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that responsibility. The sovereign's cruisers were responsible to him alone; and so long as seizures were regularly made, upon apparent grounds of just suspicion, and followed by prompt adjudication in the usual mode, and until the acts of the captors were confirmed by the sovereign in the sentences of the tribunals appointed by him to adjudicate in matters of prize, the neutral had no ground of complaint, and what he suffered was the inevitable result of the belligerent right of capture. But the moment the decision of the tribunal of last resort had been pronounced against the claimant (supposing it not to be warranted by the facts of the case, and the law of nations as applied to those facts), and justice had thus been finally denied, the capture and the condemnation became the acts of the state, for which the sovereign was responsible to the government of the claimant. In the celebrated case of the Silesian loan, the King of Prussia stopped the payment of interest on a loan due to British subjects as an act of reprisal for the unjust condemnation of Prussian vessels by the British prize courts, and an indemnity was paid by the British Government for the condemnations.1 Under the treaty or 1794

between the United States and Great Britain, a board of commissioners was constituted to determine the claims of citizens of the United States, growing out of the capture and condemnation of their vessels and cargoes under the authority of the British Government. In the course of the proceedings of the board, an objection was made on the part of the British Government to the consideration of any case in which the sentence of condemnation had been affirmed by the lords of appeal in prize causes. This objection was overruled by the board, and the indemnities that were awarded in such cases were promptly paid by the British Government. By the treaty of 1795 between the United States and Spain a similar commission was constituted for the purpose of determining claims on account of captures and condemnations under the authority of Spain, and by this commission the sentences of the Spanish admiralty tribunals were not considered as an obstacle to the decision of the claims "according to the merits of the several cases, and to equity, justice, and the law of nations." Again, provision was made by the Florida treaty for indemnifying citizens of the United States for unlawful seizures by Spanish cruisers, and it was never so much as doubted by the commissioners appointed by the United States to distribute that indemnity, that they had authority to inquire into cases where the capture had been affirmed by the final decision of the competent tribunal of Spain. Further examples, continued Mr. Wheaton, it would be superfluous to give. Although the theory of the law of nations supposed the prize tribunals of the belligerent to decide exactly as if they were established by and sitting in a neutral countrythat is to say, conformably to the public law common to both countries yet it was common knowledge that in practice such tribunals took for their guide the prize ordinances and instructions issued by the belligerent sovereign, without stopping to inquire whether they were consistent with the paramount rule. This being so, the obvious consequence of considering their sentences as conclusive would be to invest the belligerent state with legislative power over the rights of neutrals, without regard to the rules of the law of nations. Such were the consequences which would

1 Vattel, liv. 2, ch. 7, sec. 85.

inevitably flow from such a misapplication of the doctrine of the conclusiveness of admiralty sentences. That they were conclusive on the question of prize or no prize, so as to effect a transfer of the property in the thing condemned from the original owner to the captor, was a principle of public law undeniable in itself and necessary to peace and commerce. It seemed to have been supposed by the Danish Government that the demand of the United States was for a judicial revision and reversal of the sentences of condemnation which had been pronounced in its tribunals, as the United States believed, in derogation of the public law. This supposition was erroneous. The demand of the United States "was for the indemnity to which the citizens of the United States were entitled in consequence of the denial of justice by the tribunals in the last resort, and of the responsibility thus incurred by the Danish Government for the acts of its tribunals." Having thus endeavored to remove the preliminary objection of Denmark to the claims of the United States, Mr. Wheaton next proceeded to examine the allegations on which the seizure and condemnation of the vessels and cargoes sailing under the American flag were made and had been attempted to be justified. Following the classification made in his instructions, he said that these allegations were" principally three: 1. The possession of false and simulated papers by which, it was alleged, an American character was stamped on British property; 2. Sailing under British convoy whereby it was alleged our vessels lost the immunities of our flag and subjected themselves to be treated as British property; and 3. The possession of French consular certificates of origin after the French consuls were forbidden to give them, except to vessels sailing direct to French ports." As to the first of these allegations, Mr. Wheaton declared "that the American Government, far from affording any favor or protection to the fraudulent assumptions of its flag during the late maritime war in Europe, would have been the first to denounce and punish them." Into the particular cases in which the Danish authorities alleged that such a use of the American flag was made he would not enter. These cases had been fully discussed by Mr. Erving whose arguments could not, said Mr. Wheaton, in his opinion, be satisfactorily refuted. He would therefore proceed to consider the grounds on which the seizure and condemnation of property confessedly belonging to citizens of the United States had been attempted to be justified by the Danish Government.

