cation Mr. Fish, on January 14, 1871, observed that the notice related only to French merchant vessels and made no mention of American merchant ships, and he inquired whether the latter would continue to be exempt from seizure or whether they would be relegated to their rights under Article XIII. of the treaty with Prussia of 1799, which was revived by Article XII. of the treaty of 1828, and which provided that contraband might be detained or preempted, but should not be confiscated. On February 9, 1871, Baron Gerolt communicated to Mr. Fish a telegram from Count Bismarck, saying that the action of Germany in relation to American vessels would of course be governed by the treaty of 1799. Baron Gerolt to Mr. Fish, July 19, 1870, For. Rel. 1870, 216; Mr. Fish to As to the question of the present application of Art. XIII. of the treaty "The high contracting parties agree that, in the unfortunate event of a war between them, the private property of their respective citizens and subjects, with the exception of contraband of war, shall be exempt from capture or seizure, on the high seas or elsewhere, by the armed vessels or by the military forces of either party; it being understood that this exemption shall not extend to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of either party." ART. XII. Treaty between the United States and Italy, Feb. 26, 1871. In 1894, after the outbreak of war between China and Japan, a Japanese bark, the Tenkio Maru, arrived at Taku, China, loaded with railway timber. She was at once seized by the Chinese. They offered, however, to release her if Japan would refrain from molesting Chinese merchant vessels. The Japanese Government agreed to do so, except as to "ships carrying troops, or other contraband of war, or attempting to break blockade." The Chinese authorities signified their willingness to accept these terms, but expressed a desire for a statement from Japan as to what would be considered contraband of war. The Japanese Government declined to define contraband of war, and inquired whether that part of the Chinese declaration of war of August 1, 1894, which directed that Japanese ships entering Chinese ports should be destroyed, would be revoked. The Tsung-li-Yamên, on grounds of national dignity, as well as from an apprehension that the privilege of entering Chinese ports might be perverted to hostile purposes, answered that no part of the imperial edict could be revoked. The negotiations then ended. The Tsung-li-Yamên, while admitting that vessels carrying troops or breaking a blockade would be subject to seizure, desired that, in view of Japan's refusal to define contraband, vessels should be exempted from search for carrying it; but the legation of the United States at Peking refused to submit this proposal to the Japanese Government. It seems the Viceroy Li assented to the proposal of Japan, except as to Japanese vessels being allowed to visit Chinese ports. The Chinese Government, however, decided to restore to her owners the bark Tenkio Maru, which had cleared for Taku before war was declared. For. Rel. 1894, 169–175. Judge Brawley, of the United States district court for the district of South Carolina, in the case of the Spanish steamer Rita, condemned by the decree of the court as enemy's property, June 2, 1898. said: "As this vessel was enemy property, .. it is by the law of nations subject to condemnation and forfeiture. Under the influence of the milder sentiments of recent years, the private property of noncombatants upon land is generally held not liable to seizure as booty by an invading army; and it is to the credit of the Government of the United States that it has sought, on several occasions, to have embodied into the law of nations the more mild and mitigated practice of exempting merchant vessels from capture; but except in isolated cases, provided for by treaty, this policy has not met with general acceptance." Brawley, J., The Rita (1898), 87 Fed. Rep. 925, 926. "Since the conference has its chief reason of existence in the heavy burdens and cruel waste of war, which nowhere affect innocent private persons more severely or unjustly than in the damage done to peaceable trade and commerce, especially at sea, the question of exempting private property from destruction or capture on the high seas would seem to be a timely one for consideration. "As the United States has for many years advocated the exemption of all private property not contraband of war from hostile treatment, you are authorized to propose to the conference the principle of extending to strictly private property at sea the immunity from destruction or capture by belligerent powers which such property already enjoys on land as worthy of being incorporated in the permanent law of civilized nations." Instructions to the American delegates to The Hague Conference, April 18, 1899, For. Rel. 1899, 511, 513, "It now remains to report the proceedings of the conference, as well as our own action, regarding the question of immunity of private property not contraband from seizure on the seas in time of war. From the very beginning of our sessions it was constantly insisted by leading representatives from nearly all the great powers that the action of the conference should be strictly limited to the matters specified in the Russian circular of December 30, 1898, and referred to in the invitation emanating from the Netherlands ministry of foreign affairs. "Many reasons for such a limitation were obvious. The members of the conference were from the beginning deluged with books, pamphlets, circulars, newspapers, broadsides, and private letters on a multitude of burning questions in various parts of the world. Considerable numbers of men and women devoted to urging these questions came to The Hague or gave notice of their coming. "It was very generally believed in the conference that the admission of any question not strictly within the limits proposed by the two circulars above mentioned would open the door to all these proposals above referred to, and that this might