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 justiciable 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 [*418] nationality and her identity.(6) 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, under 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, "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) *Surely this reasoning applies to the right of ascertaining the national character of a suspected pirate ir time of peace; and it [*419] (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 nationalite 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. (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.) 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) 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) This 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 proceedings beyond the exchange of *hailing and [*420] signals, must be taken at the risk of the man-of-war(?) 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 carrying 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. "Here, it will be seen, are three classes of cases enumerated, in which the right of Visitation and Search (for such we have shown it to be) (ƒ) 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 Neutralen nicht ausschliessen, da wenigstens immer eine Nachfrage und Nachsuchung nach Contrebande, desgleichen nach der Nationalität des Schiffes, vergönnt werden muss."-Heffters, p. 296, 8 178. (i) Bynkershoek, Q. J. P., 1. 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. (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. c. xvii., for an account of the Treaties authorizing in time of peace the capture of vessels belonging to certain States engaged in this detestable traffic. 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 belonginy to other States, which have by Treaty ceded to Great Britain the Right of Visitation and Search, and which right is attempted to be de feated by fraudulently *bearing the protecting flag of the United [*421] States. The third comprises piratical outlaws, possessing no rightful claim to any flag or national character whatsoever.” (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 visted 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; that, in fact, pirates were no longer formidable, and that piracy was rare. It can scarcely be denied that this argument, whatever may be thought of those which preceded it, was extremely weak. And it is difficult to see why the penalty of costs and damages should not operate as a sufficient check upon the possible abuse incident to the inquiry of ascertaining the national character of the suspected vessel.(o) *It is the language of the Prize Court of the North American [*422] United States that, "Upon the ocean, in time of peace, all possess an entire equality. It is the common highway of all, appropriated to the use of all; and no one can vindicate to himself a superior or exclusive prerogative there. Every ship sails there with the unquestionable right of pursuing her own lawful business without interruption; but, (n) Wheaton on the Right of Search, pp. 153-4. (o) Ibid. The Antelope, 10 Wheaton's (Amer.) Rep., p. 66. The dispute was closed by the Treaty of Washington of 1842. "The parties mutually stipulate that each shall prepare, equip, and maintain in service on the coast of Africa a sufficient and adequate squadron, or naval force of vessels, of suitable numbers and descriptions, to carry in all not less than eighty guns, to enforce, separately and respectively, the laws, rights, and obligations of each of the two countries for the suppression of the Slave Trade; the said squadrons to be independent of each other, but the two Governments stipulating nevertheless to give such orders to the officers commanding their respective forces as shall enable them most effectually to act in concert and co-operation, upon mutual consultation, as exigencies may arise, for the attainment of the true object of this article; copies of all such orders to be communicated by each Government to the other respectively." -Treaty between Great Britain and the United States, dated Washington, 9th Aug., 1842; Hertslet's Treaties, vol. iii. p. 853. whatever may be that business, she is bound to pursue it in such a manner as not to violate the rights of others. The general maxim in such cases is, sic utere tuo, ut non alienum lædas. "It has been argued, that no ship has a right to approach another at sea, and that every ship has a right to draw round her a line of jurisdiction, within which no other is at liberty to intrude. In short, that she may appropriate so much of the ocean as she may deem necessary for her protection, and prevent any nearer approach. "This doctrine appears to us novel, and is not supported by any authority. It goes to establish upon the ocean a territorial jurisdiction, like that which is claimed by all nations within cannon-shot of their shores, in virtue of their general sovereignty. But the latter right is founded upon the principle of sovereign and permanent appropriation, and has never been successfully asserted beyond it. Every vessel undoubtedly has a right to the use of so much of the ocean as she occupies, and as is essential to her own movements. Beyond this, no exclusive right has ever yet been recognized, and we see no reason for admitting *its [*423] existence. Merchant ships are in the constant habit of approaching each other