This involved, said Mr. Wheaton, the second Danish allegation, an allegation which had been applied to the cases included in the list (No. 1) inclosed in Mr. Erving's note to Mr. De Rosenkrantz of June 6, 1811. In these cases the property was condemned under the royal ordinance of March 28, 1810, clause 11, Article D, which declared to be "good and lawful prize such vessels as, notwithstanding their flag is considered neutral as well with regard to Great Britain as to the powers at war with the same nation, still, either in the Atlantic or Baltic, have made use of English convoy." Under this clause, said Mr. Wheaton, vessels and cargoes were condemned by the high court of admiralty, though in most if not in all such cases there was satisfactory proof that the vessels had been compelled to join the British convoy, and though the ordinance in question

'Mr. Clay, Sec. of State, to Mr. Wheaton, May 31, 1827, H. Doc. 249, 22 Cong. 1 sess.

5627-VOL. 5-11

was unknown at St. Petersburg when they sailed from that port. Whoever considered the geographical position of the Baltic Sea, its outlets into the ocean, and the winds and currents by which its navigation was affected, would readily perceive how difficult it must have been for neutral vessels passing during the late war through the narrow and sinuous channels to avoid becoming entangled in the numerous convoys of the enemy of Denmark, even supposing there was no disposition on the one side to receive, and on the other to impart, protection against the multiplied perils of those times. To make the protection accidentally received by or forcibly obtruded upon the neutral, under these circumstances, a ground of confiscation, was an injustice strikingly apparent. But it was less material, said Mr. Wheaton, to dwell on this aspect of the case, because the United States wholly denied the principle on which the clause in question was founded. This clause, as construed by the Danish tribunals, involved, so Mr. Wheaton declared, "the application of a principle (to say the least) of doubtful authority, to the confiscation of neutral property for a supposed offense, committed, not by the owner, but by his agent, without the knowledge or orders of the owners, under a belligerent edict, retrospective in its operation, because unknown to those whom it was to affect." As interpreted by the Danish tribunals, it made "the fact of having navigated under the enemy's convoy per se, a justifiable cause (not of capture merely, but) of condemnation in the tribunals of the opposite belligerent, and that without inquiring into the proofs of proprietary interest, or the circumstances and motives under which the captured vessel had joined the convoy, or into the legality of the voyage, or the innocence of her conduct in other respects." A belligerent pretension so harsh, apparently so new, and so important in its consequences, said Mr. Wheaton, must, before neutral nations could consent to it, be rigorously demonstrated on the authority of writers and the usage of nations; yet no expounder of the law of nations even mentioned it, and still less could it be asserted that any neutral nation had ever acquiesced in it. Great Britain had denied, while Denmark had asserted, the right of a neutral state to resist the exercise of the belligerent right of visitation and search by means of convoy consisting of its own ships of war, but even the records of the British courts might be searched in vain for any support of the pretension that the fact of having sailed under belligerent convoy was in all cases and under all circumstances conclusive cause of condem nation. The American vessels in question were engaged in their accustomed and lawful trade between the United States and Russia; they were unarmed and made no resistance to the Danish cruisers; they were captured on the return voyage, after having passed up the Baltic and been subjected to an examination by the Danish cruisers and authorities by which their neutrality was established, and they were condemned under an edict which was unknown when they left Cronstadt, and which, unless it could be shown strictly consistent with the preexisting law of nations, must be considered as an unauthorized measure of retrospective legislation. Being found in company with an enemy's convoy might indeed furnish a presumption that the captured vessel and cargo belonged to the enemy, but it was a slight presumption only, which would readily yield to countervailing proof, and for this purpose the vessel should have been permitted to show, for example, that she 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 rendered it certain that captures by them would be followed by condemnation. Mr. Wheaton went still further and contended that since Denmark had, as a neutral, asserted the right to protect her commerce against belligerent visitation and search by means of armed convoys of her own public ships, she could not consistently assert a right to condemn neutral vessels for sailing under belligerent convoy. Great Britain treated navigating under the convoy of a neutral ship as a ground of condemnation, because it tended to defeat the lawful right of belligerent search and render every attempt to exercise it a contest of violence. But the belligerent had a right to resist; and the masters of the vessels under his convoy, not participating in his resistance, could no more be involved in the legal consequences of resistance than could the neutral shipper of goods on a belligerent vessel or the neutral owner of goods found in a belligerent fortress. The right of capture in war extended only to things actually belonging to the enemy, or to such as were considered as constructively belonging to him, because taken in a trade prohibited by the laws of war. It was not pretended that the American vessels in question were actually the enemy's property, and it could not be shown that they were constructively his. If they had been armed, and had thus contributed to augment the force of the belligerent convoy, or if they had actually participated in battle with the Danish cruisers, they would justly have fallen by the fate of war. But they were unarmed merchantmen, whose junction with the British convoying squadron, by expanding the sphere of its protection, tended to weaken it, and instead of participating in the enemy's resistance, there was in fact no battle and no resistance, and they fell a defenseless prey to the force of the assailants. The alleged illegality of the conduct of the neutral masters must therefore be referred back to the circumstance of their joining the convoy. Pursuing his argument from this point, Mr. Wheaton said:

