$ 28. Right of a neutral to carry his goods in an armed enemy vessel. attempt on his part to rescue his vessel from the possession of the captor is nothing more than the hostile act of a hostile person, who has a perfect right to make such an attempt. "If a neutral master," says Sir W. Scott, "attempts a rescue, or to withdraw himself from search, he violates a duty which is imposed upon him by the law of nations, to submit to search, and to come in for inquiry as to the property of the ship or cargo; and if he violates this obligation by a recurrence to force, the consequence will undoubtedly reach the property of his owner; and it would, I think, extend also to the whole property intrusted to his care, and thus fraudulently attempted to be withdrawn from the operation of the rights of war. With an enemy master, the case is very different: no duty is violated by such an act on his part-lupum auribus teneo, and if he can withdraw himself, he has a right so to do." 9981 The question how far a neutral merchant has a right to lade his goods on board an armed enemy vessel, and how far his property is involved in the consequences of resistance by the enemy master, was agitated both in the British and American prize courts during the last war between Great Britain and the United States. In a case adjudged by the supreme court of the United States in 1815, it was determined that a neutral had a right to charter and lade his goods on board a belligerent armed merchant ship, without forfeiting his neutral character, unless he actually concurred and participated in the enemy master's resistance to capture.8 82 Cotemporaneously with this decision of the American court, Sir W. Scott held directly the contrary doctrine, and decreed salvage for the recapture of neutral Portuguese property previously taken by an American cruiser from on board an armed British vessel, upon the ground that the American prize courts might justly have condemned the 81 Robinson's Adm. Rep. vol. v. p. 232. The Catharina Elizabeth. property.83 In reviewing its former decision, in a subsequent case adjudged in 1818, the American court confirmed it, and, alluding to the decision in the English high court of admiralty, stated, that if a similar case should again occur in that court, and the decisions of the American court should in the mean time have reached that learned judge, he would be called upon to acknowledge that the danger of condemnation in the United States courts was not as great as he had imagined. In determining the last-mentioned case, the American court distinguished it both from those where neutral vessels were condemned for the unneutral act of the convoying vessel, and those where neutral vessels had been condemned for placing themselves under enemy's convoy. With regard to the first class of cases, it was well known that they originated in the capture of the Swedish convoy at the time when Great Britain had resolved to throw down the glove to all the world, on the contested principles of the northern maritime confederacy. But, independently of this, there were several considerations which presented an obvious distinction between both classes of cases and that under consideration. A convoy was an association for a hostile object. In undertaking it, a state spreads over the merchant vessels an immunity from search which belongs only to a national ship; and by joining a convoy, every individual vessel puts off her pacific character, and undertakes for the discharge of duties which belong only to the military marine. If, then, the association be voluntary, the neutral, in suffering the fate of the entire convoy, has only to regret his own folly in wedding his fortune to theirs; or if involved in the resistance of the convoying ship, he shares the fate to which the leader of his own choice is liable in case of capture.3 84 § 29. The Danish government issued, in 1810, an ordinance relating to captures, which declared to be good and lawful vessels un Neutral 83 Dodson's Adm. Rep. vol. i. p. 443. The Fanny. 84 Wheaton's Rep. vol. iii. p. 409. The Atalanta. der enemy's convoy liable prize "such vessels as, notwithstanding their flag is considered neutral, as well with regard to Great Britain as the to capture? powers at war with the same nation, still, either in the Atlantic or Baltic, have made use of English convoy." Under this ordinance, many American neutral vessels were captured, and, with their cargoes, condemned in the Danish prize courts for offending against its provisions. In the course of the discussions which subsequently took place between the American and Danish governments respecting the legality of these condemnations, the principles upon which the ordinance was grounded were questioned by the United States. government as inconsistent with the established rules of international law. It was insisted that the prize ordinances of Denmark, or of any other particular state, could not make or alter the general law of nations, nor introduce a new rule binding on neutral powers. The right of the Danish monarch to legislate for his own subjects and his own tribunals, was incontestable; but before his edicts could operate upon foreigners carrying on their commerce upon the seas, which are the common property of all nations, it must be shown. that they were conformable to the law by which all are bound. It was, however, unnecessary to suppose, that in issuing these instructions to its cruisers, the Danish government intended to do any thing more than merely to lay down rules of decision for its own tribunals, conformable to what that government understood to be just principles of public law. But the observation became important when it was considered that the law of nations nowhere existed in a written code accessible to all, and to whose authority all deferred; and that the present question regarded the applica- ' tion of a principle (to say the least) of doubtful authority, to the confiscation of neutral property for a supposed offence committed, not by the owner, but by his agent the master, without the knowledge or orders of the owner, under a belligerent edict, retrospective in its operation, because unknown to those whom it was to affect. The principle laid down in the ordinance, as interpreted by the Danish tribunals, was that the fact of having navigated under enemy's convoy is, per se, a justifiable cause, not of capture merely, but of condemnation, in the courts of the other 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, before it could be assented to by neutral states, must be rigorously demonstrated by the authority of the writers on public law, or shown to be countenanced by the usage of nations. Not one of the numerous expounders of that law even mentioned it; no belligerent nation had ever before acted upon it; and still less could it be asserted that any neutral nation had ever acquiesced in it. Great Britain, indeed, had contended that a neutral state had no right to resist the exercise of the belligerent claim of visitation and search by means of convoys consisting of its own ships of war. But the records. even of the British courts of admiralty might be searched in vain for a precedent to support the principle maintained by Denmark, that the mere fact of having sailed under belligerent convoy is, in all cases and under all circumstances, conclusive cause of condemnation. The American vessels in question were engaged in their accustomed lawful trade, between Russia and the United States; 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 examination by the Danish cruisers and authorities, and were condemned under an edict which was unknown, and consequently, as to them, did not exist when they sailed from Cronstadt, and which, unless it could be strictly shown to be consistent with the pre-existing law of nations, must be considered as an unauthorized measure of retrospective legislation. To visit upon neutral merchants and mariners extremely penal consequences from an act, which they had reason to believe to be innocent at the time, and which is not pretended to be forbidden by a single treaty or writer upon public law, by the general usage of nations, or even by the practice of any one belligerent, or the acquiescence of any one neutral state, must require something more than a mere resort to the supposed analogy of other acknowledged principles of international law, but from which it would be vain to attempt to deduce that now in question as a corollary. Being found in company with an enemy's convoy might, indeed, furnish a presumption that the captured vessel and cargo belonged to the enemy, in the same manner as goods taken in an enemy's vessel are presumed to be enemy's property until the contrary is proved; but this presumption is not of that class of presumptions called presumptiones juris et de jure, which are held to be conclusive upon the party, and which he is not at liberty to controvert. It is a slight presumption only, which will readily yield to countervailing proof. One of the proofs which, in the opinion of the American negotiator, ought to have been admitted by the prize tribunal to countervail this presumption, would have been evidence that the vessel 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 inevitably be followed by condemnation. It followed, then, that the simple fact of having navigated under British convoy could be considered as a ground of suspicion only, warranting the captors in sending in the captured vessel for further examination, but not constituting in itself a conclusive ground of confiscation. Indeed it was not perceived how it could be so considered, upon the mere ground of its interfering with the exercise of the belligerent pretensions of visitation and search, by a state which, when neutral, had asserted the right of protecting its private commerce against belligerent visitation and search by armed convoys of its own public ships. Nor could the consistency of the Danish government, in |