celebrated for her defence of the rights of neutrals, and she has taken an active part in the leagues that have been formed for that purpose. Though the Danish navy has never been great, the peculiar situation of that country, at the mouth of the Baltic, if it has not given her the control, has, at least, put it in her power to harass the trade bound to the territories bordering on those waters. Having possession of the passes or straits, that connect the Baltic and German seas, Denmark has asserted pretensions, not easily justified by the laws of nations, though consecrated by a very ancient custom. But her general treatment of neutral commerce has not been oppressive, though the United States have, undoubtedly, had cause to complain ;-Danish and French privateers have committed acts of unwarrantable aggression on our commerce; unjust condemnations have taken place in her tribunals, and our seamen have been treated in a tyrannical way in her ports. On the other hand, few of the powers of Europe have been in a condition so weak and precarious, during the wars of the French revolution; accessible to the English by water, and to the French by land, the capital of Denmark has been twice taken by one belligerent within the century, and her whole fleet carried to England. Her territory and islands being occupied by French troops, Denmark was forced at an early hour into the continental system, which she executed with uncommon rigour; and in the autumn of 1807, England declared a war against her, that did not terminate till the treaty of Kiel, of 1814. Denmark was neither in a state to resist singly either of the belligerents, nor did her situation at the mouth of the sound make it possible for her to preserve even the appearance of neutrality. The government was compelled to take side with France, both from the superiority of the French armies, and because the allies refused peace to the crown prince on any other terms than the transfer of Norway to Sweden.

The vexations, of which this country had to complain, took place from 1809 to 1812. They were the consequences of

the political situation of Denmark; openly at war with England, forced to adopt the continental system, to admit French troops into her territories and French privateers into her ports. The government, however, still remained entirely sovereign, and to all appearances independent. The claim of the United States was, consequently, immediately on the Danish government, for injuries committed by her subjects, and the subjects of her ally, apparently within her control. The principle of this demand differed from that of the Neapolitan and Netherlands; for in those cases, the depredations were confessedly committed by the new French dynasties,—but the original governments, having been restored, assumed in principle, the debts, as well as the power and revenues, of the revolutionary ones.

The United States, having no diplomatic agent of any description in any part of the Danish dominions, George W. Erving was sent, in 1811, special minister to Copenhagen, for the purpose of asserting the claims of the government, and of obtaining a discontinuance of the irregular proceedings of the French and Danish privateers. He received his audience from the minister of state, M. de Rosenkrantz, in June of the same year. During 1809 and 10, it appears, that 160 American vessels had been captured by the Danes; and in the subsequent years, there had been numerous captures by French privateers. In general these vessels had valuable cargoes. Of these captures, 42 had been condemned; and of the condemned, 16 were cases that had either violated the laws of the United States, such as the embargo and non-intercourse, or had forged certificates of origin, or in other respects were not legitimate. Many of these vessels were carried into Christiansand, in Norway. A principal item in these captures was, what has been called the convoy cases. We are not aware, that similar violations of the neutral rights of this country have ever before occurred; and as they affect an important provision of the laws of nations, we shall give

an account of this business, and the representation concerning it, in Mr. Erving's own words :

"With my note of yesterday, I transmitted to your excellency a list of the "convoy cases," twelve in number; the two last in that list are now depending on appeal before the high court, as is mentioned in a memorandum opposite to their names; the first eight vessels of the remaining ten were bound immediately from Petersburg and Cronstadt to the United States; they had all paid their sound dues, and several of them had been examined before the Danish marine tribunals, on entering the Baltic; and they were all arrested, in going out, by a British force, and compelled to join convoy. When that convoy was attacked by his majesty's gun brigs, the Americans, not conscious of any illegality in the nature of their voyages, or of any irregularity in their own conduct, made no efforts to escape, and were captured and brought into port. These vessels have been condemned under the authority of the article 'D' in the 11th clause of his majesty's instructions for privateers, issued on the 10th of March, 1810, which declares to be good prize all vessels which have made use of British convoy, either in the Atlantic or the Baltic.' At the time of this declaration, these vessels were in Russia, on the point of sailing, and wholly ignorant of it.""That the belligerent has a right to ascertain the character of neutrals met with at sea, I am not disposed to deny; but to say that the neutral shall be condemned on the mere fact that he was found under enemy's convoy, is to impose upon him a necessity of sailing without protection, even against his own separate enemies; for the case might well happen, indeed has happened, that though neutral with regard to the belligerent powers, he has had an enemy, against whom either of the belligerents might be disposed to protect him. Of such protection, the American commerce has often availed itself, during the war between the United States and the Barbary powers; nor was it ever supposed, by either of the great belligerent powers, that such commerce, so protected by its enemy, had thus become liable to capture and confiscation. The case might also occur, that of two allied belligerent powers, a third power should be enemy as to one, and neutral as to the other. I state these arguments against the broad ground taken in the royal instructions above quoted. But it will be said,

