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: 666 "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 commerce. It 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 the idle and mischievous curiosity of looking into neutral trade? or the assumption of a right to control it? If it be such a substantive and independent right, it would be better that cargoes should be inspected in port before the sailing of the vessel, or that belligerent licenses should be procured. But this is not its character. It [the right of search] has been truly denominated a right growing out of, and ancillary to the greater right of capture. Where this greater right may be legally exercised without search, the right of search can never rise or come into question." Marshall, Ch. J., The Nereide (1815), 9 Cranch, 388, 427. "As neither China nor Japan has made known an intention to exercise the belligerent right of visitation and search on the high seas, it is hoped that neutral commerce may escape the inconvenience and obstruction which the exercise of that right must necessarily entail." Mr. Gresham, Sec. of State, to Mr. Denby, jr., chargé at Peking, Sept. 28, 1894, MS. Inst. China, V. 95. China and Japan, however, both claimed and exercised the right of search during the war of 1894, of course with the acquiescence of the powers. For. Rel. 1894, App. I. 69; Takahashi, International Law during the As to the exercise by France of the right of search in the Tonquin war, "12. The belligerent right of search may be exercised without previous notice, upon all neutral vessels after the beginning of war, to determine their nationality, the character of their cargo, and the ports between which they are trading." Instructions to U. S. Blockading Vessels and Cruisers, General Orders, In the French Chamber, Nov. 24, 1899, Mr. de Montaign complained that a steamer belonging to the French Navigation Company (the Chargeurs Réunis) had lately been stopped and searched by a British man-of-war. Mr. Delcassé, minister of foreign affairs, replied that in time of war a belligerent possessed the right of search, and that, if the steamer had been searched by the British, they had accomplished an act which. was not prohibited by any convention. Concerning the incident itself, however, he had no precise information. The Standard (London), Nov. 25, 1899. 2. MODE OF EXERCISE. § 1200. In the draft convention suggested on January 5, 1804, by Mr. Madison, Secretary of State, to Mr. Monroe, minister to England, occurs the following: "ARTICLE III. If the ships of either of the parties shall be met with, sailing either along the coasts or on the high seas, by any ship of war, or other public or private armed ships of the other party, such ships of war, or other armed vessels shall, for avoiding all disorder in visiting and examining the same, remain out of cannon shot unless the state of the sea, or the place of meeting render a nearer approach necessary; and shall in no case compel or require such vessel to send her boat, her papers, or any person from on board to the belligerent vessel; but the belligerent vessel may send her own boat to the other, and may enter her to the number of two or three men only, who may, in an orderly manner, make the necessary inquiries concerning the vessel and her cargo; and it is agreed that effectual provision shall be made for punishing violations of any part of this article.” On this Mr. Madison makes the following observations: "This regulation is conformable to the law of nations, and to the tenor of all treaties, which define the belligerent claim of visiting and searching neutral vessels. No treaty can be cited, in which the practice of compelling the neutral vessel to send its boat, its officers, its people or its papers, to the belligerent vessel, is authorized. British treaties, as well as those to which she is not a party, in every instance where a regulation of the claim is undertaken, coincide with the article here proposed. 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 in 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 ony 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." Am. State Papers, For. Rel. III. 81, 82, 87. "Another unjustifiable measure is the mode of search practised 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, Am. State Papers, For. As a belligerent right it can not 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. 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. The Eleanor, 2 Wheat. 345. 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. The Eleanor, 2 Wheat. 345. 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 can not be puni hed 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 |