English doctrine recog

chant-ships shall be mutually understood to imply that nothing is to be found, in that convoy of merchant-ships, inconsistent with amity or neutrality'. But no belligerent power can legally be compelled, by mere force, to accept of such a pledge; and every belligerent power who is no party to the agreement has a right to insist on the only security known to the law of nations on this subject, independent of any special covenant, and that is the right of personal visitation and search, to be exercised by those who have an interest in making it. The penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation; and the infliction of this penalty is conformable to the settled practice of nations, as well as to the principles of the municipal jurisprudence of most countries in Europe. There may be cases in which the master of a neutral ship may be authorized, by the natural right of self-preservation, to defend himself against extreme violence threatened by a cruiser grossly abusing his commission; but, except in extreme cases, a merchant-vessel has no right to say for itself, and an armed vessel has no right to say for it, that it will not submit to visitation or search, or to be carried into a proximate port for judicial inquiry. Upon these principles, a fleet of Swedish merchant-ships, sailing under convoy of a Swedish ship of war, and under instructions from the Swedish Government to resist, by force, the right of search claimed by British lawfully commissioned cruisers, was condemned. The resistance of the convoying ship was a resistance of the whole convoy, and justly subjected the whole to confiscation".

The doctrine of the English Admiralty on the right of nized in the visitation and search, and on the limitation of the right,

United
States.

In the treaty of commerce between the United States and the Republic of Chili in 1832, it was agreed that the right of visitation and search should not apply to vessels sailing under convoy. See too the convention between the United States and the Peru-Bolivian Confederacy, Art. XIX.

2 The Maria, 1 Rob. 377. The Elsabe, 4 Rob. 408.

to Search,

has been recognised in its fullest extent by the courts of justice in the United States'. That Government too admits the right of visitation and search by belligerent government vessels of their private merchant-ships for enemy's property, articles contraband of war, or men in the land or naval service of the enemy. But it does not understand the rules of international law to authorize, nor does it admit the right of search for subjects or seamen. The very fact of sailing under the protection Resistance of a belligerent, or neutral convoy, for the purpose of resisting search, is a violation of neutrality. The Danish Government asserted the same principle in its correspondence with the Government of the United States, and in the royal instructions of the 28th of March, 18102; and none of the powers of Europe have called in question the justice of the doctrine". Confiscation is applied by way of penalty for resistance of search to all vessels, without any discrimination as to the national character of the vessel or cargo, and without separating the fate of the cargo from that of the ship.

confined to

ships.

This right of search is confined to private merchant- The right vessels, and does not apply to public ships of war. Their Merchantimmunity from the exercise of any jurisdiction but that of the sovereign power to which they belong, is uniformly asserted, claimed, and conceded. A contrary doctrine is not to be found in any jurist or writer on the law of nations, or admitted in any treaty; and every act to the contrary has been promptly met and condemned. In

1 The Nereide, 9 Cranch, 427. 438. 443. 445. 453. The Marianna Flora, 11 Wheaton, 42.

2

4 Hall's L. Journal, 263. Letters of Count Rosenkrantz to Mr Erving, 28th and 30th of June, and 9th of July, 1811. American State Papers, Vol. VIII. pp. 221.

3 The Austrian ordinance of neutrality of August 7th, 1803, enjoined it upon all their vessels to submit to visitation on the high seas, and not to make any difficulty as to the production of the documentary proofs of property. See Art. VI. Martens' Recueil des Traités, Tom. VIII. p. 106.

4 Thurloe's State Papers, Vol. II. p. 503. Mr Canning's Letter to Mr Monroe, August 3rd, 1807; American State Papers, Vol. vi. p. 89; Edinburgh Review for October, 1807, Art. I.

in foreign

port.

Public ships the English case of the Prins Frederik', the question
was raised, and learnedly discussed, whether a public
armed ship, belonging to the King of the Netherlands,
was liable to civil or criminal process in a British port.
She was brought in, by assistance, in distress, and salvage
was claimed, and the ship was arrested upon that claim,
and a plea to the jurisdiction interposed. The ques-
tion went off by arrangement, and was not decided,
though the immunity of such vessels from all private
claims was forcibly urged, on grounds of general policy
and the usage of nations. "In the United States it was
decided, after great discussion, that a public vessel of war
of a foreign sovereign, at peace with the United States,
coming into their ports, and demeaning herself in a
friendly manner, was exempt from the jurisdiction of the
country." In that interesting case, the schooner Ex-
change, it was shown that the exemption of a public ship
in port from the local jurisdiction was not founded on the
absolute right of another sovereign to such an exemption,
but upon principles of public comity and convenience, and
arose from the presumed consent of nations; that that con-
sent might be withdrawn, upon notice, without just offence;
that if a foreign ship, after such notice, comes into the
port, she becomes amenable to the local laws in the same
manner as other vessels; and that though a public ship
and her armament might be excepted, the prize property
which she brings into port is subject to the local juris-
diction, for the purpose of examination and inquiry, and,
in a proper case, for restitution.

