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vessels into port for examination, I am not disposed to deny : it may also be allowed that the being found under enemy's convoy does afford such reasonable ground of suspicion, against the vessels so found, as to authorize their being sent into port for examination. But this is the full extent of the belligerent right on this point : the examination had, and the vessels being found bona fide neutral, must be acquitted. To say that the neutral shall be condemped on the mere fact that he was found under enemy's convoy, is to impose upon him a necessity of sailing without protection even against his own separate enemies ; for the case might well happen, indeed has happened, that though neatral with regard to the belligerent powers, he has had an enemy against whom either of the belligerents was disposed to protect him. Of such protection the American commerce has often availed itself, during the war between the United States and the Barbary powers ; nor was it ever supposed by either of the great belligerent powers, that such commerce, so protected by its enemy, bad thus become liable to capture and confiscation. The case might also occur, that of two allied belligerent powers, a third power should be enemy as to one and neutral as to the other : in that case, bis seeking the protection of the com. mon enemy of these allied powers, against that of them to which he was enemy, could not subject him to capture and confiscation by the other allied power, with respect to which he was neutral ; his right in either of these and in all cases, to protect himself against his enemy by availing himself of whatever convoy offers, is unquestionable. I state these arguments against the broad ground taken in the royal instructions above quoted. But it will be said that the belligerent having also an unquestionable right to ascertain the neutrality of vessels, and belligerent rights being paramount to neutral rights where the two bappen to be in collision, hence the attempt of the neutral to deprive the belligerent of his right, by putting himself under convoy, forms of itself a ground of capture and confiscation. To this I answer,
Firstly : That the belligerent rights, where they come into collision with those of neutrals, are not to be deemed in all cases paramount ; and that nothing can establish sucha a general rule but force, which is not law or justice.
Secondly : That no presumption necessarily arises against the neutral, from the mere circumstance of his being found under enemies' convoy ; but that this point will depend upon the peculiar circumstance of each case.
Thirdly : That where the belligerent and neutral rights conflict, all other circumstances being equal, the plea of necessity ought to decide the question in favour of the neutral. In the case supposed, the belligerent is seeking the mere exercise of a right, but the neutral is occupied in bis self preservation.
Fourthly : Superadded to this reason in favour of the neutral right, is one springing out of the immutable principles of equity; for since, according to modern practice, the neutral bas no representative in the judicature by wbich his cause is tried that it is no longer an umpirage, or a court of arbitration-so his claim to a favourable leaning towards bis right, in all questionable cases, is very much strengthened.
But it is also proper to inquire, whether the vessels in question did in fact put themselves under convoy with a view to avoid examination by Danish cruisers. Now it appears, in the first place, that they did not seek convoy for any purpose, but that they were forced into it. Apart, bowever, from that question, there were not any Danish laws or ordinances, which they knew of, subjecting them to capture; nor could they apprehend or anticipate any such; tbe less, as they had previously passed through the Sound, or Belt, in safety, and without convoy ; hence they had not any motive to seek convoy as a protection against Danish cruisers. They had, indeed, oiber inducements to put themselves under convoy ; the decrees of his majesty the emperor of France (since, happily for the barmony between the United States and France, repealed) were iben in force : tbat system, working against the English orders in council, produced such a state of things with regard to the commerce of America, that scarcely one of its ships could move on the face of the ocean without being exposed, under this unfortunate co-operation of hostile systems, to capture and confiscation : hence it is not surprising if American vessels have, from time to time, been terrified into the convoy, now of one party, now of the other. But had this happened in the cases before us, yet it would
not haver, the mere questioned, att
not have formed a just ground of capture and confiscation ; for, the merits or demerits of the Berlin and Milan decrees out of the question, those decrees have not been adopted by Denmark: indeed, at the time the vessels were taken, bis majesty had not assumed any course, with respect to the American commerce, from which evil was to be apprehended : hence, I beg leave to repeat, that the vessels in question cannot be presumed to have sought protection under British convoy for the purpose of avoiding his cruisers. But, if the contrary had been proved, if it stood confessed that they had sought convoy against Danish cruisers ; in that case they would have been liable to capture certainly, but it is equally certain that they would not have been liable to condemnation. I must again totally deny that the rule laid down in the article of the royal instructions above cited, is supported by any principle to be found in the law, and I can confidently ask your excellency to show me any authorities in its favour. If the writers be silent on the subject, then their silence is to be construed favourably for the neutral; it supposes that his right to sail under convoy, in all cases, is indisputable : what is not expressed, against this claim, cannot be implied ; but, I will add, that all the analogies to be drawn from the law are in favour of the feutral. In this view, the rule laid down in the instructions, by its sweeping latitude, forms its own condemnation ; for it would comprise not only vessels which might accidentally be within sight of, or at any indefinite distance from, an enemy's convoy, but vessels found in an enemy's harbour under cover of his guns. But the law says, that neutral goods so found under bis forts, within his territory, or even on board his vessels at seawhich is to be as immediately and totally under his protection as is possible—that these are not liable to confiscation, but shall be restored to the neutral owners. The doctrine laid down by Grotius in the .“ de jure belli ac pacis” on this point, has never been refuted, but has, on the contrary, been adopted by subsequent writers : treaties, indeed, may have said otherwise, but treaties change not the law, they bind only the parties to them. I may equally ask your excellency to shew me examples in the practice of nations, countenancing the rule laid down in the royal order; and I can quote, in favour of the neutral right, the example of England--a power which neither
your excellency or myself are disposed to extol for her moderation in the exercise of her belligerent rights, or for any dispositions which she has manifested favourable to those of neutrals--England herself has never gone to the extent of condemping vessels upon the mere ground of their having been taken under enemies' convoy, but she has captured them in that situation and acquitted them.
I might occupy your excellency's attention by expatiat. ing on the conduct of Denmark in former times, by carrying back your view to a consideration of that great sys. tem of neutral rights, which she so boldly adopted and so ably supported, in the year 1780—which are again recognised in her convențion with Sweden in 1794—which she bas subsequently co-operated with Russia to establish, and the leading feature of which still appears in the very royal instructions on which I have been commenting : but it would be an ungrateful task, and not necessary to be undertaken, because the mere mention of the subject carries conviction to the mind on the point to which I would apply it, and because, on every other, I bave already said more than enough to establish the chief position with which I began : viz. that nothing to be found in the law will authorize the condemnation of neutral property upon the mere fact of its being found under enemies' conroy, and that therefore on due proof of its neutrality, it must be acquitted.
I consider it to be a propitious circumstance, that in acting upon this very important question, his majesty's government is unembarrassed by the claims of privateersmen, and that the cases of these vessels are thus presented in the plainest form, unmixed with any extraneous matter, the captures having been made by publick ships, leaving the fullest scope to the magnanimity and justice of his majesty's disposition. I have the honour, &c.
G. W. ERVING. To His Excellency M. de Rosenkrantz, First Minister of State, &c. &c. &c. voL. vĩu.
· (No. 1.)
LIST OF AMERICAN VESSELS,
Christiansand by Five Danish Gun-Brigs, in July, 1810.
St. Petersburgh, Philadelphia, Philadelpbia.
Providence, R.I. Providence.
( These vessels are American, but
the cargoes on freight supposed
Liverpool, Barque Eliza, Luffkin,
for English account; no appeal declared for either vessel.