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was unknown at St. Petersburg when they sailed from that port. Whoever considered the geographical position of the Baltic Sea, its outlets into the ocean, and the winds and currents by which its navigation was affected, would readily perceive how difficult it must have been for neutral vessels passing during the late war through the narrow and sinuous channels to avoid becoming entangled in the numerous convoys of the enemy of Denmark, even supposing there was no disposition on the one side to receive, and on the other to impart, protection against the multiplied perils of those times. To make the protection accidentally received by or forcibly obtruded upon the neutral, under these circumstances, a ground of confiscation, was an injustice strikingly apparent. But it was less material, said Mr. Wheaton, to dwell on this aspect of the case, because the United States wholly denied the principle on which the clause in question was founded. This clause, as construed by the Danish tribunals, involved, so Mr. Wheaton declared, "the application of a principle (to say the least) of doubtful authority, to the confiscation of neutral property for a supposed offense, committed, not by the owner, but by his agent, without the knowledge or orders of the owners, under a belligerent edict, retrospective in its operation, because unknown to those whom it was to affect." As interpreted by the Danish tribunals, it made "the fact of having navigated under the enemy's convoy per se, a justifiable cause (not of capture merely, but) of condemnation in the tribunals of the opposite belligerent, and that without inquiring into the proofs of proprietary interest, or the circumstances and motives under which the captured vessel had joined the convoy, or into the legality of the voyage, or the innocence of her conduct in other respects." A belligerent pretension so harsh, apparently so new, and so important in its consequences, said Mr. Wheaton, must, before neutral nations could consent to it, be rigorously demonstrated on the authority of writers and the usage of nations; yet no expounder of the law of nations even mentioned it, and still less could it be asserted that any neutral nation had ever acquiesced in it. Great Britain had denied, while Denmark had asserted, the right of a neutral state to resist the exercise of the belligerent right of visitation and search by means of convoy consisting of its own ships of war, but even the records of the British courts might be searched in vain for any support of the pretension that the fact of having sailed under belligerent convoy was in all cases and under all circumstances conclusive cause of condem nation. The American vessels in question were engaged in their accustomed and lawful trade between the United States and Russia; they were unarmed and made no resistance to the Danish cruisers; they were captured on the return voyage, after having passed up the Baltic and been subjected to an examination by the Danish cruisers and authorities by which their neutrality was established, and they were condemned under an edict which was unknown when they left Cronstadt, and which, unless it could be shown strictly consistent with the preexisting law of nations, must be considered as an unauthorized measure of retrospective legislation. Being found in company with an enemy's convoy might indeed furnish a presumption that the captured vessel and cargo belonged to the enemy, but it was a slight presumption only, which would readily yield to countervailing proof, and for this purpose the vessel should have been permitted to show, for example, that she had been compelled to join the convoy, or

that she had joined it not to protect herself from examination by Danish cruisers but against others whose notorious conduct and avowed principles rendered it certain that captures by them would be followed by condemnation. Mr. Wheaton went still further and contended that since Denmark had, as a neutral, asserted the right to protect her commerce against belligerent visitation and search by means of armed convoys of her own public ships, she could not consistently assert a right to condemn neutral vessels for sailing under belligerent convoy. Great Britain treated navigating under the convoy of a neutral ship as a ground of condemnation, because it tended to defeat the lawful right of belligerent search and render every attempt to exercise it a contest of violence. But the belligerent had a right to resist; and the masters of the vessels under his convoy, not participating in his resistance, could no more be involved in the legal consequences of resistance than could the neutral shipper of goods on a belligerent vessel or the neutral owner of goods found in a belligerent fortress. The right of capture in war extended only to things actually belonging to the enemy, or to such as were considered as constructively belonging to him, because taken in a trade prohibited by the laws of war. It was not pretended that the American vessels in question were actually the enemy's property, and it could not be shown that they were constructively his. If they had been armed, and had thus contributed to augment the force of the belligerent convoy, or if they had actually participated in battle with the Danish cruisers, they would justly have fallen by the fate of war. But they were unarmed merchantmen, whose junction with the British convoying squadron, by expanding the sphere of its protection, tended to weaken it, and instead of participating in the enemy's resistance, there was in fact no battle and no resistance, and they fell a defenseless prey to the force of the assailants. The alleged illegality of the conduct of the neutral masters must therefore be referred back to the circumstance of their joining the convoy. Pursuing his argument from this point, Mr. Wheaton said:

