the treaties of 1668, 1674,2 and 1689. By the Treaty of Utrecht the principle was once more affirmed and recognized in the fullest manner. Up to the peace of 1815, Great Britain may be said to have halted between two opinions. But although she had by numerous engagements departed in practice from the established Law of Nations, she still held the old rule to be the law. Thus from the date of the Napoleonic wars, when her maritime power became assured, she entered into no more similar engagements, and, till the Crimean War, continued to declare the Law of Nations to be1. That a belligerent may take enemy's goods from neutral custody on the high seas. 2. That the carriage of enemy's goods by neutral ships is no offence by law, and consequently not only does not involve the neutral ship in penalty, but entitles it to its freight from its captors as a condition precedent to any interference with it on the high 4 seas. To the question whether, in the event of war between Great Britain and Russia in 1854, bona fide British property, the produce of Russia, would be privileged from seizure, if shipped in neutral vessels, the Earl of Clarendon replied that such property, if exported from Russia by and on account of British merchants domiciled and trading there, although purchased before the war and exported to England, would not be respected by British cruisers unless in pursuance of a licence or of some special instructions to the officers of the navy. "By the law and practice of nations," he added, "a belligerent has a right to consider as enemies all persons who reside in a hostile country or who maintain commercial establishments therein; whether such persons be by birth neutrals, allies, enemies, or fellow-subjects; the property of such persons exported from such country is therefore res hostium, and, as such, lawful prize of war. Such property will be condemned as prize, although its owner may be a native-born subject of the captor's country, and although it may be in transitu to that country; and its being laden on board a neutral ship will not protect the property." Thus, in 1854, Great Britain and France held diametrically opposite views. The latter Power respected enemy's goods in neutral bottoms, and confiscated neutral goods on board enemy's ships; whilst the former confiscated enemy's goods on neutral ships, and respected neutral goods on enemy's ships. The situation was an impossible one for neutrals. Between the two theories there would have been no loophole of escape. Accordingly each Power abandoned part of its theories, and each acceded to part of its 1 Ibid., VII, I, 49. 3 Dumont, VII, II, 236. State Papers, 1853-4, Vol. XLIV, 105–9. 2 Schmauss, I, 979. 4 Hall, "Inter. Law,” 5th ed. 691. ally's theories, and out of the compromise was evolved the present rule A neutral flag covers enemy's goods, except contraband of war; neutral goods, except contraband of war, are not liable to seizure under the enemy's flag. According to the Earl of Clarendon, who defended the Declaration of Paris in the House of Lords, these provisions were in accordance with the jus naturæ principle of reason and justice, and the communis gentium consensus. Every other maritime power in the world had, he declared, protested against our practice, which was not consonant to the general practice of Europe.1 Neutral goods on enemy's ships still liable to incidental loss.-Although free, neutral goods are still liable to incidental losses arising from contamination with a belligerent ship. The owner is not therefore entitled to be indemnified for damage sustained through the loss of time or markets. Neither is he entitled to compensation for the total or partial loss of the goods which are destroyed with the ship owing to the necessities of the captors. In the case of two German ships, the "Ludwig" and the "Vorwärts," where the neutral goods had been destroyed with the ships, it was decided by the French Prize Court in 1872, that though "under the terms of the Declaration of Paris neutral goods on board an enemy's vessel cannot be seized, it only follows that the neutral who has embarked his goods on such vessel has a right to restitution of his merchandise, or, in case of sale, to payment of the sum for which it may have been sold; and that the Declaration does not import that an indemnity can be demanded for injury, which may have been caused to him either by a legally good capture of the ship or by acts of war which may have accompanied or followed the capture"; and that in this case "the destruction of the ships with their cargoes having taken place under orders of the commander of the capturing ship, because from the large number of prisoners on board no part of the crew could be spared for the navigation of the prize, such destruction was an act of war, the propriety of which the owners of the cargo could not call in question, and which barred all claim on their part to an indemnity." 2 1 Hansard, CXLII, 488-501. 2 Calvo, sec. 3033. CHAPTER V RIGHT OF SEARCH, OR RIGHT OF VISIT AND SEARCH THE HE right to stop, detain, and overhaul merchant vessels on the high seas can only be exercised by belligerent ships of war lawfully commissioned during the continuance of the war. It is now generally conceded by all jurists and accepted by all nations as a rule of International Law, that the right of search belongs to belligerents, and to belligerents only. This right is, as Vattel points out, a logical sequence of the doctrine of contraband. Without the right of search it would become impossible to prevent the carriage of contraband goods. The mere duty of self-preservation gives to belligerent nations this right. "The right of visiting and searching merchant ships upon the high seas," said Sir William Scott in the "Maria," "whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestable right of the lawfully commissioned cruisers of a belligerent nation. I say 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, 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 maritime capture; because if you are not at liberty to ascertain by sufficient inquiry whether there is property that can legally be captured, it is impossible to capture. Even those who contend for the 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. 