would sail. His goods do not contribute to the armament further than the freight he pays, and freight he would pay were the vessel unarmed.

"It is difficult to perceive in this argument anything which does not also apply to an unarmed vessel. In both instances it is the right and the duty of the carrier to avoid capture and to prevent a search. There is no difference except in the degree of capacity to carry this duty into effect. The argument would operate against the rule which permits the neutral merchant to employ a belligerent vessel without imparting to his goods the belligerent character.

"The argument respecting resistance stands on the same ground with that which respects arming. Both are lawful. Neither of them is chargeable to the goods or their owner, where he has taken no part in it. They are incidents to the character of the vessel; and may always occur where the carrier is belligerent.

"It is remarkable that no express authority on either side of this question can be found in the books. A few scanty materials, made up of inferences from cases depending on other principles, have been gleaned from the books and employed by both parties. They are certainly not decisive for or against either.

"The celebrated case of the Swedish convoy has been pressed into the service. But that case decided no more than this, that a neutral may arm, but cannot by force resist a search. The reasoning of the judge on that occasion would seem to indicate that the resistance condemned the cargo, because it was unlawful. It has been inferred on the one side that the goods would be infected by the resistance of the ship, and on the other that a resistance which is lawful, and is not produced by the goods, will not change their character.

"The case of the Catharine Elizabeth approaches more nearly to that of the Nereide, because in that case as in this there were neutral goods and a belligerent vessel. It was certainly a case, not of resistance, but of an attempt by a part of the crew to seize the capturing vessel. Between such an attempt and an attempt to take the same vessel previous to capture, there does not seem to be a total dissimilitude. But it is the reasoning of the judge and

not his decision, of which the claimants would avail themselves. He distinguishes between the effect which the employment of force by a belligerent owner or by a neutral would have on neutral goods. The first is lawful, the last unlawful. The belligerent owner violates no duty. He is held by force and may escape if he can. From the marginal note it appears that the reporter understood this case to decide in principle that resistance by a belligerent vessel would not confiscate the cargo. It is only in a case without express authority that such materials can be relied on.

"If the neutral character of the goods is forfeited by the resistance of the belligerent vessel, why is not the neutral character of the passengers forfeited by the same cause? The master and crew are prisoners of war, why are not those passengers who did not engage in the conflict also prisoners? That they are not would seem to the court to afford a strong argument in favor of the goods. The law would operate in the same manner on both.

"It cannot escape observation that in argument the neutral freighter has been continually represented as arming the Nereide and impelling her to hostility. He is represented as drawing forth and guiding her warlike energies. The court does not so understand the case. The Nereide was armed, governed, and conducted by belligerents. With her force or her conduct the neutral shippers had no concern. They deposited their goods on board the vessel, and stipulated for their direct transportation to Buenos Ayres. It is true that on her passage she had a right to defend herself, did defend herself, and might have captured an assailing vessel; but to search for the enemy would have been a violation of the charter party and of her duty.

"With a pencil dipped in the most vivid colors, and guided by the hand of a master, a splendid portrait has been drawn exhibiting this vessel and her freighter as forming a single figure, composed of the most discordant materials, of peace and war. So exquisite was the skill of the artist, so dazzling the garb in which the figure was presented, that it required the exercise of that cold investigating faculty which ought always to belong to those who sit on this bench, to discover its only imperfection; its want of resemblance.

"The Nereide has not that centaur-like appearance which has been ascribed to her. She does not rove over the ocean hurling the thunders of war while sheltered by the olive branch of peace. She is not composed in part of the neutral character of Mr. Pinto, and in part of the hostile character of her owner. She is an open and declared belligerent; claiming all the rights and subject to all the dangers of belligerent character. She conveys neutral property which does not engage in her warlike equipments, or in any employment she may make of them; which is put on board solely for the purpose of transportation, and which encounters the hazard incident to its situation; the hazard of being taken into port, and obliged to seek another conveyance should its carrier be captured.

