The article with which we are at present concerned, art. IV., respecting Convoy, stated that: (1) The two high contracting parties desiring to prevent all cause of future dissension, by limiting the right of searching merchant vessels sailing with Convoy to those cases only in which the belligerent might be really prejudiced by the abuse of the neutral flag, have agreed, I. That the right of visiting merchant vessels belonging to the subjects of one of the contracting powers, and sailing under the Convoy of a ship of war of the said power, shall only be exercised by the ships of war of the belligerent party, and shall never be extended to privateers, cruisers, or other vessels not belonging to the Imperial or Royal Navy of their Majesties, but equipped by their subjects. II. That the proprietors of all merchant vessels belonging to the subjects of one of the contracting parties, and intended to sail under the Convoy of a ship of war, shall be obliged, before they receive their sailing orders, to produce to the commander of the Convoy their passports and certificates, or sea letters, in the form annexed to the present treaty. III. That when such ship of war, having merchant vessels under Convoy, shall be met by a ship or ships of war of the other contracting party, being then in a state of war, to avoid all disorder the ships shall remain beyond cannon-shot distance, unless the state of the sea, or the place of meeting, render a nearer approach necessary; and the commander of the ships of the belligerent party shall send a boat to board the ship of the Convoy, when there shall take place a mutual verification of papers and passports, which ought to state, on one side, that the neutral ship of war is authorised to take under her escort such and such merchant vessels of her nation, laden with a specified cargo and proceeding to a specified port; and, on the other hand, stating that the ship of war of the belligerent belongs to the Imperial or Royal Navy

(1) See De Martens, VII. 263.

of their Majesties. IV. This examination having been made, no further search shall take place, if the papers are found to be regular, and if there exists no valid ground for suspicion. In the contrary case, the commander of the neutral ship of war, having been duly required to do so by the commander of the ship or ships of the belligerent, shall bring to and detain his Convoy during the time necessary for the search of the vessels which compose it; and he shall have the power of naming and delegating one or more officers to assist in the search of the merchant vessels, which search shall take place in their presence on board each merchant ship, conjointly with one or more officers appointed by the commander of the ship of war of the belligerent power. V. Should it happen that the commander of the belligerent ship of war, having examined the papers found on board, and having questioned the master and crew of the vessel, shall perceive just and sufficient reasons for detaining a merchant ship, in order to proceed to a further examination, he shall notify this intention to the officer in command of the Convoy, who shall have the power of ordering an officer to remain on board the vessel so detained, and assist in the examination of the cause of her detention. The merchant vessel shall be immediately conducted to the nearest and most convenient port belonging to the belligerent party; and the further examination shall take place with all the despatch possible.

By the next article it is agreed, that in case any merchant vessel so convoyed be detained without due and sufficient cause, the commander of the belligerent force shall be obliged not only to make good to the proprietors of the ship and cargo a full and perfect compensation for all losses, charges, damages and expenses, occasioned by such detention, but shall besides be liable to punishment for every act of violence or fraud committed, as the nature of the case may require. On the other hand, it shall

Considerations on this treaty.

not be permitted, on any pretext whatever, that the convoying ship shall oppose by force the detention of merchant vessels by the ships of war of the belligerent; but this obligation does not extend to the conduct of a ship of Convoy towards privateers. (1)

Such is a sketch of the circumstances under which this alteration was introduced, and ultimately recognized as part of their code of International Law by some of the first maritime powers of Europe. Strictly speaking, this exemption, not being part of the European Law of Nations as determined by Usage, but being merely the result of convention between individual states, and an innovation of very modern origin, cannot be regarded as binding upon any governments except those which have engaged themselves by definite treaties on the subject. In the event of a war in which we were neutral, our vessels sailing with Convoy would be liable to the exercise of search as usual under the old system, with the commissioned vessels of all countries with which we had not contrary stipulations, and vice versa. Still the alteration in the rule is so much an improvement, uniting the advantage of avoiding occasions of dispute with that of obtaining a more satisfactory guarantee of belligerent rights, that it seems desirable that the clause should be embodied in all treaties of navigation. Even without such engagements, belligerents might, in most cases, instruct their cruisers, with advantage, to act on the spirit of such exemption; but there are also cases in which this could not safely be done. In such conjunctures I imagine that the determination of the belligerent is final; as I regard the exemption from search by the presence of ships of war to be still, by the European Law of Nations, when not limited by particular engagement, not a right which

(1) For the original treaties and correspondence on the sub

ject of convoy, see De Martens, Rec. VII. 127-281.

a neutral can claim, but a favour which a belligerent is at full liberty either to grant or to withhold.

On

An interesting discussion on the principle of Convoy occurred in the last war, on a dispute between the United States and Denmark. We have seen that resistance to search by a neutral, confiscates his vessel and cargo. the other hand, resistance to search by an enemy does not entail the confiscation of the neutral goods on board his vessel; (1) the latter resistance violates no duty on the part of the captain, who is right to get away if he can. In 1810, the Danish government issued an ordinance condemning as lawful prize "such vessels as, notwithstanding their flag is considered neutral, as well with regard to Great Britain as the powers at war with the same nation, still, either in the Atlantic or Baltic, have made use of English Convoy." Several American vessels were captured, and, with their cargoes, condemned for offending against this ordinance. The minister of the United States contended that such confiscations were unjust; that the rule laid down by Denmark was an innovation unsupported by any precedent; that the cargoes of the vessels captured were of an innocent nature; and that the joining the British convoy was intended, not to withdraw them from the search of the Danes, but to avoid the being subjected to the decisions of the French prize courts. These latter circumstances would induce a prize court to regard with all possible lenity of construction the case of such captures; but, as to the principle, I think that the Danish ordinance was in perfect conformity with the Law of Nations. In this opinion I find I am at issue with Dr. Wheaton, who has given an excellent statement of the American positions in the discussion. He has, however, but very slightly noticed the strong positions of the Danish government; and I hope he will pardon my thinking that he

(1) See Rob. Rep. V. 232, the Catherina Elizabeth.

BB

Case regarding convoy beUnited States and Denmark.

tween the

Search of ships of war.

has treated this part of his subject more as an advocate than as a judge. He is, however, an author with whom it would always give me more satisfaction to find that I coincide than that I disagree. In the particular case above stated there may have been hardship; but, as far as principle goes, had the case been different, and had the American ships, instead of having innocent cargoes on board, been laden with contraband of war, or with the property of enemies of Denmark, they might, by the escort of the British convoy, have avoided the detention of Danish cruisers of smaller force, and have thus defeated the clear rights of Denmark. As a general principle, I think that the sailing under the convoy of a belligerent must be regarded as a withdrawal from the search of the other belligerent, as a resistance to his rights, and as entailing confiscation as a consequence of such attempted evasion. The correspondence between Denmark and the United States did not issue in any decision, a sum being paid, en bloc, to liquidate all American claims, with a declaration that it could never be invoked as a precedent by either party. (1)

Hitherto we have been considering the question of searching merchant vessels. During the last war the right of searching ships of war was called into consideration between this country and the United States. A considerable number of our seamen had gone on board American vessels, where the similarity of manners and language, joined to the larger amount of pay, offered a great temptation to our men, and both ships of war and merchant vessels belonging to the United States, were partly manned by British sailors. With regard to Merchant Vessels, the right of taking our men from them is a matter of little doubt, and is not likely to lead to much dispute.

(1) See the remarks on the subject in Mr. Wheaton's Ele

ments of International Law, II. 260-278.