lead to endless confusion, to heated debate, perhaps even to the wreck of the conference, and consequently to a long postponement of the objects which both those who summoned it and those who entered it had directly in view. "It was at first held by very many members of the conference that under the proper application of the above rule the proposal (?) made by the American commission could not be received. It required much and earnest argument on our part to change this view, but finally the memorial from our commission, which stated fully the historical and actual relation of the United States to the whole subject, was received, referred to the appropriate committee, and finally brought by it before the conference. "In that body it was listened to with close attention, and the speech of the chairman of the committee, who is the eminent president of the Venezuelan arbitration tribunal now in session at Paris, paid a hearty tribute to the historical adhesion of the United States to the great principle concerned. He then moved that the subject be referred to a future conference. This motion we accepted and seconded, taking occasion in doing so to restate the American doctrine on the subject, with its claims on all the nations represented at the conference. The commission was thus, as we believe, faithful to one of the oldest of American traditions, and was able at least to keep the subject before the world. The way is paved also for a future careful consideration of the subject in all its bearings and under more propitious circumstances." Report of the American delegates to The Hague Conference to the Secretary of State, July 31, 1899, For, Rel. 1899, 513, 518-519 H. Doc. 551-vol 7—31 The Hague conference adopted a resolution expressing the wish that a proposition having for its object the declaration of immunity of private property in war on the high seas should be referred for examination to another conference. The American delegates voted for this resolution, but a few of the powers abstained from voting. For. Rel. 1899, 513, 520. See an address on The Position of the United States in Regard to the "In President McKinley's annual message of December 5, 1898, he made the following recommendation: merce. "The experiences of the last year bring forcibly home to us a sense of the burdens and the waste of war. We desire, in common with most civilized nations, to reduce to the lowest possible point the damage sustained in time of war by peaceable trade and comIt is true we may suffer in such cases less than other communities, but all nations are damaged more or less by the state of uneasiness and apprehension into which an outbreak of hostilities throws the entire commercial world. It should be our object, therefore, to minimize, so far as practicable, this inevitable loss and disturbance. This purpose can probably best be accomplished by an international agreement to regard all private property at sea as exempt from capture or destruction by the forces of belligerent. powers. The United States Government has for many years advocated this humane and beneficent principle, and is now in a position to recommend it to other powers without the imputation of selfish motives. I therefore suggest for your consideration that the Executive be authorized to correspond with the governments of the principal maritime powers with a view of incorporating into the permanent law of civilized nations the principle of the exemption of all private property at sea, not contraband of war, from capture or destruction by belligerent powers.' "I cordially renew this recommendation. "The Supreme Court, speaking on December 11, 1899, through Peckham, J., said: “It is, we think, historically accurate to say that this Government has always been, in its views, among the most advanced of the governments of the world in favor of mitigating, as to all noncombatants, the hardships and horrors of war. To accomplish that object it has always advocated those rules which would in most cases do away with the right to capture the private property of an enemy on the high seas.' "I advocate this as a matter of humanity and morals. It is anachronistic when private property is respected on land that it should not be respected at sea. Moreover, it should be borne in mind that shipping represents, internationally speaking, a much more generalized species of private property than is the case with ordinary property on land-that is, property found at sea is much less apt than is the case with property found on land really to belong to any one nation. Under the modern system of corporate ownership the flag of a vessel often differs from the flag which would mark the nationality of the real ownership and money control of the vessel; and the cargo may belong to individuals of yet a different nationality. Much American capital is now invested in foreign ships; and among foreign nations it often happens that the capital of one is largely invested in the shipping of another. Furthermore, as a practical matter, it may be mentioned that while commerce destroying may cause serious loss and great annoyance, it can never be more than a subsidiary factor in bringing to terms a resolute foe. This is now well recognized by all of our naval experts. The fighting ship, not the commerce destroyer, is the vessel whose feats add renown to a nation's history and establish her place among the great powers of the world." President Roosevelt, annual message, Dec. 7, 1903, For. Rel. 1903, xx. X. VISIT AND SEARCH. 1. A BELLIGERENT RIGHT. § 1199. As to the claim of impressment, see supra, §§ 317-320. Sce, also, supra, §§ 309–316. "The sea is open to all nations; no nation has an exclusive property in the sea." Case of The Resolution, Federal Court of Appeals (1781), 2 Dallas, 19, 22. 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 (1817), 2 Wheat. 345. Is it a substantive and inde "What is this right of search? pendent right wantonly, and in the pride of power, to vex and harass neutral commerce, because there is a capacity to do so? or to indulge |