The Right of Convoy. At a time when the rules of mari. time capture were rigidly, and at times harshly and unjustly, enforced, it is not remarkable that neutrals should have sought to mitigate their severity by advocating methods which, while securing to belligerents their existing rights, were also calculated to relieve neutral commerce from some of the burdens to which it was exposed in war. The most important attempt of this kind was that originated by the Baltic powers towards the close of the last century, which has become known as the right of convoy. It was contended, in behalf of those powers, that the presence of a public armed vessel, with a fleet of neutral merchant ships, was sufficient to exempt them from search. upon proper assurance being given, by the commanding officer of the armed vessel, that the ships under his convoy contained neither enemy goods nor contraband of war. In this form the right was first asserted by Sweden, and later by Holland, in the seventeenth century. The latter power, however, upon becoming a belligerent, changed its policy, and refused to recognize a practice for which it had formerly contended as a neutral. Renewed interest was shown in the subject between the years 1780 and 1800, during which period several treaties were entered into, chiefly by the Baltic powers, stipulating for the exemption from search of neutral vessels under neutral convoy.'

Nereide, Ibid. 388; the Atlanta, 3 Wheaton, 409. "If a neutral master attempts a rescue, he violates a duty which is imposed upon him by the law of nations, to submit to come in for inquiry as to the property of the ship or cargo; and if he violates that 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think, extend also to the confiscation of the whole cargo intrusted to his care, and thus fraudulently attempted to be withdrawn from the rights of war.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 to do so."-The Catharina Elizabeth, 5 Rob. Adm. Rep. p. 232.

The first and great object of the attention of an officer appointed to a service of this kind is the care of his convoy. He is not at liberty to desert it for the purpose of acquiring any advantage to himself, nor is he to volunteer any attack upon the enemy, if it takes him away from his first great duty. But, as far as consistent with that duty, he may pursue his own interest, and may attack and annoy the enemy

The introduction of the new rule was vigorously opposed by Great Britain, a power at that time more interested than any other in the maintenance of belligerent rights at sea. The position assumed by that government was, in substance, stated by Sir William Scott, in the case of the Maria, and may be summarized as follows:

(a.) The laws of maritime capture give to a belligerent an incontestable right to stop and search, on the high seas, all neutral merchant vessels.

(b.) A search, to be lawful, must be exercised directly by the belligerent cruiser, a separate search being made in the case of each neutral vessel encountered.

(c.) A neutral government cannot interpose its authority between a belligerent armed vessel and a neutral merchant ship, by giving to one of its public vessels instructions which are calculated to abridge, in any manner, the belligerent right of search.

(d.) The resistance of a convoying ship amounts, in effect, to resistance to search on the part of the merchant vessels composing the convoy, and involves them in the penalty of condemnation for such resistance of search.'

As England was at that time sufficiently powerful at sea to maintain its view against the opposition of any existing state, the neutral powers regarded the emergency as one of such importance as to seriously threaten the very existence of their commerce. To protect their menaced interests, a treaty was negotiated which created the defensive alliance known as the Armed Neutrality of 1800, the purpose of which was to maintain the principle of convoy as described in the treaty. In 1801, however, Russia, though a party to the Armed Neutrality, entered into an agreement recognizing the right of a belligerent to visit neutral merchant vessels sailing under a

in any way that may appear to him advantageous. He may capture the ships and goods of the enemy, provided he does not withdraw himself from the duty of protecting the vessels placed under his

care, and may take the benefit of the prizes which he may have the goodfortune to make.' -The Galen, I Dodson, 430.

1 The Maria, 1 Rob. Adm. Rep. p. 340; see, also, note 3, p. 483, ante.

convoy; and the constantly increasing maritime power of England sufficed to defer indefinitely the general adoption of the principle of convoy as a rule of international law. Since the beginning of this century the right has been stipulated for in a number of treaties, to which the Continental states of Europe have been parties. England alone refuses to recognize the right, even as a part of the conventional law of nations, as she has ever denied its existence as a custom based upon general international usage.'

The views held as to the right of convoy by the different departments of the United States Government have been at considerable variance. The political departments have uniformly recognized its existence, and have endeavored to secure its general acceptance by treaty. The United States Navy Regulations provide in considerable detail for the manner in which the right of convoy shall be exercised by its public armed vessels. If the convoyed vessel is bound to a belligerent port the commander of the convoy is to require proof that there are no contraband articles on board; and without such proof he is not to afford her protection against a belligerent cruiser, unless specially directed to do so; "he is not to permit the vessels under his protection to be searched or detained by any belligerent cruiser."" The judicial department, on the other hand, has followed the English precedents in denying the existence of the right of convoy as a rule or principle of international law.'

At the present time it is not believed that any serious objection would be offered by any modern state to the general adoption of the principle of convoy as a rule of international law, under such restrictions as would be calculated to prevent abuse, and accompanied by such conditions as would secure to belligerents a right as effective as that which they now enjoy.

