of one State cannot search the duly documented vessel of another State in time of peace, and although the right of visitation, if it exists at all (and since its recent announcement by Great Britain, probably no respectable power will claim that it does exist, except in cases of piracy), must be limited, in time of peace, to the sole purpose of ascertaining the national character of a suspected vessel, it is, nevertheless, the incontestable right of the lawfully commissioned cruisers of every belligerent, in time of war, to visit and search, on the high seas, the merchant ships of every nation, whatever may be their character, cargoes, or destination. This right of visitation and search in time of war springs directly from the right of maritime capture; for without the former we must abandon the latter, or so extend it as to authorise the indiscriminate seizure of all merchant vessels that may be found upon the ocean; until they are visited and searched, it would be impossible to know whether or not they are liable to capture, either from the ownership of the vessel, the nature of the cargo, or the character of the voyage. It will be shown hereafter, that while nearly all are agreed as to the general right of visitation and search, there is great diversity of opinion with respect to the circumstances under which a neutral vessel is liable to search, and with respect to the character and extent of the search which the belligerent is authorised to make.1

§ 11. Sir William Scott, in the case of the 'Maria' (1 Rob., 360), said, that to visit and search merchant vessels on the high seas, whatever may be the ships, the cargoes, or the destinations, is the indubitable right of the lawfully commissioned cruisers of a belligerent nation, because until they are visited and searched, it is impossible to know the character of a vessel or its destination. This right,' he says, 'is so clear in principle, that no

1 Kent, Com. on Am. Law, vol. i. p. 153; Duer, On Insurance, vol. i. P. 725; Phillimore, On Int. Law, vol. iii. § 325; Martens, Précis du Droit des Gens, §§ 317, 321; Galliani, Dei Doveri de P. Neu., p. 458; Lampredi, Del Commercio de Popoli Neu., p. 185; Kluber, Droit des Gens, Mod., § 293; Hubner, Saisie des Bâtimens Neutres, tome i. pt. ii. p. 227; Azuni, Droit Maritime, tome ii. ch. iii. § 4; the Antelope, 10 Wheat. R., 66; the 'Anna Maria,' 2 Wheat. R., 327; Ortolan, Diplomatie de la Mer, tome ii. ch. vii.; Pistoye et Duverdy, Traité des Prises, tit. v. ch. i.; Bello, Derecho Internacional, pt. ii. ch. viii. § 10; Heffter, Droit International, § 168; Hautefeuille, Des Nations Neutres, tit. xi. ch. i.; De Cussy, Droit Maritime, liv. i. tit. iii. § 15.

man can deny it who admits the right of maritime capture; because if you are not at liberty to ascertain by sufficient inquiry whether there is property that can legally be captured, it is impossible to capture. . . . The right is equally clear in practice, for practice is uniform and universal on the subject. The many European treaties which refer to this right, refer to it as pre-existing, and merely regulate the exercise of it. All writers upon the law of nations unanimously acknowledge it, without the exception of even Hubner himself, the great champion of neutral privileges.'

§ 12. The same view of this question is taken in the United States. Chancellor Kent says that the belligerent right of visitation and search is now 'considered incontrovertible;' and after giving a summary of the opinion of the English High Court of Admiralty in the case of the 'Maria,' he adds, the doctrine of the English Admiralty 'has been recognised, in its fullest extent, by the courts of justice in this country' (the United States). The opinion of Mr. Wheaton is equally decided. The right of visitation and search,' he says, 'of neutral vessels at sea, is a belligerent right, essential to the exercise of the right of capturing enemy's property, contraband of war, and vessels committing a breach of blockade. . . . Indeed, it seems that the practice of maritime captures could not exist without it. Accordingly the textwriters generally concur in recognising the existence of this right.' Chief Justice Marshall, in the case of the Anna Maria,' said that the right to visit and detain for search is a belligerent right which cannot be drawn into question.' Notwithstanding that the ship's papers in this case were perfectly satisfactory, the Supreme Court held that the right to search the ship in order to examine fully as to the character of her trade, was a complete right. The same court, in other cases, have fully sustained Sir William Scott's opinion with respect to the extent of search authorised by the rules of international law.1

§ 13. The Continental publicists admit the general right of visitation and search, as a belligerent right authorised by the rules of international law, but they would restrict its exercise

1 Kent, Com. on Am. Law, vol. i. p. 154; Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 29; the 'Anna Maria,' 2 Wheat. R., 327.

within very narrow limits. Hubner thinks it should be limited to the examination of the papers on board, in order to ascertain the neutrality of the vessel. Rayneval says that it should be limited to the coasts of the belligerents, and ought not to be exercised upon the high seas, any further than may be necessary to ascertain the actual neutrality of the vessel visited, because, he says, a neutral vessel on the high seas has no other duty to perform toward a belligerent than that of showing that she does not belong to the enemy, and that she is not sailing under a false flag; any further examination he deems an act of hostility. Hautefeuille considers that the right of visit may be exercised wherever acts of hostility are permitted; that is, in the territorial seas of the belligerents, and upon the ocean, but not in neutral waters. Moreover, that its object is not merely to ascertain the character of the vessel, whether it be enemy or neutral, but also, if the latter, to ascertain whether it is not violating neutral duty, and thereby rendering itself subject to capture. He, however, limits the examination to the papers produced, and will permit no further investigation where the visiting officer doubts, or pretends to doubt, their genuineness or the truth of their statements. To search for other papers, to interrogate the captain and crew, or to investigate the character of the cargo, he deems an abuse of the right of visit,—acts entirely unauthorised, and which neutrals may and ought to resist with force. Lampredi, Azuni, and Ortolan, are of the opinion that the visit cannot proceed beyond the examination of the papers, except where there is suspicion of fraud. Martens and Massé, though in some respects differing in their views, limit the right of search to the single case where the papers are incomplete or irregular.'

