unprovoked aggression in using force to prevent the visit from being accomplished, and the belligerent may consequently treat him as an enemy and confiscate his ship.

The only point arising out of this cause of seizure which requires to be noticed is the effect of resistance upon cargo when made by the master of the vessel, or upon vessel and cargo together when made by the officer commanding a convoy. The English and American courts, which alone seem to have had an opportunity of deciding in the matter, are agreed in looking upon the resistance of a neutral master as involving goods in the fate of the vessel in which they are loaded, and of an officer in charge as condemning the whole property placed under his protection.

Hall, pp. 756, 757.

The vessel is also confiscated if she resisted capture or search,

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Westlake, vol. 2, p. 291.

So long however as resistance by a neutral merchantman to search, and even sailing with instructions to make such resistance, is held in England a cause for condemning both her and her cargo, sailing under neutral convoy, whether of the merchantman's own or of any other neutral state, must carry the same consequence, because it is thereby sought to profit by the convoying ship's unlawful employment of force. Whether a neutral merchantman incurs condemnation by attaching herself to a war fleet or ship of the enemy, thereby resorting to what is called belligerent convoy, is a question on which the British and United States prize courts have differed. The former decide in the affirmative, on the ground that by so doing she seeks to profit by the enemy's employment of force. In the United States the negative has been held, on the ground that the enemy's force of which advantage is sought to be taken is lawful. Each answer must be and is given in the same sense in the case of a neutral cargo embarked in an armed ship of the enemy, but the British court has held that neutral cargo does not suffer for being embarked in an enemy private ship which makes resistance.

Westlake, vol. 2, pp. 301, 302.

They [merchantmen] are bound to submit to search from a lawfully commissioned belligerent cruiser. Resistance to it will bring down certain capture and condemnation upon a neutral ship otherwise innocent. * * A neutral merchantman violates International Law if it makes any attempt to repel belligerent search by force of arms. Success may save it for the moment, but not for long. An international question will be raised between its country and the injured belligerent; and, unless its government wishes to provoke complications, some kind of punishment will fall upon its owners for its unlawful proceeding.

Lawrence, p. 469.

Conflict in practice as to condemnation of cargo.

If a neutral merchantman resists visit or search, she is at once captured, and may be confiscated. The question as to whether the vessel only, or also her cargo, could be confiscated for resistance has hitherto been controversial. According to British and American

theory and practice, the cargo as well as the vessel was liable to confiscation. But Continental writers emphatically argued against this and maintained that the vessel only was liable to confiscation.

Oppenheim, vol. 2, p. 540.

What constitutes resistance.

According to the practice hitherto prevailing, and also according to the Declaration of London, a mere attempt on the part of a neutral merchantman to escape visitation does not in itself constitute resistance. Such vessel may be chased and compelled by force to bring to, and she can not complain if, in the endeavor forcibly to compel her to bring to, she is damaged or accidentally sunk. If, after the vessel has been compelled to bring to, visit and search show her to be innocent, she must be allowed to proceed on her course.

Oppenheim, vol. 2, p. 541.

What constitutes forcible resistance.

Resistance to be penal must be forcible resistance. It constitutes resistance, therefore, if a vessel applies force in resisting any legitimate action by the belligerent cruiser which requires her to stop and to be visited and searched. The term forcible resistance is not defined in detail by article 63 of the Declaration of London. It is, consequently, not certain whether the actual application of force only, or also the refusal, on the part of the master, to show the ship papers or to open locked parts of the vessel or locked boxes, and similar acts, constitutes forcible resistance. The International Prize Court, if established, would have to develop a practice which would decide these points.

Wheaton excepted, all writers would seem to agree that the fact of neutral merchantmen sailing under a convoy of enemy men-ofwar is equivalent to forcible resistance on their part, whether they themselves intend to resist by force or not. But the Government of the United States of America in 1810 contested this principle. In that year, during war between Great Britain and Denmark, many American vessels sailing from Russia used to seek protection under the convoy of British men-of-war, whereupon Denmark declared all such American vessels to be good and lawful prizes. Several were captured without making any resistance whatever, and were condemned by Danish Prize Courts. The United States protested, and claimed indemnities from Denmark, and in 1830 a treaty between the parties was signed at Copenhagen, according to which Denmark had to pay 650,000 dollars as indemnity. But in article 5 of this treaty the parties "expressly declare that the present convention is only applicable to the cases therein mentioned, and, having no other object, may never hereafter be invoked by one party or the other as a precedent or a rule for the future."

Article 63 of the Declaration of London does not-as was pointed out above in Sec. 423-define the term forcible resistance, but it is to be expected that the practice of the International Prize Court would consider the sailing under enemy convoy equivalent to forcible re

sistance.

Since Great Britain did not, before agreeing to the Declaration of London, recognize the right of convoy and had always insisted upon the right of visitation to be exercised over neutral merchantmen sail

ing under the convoy of neutral men-of-war, the question has arisen as to whether such merchantmen are considered resisting visitation in case the convoying men-of-war only, and not the convoyed vessels themselves, offer resistance. British practice has answered the question in the affirmative. The rule was laid down in 1799 and in 1804 by Sir William Scott in the cases of Swedish vessels captured while sailing under the convoy of a Swedish man-of-war.

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**

Since Great Britain has abandoned her opposition to the right of convoy and has agreed to articles 61 and 62 of the Declaration of London which lay down rules concerning the matter, the resistance by a neutral convoy to visitation may not, under ordinary circumstances, be considered to be resistance on the part of the convoyed neutral merchantman. If, however, the commander of a convoy, after having refused to give the written information mentioned in article 61 or to allow the investigation mentioned in article 62, forcibly resists visitation of the convoyed merchantmen by a belligerent cruiser, the question as to whether resistance by a convoy is equivalent to resistance by a convoyed vessel, may even under the Declaration of London arise.