"In this it is the opinion of the majority of the court there is nothing unlawful. The characters of the vessel and cargo remain as distinct in this as in any other case. The sentence, there·fore, of the Circuit Court must be reversed, and the property claimed by Manuel Pinto for himself and his partners, and for those other Spaniards for whom he has claimed, be restored, and the libel as to that property be dismissed."

[Associate Justice Johnson wrote a concurring opinion, but Justice Story wrote a vigorous dissenting opinion in regard to the effect of the arming of the Nereide upon her neutral cargo.]

(Cranch: Supreme Court Reports, vol. IX, pp. 388-455. Statement of facts as in original report.)

$37. CONVOY

NEUTRAL CONVOY (Adams)

"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 cannot 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."

(Memoirs of J. Q. Adams, vol. VI, p. 86, from Moore: Digest of International Law, vol. VII, p. 492.)

GERMANY SUGGESTS THAT THE UNITED STATES CONVOY HER VESSELS (1915)

In the note of February 16, 1915, relative to the German measures in the waters surrounding England, the German Government submitted the following suggestion for the consideration of the United States:

"In order to meet in the safest manner all the consequences of mistaking an American for a hostile merchant vessel the German Government recommended that (although this would not apply in the case of danger from mines) the United States convoy their ships carrying peaceable cargoes and traversing the English seat of maritime war in order to make them recognizable. In this connection the German Government believe it should be made a condition that only such ships should be convoyed as carry no merchandise which would have to be considered as contraband according to the interpretation applied by England against Germany. The German Government are prepared to enter into immediate negotiations with the American Government relative to the manner of convoy. They would, however, be particu

1 Among the most important questions considered in the discussions at the London Naval Conference was that of neutral convoy. France and certain of the other continental powers, which at the time of the League of the Armed Neutrality had cham

larly grateful if the American Government would urgently advise their merchant vessels to avoid the English seat of maritime war, at any rate until the flag question is settled."

(American Journal of International Law, Supplement, July, 1915, p. 95.)

§ 38. THE TRANSFORMATION OF MERCHANTMEN INTO VESSELS OF WAR

THE PETERBURG AND THE SMOLENSK (1904)

By the Declaration of Paris, privateering is and remains abolished. Instead, the more modern practice is to hold the mercantile marine, or a part of it, in such relation to the state that, in the event of war, it may be taken over as auxiliary to the regular pioned neutral rights including convoy, seemed ready to forego the exercise of this latter right, but Admiral Stockton, First American delegate, let it be clearly understood that he would not sign any convention which did not recognize this protection for neutral commerce which the United States and other powers had defended so vigorously and persistently. As a result of this firm attitude the provisions, as finally adopted, accorded a complete recognition of the right of neutral convoy. (See Articles 61 and 62 of the Declaration.)

When serious objection to the ratification of the London Declaration was raised on the part of certain governments, through fear that the application of the presumption of Article 34, relative to the hostile military destination of conditional contraband, would result in a burdensome interference with neutral commerce, the defenders of the Declaration pointed to the following paragraph in Professor Renault's Official Report, in which he said relative to convoy:

"Differences of opinion may occur between the two officers, particularly in relation to conditional contraband. The character of a port to which a cargo of corn is destined may be disputed. Is it an ordinary commercial port, or is it a port which serves as base of supply for the armed forces? The situation which arises out of the mere fact of the convoy must in such a case be respected. The officer of the cruiser can do no more than make his protest, and the difficulty must be settled through the diplomatic channel." (See Charles: Treaties [Washington, 1913], vol. III, p. 318.)

This statement is particularly important because the official report explaining an international convention has, under international law, the same standing as the terms of the convention itself.

Since the London Declaration has not been ratified, its provisions are not binding upon the nations except in as far as they may be considered to set forth existing law.

In her naval prize regulations of July 15, 1915, Italy has included a full recognition of the neutral right of convoy in accordance with the provisions of the London Naval Conference. (American Journal of International Law, Supplement, April, 1916, p. 126.)