The article is in fact almost a transcript of the article of the treaty of 1786 between Great Britain and France. "The regulation is founded on the best reasons: 1st. It is sufficient for the neutral that he acquiesces in the interruption of his voyage, and the trouble of the examination imposed by the belligerent commander. To require a positive and active co-operation on his part in behalf of the latter is more than can be justified on any principle. 2d. The belligerent party can always send more conveniently to the neutral vessel than this can send to the belligerent vessel; having neither such fit boats for the purpose, especially in a rough sea, nor being so abundantly manned. 3d. This last consideration is enforced by the numerous and cruel abuses committed in the practice of requiring the neutral vessel to send to the belligerent. As an example you will find in the documents now transmitted a case where neither the smallness and leakiness of the boat, nor the boisterous state of the weather, nor the pathetic remonstrances of the neutral commander had any effect on the imperious injunctions of the belligerent, and where the task was performed at the manifest peril of the boat, the papers, and the lives of the people. The limitation of the number to be sent on board the neutral vessel is a reasonable and usual precaution against the danger of insults and pillage." MSS. Inst., Ministers. Another unjustifiable measure is "the mode of search practiced by British ships, which, instead of remaining at a proper distance from the vessel to be searched, and sending their own boat with a few men for the purpose, compel the vessel to send her papers in her own boat, and sometimes with great danger from the condition of the boat and the state of the weather." Mr. Madison, Sec. of State, report, Jan. 25, 1806. MSS. Report Book. 2 Am. "England is allowed, when she is at war, to visit neutral vessels for the purpose of seizing merchandise either belonging to her enemy, or considered as contraband destined for her enemy, and soldiers or other combatants in the service of her enemy. But she never had before claimed the right of visiting or seizing, under the pretense of retaking what belonged to herself. If the right was conceded to her of seizing, on board vessels of other nations, the seamen she claims as belonging to her, she would equally have that of seizing merchandise claimed by her subjects as belonging to them, and there would no longer be any acknowledged line of demarcation which would prevent her from exercising an unlimited jurisdiction over the vessels of all other nations." Mr. Gallatin to the Emperor of Russia; presented June 19, 1814, to the Emperor "The right of search has heretofore been so freely used and so much abused to the injury of our commerce that it is regarded as an odious doctrine in this country, and if exercised against us harshly in the approaching war will excite deep and widespread indignation. Caution on the part of belligerents in exercising it towards us in cases where sanctioned by usage would be a wise procedure. As the law has been declared by decisions of courts of admiralty and elementary writers, it allows belligerents to search neutral vessels for articles contraband of war and for enemies' goods. If the doctrine is so modified as to exempt from seizure and confiscation enemies' property under a neutral flag, still the right to seize articles contraband of war on board of neutral vessels implies the right to ascertain the character of the cargo. If used for such a purpose, and in a proper manner, it is not probable that serious collisions would occur between neutrals and belligerents. "A persistent resistance by a neutral vessel to submit to a search renders it confiscable according to the settled determinations of the English admiralty. It would be much to be regretted if any of our vessels should be condemned for this cause, unless under circumstances which compromitted their neutrality." Mr. Marcy, Sec. of State, to Mr. Buchanan, Apr. 13, 1854. MSS. Inst., Gr. Brit. nual message, 2d sess., 35th Cong., Senate Ex. Doc., 1; correspondence "The Trent, though she carried mails, was a contract or merchant vessel--a common carrier for hire. Maritime law knows only three classes of vessels-vessels of war, revenue vessels, and merchant vessels. The Trent falls within the latter class. Whatever disputes have existed concerning a right of visitation or search in time of peace, none, it is supposed, has existed in modern times about the right of a belligerent in time of war to capture contraband in neutral and even friendly merchant vessels, and of the right of visitation and search, in order to determine whether they are neutral, and are documented as such according to the law of nations." Mr. Seward to Lord Lyons, Dec. 26, 1861. MSS. Notes, Gr. Brit. See as to this