"But why should this circumstance be considered illegal any more than a neutral taking shelter in a belligerent port, or under the guns of a belligerent fortress, which is subsequently invaded and taken? The neutral cannot indeed seek to escape from visitation and search by unlawful means, either of force or of fraud. But if, by the use of any lawful and innocent means, he may escape, what is to hinder his resorting to such means for the purpose of avoiding so vexatious a procedure? The belligerent cruisers and prize courts have not always been so moderate and just as to render it desirable for neutrals voluntarily to seek for an opportunity of being examined and judged by them. And if, in fact, in respect to the trade of the Baltic sea, the conduct of one of the great belligerent powers was more favorable to neutral commerce than that of the other, what should prevent the neutral from availing himself of this circumstance, so far as he might without infringing any just right of the latter? Upon the supposition that justice was administered promptly, impartially, and purely, in the prize tribunals of Denmark, the American ship-masters could have had no motive to wish to avoid an examination by Danish cruisers, since their proofs of property were clear, their voyages lawful, and they were not conscious of being exposed to the slightest hazard of condemnation in these tribunals. Indeed some of these vessels had been examined on their voyage up the Baltic, and acquitted by His Majesty's tribunals. Why, then, should a guilty motive be imputed to them, when their conduct can be more naturally explained by an innocent one? Surely, in the multiplied ravages to which the American commerce was then exposed on every

sea, from the sweeping decrees of confiscation fulminated by the great belligerent powers, the conduct of these parties may be sufficiently accounted for without resorting to the supposition that they meant to resist, or even to evade, the exercise of the belligerent rights of Denmark. Had they indeed been aware of the vexatious delays, the heavy expenses, and the arbitrary fines, to which they were exposed in the Danish tribunals, even in cases where restitution was finally awarded, and still more if they had been conscious that, where condemnation should be pronounced by those tribunals, upon grounds ever so slight, the formal sentences thus rendered would be considered as forming a perpetual bar to any subsequent appeal to the equity of His Majesty's government, they might have shrunk from the hazard of such fearful consequences, and taken shelter in the arms of that power, which was so soon to become the enemy of their country, rather than rely upon the justice of a state with which she had always cultivated the most amicable relations. On the other band, had they known of the existence of the royal ordinance of March, 1810, which made the fact of having used British convoy a conclusive cause of condemnation, they would have preferred to encounter all these multiplied but contingent perils, rather than the certainty of the fate which awaited them on capture under convoy. So that the innocence of their motives, and the good faith of their acts, is manifest from every view of their conduct, whilst the supposition that they took shelter under enemy's convoy, because they were carrying an enemy's traffic, is contradicted by the satisfactory proofs which they furnished, of the neutrality of their property, and the lawfulness of their voyages.

"Even admitting, then, that the neutral American had no right to put himself under convoy, in order to avoid the exercise of the right of visitation and search by a friend, as Denmark professed to be, he had still a perfect right to defend himself against his enemy, as France had shown herself to be, by her conduct, and the avowed principles upon which she had declared open war against all neutral trade. Denmark had a right to capture the commerce of her enemy, and, for that purpose, to search and examine vessels under the neutral flag, whilst America had an equal right to protect her commerce against French capture, by all the means allowed by the ordinary laws of war between enemies. The exercise of this perfect right was wholly unaffected by the circumstance of the war existing between Denmark and England, or by the alliance between Denmark and France. America and England were at peace. The alliance between Denmark and France was against England, not against America; and His Majesty's Government, which refused to adopt the decrees of Berlin and Milan as the rule of its conduct towards neutrals, cannot surely consider it as culpable, on the part of the American shipmasters, to have defended themselves against the operation of those decrees, by every means in their power. If the use of any of these means conflicted in any degree with the belligerent rights of Denmark, that was an incidental consequence, which could not be avoided by the parties without sacrificing their incontestible right of self-defense.

"But it may perhaps be said that as resistance to the exercise of the belligerent right of visitation and search is, by the law and usage of nations, a substantive ground of condemnation in the case of the master of a single ship, still more must it be so where many vessels are associated for the purpose of defeating the exercise of the same right.

"In order to render the two cases here stated perfectly analogous, there must have been an actual resistance on the part of the vessels in question, or at least on the part of the enemy's fleet having them at the time under its protection, so as to connect them inseparably with the acts of the enemy. Here was no actual resistance on the part of either, but only a constructive resistance on the part of neutral vessels, implied from the fact of their having joined the enemy's convoy. This, however, was at most a mere intention to resist, never carried into effect, which has never been considered, in the case of a single ship, as involving the penalty of confiscation. And the Government of the United States has always regarded it [as] a peculiarly objectionable feature in the ordinance of 1810, as interpreted by the tribunals (which interpretation has never been disavowed

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