vate merchant vessels, for enemy's property, articles contraband of war, or men in the land or naval service of the enemy; but it does not understand the Law of Nations to authorize, and does not admit the Right of Search for subjects or seamen. England, on the other hand, has asserted the right to look for her subjects on the high seas, into whatever service they may embark. The claim of England to the Right of Search, on the high seas, of neutral vessels, for deserters and other persons liable to *military and naval service, has been a question of animated [*434] discussion between her and the United States of North America. It was one principal cause of the war of 1812 between these States, and remains unsettled to this day; in the discussions in 1842, between Lord Ashburton and Mr. Webster, relative to the boundary line of the State of Maine, the American Minister incidentally discussed the subject; (r) but no conclusion was arrived at. It appears clear to the writer of these pages, that in the present state of International Law, this Right of Search ought to be confined in its exercise to merchant vessels.

CCCXXXVI. Sixthly, what are the consequences which flow from a resistance, on the part of the Neutral, to the exercise of this belligerent right? This resistance may be exercised (1,) either by the ship herself, or (2,) by an armed vessel or vessels accompanying her by way of escort

or convoy.

CCCXXXVII. It is admirably said by Lord Stowell, that it is a wild conceit, that wherever force is used, it may be lawfully resisted: a lawful force cannot lawfully be resisted. The only case where it can be so is. in the state of war and conflict between two countries, where one party has a perfect right to attack by force, and the other has an equally perfect right to repel by force; but in the relative situation of two countries at peace with each other, no such conflicting rights can possibly co-exist. (s)

It is upon these principles that International Law universally, by its accredited voice, inflicts the penalty of confiscation upon the neutral merchantman or private vessel which resists the Belligerent's Right of Search.

CCCXXXVIII. It remains to be considered whether the *fact [*435] that the private is accompanied, or, according to the usual phrase, convoyed, by a public vessel, makes any, and, if any, what difference in the application of this principle.

Upon this subject it seems best to use the language of Lord Stowell, in one of his most careful and best reasoned judgments :

"That the penalty for the violent contravention of this right is the confiscation of the property so withheld from Visitation and Search. For the proof of this I need only refer to Vattel, one of the most correct and certainly not the least indulgent of modern professors of public law.

(r) Kent's Comm., vol. i. p. 157, (note.) An Inquiry into the Validity of the British Claim to a Right of Visitation and Search of American Vessels suspected to be engaged in the African Slave Trade, by Mr. Wheaton. London, 1842. Webster's Works, vol. v. p. 142, vol. vi. p. 329, cited by Mr. Lawrence in his edition of Wheaton's Elem., note to p. 188.

(8) The Maria, 1 Robinson's Adm. Rep., p. 36.

In Book III. c. 7, sect. 114, he expresses himself thus: On ne peut empêcher le transport des effets de contrebande, si l'on ne visite pas les vaisseaux neutres que l'on rencontre en mer. On est donc en droit de les visiter. Quelques nations puissantes ont refusé en différents tems de se soumettre à cette visite; aujourd'hui un vaisseau neutre, qui refuseroit de souffrir la visite, se feroit condamner par cela seul, comme étant de bonne prise.' Vattel is here to be considered not as a lawyer merely delivering an opinion, but as a witness asserting the fact-the fact that such is the existing practice of modern Europe. And to be sure, the only marvel in the case is, that he should mention it as a law merely modern, when it is remembered that it is a principle, not only of the Civil Law (on which great part of the Law of Nations is founded,) but of the private jurisprudence of most countries in Europe,-that a contumacious refusal to submit to fair inquiry infers all the penalties of convicted guilt. Conformably to this principle we find in the celebrated French Ordinance of 1681, now in force, Article 12, That every vessel shall be good prize in case of resistance and combat; and Valin, in his smaller Commentary, p. 81, says expressly, that although the expression is in the conjunctive, yet that the resistance alone is sufficient. (t) He refers to the Spanish Ordinance 1718, evidently copied from it, [*436] in which it is expressed in the disjunctive, in case of resistance or combat.' And recent instances are at hand and within view, in which it appears that Spain continues to act upon this principle. The first time in which it occurs to my notice on the inquiries I have been able to make in the institutes of our own country respecting matters of this nature, excepting what occurs in the Black Book of the Admiralty, (u) is in the Order of Council, 1664, Article 12, (x) which directs, That