Hall, § 272; II Halleck, pp. 291295; Boyd's Wheaton, §§ 525-537; JII Phillimore, pp. 544-558; II Ortolan, liv. iii. chap. vii. pp. 261-282; Dana's Wheaton, § 526, note 242; I Kent (Holmes's ed.), pp. 153–156;

the Maria, 1 Rob. Adm. Rep. p. 340.

' Par. 410, Navy Regulations of the United States, 1896; Snow, pp. 160, 161; Glass, pp. 165-168.

3

III Dig. Int. Law, § 346.

That such a rule has not been adopted, or seriously advocated, is doubtless due to the fact that the necessity for its existence has passed away. The introduction of steam navigation involved an immediate and radical reorganization of the carrying trade of the world. The establishment of steamship lines, upon the old routes of commerce, has monopolized a trade which was formerly carried on in sailing vessels, and it is no longer regarded as desirable that even sailing vessels, in time of war, should move in fleets or convoys.

Searches Authorized in Time of Peace. The right of search has been shown to be a belligerent right, and so existent only in time of war. In time of peace a right of visitation or search is recognized in the following cases:

(a.) Search to Execute Revenue Laws. Merchant vessels coming into the jurisdiction of a state are subject to such inspection, and their cargoes to such examination and search, as are warranted by the municipal laws of that state, or are necessary to the enforcement of its sanitary and customs regulations. A vessel which attempts to evade such inspection, at any time during its sojourn, may be detained and subjected to such penalties as are authorized by the laws of the offended state. It is questionable whether the right exists of pursuing such vessels upon the high seas, and of effecting their capture beyond the jurisdictional waters of the captor's state.' If such right exists at all, it is based upon international comity, and, in any particular case, its exercise must be justified by the emergency existing, in which event the government to which the offending

'Dana's Wheaton, § 179, note 108; the Louis, 2 Dodson, Adm. Rep. p. 246; the Hovering Acts (1736), 9 Geo. II. chap. xxxv.; Vattel, liv. i. chap. xxiii. § 281; Church vs. Hubbard, 2 Cranch, 187. The practice of the United States in this regard is regulated by the requirements of section 3067 of the Revised Statutes, which provides that "it shall be lawful for all collectors, naval officers, surveyors, inspectors, and the officers of the revenue-cut

ters, to go on board of vessels in any port of the United States, or within four leagues of the coast thereof, if bound to the United States, whether in or out of their respective districts, for the purposes of demanding the manifests, and of examining and searching the vessels; and those officers respectively shall have free access to the cabin and every other part of a vessel."

vessel belongs may, and usually does, waive its strict rights in the premises, and declines to protect its subjects in wrongdoing.'

(b.) Search on Suspicion of Piracy. Public armed vessels of any state are justified, when reasonable grounds of suspicion. exist, in stopping vessels on the high seas which are believed to be engaged in piratical undertakings. If the search be made in good faith, and upon grounds warranting a suspicion of piracy, no claim for damage can be established, even in cases where the character of the ship visited proves to be legitimate."

(c.) Search of Merchant Ships by War Vessels of the same State. The public armed vessels of a state may execute such visits of search and inspection, upon merchant vessels of the same nationality, as are authorized by the laws of the state under whose flag they sail. This is a question of municipal law pure and simple, and the search authorized may be as frequent or infrequent, as lax or as vigorous, as is deemed best by the government to which both vessels belong.

(d.) Right of Approach to Verify Nationality. Public armed vessels, of whatever nationality, are also authorized to approach merchant vessels on the high seas for the purpose of ascertaining their nationality. In the performance of this duty, except where suspicion of piracy exists, they are limited to hailing and the use of flags and signals. They board such vessels at their peril.'

1 II Halleck, p. 270; Risley, p. 47 ; Dana's Wheaton, § 124, note 83; III Dig. Int. Law, § 326; Hall, § 80; Woolsey, 213. Nations may prevent the violation of their laws by seizures on the high seas, in the neighborhood of their coasts, and there is no fixed rule prescribing the distance from the coast within which such seizures may be made." -Church vs. Hubbard, 2 Cranch, 187. "To come within such an exception, the seizure must be justifiable under the laws of the country making the seizure.”.

Ibid. "The municipal laws of one nation do not extend in their operation beyond its own territory, except as regards its own citizens. A seizure for the breach of the municipal laws of one nation cannot be made within the territory of another."-- The Apollon, 9 Wheaton, 362.

Hall, § 81; I Calvo, § 508; II Halleck, pp. 273. 274; Bluntschli, SS 343-350; I Dig. Int. Law, §§ 33, 33a. 50a; III Ibid. § 326.

III Phillimore, pp. 524. 525; I Ortolan, liv. ii. chap. xii.; II Twiss,