factory, and no Right of Search without a right to detain the vessel searched if a thorough examination of it reveals circumstances of grave suspicion. 2 All jurists agree that the Right of Search belongs by the common law of nations to belligerents, and to belligerents only. It is, as Judge Story said in the case of the Marianna Flora,1 “allowed by the general consent of nations in time of war and limited to those occasions"; and his statement. may be regarded as universally true, since the abandonment by Great Britain in 1858 of her claim to a Right of Visit in time of peace, in order to discover the real nationality of vessels suspected of being engaged in the slave trade. The exceptions introduced by convention are themselves proof that without special agreement no search can take place except as an incident of warfare. It is equally true that the right does not extend to public vessels. It can be exercised upon merchantmen only. They are bound to submit to search from a lawfully commissioned belligerent cruiser. Resistance to it will bring down certain capture and condemnation upon a ship or cargo otherwise innocent. An enemy merchantman may fight when attacked, but unless it can succeed in beating off the foe its resistance will put it in a worse position than before. A neutral merchantman violates International Law if it makes an attempt to repel belligerent search by force of arms. Success might save it for the moment, but not for long. An international question would be raised between its country and the injured belligerent; and, unless its government wished to provoke complications, some kind of punishment would fall upon it for its unlawful proceeding. But though neutral ships of commerce must submit to belligerent search, neutral menof-war are free from it. Any attempt to enforce it against them would be a gross outrage. Even at the beginning of the present century the British Government disavowed the act of Admiral Berkeley in ordering the vessels of his squad 1 Wheaton, Reports of the Supreme Court, XI., 1. 2 See § 124. ron to search the American ship-of-war Chesapeake for deserters from the royal navy. In consequence of this order a conflict took place between the Chesapeake and the Leopard, and after the surrender of the former four seamen were taken out of her. These unjustifiable and high-handed proceedings nearly led to a war between the two countries in 1807. It was averted at the time by the disavowal of the British Government, and its tender of indemnity to those American citizens who were injured in the action and the families of those who were slain; but unfortunately the dispute as to the right of impressment still went on, and became the chief cause of the War of 1812.1 The search of a neutral public vessel by a belligerent cruiser was an outrage in the first decade of the nineteenth century. It is a moral impossibility to-day. A belligerent vessel may chase under false colors or without colors of any kind; but before it commences the actual work of visit and search it must hoist its country's flag. If hailing is impossible, or if the suspected vessel takes no notice of it, the chasing cruiser may signal her to bring to by using blank cartridge, and then, if necessary, sending a shot across her bows. This is called firing the semonce or affirming gun. Any other signal likely to be understood is equally lawful, but some unmistakable summons is necessary. Not till it has been given and disregarded is the use of force allowed. Into the incidents of a conflict we need not go. They have nothing in common with the procedure of a search. Assuming that the summons of the belligerent cruiser is obeyed, the next step taken by her commander is to send an officer in uniform on board the vessel to be searched. The visiting officer should question the master of the vessel and examine her papers. If any circumstances of suspicion are revealed by his examination, but not otherwise, he is at liberty to call his boat's crew on board and order them to make a thorough search of the vessel. Should 1 Wharton, International Law of the United States, §§ 315 b, 331. the search confirm the suspicions, the commander of the cruiser may take possession of the ship, secure her papers and hold her master and crew as prisoners. But throughout his proceedings he is bound to use courtesy and consideration, and to carry on the search with as little disturbance as possible of the interior economy or navigation of the suspected vessel. The regular course is to send her to the most accessible Prize Court of his own state for adjudication. If the grounds on which the capture was effected turn out to be good, condemnation will ensue, and the captors will receive the proceeds of the sale of the captured property in the form of prize money. If the evidence against the vessel is not conclusive in spite of circumstances of just and reasonable suspicion, she will be released, but her owners will have to bear the expense of detention and delay. But if the capture was effected on frivolous and foolish grounds, the officer responsible for