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 acknowledge it, without the exception of Hubner himself, the great champion of neutral privileges.1 As a proof of the antiquity of this right, it is interesting to observe that it appears to have been recognized as early as 1164 by the maritime Christian and Mohammedan Powers of the Mediterranean.2 A distinction was at one time drawn by the Government of 2 Twiss, Vol. II, 147, 2nd ed. 1 1 Rob., pp. 359-60. Great Britain between the right of visit and the right of search. They contended that in time of peace a ship of war was entitled to visit a merchant vessel in order to ascertain whether she was justly entitled to the protection of the flag under which she was sailing. The reason for this claim was in order to discover the real nationality of vessels suspected of being engaged in the slave trade. It was contended, on the other hand, that there was no such distinction in International Law; that right of visit implied right of search, and that "right of visit" was always used by continental jurists in the sense of right of search; that the terms were, in fact, synonymous, and that no such right of visit in time of peace was known to International Law. Great Britain yielded to these arguments, and in 1858 abandoned her claim. The right of approach, however, has been conceded. Ships of war authorized to arrest pirates and other public offenders may approach any vessel descried at sea for the purpose of ascertaining their real characters. Signals or words only may be exchanged, but if these are ambiguous, and from the information given by others or the behaviour of the vessel is otherwise suspicious, the commanders of the ships of war are not liable in damages for exercising right of search, even if the vessel should prove to be innocent. But if the mistake is inexcusable they will be liable. If the vessel is guilty, then their action is legal ab initio.1 Merchant Vessels.-The right of visitation and search is confined exclusively to private merchant vessels. Public vessels are exempt. This rule is universally admitted by all jurists, and in the practice of all nations. "A public vessel," says Wheaton, "belonging to an independent sovereign is exempt from every species of visitation and search even within the territorial jurisdiction of another State; a fortiori must it be exempt from the exercise of belligerent rights on the ocean, which belongs exclusively to no one nation." The question of how far a public vessel was liable to civil or criminal process in a British port was discussed, but not decided, in the case of the "Prins Frederick." In the United States, however, it was decided in the case of the Exchange v. McFadden that a public vessel of a foreign Power, entering their ports and demeaning herself in a friendly 1 Lawrence, "Inter. Law," 393-5; Halleck, XI, 268. 2 "Elem. Int. Law," Part. IV, ch. III, sec. 18. 3 2 Dodson, 451. 47 Cranch, 116. manner, was exempt from municipal jurisdiction. This exemption was said to be founded, not upon the inherent right of foreign Powers, but upon principles of public comity and convenience, and arose from the presumed consent of nations. This consent might be withdrawn upon notice, without offence, and if after such notice a foreign public ship came into their ports she became amenable to the municipal jurisdiction to the same extent as any other vessel; and, further, that although a public ship and her armament might be exempt, her prize property brought into port was subject to the local jurisdiction for the purpose of examination and inquiry, and in a proper case of restitution. In France there is no interference with the domestic discipline on board foreign merchant vessels, nor with crimes or offences committed by her officers or crew against each other, provided the peace of the port is not disturbed. But if crimes or offences are committed on board against persons not forming part of her officers and crew, or by any other person not a member of the crew, or by the officers and crew against each other whereby the peace of the port is disturbed, then the local authority is entitled to interfere. A vessel admitted into a French port is of right "amenable to the municipal law and its crew to the municipal tribunals for offences committed on board against persons not belonging to the ship, as well as in actions for civil contracts entered into with them." Mail-boats.-Neutral mail steamers and other vessels carrying mails, even although the property of a neutral Government, are not exempt from the ordinary process of the tribunals of a belligerent Power, unless expressly exempted by treaty. But the mere innocent and unconscious carriage of enemy despatches does not incriminate the cargo or the ship. Thus mail-packets are by International Law still liable to visitation and search. For instance, the Russians were clearly within the law when they visited and searched the British mailsteamer "Osiris" in the Mediterranean in May, 1904, in order to discover whether or not she carried Japanese mails. But if the mail-steamer had been the property of the British Government the case might have been different. For instance, in the case of the "Parlement Belge," which was the property of the King of the Belgians as reigning sovereign, it was held that the subordinate and partial use for trading purposes did not take away its public character and deprive it of the immunities thereby conferred. |