Oppenheim, vol. 2, pp. 541-543.

Rescue-Effect of, terminated at end of voyage.

It was held by the United States Attorney General in 1838 that if a vessel, after escaping from her captors, terminates her voyage in safety, her liability to condemnation for the escape ceases.

3 Op. Atty. Gen., 377.

Any vessel is also liable to Detention, irrespectively of her national character, or the trade in which she is engaged, for:

(1.) Resistance to Visit or Search.

(2.) Sailing under Neutral Convoy which resists.

(3.) Sailing under Enemy Convoy.

Holland, p. 3.

The Commander should detain any Vessel which forcibly resists Visit or Search.

A mere attempt at escape is, in itself, no ground for Detention, though the Commander will not be liable for injury which he may cause to the Vessel, or her Crew, in forcibly preventing her escape.

The Penalty for Resistance by the Master of a Neutral Vessel, is the confiscation of the Vessel and the Neutral cargo. Resistance by the Master of an Enemy's private ship does not forfeit a Neutral cargo, which will, however, be condemned if found on board an armed Ship of the Enemy.

Any resistance made by a Neutral Convoying Ship to the lawful Visit and Search of a Vessel under her escort, will justify the Detention both of the Convoying Ship and of all Vessels convoyed by her.

If, upon the Visit and Search of a Vessel under Neutral Convoy, it shall appear that the Master set sail with instructions to make an armed resistance to Search, the Vessel should be detained.

Vessels under Enemy Convoy are, from that circumstance alone, liable to Detention.

Holland, pp. 44 and 45.

Merchant-vessels of a neutral nationality are liable to confiscation as prizes in the following cases:

(3) When such vessels resist by force of arms stoppage, examination, or seizure;

* * *

Russian Regulations, 1895, Article 11.

Irrespective of the character of her cargo, or her purported destination, a neutral vessel should be seized if she:

A ship which resists visit or search, and that portion of her cargo which belongs to her owner, shall be condemned.

Japanese Regulations, 1904, Article 48.

Hostile convoy.

A ship sailing under convoy of a ship of war of the hostile state, and her cargo, shall be condemned.

Japanese Regulations, 1904, Article 49.

A neutral ship is to be treated as an enemy ship further when it—

(b) forcibly resists the measures of the law of prize; against such ship force of arms is to be employed until resistance ceases; mere attempt to escape does not constitute forcible resistance.

German Prize Rules, 1909, Article 16.

Treatment of crew and passengers of ship captured because of resistance.

*

*

*

If a ship is captured under 16 b, (resistance) those persons who without being enrolled in the enemy forces have taken part in the hostilities or have exerted forcible resistance, may be dealt with according to the customs of war. The other persons of the crew will be made prisoners of war.

German Prize Rules, 1909, Article 99.

Section 102, French Naval Instructions, 1912, is substantially identical with article 63, Declaration of London.

Article 63, Declaration of London, is substantially identical with section 17, Austro-Hungarian Manual, 1913.

Forcible resistance of "armed" merchant vessel.

If an armed merchant ship of the enemy makes armed resistance to measures of the right of prize, such resistance is to be broken with all means. The responsibility for any damages which the ship, cargo and passengers may thereby suffer rests with the enemy government. The crew are to be treated as prisoners of war. The passengers are to be released, except when they have demonstrably taken part in the resistance. In the latter case, the procedure extraordinary to the laws of war is to be employed against them.

Orders of the Chief of the Admiral Staff of the German Navy, June 22, 1914, Article 2.

Neutral nation will not aid belligerent in obtaining possession of prizes. "In reference to your letter of the 2d February last, I soon after took occasion to intimate to you what appeared to be the President's way of thinking on the subject. I have now the honor to state to you that while, by the law of nations, the right of a belligerent power to capture and detain the merchant vessels of neutrals, on just suspicion of having on board enemy's property, or of carrying to such enemy any of the articles which are contraband of war, is unquestionable, no precedent is recollected, nor does any reason occur which should require the neutral to exert its power in aid of the right of the belligerent nation in such captures and detentions. It is conceived that, after warning its citizens or subjects of the legal consequences of carrying enemy's property or contraband goods, nothing can be demanded of the sovereign of the neutral nation but to remain passive. If, however, in the present case, the British captors of the brigantine Experience, Hewit, master; the ship Lucy, James Conolly, master, and the brigantine Fair Columbia, Edward Carey, master, have any right to the possession of those American vessels or their cargoes, in consequence of their capture and detention, but which you state to have been rescued by their masters from the captors, and carried into ports of the United States, the question is of a nature cognizable before the tribunals of justice, which are opened to hear the captors' complaints; and the proper officer will execute their decrees."

Mr. Pickering, Secretary of State, to Mr. Liston, British minister, May 3, 1800, Moore's Digest, Vol. VII, pp. 501, 502.

"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."

The Catherine Elizabeth, Robinson's Adm. Rep., V, 232, quoted with apparent approval, Dana's Wheaton, pp. 696, 697.

What constitutes resistance on the part of a convoying ship-of-war.

The "Elsabe," 4 C. Rob., 409.-This was the case of a Swedish man-of-war convoying merchant vessels, under orders to resist search. She fell in with a superior force of British vessels, and although she threatened to resist search and cleared for action, finally yielded to search, presumably on account of the superior force against her which would have rendered forcible resistance hopeless.

The merchant vessels were held to be subject to condemnation on the ground of resistance.

Rescue, following "illegal" capture.

Miller v. The "Resolution," 2 Dall., 1.-In this case it was held that a neutral may pursue and recover his property illegally captured, anywhere and at any time, until it is condemned as prize, by a court of competent jurisdiction.