country under his escort and protection. Such are the general views of Martens, Rayneval, Klüber, Heffter, Massé, and Ortolan. Rayneval, however, is of the opinion that if the belligerent vessel should inform the convoying commander that he has evidence that one or more of the vessels under his escort are liable to capture for being really enemy's vessels, or because they have on board contraband goods, destined to an enemy's port, the commander should immediately proceed, in concert with the belligerent cruiser, to verify the truth of these allegations. This opinion is concurred in by Ortolan; but Hautefeuille thinks that such examination, if made, should be by the neutral officer only, and that his word, as to the character of his convoy, must suffice. This author has discussed the question of convoy at great length, and with marked ability. It must, however, be remembered, that he attempts to represent what ought to be the rule of international law on this subject, rather than what that law really is at the present time. English text-writers have adopted the opinion of Sir William Scott, with respect to the right to visit and search vessels under neutral convoy, and the effect of such convoy, when it tended to impede and defeat this belligerent right. Manning denies that neutrals, under convoy, can claim, under the general law of nations, to be exempted from search, as a matter of right, but he deems it desirable that it should be accorded to them by agreement. The United States have uniformly favored the rule of exemption, and have, whenever possible, introduced it into their treaties with other powers. It must, however, be stated that American publicists have generally admitted that the exemption cannot be claimed as a matter of law, and that an attempt in this way to impede search will incur a penalty. Chancellor Kent says, that "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." Mr. Wheaton, in his discussion of the Danish captures under the ordinance of 1810, referring to the English decisions respecting neutral convoys, says: "Why was it that navigating under the convoy of a neutral ship of war was deemed a conclusive cause of condemnation? It was because it tended to impede and defeat the belligerent right of search; to render every attempt

to exercise this lawful right a contest of violence; to disturb the peace of the world, and to withdraw from the proper forum the determination of such controversies by forcibly preventing the exercise of its jurisdiction." Mr. Justice Story, in the case of The Nereide, says: "It is a clear maxim of national law that a neutral is bound to a perfect impartiality as to all the belligerents. If he incorporate himself into the measures or policy of either; if he become auxillary to the enterprises or acts of either, he forfeits his neutral 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." (Wildman, Int. Law, vol. 2, p. 124; Kent, Com. on Am. Law, vol. 1, p. 157; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 32; Duer, On Insurance, vol. 1, pp. 731, 732; The Nereide, 9 Cranch. Rep., p. 438; The Catharine Elizabeth, 5 Rob. Rep., p. 232; Rayneval, De la Liberté des Mers, t. 1, ch. 18; Kluber, Droit Des Gens Mod., § 293; Massé, Droit Commercial, liv. 2, ch. 2, sec. 9; Ortolan, Diplomatie de la Mer, liv. 3, ch. 7; Heffter, Droit International, § 170; Hautefeuille, Des Nations Neutres, tit. 11, ch. 3; De Cussy, Droit Maritime, liv. 1, tit. 3, § 15.)

§ 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 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 negociator, 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 so 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, en 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 a 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 á un ou á plusieurs navires de guerre belligerants et navigue de conserve avec ces navires sans pretendre à acune protection de leur part, dans la seule espérance de pouvoir échapper pacifiquement et par la faite à la visite, á la faveur d' une rencontre et d' un combat possible entre les seuls belligerants, c'est la de sa part une ruse innocente que ne peut lui être imputeè á dèlit, et qui ne feut pas, á elle seule, entrainer 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 favor of the American claimants for indemnity for Danish captures under the ordinance of 1810. We know of no judicial decision directly upon this question. (Duer, On Insurance, vol. 1, p. 730; Ortolan, Diplomatie de la Mer, tome 2, ch. 7; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 32; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 14; Martens, Nouveau Recueil, tome 8, p. 350; Elliot, American Diplomatic Code, vol. 1, p. 453; Wildman, Int. Law, vol. 2, p. 126; The Nereide, 9 Cranch. Rep., p. 442; Phillimore, On Int. Law, vol. 3, § 338; Manning, Law of Nations, p. 369.)

§ 23. "The resistance of a neutral master," says Sir Wm. Scott, in the Catharina Elizabeth, before quoted, "will undoubtedly reach the property of the 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." "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 his 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, 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 part