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CHAPTER III.

RIGHT OF VISIT AND SEARCH.

CCCXXII. THE next limitation of the general rights of the Neutral is that which flows from his duty to submit to the Rights of Visit and Search on the part of the Belligerent (a).

This important subject will, perhaps, be most conveniently discussed by considering:

1. When the Right of Visit and Search may be exercised. 2. Where it may be exercised.

3. By what kind of force.

4. How it must be exercised.

5. Upon what kind of property.

6. What are the consequences to the Neutral of offering resistance, with or without Convoy, to the exercise of this belligerent right.

7. A reference to the principal Treaties which have affirmed, modified, or taken away, between the contracting parties, this right.

CCCXXIII. First, as to when this Right may be exercised. Even in time of peace it is not lawful for a vessel to sail upon the high seas without any papers on board indicating the nation to which she belongs. Pirates, hostes humani generis, always seizable by everybody, and justici

(a)" According to every known principle of reason, the establishment of any rule of law necessarily implies that the party interested in its observance shall have some means of ascertaining the fact of its violation."-Letters of Sulpicius (IV.) (Lord Grenville).

able everywhere, sail the seas in time of peace. The lawful merchant, on this as well as other accounts, is bound by the general principles of International Law to be furnished with documents proving her nationality and her identity (b). This appears to be an uncontroverted axiom of International Jurisprudence; nevertheless, it is evident that two important consequences flow from it.

1. That a vessel may, under extraordinary circumstances of grave suspicion, be visited in time of peace upon the high seas; for how otherwise could it be ascertained whether or no she carried the proper papers on board? Or for what purpose, if she may not be visited, is she to carry them? (c).

2. It follows that the high seas are not, as is sometimes contended, a place in which no inquiry whatever, in any circumstances, can be exercised by the ships of one State into those of another; though the maintenance of this extreme proposition is necessary to sustain the maxim already so much discussed, that "free ships make free goods.”

CCCXXIV. It is quite true that the Right of Visit and Search is a strictly belligerent right (d). But the Right of Visit in time of peace, for the purpose of ascertaining the nationality of a vessel, is a part, indeed, but a very small part, of the belligerent Right of Visit and Search.

When Bynkershoek argues for the Right of Search in time of war, he points out the necessity of it in these words:

(b) "Un des principes du droit des gens est, que tout navire doit être muni de pièces de bord, qui permettent de constater son identité, et de reconnaître sa nationalité. Tout navire neutre qui, en temps de paix, navigue armé, sans pièces de bord, s'expose à être traité comme pirate."-De Pistoye et Duverdy, Traité des Prises, t. i. p. 416.

(c) "Nous avons dit que le pavillon avait cessé d'être une marque certaine de la nationalité des navires; que tous, marchands et de guerres, ils se permettaient d'arborer des couleurs mensongères.”— De Hautefeuille, t. iii. p. 438.

(d) Le Louis, 2 Dodson's Adm. Rep. p. 210.

La Jeune Eugénie, 2 Mason's (Amer.) Rep. p. 409, and cited in the Antelope, 10 Wheaton's (Amer.) Rep. p. 66.

"Velim animadvertas, eatenus utique licitum esse amicam "navem sistere, ut non ex fallaci forte aplustri, sed ex ipsis instrumentis in navi repertis constet, navem amicam "esse" (e).

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Surely this reasoning applies to the right of ascertaining the national character of a suspected pirate in time of peace; and it may be added, that it appears to have been so considered by no less a jurist than Mr. Chancellor Kent (f).

CCCXXV. Whatever may be the correct opinion with respect to the Right of Visit in time of peace, the right, in time of war, to visit, to search, and to detain for search, is a belligerent right which cannot be drawn into question (g); it is a right which a Belligerent may exercise over every vessel, not being a ship of war, or, as it is sometimes called, a public vessel, that he meets with on the ocean (h); an opinion which I am glad to find supported by Heffters. This right is so rooted in the law and practice of nations, that great institutional writers rather refer to it as acknowledged than vindicate its existence (i).

(e) Q. J. P. c. xiv.

She must at least have a register on board, though that may be sufficient.-1 Paine's (Amer.) Rep. p. 594; 1 Kent's Comment. p. 161 (158), n. (c.)

