"in the American seas, and even on the coast of Spain, must render any measures of protection and defence both eligible and lawful," and that under the changed conditions, in which danger to American commerce had greatly increased, convoys were "certainly not to be refused." In the West Indies, said Mr. Pickering, "the French agents and privateers capture and condemn every American they meet, if bound to or from a British port, or even to their own ports, in a variety of instances, and strip and abuse our citizens. These have, for some months past, been in the practice of accepting British convoys. And what legal consequence can result from accepting a convoy in any case, except that of its being a cause of condemnation in case of capture, although the vessel should really be neutral? It would then seem to be a matter of calculation whether to accept or decline a convoy."

Mr. Pickering, Sec. of State, to Mr. King, min. to England, May 9, 1797,
MS. Inst. U. States Ministers, IV. 49; Am. State Papers, For. Rel.
VI. 89.

In the course of representations designed to secure the removal of the British export tax, first levied in 1798, in the form of a duty ostensibly designed to defray the cost of furnishing British convoy to vessels carrying goods from that country, Mr. Madison said: "Even during war the exports are generally made as American property and in American vessels, and therefore, with a few exceptions only, a convoy which would subject them to condemnation, from which they would otherwise be free, would not be a benefit but an injury."

Mr. Madison, Sec. of State, to Mr. Monroe, min. to England, Mar. 6, 1805,
MS. Inst. U. States Ministers, VI, 271.

"The act of sailing under belligerent or neutral convoy is of itself a violation of neutrality, and the ship and cargo if caught in delicto are justly confiscable; and further, that if resistance be necessary, as in my opinion it is not, to perfect the offence, still that the resistance of the convoy is to all purposes the resistance of the associated fleet. I am unable to perceive any solid foundation on which to rest a distinction between the resistance of a neutral and of an enemy master.

.

"I can not bring my mind to believe that a neutral can charter an armed enemy ship, and victual and man her with an enemy crew, with the avowed knowledge and necessary intent that she should resist every enemy; that he can take on board hostile shipments on freight, commissions and profits; that he can

be the entire projector and conductor of the voyage, and cooperate in all the plans of the owner to render resistance to search secure

and effectual; and that yet, notwithstanding all this conduct, by the law of nations he may shelter his property from confiscation, and claim the privileges of an inoffensive neutral."

Story, J., The Nereide, 9 Cranch, 388, 445, 453, 454, dissenting opinion.
This is followed by the Court of Claims, as to belligerent convoy, in the
Nancy (1892), 27 Ct. Cl. 99; the brig Sea Nymph (1901), 36 Ct. Cl.
369.

That the acceptance by a neutral vessel of the convoy of a belligerent man-of-war is an illegal act, and in itself affords good ground for condemnation, if the vessel, while under such convoy, be captured by the other belligerent, is maintained by the English courts and English writers, and also by leading publicists of the United States, among whom may be mentioned Kent, Duer, Woolsey, and Dana.

On the other hand, the Government of the United States on one occasion took the opposite ground, maintaining, in a controversy with Denmark, which arose in 1810, that so long as the association of the neutral vessel with the belligerent convoy was not attended with any attempt at concealment or deceit, nor with any participation in the actual resistance of the convoying force, she did not lose her neutral character. In this controversy the United States was ultimately represented by Mr. Wheaton, who thus became committed to that view. But, while it was contended by Mr. Wheaton that the mere association, though voluntary, of the neutral vessel with the belligerent convoy did not justify condemnation, yet it was not denied by him that such association afforded ground for bringing in the vessel for adjudication, although he intimated in the course of his argument that in at least some of the cases before him there was no other association than that which resulted from an accidental and temporary coincidence of routes.

