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 ease 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 of 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 neutral, 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."

With regard to this special phase of the case, it may be observed that the
contention that, whether or no the vessel was enemy's property or
otherwise subject to capture, no injury was done to the belligerent
whose exercise of the right of search was prevented, is merely a reas-
sertion of one view of the controversy, since it obviously assumes the
point at issue, viz, whether such prevention was an injury of which
the belligerent had a right to complain, or, in other words, a substan-
tial injury.
Considering Mr. Wheaton's argument as a whole, it appears (1) that it
was directed against the condemnation and not against the capture
of the vessels; (2) that it was chiefly designed to show that the
condemnations were, under the special circumstances of the case,
improper; (3) that it alleged that the condemnations proceeded upon
a construction of the instructions of 1810, which was, as has been
pointed out, more extensive in its effect than that which was origi-
nally given to them by the Danish Government; (4) that it nowhere
suggests that the acceptance of belligerent convoy did not create an
adverse presumption which justified the sending in of the vessels for
adjudication.

On March 28, 1830, a convention was signed by which the King of Den-
mark, while renouncing all claims against the United States, agreed
to pay a lump sum of 650,000 Spanish-milled dollars "on account of
the citizens of the United States, who have preferred claims relating
to the seizure, detention, condemnation, or confiscation of their ves-
sels, cargoes, or property whatsoever, by the public or private armed
ships, or by the tribunals of Denmark, or in the States subject to the
Danish sceptre," during the maritime war in question. And it was
further stipulated that "the intention of the two high contracting
parties being solely to terminate, definitely and irrevocably, all the
claims which have hitherto been preferred, they expressly declare
that the present convention is only applicable to the cases therein men-
tioned, and, having no other object, can never hereafter be invoked
by one party or the other as a precedent or rule for the future."

A neutral vessel, though liable to capture without search when sailing under belligerent convoy, is not liable to capture or condemnation for sailing under such convoy after she has, voluntarily or involuntarily, separated from it.

The Galen (1901), 37 Ct. Cl. 89.

X. CAPTURE.

1. WHAT CONSTITUTES.

§ 1206.

An American vessel, bound for an American port, having been seized by an American privateer, the captor entered into an understanding with the master by which it was arranged that the captor should preserve his claim to any British goods which might be found on board, the residue to belong to the claimants. A single man,

but no prize crew, was then put on board the vessel. Subsequently, on the arrival of the vessel in port, all the goods, as well as the vessel, were libelled, on the ground of a trading with the enemy. The claimants of the vessel and goods contended that there was no capture; that the prize master alone was unable to secure the vessel against a rescue should one be attempted; that he was unable to bring her into port without the assistance of the original crew; and that even if it should be held that there was a capture it extended only to the British goods. The vessel and cargo were, however, condemned. Marshall, Ch. J., delivering the opinion of the court, said: "That the American [privateer] took possession of the Alexander with the intention of making prize of that part of her cargo which might be deemed British, is not controverted. How was this intention to be executed ." if it was not by capture? "And if such part of the cargo as might eventually be British, was captured, and the whole remained together in the vessel, how can the capture be considered as partial? But it has been truly observed that it is not non-capture, but abandonment, for which the complainants in fact contend. But while the whole cargo remains together, claimed by the captor, if it be enemy property, how can any part of it be said to be abandoned? If it was entirely abandoned, for what purpose was one of the crew of the America put on board the Alexander? The inability of the prize master to secure the captured vessel against a rescue, should one be attempted, his inability to bring in the vessel without the aid of the hands belonging to her, is, in reason, no proof of abandonment. If the circumstances of the captured vessel be such as to do away [with] all apprehension of rescue, and inspire confidence that the crew will bring her into port, no reason is perceived why the property of the captor, may not be retained as well by a prize master alone, as by a considerable detachment from his crew."

The Alexander (1814), 8 Cranch, 169.

To constitute a capture some act should be done indicative of an intention to seize and retain as prize; and it is sufficient if such intention is fairly to be inferred from the conduct of the captor.

The Grotius, 9 Cranch, 368.

A tortious possession under an illegal capture can not make a valid title by a sale.

The Fanny, 9 Wheat. 658.

Though a superior physical force is not necessary to make a seizure, there must be an open, visible possession claimed, and a submission to the control of the seizing officer. If a seizure be voluntarily ban

doned it becomes a nullity, and it must be followed up by appropriate proceedings to be effectual in conferring rights of property.

The Josefa Segunda, 10 Wheat. 312.

Where a vessel seized as contraband of war is lost while in the hands of its captors, without their fault, they are not liable therefor. The Caroline Wilmans, 27 Ct. Cl. 215.

Where the illegality of a seizure is shown, the owners are entitled to indemnity.

66

The Nancy, 37 Ct. Cl. 401.

"I am just informed that two American seamen, Daniel Tripe and Benjamin Yeaton, are in prison at Point Peter, Guadaloupe, and that the government of that place refuses to exchange them and threatens to punish them as criminals. The offence committed is said to have been the rescue of their vessel, in doing which the prize master was killed.

"As the fact is completely justifiable by the laws and usages of war, it will not authorize the revenge which the government of Guadaloupe proposes to exercise on these prisoners. Nor will the Government of the United States permit such practices to remain unpunished; however retaliation may wound the feelings of humanity, a just regard for the lives of our citizens and a sound policy will compel us to resort to it.

"I must therefore request that you will endeavor to have these men exchanged, and that, if it is pretended that they ought to be detained as criminals and to be punished as murderers, you remonstrate against an act alike lawless and inhuman, and make such declarations as you may believe will be productive of good, of the certainty that the American Government will retaliate."

Mr. Marshall, Sec. of State, to Mr. Clarkson, Aug. 1, 1800, MS. Inst.
U. States Ministers, V. 346.

Rescue.

"In reference to your letter of the 2d February last, I soon after took occasion to intimate to you what appeared to be the President's way of thinking on the subject. I have now the honor to state to you that while, by the law of nations, the right of a belligerent power to capture and detain the merchant vessels of neutrals, on just suspicion of having on board enemy's property, or of carrying to such enemy any of the articles which are contraband of war, is unquestionable, no precedent is recollected, nor does any reason occur which should require the neutral to exert its power in aid of the right of the belligerent nation in such captures and detentions. It is conceived that, after warning its citizens or