"But why should this circumstance be considered illegal any more than a neutral taking shelter in a belligerent port, or under the guns of a belligerent fortress, which is subsequently invaded and taken? The neutral cannot indeed seek to escape from visitation and search by unlawful means, either of force or of fraud. But if, by the use of any lawful and innocent means, he may escape, what is to hinder his resorting to such means for the purpose of avoiding so vexatious a procedure? The belligerent cruisers and prize courts have not always been so moderate and just as to render it desirable for neutrals voluntarily to seek for an opportunity of being examined and judged by them. And if, in fact, in respect to the trade of the Baltic sea, the conduct of one of the great belligerent powers was more favorable to neutral commerce than that of the other, what should prevent the neutral from availing himself of this circumstance, so far as he might without infringing any just right of the latter? Upon the supposition that justice was administered promptly, impartially, and purely, in the prize tribunals of Denmark, the American ship-masters could have had no motive to wish to avoid an examination by Danish cruisers, since their proofs of property were clear, their voyages lawful, and they were not conscious of being exposed to the slightest hazard of condemnation in these tribunals. Indeed some of these vessels had been examined on their voyage up the Baltic, and acquitted by His Majesty's tribunals. Why, then, should a guilty motive be imputed to them, when their conduct can be more naturally explained by an innocent one? Surely, in the multiplied ravages to which the American commerce was then exposed on every

sea, from the sweeping decrees of confiscation fulminated by the great belligerent powers, the conduct of these parties may be sufficiently accounted for without resorting to the supposition that they meant to resist, or even to evade, the exercise of the belligerent rights of Denmark. Had they indeed been aware of the vexatious delays, the heavy expenses, and the arbitrary fines, to which they were exposed in the Danish tribunals, even in cases where restitution was finally awarded, and still more if they had been conscious that, where condemnation should be pronounced by those tribunals, upon grounds ever so slight, the formal sentences thus rendered would be considered as forming a perpetual bar to any subsequent appeal to the equity of His Majesty's government, they might have shrunk from the hazard of such fearful consequences, and taken shelter in the arms of that power, which was so soon to become the enemy of their country, rather than rely upon the justice of a state with which she had always cultivated the most amicable relations. On the other band, had they known of the existence of the royal ordinance of March, 1810, which made the fact of having used British convoy a conclusive cause of condemnation, they would have preferred to encounter all these multiplied but contingent perils, rather than the certainty of the fate which awaited them on capture under convoy. So that the innocence of their motives, and the good faith of their acts, is manifest from every view of their conduct, whilst the supposition that they took shelter under enemy's convoy, because they were carrying an enemy's traffic, is contradicted by the satisfactory proofs which they furnished, of the neutrality of their property, and the lawfulness of their voyages.

"Even admitting, then, that the neutral American had no right to put himself under convoy, in order to avoid the exercise of the right of visitation and search by a friend, as Denmark professed to be, he had still a perfect right to defend himself against his enemy, as France had shown herself to be, by her conduct, and the avowed principles upon which she had declared open war against all neutral trade. Denmark had a right to capture the commerce of her enemy, and, for that purpose, to search and examine vessels under the neutral flag, whilst America had an equal right to protect her commerce against French capture, by all the means allowed by the ordinary laws of war between enemies. The exercise of this perfect right was wholly unaffected by the circumstance of the war existing between Denmark and England, or by the alliance between Denmark and France. America and England were at peace. The alliance between Denmark and France was against England, not against America; and His Majesty's Government, which refused to adopt the decrees of Berlin and Milan as the rule of its conduct towards neutrals, cannot surely consider it as culpable, on the part of the American shipmasters, to have defended themselves against the operation of those decrees, by every means in their power. If the use of any of these means conflicted in any degree with the belligerent rights of Denmark, that was an incidental consequence, which could not be avoided by the parties without sacrificing their incontestible right of self-defense.