on the ocean, either to relieve their own distress, to procure information, or to ascertain the character of strangers; and hitherto there has never been supposed in such conduct any breach of the customary observances, or of the strictest principles of the Law of Nations. In respect to ships of war sailing, as in the present case, under the authority of their Government, to arrest pirates and other public offenders, there is no reason why they may not approach any vessels descried at sea, for the purpose of ascertaining their real characters. Such a right seems indispensable for the fair and discreet exercise of their authority; and the use of it cannot be justly deemed indicative of any design to insult or injure those they approach, or to impede them in their lawful commerce. On the other hand, it is as clear, that no ship is, under any such circumstances, bound to lie by or wait the approach of any other ship. She is at full liberty to pursue her voyage in her own way, and to use all necessary precautions to avoid any suspected sinister enterprise, or hostile attack. She has a right to consult her own safety; but, at the same time, she must take care not to violate the rights of others. She may use any precautions dictated by the prudence or fears of her officers, either as to delay, or the progress or course of her vogage; but she is not at liberty to inflict injuries upon other innocent parties, simply because of conjectural dangers. These principles seem to us the natural result of the common duties and rights of nations navigating the ocean in time of peace. Such a state of things carries with it very different obligations and responsibilities from those which belong to public war, and is not to be confounded with it.”(p) The law is perhaps as clearly stated as the nature of the case will admit by Mr. Chancellor Kent, (q) when he says, "The inter-visitation of ships at sea is a branch of the law of self-defence, and is, in [*424] point of fact, practised by the public vessels of all nations, in(p) The Marianna Flora, 11 Wheaton's (Amer.) Rep., pp. 42-4. (2) 1 Comment., p. 154, (153,) note (6). cluding those of the United States, when the piratical character of a vessel is suspected. The Right of Visit is conceded for the sole purpose of ascertaining the real national character of the vessel sailing under suspicious circumstances, and is wholly distinct from the Right of Search. It has been termed by the Supreme Court of the United States the right of approach for that purpose ;(q) and it is considered to be well warranted by the principles of public law and the usage of nations."(r) CCCXXVII. Secondly as to where this right may be exercised. This may be considered affirmatively and negatively.(s) Affirmatively it may be exercised, 1st, in the Belligerent's own waters; 2ndly, in those of his enemy, and thirdly, upon the high seas. Negatively, it may not be exercised in the ports, harbours, or territorial waters of a Neutral. The law as to this subject has been already dwelt upon at length in a former part of this work.(t) CCCXXVIII. A delicate question sometimes arises as to the right and duty of a Neutral State with respect to prizes made by Belligerents in violation of Neutrality. The Prize Courts of the United States of North America appear to have laid down sound rules of International Law upon this subject. They rightly hold, that whenever a capture is made by a Belligerent in violation of Neutrality, if the prize come voluntarily within the jurisdiction of the Neutral, it should be restored to its original owner. But this jurisdiction in such cases does not extend beyond the authority to decree restitution of the specific property, with the costs and expenses incurred by the judicial proceeding. The Neutral, it is rightly said by the *North American Courts, must entirely disclaim any right to inflict damages; and it is no part [*425] of the duty of a neutral nation to interpose, upon the mere footing of the Law of Nations, to settle all the rights and wrongs which may grow out of a capture between Belligerents. Strictly speaking, there can be no such thing as a marine tort between the Belligerents. Each has an undoubted right to exercise all the rights of war against the other; and it cannot be a matter of judicial complaint, that they exercised with severity, even if the parties do go beyond those rules which the customary laws of war justify. At least, they have never been deemed to be within the cognizance of the prize tribunals of neutral nations. The captors are amenable to their own Government exclusively for any excess or irregularity in their proceedings; and a neutral nation ought no otherwise to interfere, than to prevent captors from obtaining any unjust advantage by a violation of neutral jurisdiction. Neutral nations may, indeed, inflict pecuniary or other penalties on the parties for any such violation; but this must be professedly in vindication of its own rights, and not by way of compensation to the captured. When called upon by either of the Belligerents to act in such cases, all that justice seems to require is, that the neutral nation should fairly execute its own laws, and give no asylum to the property unjustly captured. It is bound, therefore, to restore the property if found within its own ports; but beyond this it (9) The Marianna Flora, 11 Wheaton's (Amer.) Rep., vol. i. p. 43. (t) Vide ante, vol. i. cc. vi. vii. |