much regard to the rights and safety of the vessel detained as is consistent with a thorough examination of her character and voyage. All that is necessary to this object is lawful, all that transcends it is unlawful (k). Whatever may be the injury that casually results to an individual from the act of another, while in the reasonable exercise of an established right, it is his misfortune. The law pronounces it damnum absque injuriâ, 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 pursuit she has been in any way injured, e.g. dismasted, stranded, or even run on shore and lost, it would be an unfortunate case, but the pursuing vessel would be acquitted. CCCXXXII. The mode of summoning the Neutral to undergo Visitation is by the firing of a cannon-shot on the part of the Belligerent. The distance at which this shall be fired has often been the subject of particular convention, but the name given to it is usually that which is borrowed from the French, viz., semonce, coup d'assurance (1); though it has also been called by Jurists who use the English (k) The Anna Maria, 2 Wheaton's (Amer.) Rep. p. 332. The Eleanor, ib. p. 358. (1) Heffters, s. 169. Lorsque deux vaisseaux de guerre se rencontrent à la haute mer, sous quelque pavillon qu'ils aient navigué jusqu'à ce moment, celui des deux qui désire connaître réellement la nationalité de l'autre, arbore ses vraies couleurs, et tire un coup de canon, soit à poudre, soit à boulet perdu. L'autre bâtiment doit répondre de la même manière, c'est-à-dire, hisser son pavillon, et tirer également un coup de canon à boulet perdu ou à poudre. Ce coup de canon, appelé coup d'assurance, est la parole d'honneur donnée par le commandant, par l'état-major tout entier, que le pavillon qui flotte sur leurs têtes est bien celui de la nation propriétaire du bâtiment."-Hautefeuille, t. iii. pp. 438-9. tongue, the affirming gun. This subject and the general question of damage done to the Neutral in consequence of his neglecting to obey the summons of the Belligerent was much considered by the Judges of the North American United States in the case of the Marianna Flora. 66 66 "We are not disposed" (the American Judge said)" to "admit that there exists any such universal rule or obliga"tion of an affirming gun, as has been suggested at the bar. It may be the law of the maritime States of the European Continent, already alluded to, founded in their own usages or positive regulations, but it does not hence follow that it "is binding upon all other nations. It was admitted, at the "argument, that the English practice is otherwise; and, "surely, as a maritime Power, England deserves to be "listened to with as much respect, on such a point, as any "other nation. It was justly inferred, that the practice of "America is conformable to that of England; and the "absence of any counter proof on the record is almost of "itself decisive. Such, however, as the practice is, even "among the continental nations of Europe, it is a practice adopted with reference to a state of war rather than peace. "It may be a useful precaution to prevent conflicts between “Neutrals, and allies, and Belligerents, and even between "armed ships of the same nation. But the very necessity of the "precaution in time of war arises from circumstances which "do not ordinarily occur in time of general peace. Assuming, "therefore, that the ceremony might be salutary and proper "in periods of war, and suitable to its exigencies, it by no means follows that it is justly to be insisted on at the peril "of costs and damages in peace. In any view, therefore, we "do not think this omission can avail the claimants. 66 66 "Again; it is argued that there is a general obligation "upon armed ships, in exercising the Right of Visitation and "Search, to keep at a distance, out of cannon-shot, and to "demean themselves in such a manner as not to endanger "Neutrals. And this objection, it is added, has been specially provided for, and enforced by the stipulations of 66 66 many of our own Treaties with Foreign Powers. It might "be a decisive answer to this argument, that here no Right "of Visitation and Search was attempted to be exercised. "Lieutenant Stockton did not claim to be a Belligerent "entitled to search Neutrals on the ocean. His commission "was for other objects. He did not approach or subdue the "Marianna Flora, in order to compel her to submit to his "search, but with other motives. He took possession of her, "not because she resisted the Right of Search, but because "she attacked him in a hostile manner, without any reason"able cause or provocation. "Doubtless, the obligation of Treaties is to be observed "with entire good faith and scrupulous care. But, stipu"lations in