"But it may perhaps be said that as resistance to the exercise of the belligerent right of visitation and search is, by the law and usage of nations, a substantive ground of condemnation in the case of the master of a single ship, still more must it be so where many vessels are associated for the purpose of defeating the exercise of the same right.

"In order to render the two cases here stated perfectly analogous, there must have been an actual resistance on the part of the vessels in question, or at least on the part of the enemy's fleet having them at the time under its protection, so as to connect them inseparably with the acts of the enemy. Here was no actual resistance on the part of either, but only a con. structive resistance on the part of neutral vessels, implied from the fact of their having joined the enemy's convoy. This, however, was at most a mere intention to resist, never carried into effect, which has never been considered, in the case of a single ship, as involving the penalty of confiscation. And the Government of the United States has always regarded it [as] a peculiarly objectionable feature in the ordinance of 1810, as interpreted by the tribunals (which interpretation has never been disavowed

by the Danish Government), that it considered the fact of having made use of British convoy as an indelible offense, to be visited with the penalty of confiscation, even after the vessels had separated from the convoy, or on the return voyage where they had made use of convoy going up the Baltic. "But the resistance of the master of a single ship, which is supposed to be analogous to the case of convoy, must refer to a neutral master, whose resistance would probably, by the established law of nations, involve both ship and cargo in the penalty of confiscation. The same principle would not, however, apply to the case of an enemy master, who, having an incontestible right to resist his enemy, such resistance could not affect the neutral owner of the cargo, unless he was on board, and had actually participated in the resistance.

"Such was, in a similar case, the judgment of Sir William Scott, whose decisions may certainly be considered as very good, and even conclusive authority, where he decides anything favorable to neutral rights, however questionable they may be thought where they tend to confirm belligerent pretensions. So, also, the right of a neutral to transport his goods on board of an armed belligerent vessel was solemnly affirmed by the decision of the highest tribunal in the United States, during the late war with Great Britain, after a most elaborate discussion, in which all the principles and analogies of public law, bearing upon the question, were thoroughly examined and considered.

The American commissioner, then, confidently relies upon the position before assumed by him, that the entire silence of all the authoritative writers on public law as to any such exception to the general freedom of neutral navigation, laid down by them in such broad and comprehensive terms, and of every treaty made for the special purpose of defining and regulating the rights of neutral commerce and navigation, constitutes, of itself, a strong negative authority to show that no such exception exists, especially as the freedom is expressly extended to every case which has the slightest resemblance to that now in question. It cannot be denied that the goods of a friend, found in an enemy's fortress, are exempt from confiscation as prize of war; that a neutral may lawfully carry his goods in an armed belligerent ship; that the neutral shipper of goods on board an enemy's vessel (armed or unarmed), is not responsible for the consequences of resistance by the enemy master. How, then, can the neutral owner, both of ship and cargo, be responsible for the acts of the belligerent convoy, under the protection of which his property has been placed, not by his own immediate act, but by that of the master, proceeding without the knowledge or instructions of the owner?

"Such would certainly be the view of this question if we apply to it the largest measure of belligerent rights ever assumed by any maritime state. But when examined by those milder interpretations of public law, which the Danish Government, in common with the other Northern powers of Europe, has hitherto patronized, it will be found still more clear of doubt. "If, as Denmark has always insisted, a neutral may lawfully arm himself against all the belligerents; if he may place himself under the convoying force of his own country, so as to defy the exercise of belligerent force to compel him to submit to visitation and search on the high seas, the conduct of the neutral Americans who were driven to take shelter under the floating fortresses of the enemy of Denmark, not for the purpose of resisting the exercise of her belligerent rights, but to protect themselves against the lawless violence of those whose avowed purpose rendered it certain that, notwithstanding their neutrality, capture would be followed by inevitable condemnation, will find its complete vindication in those principles which the publicists and statesmen of his country have maintained in the face of the world.

