equally as effective and binding as the affirmative gun, if the summons is actually communicated to, and understood by, the neutral. The means used are not essential, but the fact of a summons actually communicated, is necessary to acquit the visiting vessels of all damages, which may result to the neutral disobeying it. (Ortolan, Diplomatie de la Mer, tome 2, ch. 7; Duer, On Insurance, vol. 1, pp. 727, 728; Kent, Com. on Am. Law, vol. 1, p. 156; Phillimore, On Int. Law, vol. 3, §§ 331-333; Heffter, Droit International, § 169; Hautefeuille, Des Nations Neutres, tit. 11, ch. 2; The Eleanor, 2 Wheaton Rep., p. 358; The Anna Maria, 2 Wheat. Rep., p. 327; The Jeune Eugenie, 2 Mason Rep., p. 439: The Mariana Flora, 11 Wheat. Rep., pp. 48-56; The Nereide, 9 Cranch. Rep., p. 392; Bello, Derecho Internacional, pt. 2, cap. 8, § 10; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 7.)

§ 16. 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," says Sir Wm. Scott, "I need only refer to Vattel, one of the most correct, and certainly not the least indulgent of modern professors of public law." He then quotes § 114, ch. 7, liv. 3, of Vattel, Droit des Gens, and continues: "Vattel is here to be considered not as a lawyer delivering an opinion, but as a witness asserting a fact-the fact that such is the existing practice of modern Europe." After referring to other authorities, he closes his remarks on this point with the following emphatic declaration: "I stand with confidence upon all 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." This penalty is not averted by the orders of the neutral sovereign to resist the visitation and search of the belligerent cruiser. "The law of nations," says Duer, "does not permit the sovereign power of a neutral state to interpose its authority for such a purpose, so as to vary the legal rights of the belligerent. * Hence, the obedience of the neutral subject to the unlawful orders of

* *

his government, so far from justifying his conduct, will impress him with the character of an enemy." The resistance of the neutral cannot, therefore, be protected by any orders or instructions from its own goverument, but the act must be judged of according to its own character. (Wildman, Int. Law, vol. 2, pp. 122, et seq.; Duer, On Insurance, vol. 1, pp. 728, 729; The Maria, 1 Rob. Rep., p. 361; The Elsabe, 4 Rob. Rep., p. 408; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 14; Ortolan, Diplomatie de la Mer, tome 2, ch. 7.)

§ 17. Nor, according to the opinion of Sir Wm. Scott, can the interposition of the authority of the neutral sovereign, by the presence of an armed convoy, deprive the lawfully commissioned cruiser of the legal right of visitation and search. His language on this point is very clear and decided. "Two sovereigns," he says, "may unquestionably agree, if they think fit, as in some late instances they have agreed, by special covenant, that in the presence of one of their armed ships along with their merchant ships, shall be mutually understood to imply that nothing is to be found in that convoy of merchant ships inconsistent with amity or neutrality; and if they consent to accept this pledge, no third party has a right to quarrel with it, any more than any pledge which they may agree mutually to accept. But surely no sovereign can legally compel the acceptance of such a security by mere force. The only security known to the law of nations upon this subject, independently of all special covenant, is the right of personal visitation and search, to be exercised by those who have the interest in making it." (Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 29; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 14; Hautefeuille, Des Nations Neutres, tit. 11, ch. 3; De Cussy, Droit Maritime, liv. 2, ch. 22; Bello, Derecho Internacional, pt. 2, cap. 8, § 10; Duer, On Insurance, vol. 1, p. 729; Manning, Law of Nations, p. 369; Phillimore, On Int. Law, vol. 3, § 338; Wildman, Int. Law, vol. 2, p. 124; The Maria, 1 Rob. Rep., p. 340.)

§ 18. This question leads to an examination of the powers, duties, and exemptions of public armed vessels on the high The belligerent right of visitation and search, whatever its extent or limitation, is undoubtedly confined exclusively to private merchant vessels, and does not apply to ships

Beas.

of war. The immunity of such vessels on the high seas, from the exercise of any right of visitation and search, or of any other belligerent right, has been uniformly asserted and conceded. "A contrary doctrine," says Kent, "is not to be found in any jurist or writer on the law of nations, or admitted in any treaty, and every act to the contrary has been promptly met and condemned." "A public vessel," says Wheaton, "belonging to an independent sovereign, is exempt from every species of visitation and search, even within the territorial jurisdiction of another state; à fortiori, must it be exempt from the exercise of belligerent rights on the ocean, which belong exclusively to no one nation." (Kent, Com. on Am. Law, vol. 1, p. 157; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 18; Vattel, Droit des Gens, liv. 1, ch. 19, § 216; liv. 2, ch. 7, § 80; Grotius, de Jur. Bel. ac Pac., lib. 2, cap. 3, § 13; Rutherforth, Institute, b. 2, ch. 9, §§ 8, 19; Phillimore, On Int. Law, vol. 3, § 334; Manning, Law of Nations, pp. 370, et seq.; Ortolan, Diplomatie de la Mer, tome 2, ch. 7; Bello, Derecho Internacional, pt. 2, cap. 8, § 10; Hautefeuille, Des Nations Neutres, tit. 11, ch. 5.)