Treaties having sole reference to the exercise of "the Rights of Belligerents in time of war, cannot, upon any "reasonable principles of construction, be applied to govern "cases exclusively of another nature, and belonging to a "state of peace. Another consideration, quite sufficient to "establish that such stipulations cannot be applied in aid of "the present case, is, that whatever may be our duties to "other nations, we have no such Treaty subsisting with "Portugal. It will scarcely be pretended that we are "bound to Portugal by stipulations, to which she is no party, and by which she incurs no correspondent obliga❝tion. 66 66 Upon the whole, we are of opinion, that the conduct "of Lieutenant Stockton, in approaching, and ultimately "in subduing the Marianna Flora, was entirely justifiable. "The first wrong was done by her, and his own subsequent "acts were a just defence and vindication of the rights and "honour of his country (m), in any Court of International "Justice" (n). In the foregoing sentences the language of the North (m) The Marianna Flora, 11 Wheaton's (Amer.) Rep. pp. 48-50. (n) The Eleanor, 2 Wheaton's (Amer.) Rep. p. 258. 66 66 American Prize Courts has been adopted. It is in perfect harmony with the doctrine of the British Courts of International Law: The right (Lord Stowell observes) of visiting and searching merchant ships, upon the high seas, whatever be the ships, whatever be the cargoes, "whatever be the destinations, is an incontestable right of "the lawfully commissioned cruisers of a belligerent na"tion-be the ships, the cargoes, and the destinations what they may-because, till they are visited and searched, "it does not appear what the ships, or the cargoes, or the "destinations are; and it is for the purpose of ascertaining "these points that the necessity of this Right of Visitation "and Search exists. This right is so clear in principle, "that no man can deny it who admits the legality of mari"time capture; because if you are not at liberty to ascer"tain by sufficient inquiry whether there is property that "can legally be captured, it is impossible to capture. Even "those who contend 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 as clear in practice as in theory; for practice "is uniform and universal upon 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 ac"knowledge it, without the exception even of Hübner. "The right must unquestionably be exercised with as little "of personal harshness and of vexation in the mode as pos"sible; but, soften it as much as you can, it is still a right "of force, though of lawful force-something in the "nature of civil process where force is employed, but a "lawful force, which cannot lawfully be resisted" (o). 66 CCCXXXIII. But a very different principle applies to cases of wilful misconduct on the part of seizors. (0) The Maria, 1 Rob. Adm. Rep. p. 361. If a neutral ship be destroyed by a captor, either wantonly or under an alleged necessity, in which she herself was not directly involved, the captor, or his Government, is responsible for the spoliation. The gravest importance of such an act to the public service of the captor's own State will not justify its commission. The Neutral is entitled to full restitution in value (p). Severe damages ought to be inflicted upon those captors who have behaved with cruelty towards the captured crew, and also for negligence in the care of Prize property (q), e.g. for refusing to receive such nautical assistance as would in all probability have prevented the happening of damages which have actually accrued to the ship (r). The captor who takes his prize, without necessity, to an inconvenient port for adjudication, may be justly mulcted in demurrage, costs, and damages, as the exigency of the case may require (s); and a similar principle governs cases in which the captor has shown an unnecessary delay in proceeding (t). Captors who have made a justifiable seizure may forfeit their title by subsequent misconduct (u). CCCXXXIV. Fifthly. Upon what kind of property this right may be exercised? It may be exercised upon the merchant or the merchant or private ships (p) The Felicity, 2 Dodson's Adm. Rep. p. 381. (q) The Maria and the Vrow Johanna, 4 Rob. Adm. Rep. p. 348. The Concordia, 2 ib. p. 102. The St. Juan Baptista and La Purissima Conception, 5 ib. p. 33. (r) Die Fire Damer, 5 Robinson's Adm. Rep. p. 357. The St. Juan Baptista and La Purissima Conception, ib. p. 33. (s) The Anna, 5 ib. p. 385. The Wilhelmsberg, ib. p. 143. The Principe Athalante, Edwards' Adm. Rep. p. 70. The Catherina Elizabeth, 1 Acton's Adm. Rep. p. 309. (t) The Eliza, ib. p. 336. The Zee Star, 4 Rob. Adm. Rep. p. 71. (u) The Speculation, 2 Robinson's Adm. Rep. p. 296. |