Mr. William Beach Lawrence, referring to the negotiation with Denmark, says: "That the success of the negotiation was, in a great degree, to be attributed to the personal character and special qualities of Mr. Wheaton can not be doubted by any one who reads the passages which we have cited from eminent publicists." In the passages thus referred to the view opposite to that expounded by Mr. Wheaton is maintained, and it appears to be supported by the preponderance of recent opinion. Snow, referring to the question "whether neutral vessels who place themselves under the convoy of a belligerent cruiser are liable to capture and confiscation," states that "the weight of opinion favors the doctrine that such acts are sufficient to condemn the vessel." Says Rivier: "A neutral merchant vessel which sails under enemy convoy violates neutrality; its seizure and confiscation would be legitimate."

Dana's Wheaton, 708, note 245; Lawrence's Wheaton (1863), 871; Stockton's Snow, 163; Rivier, Principes du Droit des Gens. II. 424. The controversy between the United States and Denmark grew out of the enforcement of certain revised instructions which were issued to the Danish men-of-war and privateers, Mar. 28, 1810. By one clause of these instructions all vessels were declared to be good prize which had "made use of British convoy either in the Atlantic or the Baltic." Under this clause 18 American vessels were seized in 1810, out of a total of 122 captures of American vessels by Danish cruisers in that year.

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The convoy cases were first discussed on the part of the United States by Mr. George W. Erving, who was sent as special minister to Copenhagen in 1811. In the course of a comprehensive general report of June 23, 1811, on the Danish captures, he thus referred to the convoy cases: "The ground on which they stand, I am aware, is not perfectly solid, yet I did not feel myself authorized to abandon them, and therefore have taken up an argument which may be difficult, but which I shall go as far as possible in maintaining." The Danish Government, however, contended that neutral vessels that make use of the convoy or protection of the vessels of war of Great Britain are to be considered as good prize if the Danish privateers capture them under convoy." Such was the construction given by Denmark to the convoy clause, which, as thus interpreted, that Government refused to modify. The principle on which the clause was justified was, as stated by Mr. de Rosenkrantz, Danish minister of foreign affairs, that he who causes himself to be protected, by that act ranges himself on the side of the protector, and thus puts himself in opposition to the enemy of the protector, and evidently renounces the advantages attached to the character of friend to him against whom he seeks the protection. If Denmark should abandon this principle, the navigators of all nations would find their account in carrying on the commerce of Great Britain under the protection of English ships of war, without running any risk. We every day see that this is done; the Danish Government not being able to place in the way of it sufficient obstacles." (Am. State Papers, For. Rel. III. 329, 521, 524, 526.)

After May, 1811, few American vessels were molested by the Danes, and between May, 1812, when Mr. Christopher Hughes's special mission ended, and 1827, when Mr. Wheaton was sent as minister to Denmark, little serious effort was made to effect a settlement of any of the claims against that Government.

Mr. Wheaton's principal argument in relation to the convoy cases was made in a note of Nov. 24, 1829. (H. Doc. 249, 22 Cong. 1 sess. 34-38; Moore, Int. Arbitrations, V. 4555 et seq.) He assumed the following grounds:

1. That under the convoy clause vessels and cargoes were condemned by* the high court of admiralty, although in most, if not in all, such cases there was satisfactory proof that the vessels had been compelled to join the British convoy, and although the Danish prize ordinance was not known at St. Petersburg when they sailed from that port. This, it may be observed, was in the nature of a confession and avoidance, since, while admitting the presence of the vessels with the convoy, it suggested as excuses want of notice and coercion.

2. But it was, said Mr. Wheaton, less material to dwell on this aspect of the case, since the United States wholly denied the principle on which the clause 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," and, as interpreted by the Danish tribunals, made “the fact of having navigated under the enemy's convoy . . . per se a justifiable cause (not of capture merely, but) of condemnation." From this argument of Mr. Wheaton's it is to be inferred that the Danish tribunals gave to the clause in question a more extensive effect than that ascribed to it by the Danish Government. The construction of that Government, expressed in the correspondence with Mr. Erving, was, as has been seen, that vessels seized on the ground of accepting British protection were good prize if the Danish privateers capture them under convoy;" while, as stated by Mr. Wheaton," the fact of having sailed under belligerent convoys" was held by the tribunals to be in itself a cause of condemnation.

