de bonne prise.' Vattel is here to be considered not as a lawyer merely delivering an opinion, but as a witness asserting a fact—the fact that such is the existing practice of modern Europe. Conformably to this principle, we find in the celebrated French ordinance of 1681, now

in force, article 12, 'That every vessel shall be good prize in case of resistance and combat;' and Valin, in his smaller Commentary, p. 81, says expressly, that, although the expression is in the conjunctive, yet that the resistance alone is sufficient. He refers to the Spanish ordinance, 1718, evidently copied from it, in which it is expressed in the disjunctive, in case of resistance or combat.' And recent instances are at hand and within view, in which it appears that Spain continues to act upon this principle. The first time it occurs to my notice on the inquiries I have been able to make in the institutes of our own country respecting matters of this nature, except what occurs in the Black Book of the Admiralty, is in the order of council, 1664, art. 12, which directs, "That when any ship, met withal by the royal navy or other ship commissionated, shall fight or make resistance, the ship and goods shall be adjudged lawful prize.' A similar article occurs in the proclamation of 1672. I am, therefore, warranted in saying, that it was the rule and the undisputed rule of the British admiralty. I will not say that the rule may not have been broken in upon, in some instances, by considerations of comity or of policy, by which it may be fit that the administration of this species of law should be tempered in the hands of those tribunals which have a right to entertain and apply them; for no man can deny that a State may recede from its extreme rights, and that its supreme councils are authorized to determine in what cases it may be fit to do so, the particular captor having, in no case, any other right and title than what the State itself would possess under the same facts of capture. But I stand with confidence upon all principles of reason,

upon the distinct authority of Vattel,-upon the institutes of other great maritime countries, as well as those of our own country, when I venture to lay it down that, by the law of nations, as now understood, a deliberate and continued resistance to search, on the part of a neutral vessel, to a lawful cruiser, is followed by the legal consequence of confiscation." (a)242

(a) The Maria, Robinson's Adm. Rep. i. 340.

[242 Convoy. The history of the subject of convoy may be stated thus :-Belligerents naturally tried to protect their own merchantmen, by sending them under the charge of their ships of war. The whole fleet being belligerents alike, and entitled alike to resist and deceive the common enemy, and alike subject to his right of capture, no objection could arise to their attempts to escape it by force or stratagem. When some of the continental nations were interested as neutrals in resisting altogether, or restricting to the utmost, the right of search, the device was adopted of throwing over

armed neu

§ 527. The judgment of condemnation pronounced in The this case was followed by the treaty of armed neutrality, trality of entered into by the Baltic powers, in 1800, which league 1:00.

their merchant-vessels the protection of their own ships of war, in the nature and under the name of "convoy." This was done for the purpose of protecting them by force against all exercise of belligerent search, and on the ground that neutrals had the right to resist it. The diplomatic and judicial history of the subject shows this to have been the principle and the purpose avowed. The question first presented was the right of the neutral sovereign to protect by force his merchant-vessels from all belligerent search. His right to protect them against it by force depended, of course, upon the question whether the belligerent had the right to search them if there was no convoy present. By the early treaties, several of the powers agreed to resist all attempts to interfere with a convoyed fleet, and to take the merchant-vessels of each other under convoy when both were neutrals; and this policy was carried out by orders to vessels acting as convoy. Great Britain denied this right of the neutral powers, and insisted on its right of belligerent search. The ground taken by Sir William Scott, in the Maria (Rob. i. 340), is that "the authority of the sovereign of the neutral country, being interposed in any manner of moral force, cannot legally vary the rights of the lawfully commissioned belligerent cruiser;" and, in the Elsebe, (Rob. iv. 408), "The resistance being directed to be given by the sovereign of the neutral State affords no protection." But this attempt to exclude all search by national protection, was abandoned and renounced by the parties to the Armed Neutrality, after the battle of Copenhagen; and no question can now exist that it never did form a part of the law of nations, and it certainly does not now. All the English and American publicists, without exception, deny it. The author asserts a right of search against convoy in the text; and Kent says (i. 154), "Every belligerent power ... has a right to insist on the only security known to the law of nations on this subject, the right of personal visitation and search, to be exercised by those who have an interest in making it. . . . A merchant-vessel has no right to say for itself, and an armed vessel has no right to say for it, that it will not submit to visitation and search, or to be carried into a proximate court for judicial inquiry." Judge Story said, in the Nereide (Cranch, ix. 488), that the neutral," in relation to his commerce, is bound to submit to the belligerent right of search, and 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." Dr. Woolsey, generally tender towards neutral rights, says, "On the ground of justice, this right to protect from search by convoy] cannot be defended." (§ 192.) (See also Phillimore's Intern. Law, iii. § 338. Manning's Intern. Law, 360. Wildman's Intern. Law, ii. 124.) Although the treaty of the United States with Prussia in 1785, which soon expired by its terms (U. S. Laws, viii. 92), seems to look to an agreement to resist all search of convoyed vessels, no other treaty of the United States is of that character, and the government has never, by any national act, attempted to deny the right, as matter of international law.

