The Nereide (1815), 9 Cranch, 388.

Story, J., dissenting maintained that there was a clear distinction
between putting goods on an armed and on an unarmed vessel, though
the elementary writers, whose works were deficient in many import-
ant doctrines of every-day application, might not have expressed it.
The neutral must preserve a perfect impartiality. He must submit
to the belligerent right of search; and if he resisted it, or, with a
view to resist it, sought "the protection of an armed neutral convoy,"
he was treated as an enemy. (The Maria, 1 Rob. 340; the Elsebe,
5 Rob. 173.) The argument that he might avail himself of "the
resistance of a belligerent ship" or convoy, because such resistance
was lawful, assumed the very ground of controversy. An act per-
fectly lawful in a belligerent, might be flagrantly wrongful in a
neutral. A belligerent may lawfully resist search; a neutral is bound
to submit to it, and the character of the act was to be judged not
merely by that of the parties who immediately committed it, but also
by the character of those who, having cooperated in, assented to, or
sought protection from it, would yet withdraw themselves from its
penalties. The principle that the resistance of a neutral convoy
communicated itself to all the associated ships as an unlawful
opposition to the right of search, applied a fortiori to the case of a
belligerent convoy, for the resistance must be presumed to be more
obstinate and the search more perilous. The sailing under convoy
is "an act per se inconsistent with neutrality." (See case of the
Sampson, Barney, observations of Sir W. Scott; also argument of Sir
W. Scott, then advocate-general, in Smart v. Wolff, 3 T. R. 323, 332.)
Such seemed to be the sense of the European sovereigns, as might
be inferred from the fact that none of them had called in question
the assertion of the principle by Denmark in the case of the American
vessels captured while under British convoy. (State Papers, 1811,
p. 527.)
"It might, with as much propriety, be maintained that
neutral goods, guarded by a hostile army in their passage through
a country, or voluntarily lodged in a hostile fortress, for the
avowed purpose of evading the municipal rights and regulations of
that country, should not in case of capture be lawful plunder (a
pretension never yet asserted), as that neutral property on the ocean
should enjoy the double protection of war and peace."

A British armed ship was captured in 1814 on a voyage from Bordeaux to Pensacola by the United States man-of-war Wasp, and sent to Savannah, Georgia, where she was liable to condemnation as prize. The cargo, which was claimed for a French merchant, was also condemned, but, on appeal, the circuit court ordered, further proof, and then decreed restitution. From this decree an appeal was taken to the Supreme Court. Marshall, C. J., delivering the opinion of the court, said that the case did not differ essentially from that of the Nereide; that the opinion then given by three judges was retained by them; that the "principle of the law of nations, that the goods of a friend are safe in the bottom of an enemy, may be, and probably will be changed, or so impaired as to leave no object to which it is applicable;" but that, so long as the principle should be acknowl

edged, the court "must reject constructions which render it totally inoperative."

Mr. Justice Johnson, who delivered a concurring opinion in the case of the Nereide, said that it had always been the rule with him never to decide more in any case than what the case itself necessarily required. Accordingly, he had declined in the case of the Nereide to express an opinion upon the general question, because the cargo, considered as Spanish property, was exposed to capture by the Carthagenian and other privateers, and, considered as belonging to a revolted colony, was liable to Spanish capture. The neutral shipper, therefore, could not be charged with evading the belligerent rights of the United States in availing himself of the protection of an armed belligerent when sailing between "Scylla and Charybdis.” But the cause now before the court was one "of a vessel at peace with all the world." He thought that the evils which were apprehended from allowing neutrals to put their goods in armed belligerent vessels were "visionary." It was not likely that a belligerent's armed ships would be converted into carriers. Nothing could be more desired by the enemy. The subject had not altogether escaped the notice of publicists. He alluded to a dictum of Casaregis, saying "that if a vessel laden with neutral merchandise attack another vessel, and be captured, her cargo shall not be made prize, unless the owner of the goods, or his supercargo, engage in the conflict." Mr. Justice Johnson thought the present case different from that of vessels under neutral convoy, a case which had been so often invoked. Such a convoy might be considered as an association of neutrals for a hostile object. But the hostile vessel had a right to resist. It did not impair any right of search, or of capture, or of adjudication. The right of capture applied only to enemy ships or goods; the right of search to enemy goods on board a neutral carrier. Neither of these rights was impaired. Nor was the right of adjudication impaired. The neutral did not deny the right of the belligerent to decide the question of proprietary interest. If the property was really neutral, it did not matter to the belligerent who carried it.

The Atalanta, Mar. 4, 1818, 3 Wheat., 409.
the question of proprietary interest.
not sit in the case.

Further proof was ordered on Justices Todd and Duvall did

"The Supreme Court of the United States has held that there is no valid distinction of right between the act of a neutral merchant who loads his goods on board an enemy merchant ship, and the act of a neutral merchant who ships his goods in an armed vessel belonging to the enemy. The opinion of Chief Justice Marshall, who with the majority of the court decided in the case of the Nereide, that a neutral merchant had a right to charter and lade his goods on board

a belligerent armed vessel without forfeiting his neutral character,' is entitled to great weight, not merely from the authority which attaches to the opinions of that eminent judge, but also from the solidity of the reasoning upon which his judgment in that case proceeded. But the opinion of Mr. Justice Story was the other way, and coincided with the view of Lord Stowell. The Supreme Court of the United States, in February term, 1818, maintained the same view in the case of the Atalanta as it had previously maintained in the Nereide; so that the decisions of the highest tribunal of the United States is on this point in direct conflict with the judgment of the English high court of admiralty."

Twiss, Law of Nations in War (2d ed.), 188.

Sir William Scott drew a clear distinction between the case of neutral goods on an enemy merchantman and that of neutral goods on an enemy armed vessel. In the former case, he held that the resistance of the master to search did not render the neutral goods liable to capture, for the double reason (1) that the master had the full right to save himself from capture if he could, and (2) that the neutral could not be assumed to have calculated or intended that the master should resist visit. (The Catharina Elizabeth, 5 C. Rob. 232.) "But," said the same judge, "if he [the neutral] puts his goods on board a ship of force, which he has every reason to presume will be defended against the enemy by that force, the case then becomes very different. He betrays an intention to resist visitation and search, which he could not do by putting them on board a mere merchant vessel, and so far as he does this he adheres to the belligerent; .. If a party acts in association with a hostile force, and relies upon that force for protection, he is, pro hac vice, to be considered as an enemy." (The Fanny, 1 Dodson, 443, 448.)

A merchant vessel which was armed strictly for defense, and whose only object was trade, was not liable to seizure by French cruisers and to condemnation as prize, although she was licensed to carry arms by the act of Congress of June 25, 1798, or by the act of July 9, 1798, authorizing her to capture armed French vessels, and to recapture American vessels captured by the French.

Hooper v. United States. 22 Ct. Cl. 408; Cushing v. United States, 22
Ct. Cl. 1.

6. CONVOY.

(1) NEUTRAL.

§ 1204.

66

The neutral claim of convoy was not included in the armed neutrality of 1780, but forms an article in that of 1800. Although the United States can not but befriend it as favorable to the security and interest of neutral commerce, yet the plausible objections made to the

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.

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