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country to his own sovereign. The effect of the former despatches is presumed to be hostile; but the neutral country has a right to preserve its relations with the enemy, and it does not necessarily follow that the communications are of a hostile nature. Ambassadors resident in a neutral country, are favourite objects of the protection of the law of nations, and their object is to preserve the relations of amity between the governments; and the presumption is, that the neutral state preserves its integrity, and is not concerned in any hostile design.
In order to enforce the rights of belligerent nations against Right of the delinquencies of neutrals, and to ascertain the real as well as assumed character of all vessels on the high seas, the law of nations arms them with the practical power of visitation and search. The duty of self-preservation gives to belligerent nations this right. It is founded upon necessity, and is strictly and exclusively a wa right, and does not exist in time of peace. All writers upon the law of nations, and the highest authorities, acknowledge the right as resting on sound principles of public jurisprudence, and upon the institutes and practice of all great maritime powers. And if, upon making the search, the vessel be found employed in contraband trade, or in carrying enemy's property, or troops, or despatches, she is liable to be taken and brought in for adjudication before a prize court.
Neutral nations have frequently been disposed to question and resist the exercise of this right. This was particu larly the case with the Baltic confederacy, during the American war, and with the convention of the Baltic powers in 1801. The right of search was denied, and the flag of the state was declared to be a substitute for all documentary and other proof, and to exclude all right of search. Those powers armed for the purpose of defending their neutral
a The Caroline, 6 Rob. 461.
b Fattel, b. 3. c. 7. see. 114. The Maria, 1 Rob. 287. 2 Dodson's Aim. Rep. 245. The Marianna Flora, 11 Wheaton, 42.
pretensions; and England did not hesitate to consider it as an attempt to introduce, by force, a new code of maritime law, inconsistent with her belligerent rights, and hostile to her interests, and one which would go to extinguish the right of maritime capture. The attempt was speedily frustrated and abandoned, and the right of search has, since that time, been considered incontrovertible.
The whole doctrine was very ably discussed in the English High Court of Admiralty, in the case of the Maria, and it was adjudged, that the right was incontestable, and that a neutral sovereign could not, by the interposition of force, vary that right. Two powers may agree among themselves, that the presence of one of their armed ships along with their merchant ships, shall be mutually understood to imply that nothing is to be found, in that convoy of merchant ships, inconsistent with amity or neutrality. But no belligerent power can legally be compelled, by mere force, to accept of such a pledge; and every belligerent power who is no party to the agreement, has a right to insist on the only security known to the law of nations on this subject, independent of any special covenant, and that is the right of personal visitation and search, to be exercised by those who have an interest in making it. The penalty for the violent contravention of this right, is the confiscation of the property so withheld from visitation; and the infliction of this penalty is conformable to the settled practice of nations, as well as to the principles of the municipal jurisprudence of most countries in Europe. There may be cases in which the master of a neutral ship may be authorized, by the natural right of self-preservation, to defend himself against extreme violence threatened by a cruiser, grossly abusing his commission; but, except in extreme cases, a merchant vessel has no right to say for itself, and an armed vessel has no right to say for it, that it will not submit to visitation or search, or to be carried into a proximate port for judicial inquiry. Upon
a 1 Rob. 287.
these principles, a fleet of Swedish merchant ships, sailing under convoy of a Swedish ship of war, and under instructions from the Swedish government to resist, by force, the right of search claimed by British lawfully commissioned cruisers, was condemned. The resistance of the convoying ship was a resistance of the whole convoy, and justly subjected the whole to confiscation."
The doctrine of the English admiralty on the right of visitation and search, and on the limitation of the right, has been recognised in its fullest extent by the courts of justice in this country. The very act of sailing under the protection of a belligerent, or neutral convoy, for the purpose of resisting search, is a violation of neutrality. The Danish government asserted the same principle in its correspondence with the government of the United States, and in the royal instructions of the 10th of March, 1810; and none of the powers of Europe have called in question the justice of the doctrine. Confiscation is applied by way of penalty for resistance of search to all vessels, without any discrimination as to the national character of the vessel or cargo, and without separating the fate of the cargo from that of the ship.