that the belligerent, having also an unquestionable right to ascertain the neutrality of vessels, and belligerent rights being paramount to neutral rights, where the two happen to be in collision,-hence the attempt of the neutral to deprive the belligerent of his right, by putting himself under convoy, forms of itself a ground of capture and confiscation. To this I answer, First, that the belligerent rights, where they come into collision with those of neutrals, are not to be deemed in all cases paramount; and that nothing can establish such a general rule but force, which is not law or justice. Secondly, that no presumption necessarily arises against the neutral, from the mere circumstance of his being found under enemy's convoy; but that this point will depend upon the peculiar circumstance of each case. Thirdly, that where the belligerent and neutral rights conflict, all other circumstances being equal, the plea of necessity ought to decide the question in favour of the neutral. In the case supposed, the belligerent is seeking the mere exercise of a right, but the neutral is occupied in his self preservation. These vessels did not seek convoy for any purpose, but they were forced into it; they had no motive to seek convoy as a protection against Danish cruisers. They had, indeed, other inducements to put themselves under convoy; the decrees of his majesty the emperor of France being then in force, that system, working against the English orders in council, produced such a state of things, with regard to the commerce of America, that scarcely one of its ships could move on the face of the ocean, without being exposed, under this unfortunate co-operation of hostile systems, to capture and confiscation. But, had this happened in the cases before us, yet it would not have formed a just ground of capture and confiscation; for, the merits or demerits of the Berlin and Milan decrees out of the question, those decrees have not been adopted by Denmark; indeed, at the time the vessels were taken, his majesty had not assumed any course, with respect to the American commerce, from which evil was to be apprehended; hence, I beg leave to repeat, that the vessels in question cannot be presumed to have sought protection under British convoy, for the purpose of avoiding his cruisers. But if the contrary had been proved, if it stood confessed, that they had sought convoy against Danish cruisers; in that case, they would have been liable to capture, certain

ly, but it is equally certain, that they would not have been liable to condemnation. I must again totally deny, that the rule laid down in the article of the royal instructions above cited, is supported by any principle to be found in the law,—and I can confidently ask your excellency to show me any authorities in its favour. If the writers be silent on the subject, then their silence is to be construed favourably for the neutral. But the law says, that neutral goods found under the enemy's forts, within his territory, or even on board his vessels at sea, which is to be as immediately and totally under his protection as is possible, that these are not liable to confiscation, but shall be restored to the neutral owners. The doctrine laid down by Grotius, in the "De Jure Belli ac Pacis," on this point, has never been refuted, but has, on the contrary, been adopted by subsequent writers. England herself has never gone to the extent of condemning vessels upon the mere ground of their having been taken under enemies' convoy ; but she has captured them in that situation, and acquitted them."

-

These vessels were condemned by the Danes, on the pretence, either that the property was English, the papers false, or that pretended certificates of origin were shown as given by the French consuls in America, when the French government had caused official notice to be given to the Danish government, on the 22d of September, 1810, that the French consuls were forbidden from furnishing these certificates. But upon proof being presented, that the French consuls in America did actually give these certificates, till the 13th of November, the Danish government immediately released all vessels furnished with them of a prior date.* As to the con

Pending of do. in High Court, 8, and not one finally condemned.

Captures in Danish islands, in 1810, 68

Condemnations,

Pending,

22

Convoy