case, infra, §§ 328, 374. "When vessels belonging to citizens of the United States have been seized and are now navigated on the high seas by persons not representing any Government or belligerent power recognized by the United States, such vessels may be captured and rescued by their owners, or by United States cruisers acting for such owners; and all force which is necessary for such purposes may be used to make the capture effectual." Report of solicitor of Department of State, affirmed by Mr. Bayard, Sec. of The right of search is not a right wantonly to vex and harass neutral commerce, or to indulge the idle and mischievous curiosity of looking into neutral trade, or the assumption of a right to control it. It is a right growing out of, and ancillary to, the right of capture, and can never exist except as a means to that end. The Nereide, 9 Cranch., 388. As a belligerent right it cannot be questioned, but it must be conducted with as much regard to the rights and safety of the vessel detained as is consistent with a thorough examination of the character and voyage. Any detention of the vessel beyond what is necessary is unlawful, as is also any transgression of the bounds within which the examination should be confined. The Anna Maria, 2 Wheat., 327. To detain for examination is a right which a belligerent may exercise over every vessel, not a national vessel, that he meets with on the ocean. The Eleanor, ibid., 345. It is lawful, in order to facilitate the exercise of the right of search, to assume the guise of a friend or of an enemy. If, in consequence of the use of this stratagem, the crew of the vessel detained abandon their duty before they are actually made prisoners of war, and the vessel is thereby lost, the captors are not responsible. · Ibid. The modern usages of war authorize the bringing of one of the principal officers on board the cruising vessel, with his papers, for examination. But in a case of detention merely for search, where the vessel is never actually taken out of the possession of her own officers, the captain of the cruiser may detain the vessel by orders from his own quarter-deck, and the officers of the captured vessel must obey at their peril. Ibid. The right of search is strictly a belligerent right. The Antelope, 10 Wheat., 66; The Marianna Flora, 11, ibid., 1. A vessel and cargo, even when perhaps owned by neutrals, may be condemned as enemy property because of the employment of the vessel in enemy trade, and because of an attempt to violate a blockade and to elude visitation and search. The Baigorry, 2 Wall., 474. The captain of a merchant steamer when brought to by a man-ofwar, is not privileged from sending his papers on board, if so required, by the fact that he has a Government mail in his charge. On the contrary, he is bound by that circumstance to strict performance of neutral duties and to special respect for belligerent rights. The Peterhoff, 5 Wall., 28. A cruiser of one nation has a right to know the national character of any strange ship he may meet at sea; but this right is not a perfect one, and the violation of it cannot be punished by capture and condemnation nor even by detention. The party making the inquiry must put up his own colors, or in some other way make himself fully known, before he can lawfully demand such knowledge from the other vessel. If this be refused, the inquiring vessel may fire a blank shot, and, in case of further delay, a shotted gun may be fired across the bows of the delinquent, by way of positive summons. Any measures beyond the summoning shot, which the commander of an armed ship may take for the purpose of ascertaining the nationality of another vessel, must be at his peril; for the right of a ship to pass unmolested depends upon her actual character, and not upon that which was erroneously attributed to her, even though her own conduct may have caused the mistake. The latter may affect the amount of reparation, but not the lawfulness of the act. 9 Op., 455, Black, 1860. The right of a public ship to hail or speak with a stranger must be exercised within the same limits as that of any other authorized armed vessel. When a vessel thus interrogated answers either in words or by hoisting her flag, the response must be taken for true, and she must be allowed to keep her way. But this right of inquiring can be exercised only on the high seas, and is limited to time of peace. Ibid. The right of search, as a belligerent right, is limited as follows: (a) A neutral ship is not to be ordinarily searched when on a voyage between two neutral ports. (b) As a belligerent right it can only be exercised when war is raging. (c) It was to be under direction of the commanding officer of the belligerent ship, and through the agency of an officer in uniform. (d) It must be based on probable cause; though the fact that this cause