This right of search is confined to private merchant vessels, and does not apply to public ships of war. Their immunity from the exercise of any jurisdiction but that of the sovereign power to which they belong, is uniformly asserted, claimed, and conceded. A contrary doctrine is not to be found in any jurist or writer on the law of nations, or
a The Maria, 1 Rob. 287. The Elsebe, 4 Rob. 408.
The Nereide, 9 Cranch, 427. 438. 443. 445. 453. The Marianna Flora, 11 Wheaton, 42.
c 4 Hall's L. Journal, 263. Letters of Count Rosenkrantz to Mr. Erving, 28th and 30th of June, and 9th of July, 1811.
d The Austrian ordinance of neutrality of August 7th, 1803, enjoined it upon all their vessels to submit to visitation on the high seas, and not to make any difficulty as to the production of the documentary proofs of property.
admitted in any treaty; and every act to the contrary has been promptly met and condemned.
The exercise of the right of visitation and search must be conducted with due care, and regard to the rights and safety of the vessel. If the neutral has acted with candour and good faith, and the inquiry has been wrongfully pursued, the belligerent cruiser is responsible to the neutral in costs and damages, to be assessed by the prize court which sustains the judicial examination. The mere exercise of the right of search involves the cruiser in no trespass, for it is strictly lawful. But if he proceeds to capture the vessel as prize, and sends her in for adjudication, and there was no probable cause, he is responsible. It is not the search, but the subsequent capture, which is treated in such a case as a tortious act. If the capture be justifiable, the subsequent detention for adjudication is never punished with damages; and in all cases of marine torts, courts of admiralty exercise a large discretion in giving or withholding damages.d
a Thurloe's State Papers, vol. 2. p. 503. Mr. Canning's Letter to Mr. Monroe, August 3d, 1807. Edinburgh Review for October, 1807, art. 1. In the case of Prins Frederick, 2 Dodson, 451. the question was raised, and learnedly discussed, whether a public armed ship belonging to the king of the Netherlands, was liable to civil or criminal process in a British port. She was brought in, by assistance, in, distress, and salvage was claimed, and the ship was arrested upon that claim, and a plea to the jurisdiction interposed. The question went off by arrangement, and was not decided, though the immunity of such vessels from all private claims was forcibly urged, on grounds of general policy and the usage of nations. And in this country, in the case of The Schooner Exchange v. M'Faddon, 7 Cranch, 116. it was decided, after great discussion, that a public vessel of war of a foreign sovereign at peace with the United States, coming into their ports, and demeaning herself in a friendly manner, was exempt from the jurisdiction of the country.
b The Anna Maria, 2 Wheaton, 327.
c 2 Mason, 439.
d 11 Wheaton, 54-56. Story, J.
A rescue effected by the crew, after capture, and when the captors are in actual possession, is unlawful, and considered to be a resistance within the application of the penalty of confiscation, for it is a delivery by force from force. And where the penalty attaches at all, it attaches as completely to the cargo as to the ship, for the master acted as agent of the owner of the cargo, and his resistance was a fraudulent attempt to withdraw it from the rights of war.b
A neutral is bound, not only to submit to search, but to have his vessel duly furnished with the genuine documents requisite to support her neutral character. The most material of these documents are, the register, passport, sea letter, muster roll, log book, charter-party, invoice, and bill of lading. The want of some of these papers, is strong presumptive evidence against the ship's neutrality; yet the want of any one of them is not absolutely conclusive. Si aliquid ex solemnibus deficiat, cum equitas poscit, subveniendum est. The concealment of papers material for the preservation of the neutral character, justifies a capture, and carrying into port for adjudication, though it does not absolutely require a condemnation. It is good ground to refuse costs and damages on restitution, or to refuse further proof to relieve the obscurity of the case, where the cause laboured under heavy doubts, and there was prima facie ground for condemnation independent of the concealment. The spoliation of papers is a still more aggravated and inflamed circumstance of suspicion. That fact may exclude further
a The Despatch, 3 Rob. 295. Brown v. Union Ins. Co. 5 Day's Rep. 1.
b The Catharina Elizabeth, 5 Rob. 232.
c Answer to the Prussian Memorial, 1753.
d Danish Instructions, 10th March, 1810. The register of a vessel is the only document which need be orfboard a vessel in time of universal peace, to prove national character. Catlette v. Pacific Ins. Co. 1 Paine, 594.
e Livingston & Gilchrist v. Mar. Ins. Co. 7 Cranch, 544.