66 • In ish Convoy. maritime capture, because if you are not at liberty to ascertain by sufficient enquiry whether there is property which can be legally captured, it is impossible to capture. Even those who contend for The Swedthis inadmissible rule, that free ships make free goods, must admit the exercise of this right at least, for the purpose of ascertaining whether the ships are free ships or not. The right is equally clear in practice, for the practice is uniform and universal upon the subject 73. " "We cannot prevent the carriage of contraband goods," says Vattel", "with- Vattel. out searching neutral vessels that we meet at sea; we have, therefore, a right to search them. order to enforce the rights of belligerent Nations against the delinquencies of neutrals, and to ascertain the real as well as the assumed character of all vessels on the High Seas, the Law of Nations arms them with the practical power of visitation and search." Such is the language of Mr. Chan- Chancellor cellor Kent, who goes on to say, "Neutral Nations have frequently been disposed to question and resist the exercise of this Right. This was particularly 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 Convention denied, and the flag of the State was declared to be tic Powers. 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 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 73 The Maria, 1 Robinson, p. 36. 74 Droit des Gens, L. III. c. 7. § 114. Martens, Précis, L. VIII. PART II. c. 7. § 321. 75 Commentaries on American Law, Tom. I. p. 153. N Kent. of the Bal 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." Mr. Wheaton. Wheaton 76 coincides in this opinion, when he says the Right of Visitation and Search 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. Even if the right of capturing enemy's property at sea be ever so strictly limited, and the rule of free ship free goods be adopted, the Right of Visitation and Search is essential, in order to determine whether the ships themselves are neutral, and documented as such, according to the Law of Nations and Treaties; for, as Bynkershoek" observes, it is lawful to detain a neutral vessel in order to ascertain, not by the flag merely, which may be fraudulently assumed, but by the documents themselves on board, whether she is really neutral." Indeed, it seems that the practice of maritime captures could not exist without it. Accordingly the text writers generally concur in recognising the existence of this Right78. Right of Approach. 66 § 92. The Right of Approach on the High Seas, in time of war, may be distinguished from the Right of Visitation and Search. Upon the general question of the Right of Approach on the High Seas, it may be justly said that no vessel has any exclusive Right to the use of the ocean beyond that extent of it which the vessel physically occupies, and which is essential for her movements. Merchant ships, accordingly, are in the habit of approaching one an 76 Elements, Pt. IV. c. 3. § 29. c. 14. 78 Martens, Précis, L. VIII. c. 7. § 317 and 321. Lampredi, Du Commerce des Neutres, § 12. other within such limits as are consistent with the safety of navigation, either with a view to ascertain the name and character of strangers, or to procure information or assistance. With respect to ships of war sailing under the authority of their Government to maintain the general police of the High Seas and to arrest pirates and other public offenders, there is no reason why they may not approach any vessel descried at sea for the purpose of ascertaining its real character. 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 whom they approach, or to impede them in their lawful commerce. On the other hand, it is as clear, that no ship is under such circumstances bound to lie by, or wait the approach of any other ship. She is at full liberty to pursue her own 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 in regard to delay or in regard to the progress and course of her voyage; but she is not at liberty to inflict injuries upon other innocent parties, simply because of conjectural dangers. These principles seem to be 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 it79. § 93. It is obvious that the Right of Approach 79 The Mariana Flora, 11 Wheaton, p. 43. of Right of and Search. in time of war will be subject to different considerations from those which govern that Right in time of peace. As resistance on the part of a neutral vessel to the Right of Visitation and Search, when sought to be exercised by a lawfully commissioned belligerent cruiser, entails, as a penalty, the condemnation of the ship and cargo by a Court of Prize, it is due to the owners of the neutral vessel and her cargo, that the belligerent cruiser shall so conduct herself, as to leave no doubt in the mind of the master and crew of the neutral vessel of the lawful character of the cruiser, when she approaches for the purpose Regulation of visiting the neutral vessel. With this object the Visitation regulation of the exercise of the Right of Visitation and Search has been frequently the subject of treaty-engagements between the European Powers. Lampredi has observed, that as it is an usage of long standing for captains of vessels, whether merchant or armed vessels, to hoist any flag which they think most suitable with the object of deceiving or surprising other vessels and approaching sufficiently near to prevent their escape, the master of a neutral merchant ship cannot with reason be required to stop the course of his vessel upon the mere display of a belligerent flag on board another vessel, inasmuch as he might thereby expose his vessel to be captured by a pirate. by a pirate. Accordingly the neutral master has a right to be assured of the just claim of an armed vessel to visit his ship and cargo, before he can be liable to any penalty for attempting to escape 80. On the other hand, it is an universally received maxim that whoever claims to exercise a right against any person, must commence by proving that he is entitled to the right. There being then two rights at issue, neither of which can be safely abandoned without on the 8c San Juan Baptista, 5 Ch. Rob. p. 34. affirming gun. one hand impairing too much the efficient action. of a belligerent cruiser, and on the other hand endangering too much the safety of the neutral merchant vessel, it has been from time to time the object of various European Powers to come to an understanding with one another as to the forms under which the Right of Visitation and Search should be exercised by belligerent cruisers, so as to relieve, as far as the nature of the subject would allow, the masters of neutral ships from all peril in obeying the summons of a belligerent cruiser. Lampredi1 considers that it is no longer a matter of mere Conventional law, but may be regarded as an established usage, that the flag of a belligerent Rule of an cruiser must immediately after it has been hoisted, as a signal for a merchant vessel to shorten sail, be affirmed by a gun fired with blank cartridge, and further that the cruiser must at such time not approach the merchant vessel so close as to cause the latter to apprehend any but peaceful intentions on its part. Upon the merchant vessel shortening sail, the cruiser is entitled to send a boat's crew on board of her to examine her papers, and if necessary to search her cargo, and the master of the merchant vessel is bound to submit all his papers to examination, and to permit his cargo to be overhauled. Mr. Justice Story is disposed not to admit that Mr. Justice there exists any universal rule or obligation of an affirming gun. "It may be," he observes," the law of the maritime states of the European continent, founded in their own usages or positive regulations. But it does not hence follow that it is binding on all other Nations 82." General Halleck, in his work on General International Law, published since the outbreak of war amongst the North American States, observes, , 81 Du Commerce des Neutres, § 12. 82 The Mariana Flora, 1 1 Wheaton, p. 50. Story. Halleck. |