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. The right of a publie 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. Black, At. Gen., 1860, 9 Op. 455. 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. Early in August, 1862, Mr. Stuart, British chargé d'affaires ad interim, represented to Mr. Seward, on the strength of information received from British naval officers, that a British steamer had been chased and fired on by a United States cruiser without display of her colors, and had then been captured without any search, and that the senior United States naval officer present had declared that the American cruisers had orders to seize any British vessels whose names had been forwarded to them from the Government at Washington. Mr. Stuart protested against these instructions as being "entirely at variance with the recognized principles of international law." On the 9th of August Mr. Seward communicated to Mr. Stuart a copy of a letter which he had addressed on the preceding day to Mr. Welles, Secretary of the Navy, conveying the direction of the President that certain instructions, which were set forth in the letter, should be issued to naval officers. Instructions were issued by Mr. Welles August 18, 1862. They embodied the substance of Mr. Seward's draft with certain amendments. They contained the following clauses: "First. That you will exercise constant vigilance to prevent supplies of arms, munitions, and contraband of war from being conveyed to the insurgents, but that under no circumstances will you seize any vessel within the waters of a friendly nation. "Secondly. That, while diligently exercising the right of visitation on all suspected vessels, you are in no case authorized to chase and fire at a foreign vessel without showing your colors and giving her the customary preliminary notice of a desire to speak and visit her. "You are specially informed that the fact that a suspicious vessel has been indicated to you as cruising in any limit which has been prescribed by this Department does not in any way authorize you to depart from the practice of the rules of visitation, search, and capture prescribed by the law of nations." Blue Book, North America, No. 5 (1863); Official Records of the Union For the letter of Mr. Seward to Mr. Welles of August 8, 1862, see Parl. October 21, 1888, the American steamer Haytian Republic, while coming out of the Bay of St. Marc, in Hayti, was stopped by the Haytian war steamer Dessalines for an alleged attempt to break a blockade. The commander of the man-of-war then sent a boat load of armed men alongside the Haytian Republic and ordered her master to repair on board the Dessalines with his papers. No officer was sent on board the Haytan Republic to examine her papers, nor were the papers, ship, or cargo examined. The first officer of the Haytian Republic was, on the contrary, taken on board the Dessalines with the passenger list and a statement as to the voyage of the vessel; and he was detained on the Dessalines as a prisoner till her arrival at Port au Prince, when he was sent to the office of the captain of the port, where he was held till set at liberty at the request of the United States minister. By article 24 of the treaty between the United States and Hayti, of November 3, 1864, it was provided that where a ship of war of one of the contracting parties should meet with a neutral vessel of the other the former should remain at a convenient distance and might send its boats, with two or three men only, to examine the papers relating to the ownership and cargo of the vessel, without causing any extortion, violence, or ill-treatment; and that in no case should the neutral party be required to go on board the examining vessel for the purpose of exhibiting his papers or for any other purpose whatever. By article 27 it was further provided that it should not be lawful to remove the master, commander, or supercargo of any captured vessel from on board thereof during the time the vessel might be at sea after her capture, or pending the proceedings against her or her cargo, and that in no case should her officers, passengers, and crew be imprisoned. It was therefore held that the proceedings of the Haytian authorities were in clear violation of the express terms of the treaty, and wholly improper and inadmissible. Mr. Bayard, Sec. of State, to Mr. Preston, Haytian min., Nov. 28, 1888, "13. This right should be exercised with tact and consideration, and in strict conformity with treaty provisions, wherever they exist. The following directions are given, subject to any special treaty stipulations: After firing a blank charge, and causing the vessel to lie to, the cruiser should send a small boat, no larger than a whaleboat, with an officer to conduct the search. There may be arms in the boat, but the men should not wear them on their persons. The officer wearing only his side arms, and accompanied on board by not more than two men of his boat's crew, unarmed, should first examine the vessel's papers to ascertain her nationality and her ports of departure and destination. If she is neutral, and trading between neutral ports, the examination goes no further. If she is neutral, and bound to an enemy's port not blockaded, the papers which indicate the character of her cargo should be examined. If these show contraband of war, the vessel should be seized; if not, she should be set free, unless, by reason of strong grounds of suspicion, a further search should seem to be requisite." U. S. Instructions to Blockading Vessels and Cruisers, General Orders, As to the exercise of visit and search by Spanish cruisers, see War 3. MAIL STEAMERS AND MAILS. $1201. In the postal treaty between the United States and Great Britain of 1848 it was provided that in case of war between the two nations the mail packets should be unmolested for six weeks after notice by either Government that the mail service was to be discontinued, in which case they should have safe conduct to return. 