pacity, and that the visiting vessel in truth belongs to the public navy. (4.) This done, there shall be no visit, if the papers are according to rule. Otherwise, the neutral commander, on request of the other, shall detain the merchantmen for visits, which shall be made in the presence of officers selected from the two ships of war. (5.) If the commander of the belligerent vessels finds that there is reason in any case for further search, on notice being given of this, the other commander shall order an officer to remain on board the vessel so detained, and assist in examining into the cause of the detention. Such vessel is to be taken to the nearest convenient port belonging to the belligerent, where the ulterior search shall be conducted with all possible despatch.1

The right of convoy, although not yet a part of international law, apparently approaches such a destiny, as it is now received by many jurists, and engrafted into the conventional law of almost all nations. Whether, as some put it, the word of honor of the commander of the convoying vessel ought to be sufficient proof, may fairly be doubted. The French orders to their naval officers, issued in 1854, for the war with Russia, deserve

notice for contemplating this point. "You shall not," say they, "visit vessels which are under the convoy of an allied or neutral ship of war, and shall confine yourselves to calling upon the commander of the convoy for a list of the ships placed under his protection, together with his written declaration that they do not belong to the enemy, and are not engaged in any illicit commerce. If, however, you have occasion to suspect that the commander of the convoy has been imposed upon [que la religion du commandant du convoi a été surprise], you must communicate your suspicions to that officer, who should proceed alone to visit the suspected vessel."

$ 210.

On the ground of mere justice this right cannot be defended. It is said that the commander of the convoying vessel represents the state, and the state guarantees that nothing illicit has

1 See Append. ii., under 1800.

Justice of

convoy.

been put on board the merchantmen. But how can the belligerent know whether a careful search was made before sailing, whether the custom-house did not lend the right of itself to deception? It is only by comity that national vessels are allowed their important privileges; how, except by a positive and general agreement, can those privileges be still further extended, so as to limit the belligerent right of search? On the ground of international good-will, however, the right is capable of defense, and, so far as we can see, except where the protected fleet is far separated by a storm from its guardian, in which case, we suppose the ordinary right of search must be resumed, can be exercised in the interests of belligerents as well as neutrals. The United States have some eleven treaties, in which provision is made for convoy; namely, eight with states of the American continent, and others with Morocco, Tunis, and Italy (1787, 1797, 1871). That with Morocco in 1787, expired in 1837, and provisions in early treaties with France and with the Netherlands seem to be obsolete.

§ 211.

under belligerent

A novel case in international law arose, when, in 1810, Denmark, being at war with England, issued an ordinance, Neutrals declaring to be lawful prize such neutral vessels as had either in the Baltic or the Atlantic made use of convoy. English convoy. A number of vessels from the United States, bound to Russia, had placed themselves under English protection, and on their return, were seized and condemned in Denmark, not for resistance to search, nor for the character of their traffic, but for violating an ordinance to them unknown. The arguments of our negotiator setting forth the injustice of this proceeding, are given at large in Dr. Wheaton's "Elements" (iv., 3, §§ 32, 556-566), and Mr. Manning has expressed a brief opinion on the contrary side, in favor of the Danish rule. (iii., 11, p. 369.) The ships appear to have been engaged in an innocent trade, and to have dreaded the treatment they might meet with from French cruisers, but not to have sought to avoid the allies of the French, the Danes. The case

was a peculiarly hard one, when they were condemned; and this Denmark admitted in 1830, by paying an indemnity to our government for the sufferers. As for the principle on which the case is to be decided, it seems to run between making use of the enemy's flag, and putting one's goods on board an armed enemy's vessel. The former is done to enjoy certain privileges, offered by a party at war, which could not otherwise be secured; the latter may be done without complicity with the intentions or conduct of the captain of the armed ship, or may be done with the design of having two strings to one's bow, of availing one's self of force or not, as circumstances shall require. Upon the whole, the intention to screen the vessels behind the enemy's guns is so obvious that the act must be pronounced to be a decided departure from the line of neutrality, and one which may justly entail confiscation on the offending party.

execute rev

enue laws.

§ 212.

