claim by Great Britain in its indefinite extent, and her probable inflexibility in the objections, may render it expedient to substitute the modifications already admitted by Russia in the treaty of June, 1801. With such modifications the right seems to be sufficiently valuable to deserve a place in a general provision for neutral rights."

Mr. Madison, Sec. of State, to Mr. Armstrong, min. to France, Mar. 14, 1806, MS. Inst. U. States Ministers, VI. 322.

66

It was stated by Baron Krudener, Russian minister at Washington, in 1829, by direction of his Government, that subsequent events" had annulled the treaty between Russia and Great Britain of 1801. (Mr. Van Buren, Sec. of State, to Mr. Randolph, min. to Russia, No. 2, June 18, 1830, MS. Inst. U. States Ministers, XIII. 127.)

That the right of convoy is denied by the English prize courts, see the Maria, 1 C. Rob. 340; Hall, Int. Law, 5th ed. 719; The Sea Nymph (1901), 36 Ct. Cl. 369.

"Calhoun asked [at a Cabinet meeting on October 26, 1822] if we could authorize the merchant vessel itself to resist the belligerent right of search. I said, no; and the British claimed the right of searching convoyed vessels, but that we had never admitted that right, and that the opposite principle was that of the armed neutrality. They maintained that a convoy was a pledge on the part of the convoying nation that the convoyed vessel has no articles of contraband on board, and is not going to a blockaded port; and the word of honor of the commander of the convoy to that effect must be given. But, I added, if we could instruct our officer to give convoy at all, we can not allow him to submit to the search by foreigners of a vessel under his charge; for it is placing our officer and the nation itself in an attitude of inferiority and humiliation.

"The President agreed with this opinion, and Mr. Calhoun declared his acquiescence in it; and it was determined that the instructions to Biddle should be drawn accordingly."

6 J. Q. Adam's Mem. 86.

"It is an ordinary duty of the naval force of a neutral, during either civil or foreign wars, to convoy merchant vessels of the nation to which it belongs to the ports of the belligerents. This, however, should not be done in contravention of belligerent rights as defined by the law of nations or by treaty. The only limitations of the right to convoy recognized by the treaty between the United States and Mexico are those contained in the 24th article, which declares that when vessels are under convoy, the verbal declaration of the commander of the convoy, on his word of honor, that the vessels under his protection belong to the nation whose flag he carries, and, when they are bound to an enemy's port, that they have no contraband goods on board

shall be sufficient. With these conditions the United States have at all times been ready to comply."

Mr. Forsyth, Sec. of State, to Mr. Monasterio, May 18, 1837, MS. Notes to
Mexico, VI. 74.

Mr. Seward, replying, August 12, 1861, to an inquiry of the Dutch minister as to whether the United States recognized the rule of convoy embraced in the instructions of the Netherlands to the commander of its naval forces bound to North American waters, said: "No objection is entertained to a recognition of the rule so far as it may apply to merchant vessels proceeding under convoy to ports not blockaded. No merchant vessels of the Netherlands, however, or of any other power, will be allowed to enter a port blockaded by the naval forces of the United States, whether such vessel be under convoy or without it."

Mr. Seward, Sec. of State, to Mr. Von Limburg, Aug. 12, 1861, MS. Notes to Netherlands Leg. VI. 175.

The right of neutral convoy is recognized in Stockton's Naval War code, which was issued June 27, 1900, but revoked Feb. 4, 1904.

"Merchant vessels sailing under military convoy of an allied or neutral power are not subjected to examination, provided the commander of the convoy furnishes a certificate as to the number of vessels being convoyed, their nationality, and the destination of the cargoes, and also as to the fact that there is no contraband of war on the vessels. The stoppage and examination of these vessels is permitted only in the following cases: (1) When the commander of the convoy refuses to give the certificate mentioned; (2) when he declares that one or another vessel does not belong to the number of those sailing under his convoy, and (3) when it becomes evident that a vessel being convoyed is preparing to commit an act constituting a breach of neutrality."

Russian Regulations on Maritime Prize, March 27, 1895, § 6, For. Rel. 1904, 736.

(2) BELLIGERENT.
§ 1205.

Rufus King, American minister in London, having expressed disapproval of a proposal of the British Government to order convoys for American vessels trading from Great Britain to the United States as a protection against French capture, Mr. Pickering said that Mr. King's action at the time it was taken was very proper, so far as concerned American vessels sailing from the ports of Great Britain, but that the recent " piratical conduct" of French privateers

"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.

crew,

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

.

that he can

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

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.

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.