9 Stat. 969. "During the Mexican war, British mail steamers were allowed by the United States forces to pass in and out of Vera Cruz." (Dana's Wheaton, § 504, note 228, p. 659.) "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, 55 Br. & For. State Papers 627, 631. "Lushington (Naval Prize Law, Introd., p. xii) says, that to give up altogether the right to search mail steamers and bags, when destined to a hostile port, is a sacrifice which can hardly be expected from belligerents; citing Desp. of Earl Russell to Mr. Stuart, November 20, 1862, Parliamentary Papers, No. Amer., Nov. 5, 1863." Field, Int. Code, § 862. 66 The right of search is to be exercised with strict regard for the rights of neutrals, and the voyages of mail steamers are not to be interfered with except on the clearest grounds of suspicion of a violation of law in respect of contraband or blockade." Proclamation of the President, Apr. 26, 1898, Proclamations and Decrees during the War with Spain, 77, 78. At the time of the breaking out of the recent war with Spain, a Spanish mail steamship was on a voyage from New York to Havana, carrying a general cargo, passengers, and mails, and having mounted on board two breech-loading Hontoria guns of 9 centimeter bore, and one Maxim rapid-firing gun, and having also on board twenty Remington rifles and ten Mauser rifles, with ammunition for all the guns and rifles, and thirty or forty cutlasses. Her armament had been put on board more than a year before for her own defense, as required by her owner's mail contract with the Spanish Government, which also provided that in case of war that Government might take possession of the vessel with her equipment, increase her armament, and use her as a war vessel, and in these and other provisions contemplated her use for hostile purposes in time of war. Held, that she was not exempt from capture as prize of war by the fourth clause of the President's proclamation of April 26, 1898. The Panama (1900), 176 U. S. 535. "Fourthly. That, to avoid difficulty and error in relation to papers which strictly belong to the captured vessel, and mails that are carried, or parcels under official seals, you will, in the words of the law, 'preserve all the papers and writings found on board and transmit the whole of the originals unmutilated to the judge of the district to which such prize is ordered to proceed;' but official seals, or locks, or fastenings of foreign authorities, are in no case, nor on any pretext, to be broken, or parcels covered by them read by any naval authorities, but all bags or other things covering such parcels, and duly seized and fastened by foreign authorities, will be, in the discretion of the United States officer to whom they may come, delivered to the consul, commanding naval officer, or legation of the foreign government, to be opened, upon the understanding that whatever is contraband or important as evidence concerning the character of a captured vessel will be remitted to the prize court, or to the Secretary of State at Washington, or such sealed bag or parcels may be at once forwarded to this Department, to the end that the proper authorities of the foreign government may receive the same without delay." Instructions issued by the Secretary of the Navy, Aug. 18, 1862, to naval officers of the United States, Official Records of the Union and Confederate Navies, Ser. I., vol. 1, pp. 417, 418. The foregoing instructions were based on a letter of Mr. Seward to Mr. Welles of August 8, 1862. On October 31, 1862, as the result of discussions with the British legation at Washington, Mr. Seward wrote to Mr. Welles saying that it had been thought expedient, where merchant vessels were captured, that "the public mails of any friendly or neutral power, duly certified or authenticated as such, shall not be searched or opened, but be put as speedily as may be convenient on the way to their designated destinations." Mr. Seward added, however, that this was not to protect "simulated mails verified by forged certificates or counterfeited seals." A copy of this letter was communicated by Mr. Seward to the British legation, but Mr. Welles took no notice of it. In April, 1863, Lord Lyons claimed that the course laid down in Mr. Seward's letter should be observed in the case of mails captured on the British vessel Peterhoff. On the 13th of April Mr. Welles wrote to Mr. Seward declining to comply with the request. It appears that when the Peterhoff was brought in, the court at first directed the mails found on board to be opened in the presence of the British consul, who was to select such letters as seemed to him to relate to the culpability of the cargo, and to reserve the rest to be forwarded to its destination. The British consul refused to take such action, protesting that the mail should be forwarded unopened. It was at this juncture that Lord Lyons appealed to Mr. Seward. As Mr. Welles refused to yield to Mr. Seward's wishes, the latter appealed to the President, who addressed a series of interrogatories to each of the two officials. They both responded, but it seems that Mr. Welles was not advised of the contents of Mr. Seward's answer. But on April 21, 1863, Mr. Seward wrote to Mr. Adams at London that the Peterhoff's mail would be forwarded unopened, and at the same time set forth |