Another ground taken by the same continental nations was, that, admitting the right of search, the belligerent, in exercising it, must take the word of the commander of the convoying vessel, as a substitute for actual search. This ground had also been taken before by some nations which had not gone the length of denying the right of search. The obligation of the cruiser to accept the word of the officer, in lieu of all search, was insisted on as a duty which, under the law of nations, the neutral could secure by force. Accordingly, if the belligerent insisted on more than

was dissolved by the death of the Emperor Paul; and the points in controversy between those powers and Great Britain were finally adjusted by the convention of 5th June, 1801. By the 4th article

the word of the officer, the convoying vessels were directed to resist; and, of course, resistance being claimed as a right, the vessels convoyed could join in it. The bare statement of this claim shows that what shall be accepted in lieu of the exercise of an admitted right of search, must be matter of comity and arrangement, and that it cannot be of strict right that the word of the officer should be implicitly received. Still less could it be pretended that such was the law of nations, i.e., the settled practice of nations. It was upon this claim that the second Armed Neutrality, that of 1800, placed itself. This claim fell with that Armed Neutrality, and was renounced in the treaty of June 17, 1801. It has been denied to be part of the law of nations by all the British and American publicists. (See Wheaton in the text. Kent's Comm i. 154-7. Woolsey's Introd. § 192. Halleck's Intern. Law, 613-619. Phillimore, Intern. Law, iii. § 338. Manning's Intern. Law, 360. Wildman's Intern. Law, ii. 124. Judge Story in the Nereide, Cranch, ix. 438.) A little consideration will show how unsatisfactory the assurance of the convoying officer must be. The object of searching ostensible neutrals is to get evidence-(1) Whether they are bonâ fide neutrals, and their cargoes not enemy property, either actual or constructive; (2) Whether, if neutral, they are carrying contraband; (3) Whether they are in the service of the enemy, in the way of carrying military persons or despatches for the enemy; (4) Whether they are sailing in prosecution of an intent to break blockade. To satisfy these questions, it is allowable and sometimes necessary, not only to examine papers, but to inspect the vessels, the cargoes, and persons on board, so as to get light upon the actual destination of the vessel, beyond what is ostensible, upon the actual place of its departure, and the continuous or ultimate destination of cargo or persons on board, beyond even an actual proximate neutral destination; to probe hostile titles, interest, and liens, nationality of person, and personal knowledge of a blockade, &c. The question, therefore, as to each vessel, whether it is a proper subject of capture for any of these causes, is one mixed of law and fact. Of what value to the belligerent is the word of the officer in command of the convoy? What does or can he know of these facts, as to each vessel? What are his opinions of the law upon the facts which he does know? Is the belligerent to take his law as well as his facts? His word is not to facts, but, like the general verdict of the jury in criminal trials, is on the law and facts in a complex proposition. His word is simply that he knows of no enemy's interests in the vessels or cargoes, no contraband, no unlawful enterprise, no attempt to break blockade, &c.; or rather, in fact, it is this: "So far as I know the facts, and according to my understanding of the law, there are no such causes for capture." It may almost be presumed that he will not know the law adequately, and that he will be ignorant of many of the facts. He may have succeeded to the command, since the vessels joined the convoy. What examination has been made anywhere, on which his statement can be reasonably based? Nations may, as matter of comity or policy, agree revocably to take an officer's general word in lieu of search; but it is not an obligation of law to be supported by force.