§ 19. One of the most common, as well as one of the most important duties of public ships of war, is the convoy or protection of merchant vessels on the high seas. Can such convoying ships exempt the merchant vessels, under their protection, from the exercise of the right of visitation and search, from which they themselves are exempt? If so, may neutral vessels place themselves under such protection, and lawfully resist any attempt on the part of belligerant cruisers, to subject them to such visitation and search? In other words, is the opinion of Sir William Scott, before referred to, a true exposition of the law of nations on this subject? If private merchant vessels, so convoyed, are exempt from visitation and search, there can be no doubt that no resistance on their part to an attempt to visit or search them, can draw after it any penalty; for in doing so, they violate no duty. This question is properly divided into two parts: First, the case of convoy, by ships of war, of private vessels of the same state; and second, the case of convoy of merchant vessels of other neutral states. The discussions of publicists has been mainly confined to the first class of cases, although some have

claimed that the convoying ship extends its own exemption to all neutral merchant vessels under its protection. Before examining into this distinction, we will give a brief summary of the various treaties on the subject of convoy, and the opinions of text-writers. (Hautefeuille, Des Nations Neutres, tit. 11, ch. 3; Ortolan, Diplomatie de la Mer, liv. 3, ch. 7; Massé, Droit Commercial, liv. 2, ch. 2; Heffter, Droit International, § 170; Jouffroy, Droit Maritime, p. 2; Nau, Volkerrecht, §§ 169, et seq.; Jacobsen, Seerecht, etc., p. 140; Manning, Law of Nations, p. 355; De Cussy, Droit Maritime, liv. 2, ch. 22; Poehls, Seerecht, p. 532.)

§ 20. Whatever may have been the ancient practice with respect to the effect of neutral convoy on the exercise of the belligerent right of visitation and search, it was not till near the middle of the seventeenth century that the question assumed any considerable importance. In the war of 1653, between England and Holland, Queen Christina, of Sweden, directed her merchant vessels to take all possible advantage of the convoy of her ships of war, and ordered such convoying ships to resist, even by force, every attempt on the part of the belligerents to visit the merchant vessels placed under their protection. This ordinance, however, was never executed, and the war was terminated soon after its publication. In the succeeding war, between England and Spain, Holland, now a neutral, claimed the exemption of her merchant ships under convoy, and an English squadron was obliged to content itself with the word of De Ruyter, that the vessel under his convoy carried nothing belonging to the king of Spain. England, however, refused to acknowledge any such right of exemption, and Holland herself, whenever a belligerent, always attempted to visit merchant vessels, under neutral convoy. Even when a neutral, she admitted the duty of the convoying ships to exhibit the papers of the merchant vessel under its escort, and, if found to be irregular, the right of the belligerent cruiser to visit the suspected vessel, and even to seize and conduct it into port for trial. Nevertheless, she applauded the conduct of Captain Deval, in 1762, and of Admiral De Byland, in 1780, in forcibly resisting the attempt of English men-of-war to visit merchant vessels under their convoy. None of the treaties of 1780, alluded to this ques

tion, but the resistance of the Swedish vessel-of-war, The Wasa, in 1781, of an attempt of an English cruiser to visit a merchant vessel under convoy, revived the discussion, and the right of exemption was stipulated in a number of treaties, made soon after by Russia and Sweden, with other powers, and especially in the convention of armed neutrality, signed December 4-16th, 1800. But in the convention of June 17th, 1801, Russia herself conceded the belligerent right of ships of war to visit merchant vessels under neutral convoy. This convention was annulled in 1807. Since the peace of 1815, European treaties have generally, except where England was a party, stipulated for the exemption of merchant vessels, under the convoy of public ships of the same state. The treaties which the United States have made with foreign powers, both before and since that period, have generally provided that in case of convoy, the declaration of the commander of the convoy, that the vessels under his protection belong to the nation whose flag he carries, and when bound to an enemy's port, that they have no contraband goods on board, shall be sufficient. Such are the stipulations contained in the treaty with Sweden, of April 3d, 1788, with France, of September 30th, 1800; with Columbia, made October 3d, 1824; with Brazil, made December 12th, 1828; with Mexico, made April 5th, 1831; with Chile, made May 16th, 1832; with Peru-Bolivia, made November 13th, 1836; with Venezuela, made January 20th, 1836, etc. It is worthy of remark, that the orders and decrees of the belligerents in the Crimean war, were silent as to convoy; nor was it alluded to in the declaration of the Paris conference, April 16th, 1856. (Hautefeuille, Des Nations Neutres, liv. 1, tit. 2, ch. 14; Heffter, Droit International, § 170; Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 29; U. S. Statutes at Large, vol. 8, pp. 188, 316, 395, 420, 438, 478, 493.)

§ 21. Recent continental publicists, have generally contended that neutral convoy exempts the convoyed vessel from visitation and search. Some have stated this proposition in general terms, while others limit it to merchant vessels convoyed by ships of war of their own nation, and put it on the ground that the declaration of the commander is sufficient as to the character and cargoes of the vessels of his own