It is admitted by all, that within the waters which may be Search dur called the territory of nations, as within a marine ing peace to league, or in creeks and bays, the vessel of a friendly state may be boarded and searched on suspicion of being engaged in unlawful commerce, or of violating the laws concerning revenue. But further than this, on account of the ease with which a criminal may escape beyond the proper sealine of a country, it is allowable to chase such a vessel into the high sea, and then execute the arrest and search which flight had prevented before. Furthermore, suspicion of offenses against the laws taking their commencement in the neighboring waters beyond the sea-line, will authorize the detention and examination of the supposed criminal. An English statute "prohibits foreign goods to be transhipped within four leagues of the coast without payment of duties; and the act of Congress of March 20, 1799, contained the same prohibition; and the exercise of jurisdiction to that distance, for the safety and protection of the revenue laws, was declared by the Supreme Court in Church v. Hubbard (2 Cranch, 187), to be conformable to the laws and usages of nations." (Kent, i., 31, Lect. ii.)

§ 213.

Search on

piracy.

That kind of right of search, which we have just considered, is an accident of sovereignty in a state of peace, but is confined in its exercise to a small range of suspicion of the sea. The right of search on suspicion of piracy, however, is a war-right, and may be exercised by public vessels anywhere except in the waters of another state, because pirates are enemies of the human race, at war with all mankind. The Supreme Court of the United States has decided that ships of war acting under the authority of government to arrest pirates and other public offenders, may "approach any vessels descried at sea for the purpose of ascertaining their real character." And thus even public vessels, suspected of piracy, may be called to account upon the ocean. Whether the detention of a vessel unjustly suspected of piracy may not be a ground for a claim of damages may be made a question.

1

§ 214.

Search of

vessels havintent, and

ing a hostile

It may happen, as in a rebellion, that a hostile expedition may be surreptitiously fitted out in a friendly country, without the fault of the officials, and that a vessel is on its way to land troops and arms for aid in a civil war. In such a case self-defense authorizes search, and possibly seizure, whether such a vessel is found on the high seas or within the waters of the injured state.

not pirates.

Case of the

Of this the case of the Virginius, which is in some respects like that of the Caroline, is perhaps the most noticeable illustration in recent times. The Virginius, car- Virginius. rying the flag of the United States, and supposed for some time to be a regularly registered vessel of the United States, was captured by a Spanish war-steamer on the high sea, while endeavoring to reach the neutral waters of the island of Jamaica, having been foiled in the attempt to land a party of insurrectionists on the Cuban coast. The capture occurred in the night of October 31, 1873, but the bulletin officially an1 Case of the Marianna Flora, 11 Wheaton, 43.

nouncing it was not published at Havana until November 5. A court was assembled for the trial of the persons taken on the vessel, one hundred and fifty-five in number, of whom four were executed on the 4th of November, thirty-seven on the 7th, and sixteen on the 8th; and the remainder, one hundred and two in number, were delivered on board a United States steamer December 18. There were nine executed who belonged to the United States, and a larger number of British subjects. The summary and informal process, the cruel execution of persons belonging to the crew, even of mariners and cabinboys, met with the just indignation of the world; but in addition to this, unless the Virginius can be shown to be a piratical vessel, the mode of trial was a violation of Article 7 of our treaty of 1795 with Spain, which secures a regular trial, the use of solicitors, agents, etc., and their free access to the subjects or citizens of the one party arrested for offenses committed within the jurisdiction of the other.

The Government of the United States, supposing that our rights on the sea had been violated, as well as that persons illegally captured had been executed cruelly and against treaty, demanded reparation. As the result of negotiations, on the 29th of November, Spain stipulated to restore the Virginius and the survivors, and to salute the flag of the United States on the 25th of December following. If, however, before that date Spain should satisfactorily prove that the Virginius was not entitled to carry the flag of the United States, the salute should be dispensed with, and only a disclaimer of intent of indignity to the flag should be required. Furthermore, the United States engaged on the same condition, to adopt legal proceedings, etc., against the vessel, and the persons who might have violated the laws in relation to the vessel.

It was afterwards proved that the Virginius was not legally a vessel of the United States. The real owners from the first were Spaniards. The oath of the American in whose name she was registered was false. So So says the Attorney-general in a letter to the Secretary of State, dated December 17, 1873,