the officer of the belligerent ship.

Should the ascertained facts in the opinion of the commander of the convoy justify the seizure of one or more ships, the protection of the convoy must be withdrawn from them. Should on the other hand the commander of the convoy believe that he may still answer for the innocence of the convoyed ships, the captain may only enter a protest against this decision; he will then report the case to the Admiral Staff, for settlement through diplomatic channels.

It rests with the commander of the convoy whether or not to permit a representative of the captain to take part in the investigation. German Prize Rules, 1909, Article 5.

As regards the vessel under convoy, the commander of the convoy will give to you in writing, on your request, all information as to the character of the convoyed vessels and their cargoes which could be obtained by visit and search.

If you have reason to suspect that the confidence of the commander of the convoy has been abused, you will communicate your suspicions to him. In such a case it is for the commander of the convoy alone to conduct an investigation. You may, however, accept an offer made you by him to be present at this investigation. He should state the result of such search in a report of which a copy is furnished to one of your officers. If in the opinion of the commander of the convoy the facts thus stated justify the capture of one or more vessels, the protection of the convoy should be withdrawn from such vessels, and you should proceed to such seizure.

If differences arise between you and the commander of the convoy, especially with respect to contraband, you may only address to him a written protest. You will immediately make a report thereof to me, and the difficulty will be settled through the diplomatic channel.

For a neutral, the fact of having himself convoyed by an enemy warship, that is to say, placing himself under its protection, casts suspicion upon him and deprives him of any right to complain if he is damaged or even destroyed in a fight.

For an enemy merchant ship, the act of having himself convoved by an enemy warship exposes him to all attacks, direct and indirect.

French Naval Instructions, 1912, secs. 103-107.

Articles 61 and 62, Declaration of London, are substantially identical with sections 147, 148, respectively, Austro-Hungarian Manual,

1913.

Mr. Seward, replying, August 12, 1861, to an inquiry of the Dutch minister as to whether the United States recognised 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, Secretary of State to Mr. Von Limburg, August 12, 1861, Moore's Digest, Vol. VII, p. 493.

Contra.

The "Maria," 1 C. Rob., 340.-This was the case of a Swedish neutral merchantman, which was taken, while sailing under convoy of a Swedish man-of-war, and proceeded against for resistance of visitation and search by British cruisers.

Held that a belligerent cruiser has the right of visiting and searching all merchant ships on the high seas, and that the interposition in any manner of mere force of the authority of the sovereign of the neutral country cannot legally vary the rights of a lawfully commissioned belligerent cruiser.

55565-18-33

FORCIBLE RESISTANCE TO STOPPAGE, SEARCH AND SEIZURE, EFFECT OF.

A. VISIT AND SEARCH.

B. NECESSARY SHIPS' PAPERS.

C. FORMALITIES OF CAPTURE.

D. LIENS UPON A VESSEL AS AFFECTED BY CAPTURE.

Forcible resistance to the legitimate exercise of the right of stoppage, search, and capture, involves in all cases the condemnation of the vessel. The cargo is liable to the same treatment as the cargo of an enemy vessel. Goods belonging to the master or owner of the vessel are treated as enemy goods.-Declaration of London, Article 63.

The subject treated in this chapter was not mentioned in the program submitted by the British Government in February, 1908, but it is intimately connected with several of the questions in that program, and thus attracted the attention of the conference in the course of its deliberations; and it was thought necessary to frame a rule upon it, the drafting of which presented little difficulty.

A belligerent cruiser encounters a merchant vessel and summons her to stop in order that she may be searched. The vessel summoned does not stop, but tries to avoid the search by flight. The cruiser may employ force to stop her, and the merchant vessel, if she is damaged or sunk, has no right to complain, seeing that she has failed to comply with an obligation imposed upon her by the law of nations.

If the vessel is stopped, and it is shown that it was only in order to escape the inconvenience of being searched that recourse was had to flight, and that beyond this she had done nothing contrary to neutrality, she will not be punished for her attempt at flight. If, on the other hand, it is established that the vessel has contraband on board, or that she has in some way or other failed to comply with her duty as a neutral, she will suffer the consequences of her infraction of neutrality, but in this case as in the last, she will not undergo any punishment for her attempt at flight. Expression was given to the contrary view, namely, that a ship should be punished for an obvious attempt at flight as much as for forcible resistance. It was suggested that the prospect of having the escaping vessel condemned as good prize would influence the captain of the cruiser to do his best to spare her. But in the end this view did not prevail.

The situation is different if forcible resistance is made to any legitimate action by the cruiser. The vessel commits an act of hostility and must from that moment be treated as an enemy vessel; she will therefore be subject to condemnation, although the search may not have shown that anything contrary to neutrality had been done. So far no difficulty seems to arise.