(t) "In some of the Treaties of France, this article is expressly inserted in the disjunctive. Treaty between France and the Duchy of Mecklenburg, art. 18, an. 1779. De Marten's Tr., vol. ii. p, 40, also between France and Hamburgh, an. 1769."

(u) "B. 7. Item se aucune nef ou vessel de la ditte flotte a congie et pouvoir de l'admiral de passer hors de la flotte entour aucun message ou autre besongne, s'ilz encontrent ou trouvent aucuns vesseaulx estranges sur la mer ou en ports des ennemys, adonques ceulx de nostre flotte doivent demander des maistres et gouverneurs de telz vesseaulx estrangers dont ilz sont et eulx bien examiner de leur charge ensemblement avecques leurs muniments et endentures, et s'il est trouve aucune chose de suspicion en telz vesseaulx que les biens sont aux ennemys, qui sont trouvez dedens les dits vesseaulx avec leurs maistres et gouverneurs ensemblement avecques les biens dedens icelle estants sauvement seront amenees devant l'admiral, et illecques s'il est trouve qu'ilz sont loyaulx marchants et amys sans suspicion de colerer, les biens seront a eulx redelivrees sans eulx rien dommager, autrement seront pris avec leurs biens et raensonnez comme la loy de mer veult et demande.

"B. 8. Se aucunes de noz nefs ou vesseaulx encontrent sur la mer ou en ports aucuns autres vesseaulx, qui facent rebelletees ou defense encontre ceulx de noz nefs ou vesseaulx, adoncques bien lise a nox gents les autres comme ennemys assaillir et par forte mayn les prendre et amener entièrement, comme ilz les ont gaignez, devant l'admiral sans eulx piller ou endommager, illecques de prendre ce que loy et coustume de mer veult et demande," &c.

(x) "During the struggle for naval superiority, which took place between the maritime states of Europe, about the middle of the seventeenth century, the pretension of resisting search by the protection of convoy, was put forward with much caution, and apparently for the first time, by Christina Queen of Sweden,

when any ship, met withal by *the Royal Navy or other ship commissionated, shall fight or make resistance, the said ship and

[*437]

Aug. 16, 1653. Art. 4th, 'They shall in all possible ways decline that they, or any of those that belong to them be searched. For seeing they are only sent to prevent all inconvenience and clandestine dealings, it is expected that they may be believed, and suffered to pass and proceed on their course unmolested, with all such things as are under their care.'-It was restrained to neutral ports.-Art. 6th, 'And more especially, for certain reasons, it is our command, that our own menof-war do chiefly, and in the beginning, steer their course to such ports as are neutral, in the English and Dutch war, till we give any farther directions on that account. However, without any hindrance to our own subjects, that intend to carry on their own free trade to England and Holland without convoy.'-Thurloe's State Papers, vol. i. p. 424.

"In 1655 it was taken up by Holland: 'They have a design to hinder the Protector all visitation and search; and this by very strong and sufficient convoy; and by this means they will draw all trade to themselves and their ships.'-Ibid., vol. iv. p. 203.