American
Law.

Serving pro

cess on fo

It has also been asserted, on the part of the executive reign ships. authority of the United States, that a writ of habeas corpus may be lawfully awarded, to bring up a subject illegally detained on board a foreign ship of war in their waters. So, also, it was the official opinion of the Attorney-General of the United States, in 1799, that it was lawful to serve civil or criminal process upon a person on board a foreign ship

1 2 Dodson, 451.

2 The schooner Exchange v. McFaddon, 7 Cranch, 116.

of war lying within a harbour of the United States'. But these opinions, of course, do not apply to any process against the ship itself.

The French rules on the subject of crimes and offences French Law. committed on board foreign merchant-vessels in French ports are thus stated by Mons. Ortolan. In the case of acts of mere interior discipline of a vessel, or of crimes and offences committed by a person forming a part of its officers and crew, against another person belonging to the same, where the peace of the port is not disturbed, the French courts hold that the rights of the power to which the vessel belongs should be respected, that the local authority ought not to interfere unless its aid is demanded, and that consequently these acts remain under the police and jurisdiction of the State to which the vessel belongs. But where crimes and offences are committed on board the vessel against persons not forming part of its officers and crew, or by any other individual than those who belong to the vessel, or where they are committed by the officers and crew upon each other, if the peace of the port is thereby disturbed, then the local authority is entitled to interfere; for a vessel admitted into a port of the State is of right subjected to the police regulations of the place, and its crew are amenable to the tribunals of the country for offences committed on board against persons not belonging to the ship, as well as in actions for civil contracts. entered into with them2.

The exercise of the right of visitation and search must be conducted with due care, and regard to the rights and

1 See Opinions of Attorneys-General of the United States, Vol. I. pp. 47, Vol. VII. p. 131 (case of the Sitka), and Vol. VIII. pp. 79, 80 (case of the Atalanta).

2 Ortolan's Règles Internationales de la Mer, Tom. I. pp. 293-298, and the two cases of the Sally and the Newton cited by him in the Appendice Annexe H, p. 441. See also the case of the Carlo Alberto, Sirey, Recueil Général de Jurisprudence, Tom. XXXII. Partie I. p. 578, and Cussy, Droit Maritime, Liv. II. ch. xii. § 11, where will be found M. Dupin's eloquent and learned argument. Wheaton's Elements, Part п. ch. ii. § 9, pp. 201— 208, Edn. 1863, by W. B. Lawrence.

Rescue.

safety of the vessel'. If the neutral has acted with candour and good faith, and the inquiry has been wrongfully pursued, the belligerent cruiser is responsible to the neutral in costs and damages, to be assessed by the prize court which sustains the judicial examination. The mere exercise of the right of search involves the cruiser in no trespass, for it is strictly lawful. But if he proceeds to capture the vessel as prize, and sends her in for adjudication, and there was no probable cause, he is responsible. It is not the search, but the subsequent capture, which is treated in such a case as a tortious act. If the capture be justifiable, the subsequent detention for adjudication is never punished with damages; and in all cases of marine torts, courts of admiralty exercise a large discretion in giving or withholding damages3.

A rescue effected by the crew, after capture, and when the captors are in actual possession, is unlawful, and considered to be a resistance within the application of the penalty of confiscation, for it is a delivery by force from force. And where the penalty attaches at all, it attaches as completely to the cargo as to the ship, for the master acted as agent of the owner of the cargo, and his resistance was a fraudulent attempt to withdraw it from the rights of war".

[The doctrine just stated requires a little explanation, at least with reference to the position of the state to which the rescued ship belongs, and its obligations towards that of the captor.

The rule itself is thus stated, and correctly, by Mr J. Story:"The rights of capture are completely devested

1 The Anna Maria, 2 Wheaton, 327. The right of visitation and search is sometimes laid under special restrictions by convention between maritime states; see, for instance, Art. XVII. of the convention of navigation and commerce between the United States and the Peru-Bolivian Confederacy, May, 1838.

2 2 Mason, 439.

3 II Wheaton, 54-56. Story, J.

4 The Despatch, 3 Rob. 295. Brown v. Union Ins. Co. 5 Day's Rep. 1. Brig Short Staple v. U. S. 9 Cranch, 63.

The Catharina Elizabeth, 5 Rob. 232.