it will be condemned in costs and damages. And the same rule holds good in the more difficult matter of the treatment of vessels suspected of piracy by the cruisers of non-belligerent powers. Being at peace they have no right to search unless the ship they have in view is really a pirate, in which case they are free to go further and capture. But they cannot tell whether the right to seize the vessel exists until they have visited and overhauled her. They must, therefore, be guided by surrounding circumstances. Should the information they have received and the behavior of the vessel when approached give rise to reasonable suspicion that she is a pirate, their commanders are not liable to damages for seizing her, even if it should turn out that her errand was perfectly lawful. But if they have made an inexcusable mistake they must suffer for it. On the other hand, should the vessel be really a pirate, their action is lawful from the beginning and they have performed a meritorious service.1 1 See case of the Marianna Flora in Wheaton, Reports of the Supreme Court, XI., 1. The procedure we have just sketched gives all reasonable security to neutrals against vexatious and unnecessary interference with their vessels and cargoes; but many Euro、 pean writers, in their zeal against belligerent search, have endeavored to surround it with further limitations. They sometimes state as undoubted law rules that are purely theoretical. Hautefeuille, for instance, declares that the searching officer must in no case go beyond an examination of the ship's papers,1 and Ortolan allows further steps to be taken only when there is a suspicion of fraud about the papers.2 Rules like these can be embodied in special conventions by states who wish their ships-of-war to be hampered by them, but they are unknown to the ordinary law of nations, and therefore not binding in the absence of treaty stipulations. Nor can it be said that they would form a desirable addition to the corpus of International Law. We shall see almost immediately that further restrictions upon the present wide right of capturing private property at sea are eminently desirable; but unless maritime warfare is to be made absolutely ineffective for the purpose of weakening an enemy's resources, belligerents must retain the power of seizing contraband goods conveyed in neutral vessels. And as long as capture exists, the means of effecting it must exist also. To deprive search of efficiency is to reduce capture to an expensive farce. No doubt the right of search is exceedingly troublesome to neutrals. It causes their merchantmen much annoyance and some loss, even when they have not rendered themselves liable to detention and condemnation, and naturally their governments endeavor to minimize it. The most persistent move in this direction has been an attempt on the part of several states to secure freedom from belligerent search for neutral ships of commerce sailing under the escort of a ship of war of their own nationality. We shall consider it under the head of Convoy when we deal 1 Droits des Nations Neutres, Tit. IX., Ch. i 2 Diplomatie de la Mer, Liv. III., Ch. vii. with the Law of Neutrality. Here it is sufficient to say that little good can be done by depriving the operations of warfare of efficiency while still allowing them to remain in use. § 211. We have had occasion in the preceding paragraphs to mention a ship's papers on several occasions, but we have not yet explained what is meant by the phrase, and it Ships' papers. will be convenient to do so now. International Law requires every merchantman to carry certain documents, as evidence of her nationality and proof of the real nature and destination of her cargo. She should also have on board a record of her course, written evidence of the ownership of both vessel and cargo, a muster-roll of her crew, and full statements as to any contract concerning the letting and hiring of the vessel and the obligations undertaken by the master with respect to the delivery of the goods under his charge. The exact form and number of these papers differ according to the law of the various maritime countries, but they must always be sufficient to fix the nationality of the ship, her destination, and the ownership of vessel and cargo. A list of the papers required by the law of each civilized state will be found in Manuals of Prize Law issued by the naval authorities of the chief maritime nations and in some of the large works on International Law. The absence of papers will justify detention by a belligerent cruiser, as will also the presence of false papers, or gross irregularities, omissions, or inconsistencies in the papers produced. What is technically called spoliation of papers has given rise to a difference of treatment among the Prize Courts of the leading naval powers. The phrase signifies the wilful destruction of documents by throwing them overboard during a chase, or by any other means. The British and American practice is to regard it as good ground for the capture of 2.g. Hall, International Law, Appendix IL 1 See § 268. |