"In May 1656 there happened an actual rencounter on this subject, between a fleet of merchantmen from Cadiz, (Spain being then at war with England,) under the convoy of de Ruyter, with seven men-of-war, and the commodore of some English frigates. Antwerp.-We have certain news of the arrival of de Ruyter in Zealand from Cadiz, from whence he brought stores of plate, mostly belonging to merchants of this city; he was met withal at sea by some English frigates, but finding themselves too weak they let him go.'—Ibid., vol. iv. p. 740. See also the particular account of what passed, given by a Dutch officer to the States General; That upon de Ruyter declaring that there was not anything on board belonging to the King of Spain, they parted. Ibid., vol. iv. p. 730. It appears, however, that the arrival occasioned great triumph in Holland and Flanders, and that the fleet was deeply laden with silver for the king of Spain, aud the service of his armies in Flanders. 'De Ruyter brought in his own ship, and others in his fleet, the sum of 20,000,000 (perhaps rials) of gold and silver, the greatest part for the king of Spain's use and the merchants of Brabant and Flanders.'—Ibid., vol. iv. pp. 732, 748. The 12th article of the Eng. Ord. of 1664 might perhaps be pointed against these pretensions.

"In another letter in the same collection, 21st Sept. 1657, from Nieuport, the Dutch ambassador in England,-we find the subject of convoy was strongly pressed at that time, and resisted on the part of this country: 'respecting secret articles,' concerning the visitation of ships which are convoyed under the flag of the state. I acquainted their Lordships, that of old all kings and states had made a difference between particular ships sailing upon their risques and adventures and between ships of the state and those which pass the sea under their flag and protection. That their high and mighty lords were of an opinion that it does strengthen the security of this state, that the ships of the state and officers should be responsible, as it were, for the ships sailing under their convoy; and that which I had proposed in my last memorandum concerning the same on behalf of their high and mighty lords was no new thing, but that plan had been most commonly proposed on all the treaties since the year 1851, in that manner that without regulating the same according to the said articles, the troubles at sea, whereof I had so often complained, could not be removed and prevented, and I alleged several examples. Upon which now one then the other of the said three lords* replied, and did very much insist, that it could not consist with their security; that they could not nor ought to trust so much to particular captains at sea; that it would be an introduction and encouragement to disaffected persons to assist the enemy, and urged especially that in no former treaties any such articles were found, and that their high and mighty lords had no reason to desire now any such novelty. I said that the practice on this side in regard of searching and visiting ships without difference was a new thing, and that the inhabitants of the United Netherlands, feeling the trouble and inconveniency of it, had reason to insist that it may be rectified by a good regulation.-Vol. vi. p. 511. See also, for the former conference, vol. v. p. 663.

"It appears that so many objections had arisen on the treaty proposed on the

* Thurloe, Wolsely, Jones.

[*438]

goods shall be adjudged *lawful prize.'—A similar article occurs in the Proclamation of 1672. I am aware, that in those orders and proclamation are to be found some articles not very *con[*439] sistent with the Law of Nations as understood now, or indeed at that time; for they are expressly censured by Lord Clarendon.(y) But the article I refer to is not of those he reprehends; and it is observable that Sir Robert Wiseman, then the King's Advocate General, who reported upon the articles in 1673, and expresses a disapprobation of some of them as harsh and novel, does not mark this article with any observation of censure. I am therefore warranted in saying, that it was the rule, and the undisputed rule, of the British Admiralty. I will not say that that rule may not have been broken in upon in some instances by considerations of comity or of policy, by which it may be fit that the administration of this species of Law should be tempered in the hands of those tribunals which have a right to entertain and apply them; for no man can deny that a state may recede from its extreme rights, and that its supreme councils are authorized to determine in what cases it may be fit to do so, the particular captor having in no case any other right and title than what the State itself would possess under the same facts of capture. But I stand with confidence upon all fair principles of reason,-upon the distinct authority of Vattel,-upon the Institutes of other great maritime countries, as well as those of our own country,— when I venture to lay it down, that by the Law of Nations, as now understood, a deliberate and continued resistance to Search, on the part of a neutral vessel to a lawful cruiser, is followed by the legal consequence of confiscation."(z)

CCCXXXIX. It should, however, be stated that this penalty of confiscation for resistance to Visitation and Search cannot be inflicted in cases where the neutral vessel had no reasonable grounds to be satisfied of the existence of the war-for it is this existence which founds the duties of Neutrality.(a)

part of Holland, that it was found necessary to form an entirely new project.-Vol. v. pp. 523, 558.