14. The exercise of this right, within its true limits, whatever they may be, implies the right of using lawful force,

1 Hautefeuille, Des Nations Neutres, tit. xii.; Rayneval, De la Liberté des Mers, tome i. chs. 16–28; Hubner, De la Saisie de Bâtimens, tome i. pt. ii. ch. iii.; Ortolan, Dip. de la Mer, liv. iii. ch. vii.; Massé, Droit Commercial, liv. ii. tit. ii. ch. ii.; Martens, Essay sur les Armateurs, ch. ii.; Azuni, Droit Maritime, ch. iii. art. iv.; Lampredi, Commerce des Neutres, § 12; De Cussy, Droit Maritime, liv. i. tit. iii. § 15.

A ship of war which after search captures a merchant vessel without reasonable grounds, and sends her in for adjudication as_prize, is answerable for the capture, not for the search.-'La Jeune Eugénie,' 2 Mason, 439.

if necessary, in its execution, the same as in the execution of a civil process on land. The right of search on the one side implies the duty of submission on the other; and as the belligerent may lawfully apply his force to the neutral property for the purpose of ascertaining its character and destination, it necessarily follows that the neutral may not lawfully resist the lawful exercise of the right of search. This duty of the neutral, says Sir William Scott, is founded on the soundest maxims of justice and humanity. There are no conflicting rights between nations at peace, and the right of search in the belligerent necessarily denies the right of resistance in the neutral. Any attempt, therefore, on the part of the neutral vessel, its owner, officers, or crew, to resist the lawful search of a duly commissioned cruiser of a belligerent power, is a violation of a duty imposed by the laws of war, and incurs a penalty proportioned to the nature of the offence.1

$15. But, although it is the duty of the neutral to submit to the lawful search of the belligerent, and to all acts that are necessary to accomplish that object, it by no means follows that the belligerent is subject to no restraints in the exercise of this right. It is not sufficient that the right is lawful, it must be exercised in a lawful manner. The right is limited to such acts as are necessary to a thorough examination into the real character of the vessel, her cargo, and voyage, and all acts that transcend the limits of this necessity are unlawful. For any improper detention of the vessel, or any unnecessary, and therefore unlawful, violence to the master or crew, the belligerent court of Admiralty is pretty certain to award full compensation in damages; and if this should be denied to the neutral, his own government may demand and enforce the redress of his wrongs. Whatever,' says Phillimore, 'may be the injury that casually results to an individual from the act of another, while pursuing the reasonable exercise of an established right, it is his misfortune. The law pronounces it damnum absque injuria, and the individual from whose act it proceeds is liable neither at law, nor in the forum of conscience. The principal right necessarily carries with it also all the means essential to its exercise. A vessel must be pursued in order to be detained for examination. And if, in the

1

The Maria,' 1 Rob. R., 340; the Eleanor,' 2 Wheat. R., 345.

pursuit, she has been in any way injured (e.g. dismasted, upset, stranded, or even run on shore and lost), it would be an unfortunate case, but the pursuing vessel would be acquitted. The usual mode, adopted by most of the maritime powers of Europe, of summoning a neutral to undergo visitation, is the firing of a cannon on the part of the belligerent. This is called by the French semonce, coup d'assurance, and by the English, affirming gun. It is, undoubtedly, the duty of the neutral to obey such a summons, but there is no positive obligation on the belligerent to fire such an affirming gun, for its use is by no means universal. Moreover, any other method, as hailing by signals, etc., of summoning a neutral to submit to an examination, may be equally as effective and binding as the affirming gun, if the summons is actually communicated to, and understood by, the neutral. The means used are not essential, but the fact of a summons actually communicated, is necessary to acquit the visiting vessels of all damages, which may result to the neutral disobeying it.' 1

§ 16. The penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search. For the proof of this,' says Sir William Scott, I need only refer to Vattel, one of the most correct, and certainly not the least indulgent of modern professors of public law.' He then quotes § 114, ch. vii., liv. iii., of Vattel, Droit des Gens, and continues: Vattel is here to be considered not as a lawyer delivering an opinion, but as a witness asserting a fact-the fact that such is the existing practice of modern Europe.' After referring to other authorities, he closes his remarks on this point with the following emphatic declaration: 'I stand with confidence upon all principles of reason-upon the distinct authority of Vattel-upon the institutes of other great maritime countries, as well as those of our own country, when I venture to lay it down that, by the law of nations, as now understood, a deliberate and continued resistance to search, on the part of a neutral vessel, to a lawful cruiser, is followed by the legal consequence of con

1 Ortolan, Diplomatie de la Mer, tome ii. ch. vii.; Phillimore, On Int. Law, vol. iii. §§ 331-333; Heffter, Droit International, § 169: Hautefeuille, Des Nations Neutres, tit. xi. ch. ii.; the 'Jeune Eugénie,' 2 Mason R., 439; the 'Mariana Flora,' 11 Wheat. R., 48; the 'Nereide,' 9 Cranch. R., 392; Bello, Derecho Internacional pt. ii. cap. viii. § 10.