turned out afterwards to be a mistake, does not of itself make the arrest wrongful. (See Lushington, Prize Law, §§ 25, 94. But wanton capturing without such cause subjects the captor to damages. The Thompson, 3 Wall., 155; The Dashing Wave, 5 Wall., 170.) (e) Contraband goods cannot ordinarily be seized and appropriated by the captor. His duty is to take the vessel into a prize court, by whom the question is to be determined. (As to prize courts, see infra, § 329; as to contraband, infra, § 368.) (f) Where the right exists, a belligerent cruiser is justified in enforcing it by all means in his power. (Lawrence on Visitation and Search.) (g) In case of violent resistance to a legitimate visitation, the vessel so resisting may be open to condemnation by a prize court as prize. But this is not the case with mere attempt at flight. And there should be no condemnation of a neutral vessel whose officers, having no reasonable ground to believe in the existence of war, resisted search. (Field's Int. Law, § 871.) (h) The right of search, so it is held by the powers of continental Europe, is not to be extended to neutral ships sailing under the convoy of a war ship of the same nation. This view, however, has not been accepted by Great Britain. But in any view, the commanding officer of the convoy must give assurance that the suspected vessel is of his nationality, under his charge, and has no contraband articles on board. (Twiss, Law of Nations, part ii, § 96, maintains it to be a clear maxim of law that "a neutral vessel is bound in relation to her commerce to submit to the belligerent right of search." It is not competent, therefore, he insists, for a neutral merchant to exempt his vessel from the belligerent right of search, by placing it under the convoy of a neutral or enemy's man-of-war. See Kent Com., i, 154.) The doctrine of our courts in this relation is stated above. Mere evasive conduct, or subterfuges, which might be the result of ignorance or terror, are not conclusive proof of culpability. The Pizarro, 2 Wheat., 327. Even throwing papers overboard is open to explanation, and, without other proof, does not conclusively show that the cargo was enemy's property. (1 Kent Com., 158, Holmes's note, citing the Ella Warley, Blatch. Pr., 204, and other cases in same volume; The Johanna Emilie, Spink's Prize C., 12. And see remarks by Mansfield, C. J., in Bernardi v. Motteux, Dougl., 581; "The right of search," according to Dr. Woolsey (Int. Law, § 190), "is by its nature confined within narrow limits, for it is merely a method of ascertaining that certain specific violations of right are not taking place, and would otherwise be a great violation itself of the freedom of passage on the common pathway of nations. In the first place, it is only a war right. The single exception to this is spoken of in §194, viz, that a nation may lawfully send a cruiser in pursuit of a vessel which has left its port under suspicion of having committed a fraud upon its revenue laws, or some other crime. This is merely the continuation of a pursuit beyond the limits of maritime jurisdiction with the examination conducted outside of these bounds, which, but for the flight of the ship, might have been conducted within. In the second place, it is applicable to merchant ships alone. Vessels of war, pertaining to the neutral, are exempt from its exercise, both because they are not wont to convey goods, and because they are, as a part of the power of the state, entitled to confidence and respect. If a neutral state allowed or required its armed vessels to engage in an unlawful trade, the remedy would have to be applied to the state itself. To all this we must add that a vessel in ignorance of the public character of another, for instance, suspecting it to be a piratical ship, may without guilt require it to lie to, but the moment the mistake is discovered, all proceedings must cease. (§§ 54, 195). In the third place, the right of search must be exerted in such a way as to attain its object, and nothing more. Any injury done to the neutral vessel or to its cargo, any oppressive or insulting conduct during the search, may be good ground for a suit in the court to which the cruiser is amenable, or even for interference on the part of the neutral state to which the vessel belongs." Mr. Seward, in his letter to Lord Lyons of December 26, 1861 (on the Trent case), says: "Whatever disputes have existed concerning a right of visitation or search in times of peace, none, it is supposed, has existed in modern times about the right of a belligerent in time of war to capture contraband in neutral and even friendly merchant vessels, and of the right of visitation and search, in order to determine whether they are neutral and are documented as such according to the law of nations." See Lawrence's Wheaton, pt. iv, chap. iii, § 18. 121 |