"In a subsequent letter from the Hague, 30th Nov. 1657, it appears that the treaty broke off on this difference: 'Le Sieur Nieuport n'est pas encore ici arrivé, mais il escrit aussi d'avoir prins son congé. Il est fort croyable qu'il ne sera guère content d'avoir faillé à achever le traiteé de la marine; néanmoins je m'imagine que la Hollande à present ne seroit pas fort marry de ne l'avoir pas achevé, pour ne se pas oster la liberté de visiter des mêmes en cette guerre contre Portugal.'Thurloe's St. Pap., vol. vi. p. 622.

"On the subject of search generally, without any expressed reference to convoy, there is this letter from Cromwell to General Montagu: 'The secretary hath communicated to us your letter of the 28th, by which you acquaint him with the directions you have given for the searching of a Flushing and other Dutch ships, which (as you are informed) have bullion and other goods aboard them belonging to the Spaniard, the declared enemy of this state. There is no question to be made, but what you have directed therein is agreeable both to the laws of nations and the particular treaties which are between this commonwealth and the United provinces, and therefore we desire you to continue the said direction, and to require the captains to be careful in doing their duty therein.-Hampton Court, 30th August, 1657.'”

(y) Lord Clarendon's Life, p. 242.

(2) The Maria, 1 Robinson's Adm. Rep., pp. 363-9.

(a) The St. Juan Baptista, 5 Robinson's Adm. Rep. p. 33.

[*440]

*Nor will the forcible resistance of the master of an enemy merchant vessel enure to the condemnation of neutral property laden on board of it. The attempt of the enemy master to save or rescue his vessel from the captor is the hostile act of a hostile person, and a perfectly legitimate attempt.(b)

CCCXL. On the other hand, if a neutral master attempt a rescue, or to withdraw himself from Search, he is guilty of a breach of duty; and if he effect this breach by a recurrence to force, the penal consequence will reach the property of his owner, and the whole property entrusted to his care. In such a case ship and cargo will be condemned.(c) CCCXLI. What if a Neutral put his property on board an armed ship, which he must presume will be defended against the enemy?

According to the opinion of Lord Stowell and Justice Story-and he is a bold jurist who opposes their combined opinion-a Neutral who so acts betrays an intention to resist Visitation and Search, which he could. not do by putting his property on board a merchantman-and so far he adheres to the Belligerent he withdraws himself from the protection of Neutrality, and adopts another mode of defence: he relies on an enemy's force for protection, and he must for the time be considered as an enemy.(d)

"If," says Mr. Justice Story, "for a moment it could be admitted that a Neutral might lawfully ship goods in a non-armed ship of an enemy, or might charter such a ship, and navigate her with a neutral crew, these admissions would fall far short of succouring the claimant. He must successfully contend for broader doctrines, for doctrines which in my humble judgment are of infinitely more dangerous tendency than any which Schlegel and Hübner, the champions of Neutrality, have yet advanced into the field of maritime controversy. I cannot [*441] bring my mind to believe that a neutral can charter an armed enemy ship, and victual and man her with an enemy crew (for though furnished directly by the owner, they are in effect paid and supported by the charterer,) 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 stipulate expressly for the benefit and use of enemy convoy, and navigate during the voyage under its guns and protection; that he can be the entire projector and conductor of the voyage, and co-operate 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. On the contrary, it seems to me that such conduct is utterly irreconcilable with the good faith of a friend, and unites all the qualities of a most odious hostility. It wears the habiliments of Neutrality only when the sword and the armour of an enemy become useless for defence. If it be, as it undoubtedly is, a violation of Neutrality to engage in the transport-service of the enemy, or to carry his despatches even on a (b) The Catherina Elizabeth, 5 Rob. Adm. Rep., p. 232.

(c) The Franklin, 2 Acton's Rep., p. 106.

(d) The Fanny, 1 Dodson's Adm. Rep., p. 443.