(f) 1 Commentaries, n. 6 to p. 153.

(g) Merlin, Rép. t. xiii. p. 115.

Le Louis, 2 Dodson's Adm. Rep. p. 244.

The Anna Maria, 2 Wheaton's (Amer.) Rep. p. 332.

(h) "Im Uebrigen kann selbst die Maxime, 'Frei Schiff frei Gut,' das Recht der Untersuchung zu Gunsten der Neutralen nicht ausschliessen, da wenigstens immer eine Nachfrage und Nachsuchung nach Contrebande, desgleichen nach der Nationalität des Schiffes, vergönnt werden muss."-Heffters, p. 296, § 169.

(i) Bynkershoek, Q. J. P. l. i. c. xiv. Valin, Ordonn. 1. iii. t. ix. art. xii. Vattel, 1. iii. c. vii. s. 114.

De Martens, viii. c. 7. s. 321.

Kent, Comm. i. pp. 153-4-5.

Heffters, p. 294. s. 167.

The right of mitigated Visit in time of peace, is sometimes delicately described as the Right of Approach. It is called by the French, droit d'enquête du pavillon, as distinguished from the droit de visite ou de recherche (k); and it is said that this nationality of the flag may be ascertained by signals and hailing, and that even when there is a suspicion of piracy, all proceeding beyond the exchange of hailing and signals, must be taken at the risk of the manof-war (1) who visits. Whether these limitations be just or not, it is unquestionable that the Visit, for the purpose of ascertaining the nationality of the vessel, must be exercised without the Right of Search, which is exclusively incident to a Belligerent.

CCCXXVI. A serious controversy at one time took place between the United States of North America and Great Britain, on account of a claim put forth by the latter Power to detain vessels suspected of being engaged in the Slave-Trade (m), in order to ascertain the nation to which they belonged. The claim was thus expressed by Lord Aberdeen, the then Secretary for Foreign Affairs :

"In certain latitudes, and for a particular object, the "vessels referred to are visited, not as American, but either "as British vessels engaged in an unlawful traffic, and car"rying the flag of the United States for a criminal purpose, "or as belonging to States which have by Treaty ceded to "Great Britain the Right of Search, and which right it is attempted to defeat by fraudulently bearing the protecting flag of the Union; or, finally, they are visited as piratical "outlaws, possessing no claim to any flag or nationality "whatever.

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(k) Ortolan, Dipl. de la Mer, p. 242.

(1) Ib., and note (a) by Mr. Lawrence to his edition of Wheaton's Elem. p. 187.

(m) Vide antè, vol. i. pt. iii. c. xvii. for an account of the Treaties authorising in time of peace the capture of vessels belonging to certain States engaged in this detestable traffic.

"Here, it will be seen, are three classes of cases enu"merated, in which the Right of Visitation and Search (for "such we have shewn it to be) may be exercised under the "British claim. The first class is that of British vessels "engaged in an unlawful traffic, and seeking to screen their "offence under the American flag. The second consists of "vessels belonging to other States, which have by Treaty "ceded to Great Britain the Right of Visitation and "Search, and which right is attempted to be defeated by "fraudulently bearing the protecting flag of the United "States. The third comprises piratical outlaws, possessing "no rightful claim to any flag or national character what"soever" (n).

All these positions were strongly contested by the North American United States. It was said to be impossible to distinguish this right of ascertaining the national character of the vessel from the belligerent right of Visitation: further, that Visitation without Search would be nugatory, and that though the naval officer who visited might be ordered, and might be bound to release the vessel the moment that her national character was ascertained, yet it would always depend upon his judgment whether or no the vessel did or did not belong to any of the three classes mentioned above. That it might be necessary to bring her into the Admiralty Court for a decision upon the point, and that thus, in time of peace, rights exclusively appertaining to war would be frequently exercised. That as to indemnification by costs and damages, first, the obtaining them was uncertain; and, secondly, they would probably be inadequate.

That as to piratical outlaws, the Supreme Court of the United States had holden, that their character must be ascertained by other means than Visitation and Search;

(n) Wheaton, on the Right of Search, pp. 153-4.

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