3. Mr. Wheaton also contended that as Denmark had, when neutral, asserted the right to protect her commerce against belligerent visitation and search by means of armed convoys of her own public ships, she was a fortiori precluded from asserting 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, continued Mr. Wheaton, had a right to resist; and the masters of vessels under his convoys, 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. This branch of Mr. Wheaton's argument embraces the questions of (1) neutral convoy and (2) neutral goods shipped on an armed enemy vessel. As to the first question, it may be observed that the conception of neutral convoy by nations which recognize and practice it is not that of resistance to search, but of the substitution for the process of search of a responsible governmental guarantee. As to the second question, Mr. Wheaton's contention, and to a great extent his language, were drawn from the case of The Nereide, 9 Cranch, 388, in which neutral goods on an armed vessel that resisted search were held to be exempt, Mr. Justice Story and one other justice dissenting, while two others were absent. (Dana's Wheaton, 698, note 243.) It is, besides, to be noticed that in a subsequent case the Supreme Court sharply distinguished the case of lading goods on an armed enemy vessel from that of the acceptance of belligerent convoy. (The Atalanta, 3 Wheat., 409.) Mr. Wheaton himself, in his treatise on international law, thus summarizes the court's reasoning on the subject of belligerent convoy: "A convoy was an asssociation for a hostile object. In undertaking it, a state spreads over the merchant vessels an immunity from search which belongs only to a national ship; and by joining a convoy, every individual vessel puts off her pacific character, and undertakes for the discharge of duties which belong only to the military marine. If, then, the association be voluntary, the neutral, in suffering the fate of

the entire convoy, has only to regret his own folly in wedding his fortune to theirs; or if involved in the resistance of the convoying ship, he shares the fate to which the leader of his own choice is liable in case of capture." (Dana's Wheaton, 698.)

4. Mr. Wheaton further contended that, in view of the multiplied ravages to which American commerce was then exposed on every sea, from the sweeping decrees of confiscation fulminated by the great belligerent powers, the conduct of the vessels in question might 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. Even admitting 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, said Mr. Wheaton, 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.

With regard to this contention, it may be suggested that, while it assumes that the British convoy was accepted for protection against French and not against Danish cruisers, and therefore (contrary to contention 1) deliberately, it also assumes that a neutral vessel may, at the expense of the rights of one belligerent, seek from another that protection which its own government may fail to give against the exorbitant pretensions of a third belligerent. In order to support this contention, it should seem that the facts would in any event have to be clearly established.

5. But, finally, even supposing that it was the intention of the American shipmaster, in sailing with the British convoy, to escape from Danish as well as French cruisers, that intention had, Mr. Wheaton further contended, failed of its effect; and it might be asked what belligerent right Denmark had been practically injured by such an abortive attempt? "If any," said Mr. Wheaton, "it must be the right of visitation and search. But the right of visitation and search is not a substantive and independent right, with which belligerents are invested by the law of nations for the purpose of wantonly vexing and interrupting the commerce of neutrals. It is a right, growing out of the greater right of capturing enemy's property or contraband of war, and to be used as a means to an end to enforce the exercise of that right. Here the exercise of the right was never, in fact, opposed, and no injury has accrued to the belligerent. But it may be said that it might have been opposed, and entirely defeated, had it not have been for the accidental circumstance of the separation of these vessels from the convoying force, and that the entire commerce of the world with the Baltic Sea, might thus have been effectually protected from Danish capture. And, it might be asked in reply, what injury would have resulted to the belligerent rights of Denmark from this circumstance? If the property be neutrál, and the voyage lawful, (as they were in the present instance,) what injury would result from the vessels escaping from examination? On the other hand, if the property was that of the enemy, its escape must be attributed to the superior force of the enemy, which, though a loss, would not be an injury, of which Denmark would have a legal right to complain."