ships of his country. Two sovereigns may 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 with 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, independent of all special covenant, is the right of personal visitation and search to be exercised by those who have an interest in making it. Among the loose doctrines, which modern fancy under the various denominations of philosophy and philanthropy have thrown upon the world, it has been advanced or rather insinuated, that it might possibly be well if such a security were accepted. Upon such unauthorized speculations, it is not necessary to descant. The law and practice of nations give them no sort of countenance, and until that law and practice are new modelled in such a way as may surrender the known and ancient rights of some nations to the present convenience of other nations, no reverence is due to them; they are the elements of that system, which, if it is consistent, has for its real purpose an entire abolition of capture in war; that is, in other words, to change the nature of hostility, as it has ever existed amongst mankind, and to introduce a state of things not yet seen in the world, that of a military war and a commercial peace. If it were fit, that such a state should be introduced, it is at least necessary that it should be introduced in an avowed and intelligible manner, and not in a way, which professing gravely to adhere to that system, which has for centuries prevailed among civilized states, and urging at the same time a pretension utterly inconsistent with all its known principles, delivers over the whole matter at once to eternal controversy and conflict, at the expense of the constant hazard of the harmony of states and of the lives and safety of innocent individuals. The penalty for a violent contravention of this right, is the confiscation of the property so withheld from visitation and search. Vattel, one of the most correct, and certainly not the least indulgent, of modern professors of public law, expresses himself thus: "On ne peut empêcher le transport des effets de contrabande, si l'on ne visite pas les vaisseaux neutres, que l'on rencontre en mer. 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 ferait 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 the fact, that such is the existing practice of modern Europe. And to be sure, the only marvel in the case is, that he should mention it as a law merely modern (e), when it is remembered, that it is a principle not merely of the civil law, on which great part of the law of nations is founded, but of the private jurisprudence of most countries in Europe, that a contumacious refusal to submit to fair inquiry infers all the penalties of convicted guilt. Conformably to this principle, we find in the celebrated French Ordinance of 1681, now in force, Article XII., that every vessel shall be good prize in case of resistance and combat; and Valin, in his smaller Commentary, says expressly, that although the expression is in the conjunctive, yet that resistance alone is sufficient. He refers to the Spanish Ordinance of 1718, evidently copied from it, in which it is expressed in the disjunctive, in case of resistance or combat; and recent instances prove that Spain continues to act upon this principle. The first time (e) Vattel was misled by Grotius's account of the correspondence between Henry 4 and Queen Elizabeth. Vide Vatt. iii. § 114. that it occurs in the institutes of our own country respecting matters of this nature, excepting what occurs in the Black Book of the Admiralty, is in the Order of Council, 1664, Article XII., which directs, that when any ship met withal by the royal navy, or any ship commissionated, shall fight or make resistance, the said ship and goods shall be adjudged lawful prize. A similar article occurs in the proclamation of 1672. In these orders and proclamations are to be found some articles not very consistent with the law of nations as understood now, or indeed at that time, for they are expressly censured by Lord Clarendon. But this article is not one of those which he reprehends; and it is observable, that Sir Robert Wiseman, then King's Advocate General, who reported upon the articles in 1673, and expresses a disapprobation of some of them as harsh and novel, does not mark this article with any observation of censure. Hence it appears, that it was the rule and the undisputed rule of the British Admiralty. Cases may occur, in which a ship may be authorized by the natural rights of self-preservation to defend itself against extreme violence threatened by a cruiser grossly abusing his commission; but where the utmost injury threatened is being carried in for inquiry into the nearest port, subject to a full responsibility in costs and damages, if this is done vexatiously and without just cause: a merchant vessel has not a right to say for itself, and an armed vessel has not a right to say for it, I will submit to no such inquiry, but I will take the law into my own hands by force. If each neutral vessel has a right to judge for itself in the first instance, whether it is rightly detained, and to act upon that judgment to the extent of using force, nothing but battle and bloodshed can be the issue, as often as there is anything like an equality of force and an equality of spirit. The rule is, that the vessel shall submit to the inquiry proposed, looking with confidence to those tribunals, whose noblest office is to relieve by compensation inconve niences of this kind, where they have happened through accident or error; and to redress, by compensation and punishment, injuries that have been committed by design. Hence, where a number of merchantmen were sailing under convoy of a Swedish frigate, and the commander was ordered to treat all foreign ships of war with all possible civility, but if they would make any search amongst the merchant vessels under his convoy, which ought to be prevented as much as possible, and such a thing should be insisted upon, and notwithstanding his amicable comportment the merchant vessels should, nevertheless, be violently attacked, then violence must be opposed against violence; and the instructions to the merchantmen declared, that all merchant ships during the time they are under convoy of his Majesty's ships, are earnestly forbidden to suffer the boats of any foreign nation to board them for the sake of visitation or searching; but in case such boats should shew an intention of coming alongside the merchant ships are to sheer from them; and these instructions were acted upon by the frigate and merchant ships: it was held, that the ships and cargoes were subject to condemnation, though the commander of the frigate was prevented by an irresistible force from acting upon his instructions to their utmost extent (ƒ). The resistance of the convoying ship is the resistance of the whole convoy (g). So, where the commander of the convoying ship sailing with similar instructions, being met by a superior force, threatened to fire upon the boats of the belligerent vessels to prevent visitation and search of the vessels under his convoy, but did not commit any actual violence, and at length consented to bring his convoy into the Downs (h). If the intention to resist was voluntarily and clearly abandoned, an intention so abandoned or even a slight hesitation about it would not constitute a violation of right. (ƒ) The Maria, 1 Rob. 340. (h) Ibid. But where a ship of war sails under instructions to resist, the averment of an abandonment of intention cannot possibly be set up, because the instructions are delivered to persons who are bound to obey, and have no authority to vary them. The intention is necessarily unchangeable; and being so, it seems, that the delivery and acceptance of such instructions, and the sailing under them, are sufficient to complete the act of hostility (). It is not an absolute impossibility that a commander should take upon himself the frightful responsibility of departing from the orders of his government, but it is most highly improbable, and every presumption is against it. A person acting under such instructions, must necessarily suppose, that all considerations of policy had been fully weighed by the state, and that all that is required of him is prompt obedience to the orders he has received (k). Upon the same principle, a neutral ship and cargo sailing under hostile convoy are liable to be condemned. In this case an additional ground of condemnation is furnished by adherence to the enemy. A neutral vessel sailing with French cruisers, and communicating with them by signal when they engaged some English ships, was condemned by a Vice Admiralty Court, and the sentence was affirmed by the lords of appeal (1). In the case of some American ships captured by the Danes under British convoy, the right of condemnation was not only asserted and enforced by the highest tribunal of prize, but expressly affirmed by the Danish sovereign after an earnest appeal made by the government of the United States. On that occasion the Danish minister pressed the argument, "that he, who causes himself to be protected by an enemy's convoy, ranges himself on the side of his protector, and thus puts himself in opposition to the enemy of his protector, and (i) Per Cur. The Maria, 1 Rob. 374. (k) Per Cur. The Elsabe, 4 Rob. 413. (1) Per Story, J., arguendo, The Nereide, 9 Cranch, 440, et seq. |