"Had the American commerce in the Baltic been placed under the protection of the ships of war of the United States, as it is admitted it might have been, the belligerent rights of Denmark would have been just as much infringed as they were by what actually happened. In that case, the Danish cruiser must (upon Danish principles) have been satisfied with the assurance of the commander of the American convoying squadron of the neutrality of the ships and cargoes sailing under his protection. But that assurance

could only have been founded upon their being accompanied with the ordinary documents found on board of American vessels, and issued by the American Government, upon the representations and proofs furnished by the interested parties. If these may be false and fraudulent in the one case, so may they be in the other, and the Danish Government is equally deprived of all means of examining their authenticity in both. In the one, it is deprived of these means by its own voluntary acquiescence in the statement of the commander of the convoying squadron; in the other, by the presence of a superior enemy's force preventing the Danish cruiser from exercising his right of search. This is put, for the sake of illustration, upon the supposition that the vessels under convoy had escaped from capture, for upon that supposition only could any actual injury have been sustained by Denmark as a belligerent. Here they were captured without hostile conflict, and the question is, whether they are liable to confiscation for having navigated under the enemy's convoy, notwithstanding the neutrality of the property, and the lawfulness of the voyage in other respects? Even supposing, then, it was the intention of the American shipmasters, in sailing with the British convoy, to escape from Danish as well as French cruisers, that intention has failed of its effect; and it may be asked what belligerent right of Denmark has been practically injured by such an abortive attempt? If any, it must be the right of visitation and search. But the right of visitation and search is not a substantive and independent right, with which belligerents are invested by the law of nations for the purpose of wantonly vexing and interrupting the commerce of neutrals. It is a right growing out of the greater right of capturing enemy's property or contraband of war, and to be used as means to an end to enforce the exercise of that right. Here the exercise of the right was never, in fact, opposed, and no injury has accrued to the belligerent. But it may be said that it might have been opposed, and entirely defeated, had it not been for the accidental circumstance of the separation of these vessels from the convoying force, and that the entire commerce of the world with the Baltic sea might thus have been effectually protected from Danish capture. And it may be asked in reply, what injury would have resulted to the belligerent rights of Denmark from this circumstance? If the property be neutral, and the voyage lawful (as they were in the present instance), what injury would result from the vessels escaping from examination? On the other hand, if the property was that of the enemy, its escape must be attributed to the superior force of the enemy, which, though a loss, would not be an injury of which Denmark would have a legal right to complain. Unless it can be shown that a neutral vessel navigating the seas is bound to volunteer to be searched by the belligerent cruisers, and that she has no right to avoid search by any means, it is apparent that she may avoid it by any means which are not unlawful. Violent resistance to search, rescue after seizure, fraudulent spoliation, or concealment of papers, are all confessedly unlawful means, which, unless extenuated by circumstances, may justly be visited with the penalty of confiscation. Those who allege that sailing under belligerent convoy is also attended by the same consequences, must show it by appealing to the oracles of public law, to the text of treaties, to some decision of an international tribunal, or to the general practice and understanding of nations. If all these are silent upon the subject, can it be expected that the Government of the United States will relinquish their claim to an indemnity for the property of their citizens thus captured and confiscated, even if the question were more doubtful than it is, upon principle and analogy?

"The third general ground of capture of American vessels and cargoes, that of their being possessed of French consular certificates of origin after the French consuls in the United States were prohibited by their own government to issue them, except to vessels bound directly to the ports of France, proceeded upon a mistaken assumption of fact. The French consuls were accustomed to give their certificates to any American vessel applying for them, without regard to the port of destination, except that it must be a port of France, or of an ally of France, or of a neutral power. In the year 1810 the French Government forbade the granting these certificates