It is true that certain continental writers have contended for this obligation of the belligerent, as being international law. But it may be said of most of these writers, as Mr. Halleck says of Hautefeuille in this connection: "It must, however, be remembered, that he attempts to represent what ought to be the rule of international law, rather than what that law really is at the present time;" or, as might be added, “what, in the writer's opinion, it ought to be." According to some of the continental authors, this

of this convention, the right of search as to merchant vessels sailing under neutral convoy was modified, by limiting it to public ships of war of the belligerent party, excluding private armed

word of the officer should be received as to the vessels of his own nation under his protection, as Martens, Rayneval, Klüber, Heffter, Massé, and Ortolan. Of these, Rayneval and Ortolan concede that, if the belligerent cruiser makes known to the convoying vessel that he has evidence against certain of his vessels, it is the duty of the convoying officer to make inquiries, in concert with the cruiser, as to the allegations. Hautefeuille, however, thinks that it is merely a moral obligation on the convoying officers to make sure of his own statements; and that he is entitled to do that alone, and in such way as he shall see fit. (Rayneval, De la Liberté des Mers, tom. i. ch. 18. Klüber, § 293. Massé, Droit Comm. liv. ii. ch. 3, § 9. Ortolan, liv. iii. ch. 7. Heffter, § 170. Hautefeuille, Des Nat. Neutr. tit. 2, ch. 3.)

On the subject of convoy, the Declaration of Paris is silent; and so were the orders of the belligerent nations during the Crimean and Italian wars of 1852 and 1859, and the American civil war, except that a French order of 1854 required its officers to take the written declaration of the commander of the convoy, and, if that should not be satisfactory, to permit him to make his own visit and search. The United States, by many of its treaties, has agreed that the declaration of the commander of the convoy shall be sufficient. Such provisions are in the expired treaty with France of 1800, and in the treaties with the Netherlands in 1782, Prussia in 1799, and with Brazil, Mexico, Peru, Chili, Colombia, and Venezuela, between 1824 and 1852. (U. S. Laws, viii.) By the European treaty of 17th June, 1801, which followed the downfall of the second Armed Neutrality, special arrangements were provided as to the mode of search. The convoying vessel was to have the papers of all the vessels on board; and they were first to be examined there; if not satisfactory to the visiting vessel, the search of the vessels was to be made in the presence of an officer of the convoy; and, if that was still unsatisfactory, the suspected vessel might be taken to a proximate port of the belligerent for judicial inquiry.

This history of practices, conventions, and opinions is enough to show that international law does not prohibit search of convoyed vessels, nor substitute the word of the commander for actual search.

What are the consequences of sailing under neutral convoy? On that, there has been no direct judicial decision in the United States. The British decisions have been consistent with each other. Assuming the right to search vessels under neutral convoy as a right by international law, the law does not presume that the neutral sovereign intends to resist or impair a belligerent right; and the courts do not hold that the mere sailing under such convoy is evidence of an intent to resist or obstruct search. In the Maria (Rob. i. 340), the neutral convoy had instructions to resist search, and carried out the instructions, yielding only to superior force; and it was held as proved, that the merchant-vessels sailed under the convoy for the purpose of resisting search. Under these circumstances, the resistance by the convoy was held to involve the merchant-vessels, and to require their condemnation. In the Elsebe (Rob. iv. 483), this rule was affirmed. Judge Story, in the Nereide, in the course of his reasoning, says, that, if a neutral "resists the exercise of a lawful right, or if, with a view to it, he takes the protection of an armed neutral convoy, he is treated as an enemy;" and Kent says, "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." These citations, taken strictly, may go somewhat farther than the decisions; for Şir William Scott, in the Maria, examined into the question whether there had been a