What must be decided with regard to the cargo? The rule which appeared to be the best is that according to which the cargo will be treated like the cargo on board an enemy vessel. This assimilation

involves the following consequences. A neutral vessel which has offered resistance becomes an enemy vessel and the goods on board are presumed to be enemy goods. Neutrals who are interested may claim their property, in accordance with article 3 of the declaration of Paris, but enemy goods will be condemned, since the rule that the flag covers the goods can not be adduced, because the captured vessel on board which they are found is considered to be an enemy vessel. It will be noticed that the right to claim the goods is open to all neutrals, even to those whose nationality is that of the captured vessel; it would seem to be an excess of severity to make such persons suffer for the action of the master. There is, however, an exception as regards the goods which belong to the owner of the vessel; it seems natural that he should bear the consequences of the acts of his agent. His property on board the vessel is therefore treated as enemy goods. A fortiori the same rule applies to the goods belonging to the master. Report of committee which drafted Declaration of London.

The prize courts cannot condemn enemy or neutral prizes except on the following grounds:

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3. Resistance to stopping, visit and search, or seizure.

Institute, 1883, p. 76.

Resistance of a merchant vessel to stopping, visit, search or seizure, should be proved in fact and manifested by acts; a simple protest of the resisting vessel cannot be sufficient to condemn it.

Confiscation is applied, by way of penalty for resistance of search, to all vessels, without any discrimination as to the national character of the vessel or cargo, and without separating the fate of the cargo from that of the ship.

Kent, vol. 1, p. 163.

Rescue by crew constitutes unlawful resistance.

A rescue effected by the crew after capture, and when the captors are in actual possession, is unlawful, and considered to be a resistance within the application of the penalty of confiscation, for it is delivery by force from force. And where the penalty attaches at all, it attaches as completely to the cargo as to the ship, for the master acted as agent of the owner of the cargo, and his resistance was a fraudulent attempt to withdraw it from the rights of war. Kent, vol. 1, p. 166.

The international law on this subject is ably summed up by Sir W. Scott, in the case of The Maria, where the exercise of the right was attempted to be resisted by the interposition of a convoy of Swedish ships of war. In delivering the judgment of the High Court of Admiralty in that memorable case, this learned civilian lays down the three following principles of law:- * *

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3. That the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search.

Dana's Wheaton, pp. 690, 691; The Maria, 1 C. Rob. 340.

The right of search on the one side, implies the duty of submission on the other; and as the belligerent may lawfully apply his force to the neutral property, for the purpose of ascertaining its character and destination, it necessarily follows that the neutral may not lawfully resist the lawful exercise of the right of search. This duty of the neutral, says Sir William Scott, is founded on the soundest maxims of justice and humanity. There are no conflicting rights between nations at peace, and the right of search in the belligerent necessarily denies the right of resistance in the neutral. Any attempt, therefore, on the part of the neutral vessel, its owner, officers, or crew, to resist the lawful search of a duly commissioned cruiser of a belligerent power, is a violation of a duty imposed by the laws of war, and incurs a penalty proportioned to the nature of the offense.

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Halleck, p. 609.

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The penalty for the violent contravention of this right, is the confiscation of the property so withheld from visitation and search. This penalty is not averted by the orders of the neutral sovereign to resist the visitation and search of the belligerent cruiser. * ** ** The resistance of the neutral cannot, therefore, be protected by any orders or instructions from its own government, but the act must be judged of according to its own character.

Halleck, pp. 611, 612.

The offence [of forcible resistance to a lawful search] being regarded as of a greater criminality and more dangerous in its effects than the transportation of contraband or the violation of a blockade, the severity of the penalty is the greater.

Halleck, p. 620.

It is plain, from the existence of the right of search, that an obligation lies on the neutral ship to make no resistance. The neutral is in a different relation to the belligerents than the vessels of either of them to the other. These can resist, can run away, unless their word is pledged, but he cannot. Annoying as the exercise of this right may be, it must be submitted to, as even innocent persons are bound to submit to a search-warrant for the sake of general justice. Any resistance, therefore, or attempt to escape, or to get free from the search or its consequences, by force, if they do not bring on the destruction of the vessel at the time, may procure its confiscation, even though it had been engaged in a traffic entirely innocent.

Woolsey, pp. 358, 359.

The right of capture on the ground of resistance to visit, and that of subsequent confiscation, flow necessarily from the lawfulness of visit, and give rise to no question. If the belligerent when visiting is within the rights possessed by a state in amity with the country to which the neutral ship belongs, the neutral master is guilty of an