The right of visitation and search of neutral vessels 29. Right at sea is a belligerent right, essential to the exercise of and search.

of visitation

As to the rule, not allowing a vessel to depart which has taken her cargo on board after the blockade was known, Mr. Marcy remarks:-"In some respects I think the law of blockade is unreasonably rigorous towards neutrals, and they can fairly claim a relaxation of it. By the decisions of the English Courts of Admiralty- and ours have generally followed in their footsteps- a neutral vessel which happens to be in a blockaded port is not permitted to depart with a cargo, unless that cargo was on board at the time when the blockade was commenced, or was first made known. Having visited the port in the common freedom of trade, a neutral vessel ought to be permitted to depart with a cargo, without regard to the time when it was received on board." Mr. Marcy to Mr. Buchanan, April 13, 1854. Cong. Doc. The rule here objected to is adopted in the treaties of the United States with Chili, of 1832, and with Peru-Bolivia, of 1836. U. S. Statutes at Large, vol. viii. p. 437, 492.

The instructions of the French government, in the case of the Mexican and Argentine blockades, direct their commanders to oppose, even by force, the entry of neutral ships of war into the blockaded ports. Ortolan, Diplomatie de la Mer, liv. iii. c. 9, tom. ii. p. 334, 2d edit.

Though a blockade is, in its nature, a belligerent act, the blockade of the Turco-Egyptian fleet, at Navarino, in 1827, was instituted during a period of professed peace. Such was also the case as to the blockade of the ports of the Argentine Republic, commencing in 1838, by England and France, and which was submitted to by other nations, though contraband articles destined for those ports were released, on the ground that, notwithstanding the blockade, France was not at war with that Republic. Hautefeuille, Droits des Nations Neutres, tom. ii. p. 423. The war of France with Mexico, which terminated by a treaty of peace in 1839, was preceded by two years of blockade. In the last case, a question, which it was agreed to refer to the arbitration of a third power, arose, on the conclusion of peace, whether the vessels sequestered during the blockade, and before the declaration of war by Mexico, should be restored. However the point, whether a blockade is to be deemed a pacific remedy, may be settled, as regards the parties immediately concerned, it cannot be sustained as to neutrals, otherwise than as a belligerent measure. From the right of conquest exercised over the territorial sea arises the right of blockade, which is the right of jurisdiction accorded by the primitive law to the territorial sovereign; a right by virtue of which he excludes all foreigners from passing through his dominions, and the immediate consequence of which is, to cut off the place surrounded by the conquered territory from all communication with the foreigners beyond it. The duty of these foreigners, of these neutrals, is to respect the law of the territorial sovereignty; they cannot enter his dominions against his consent, without being exposed to the application of the laws, which they violate. A blockade is, then, an act of war. It is the result of a previous act, which can only take place during war the complete conquest and continued possession of a part of the enemy's territory. Ibid. tom. iii. pp. 10, 182.]

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 be ever so strictly limited, and the rule of free ships 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 recognizing the existence of this right.1

The international law on this subject is ably summed up by Sir W. Scott, in the case of The Maria, where the exercise of the right was attempted to be resisted by the interposition of a convoy of Swedish ships of war. In delivering the judgment of the High Court of Admiralty in that memorable case, this learned civilian lays down the three following principles of law :—

1. That the right of visiting and searching merchant-ships on the high seas, whatever be the ships, the cargoes, 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, or the destination 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 right 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

1 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 14. Vattel, Droit des Gens, liv. iii. ch. 7, § 114. Martens, Précis, &c., liv. viii. ch. 7, §§ 317, 321. Galliani, dei Doveri de Principi Neutrali, &c., p. 458. Lampredi, Del Commercio de Popoli Neutrali, &c., p. 185. Klüber, Droit des Gens Moderne de l'Europe, § 293.

is equally clear in practice; for practice is uniform and universal upon the subject. The many European treaties which refer to this right, refer to it as preexisting, and merely regulate the exercise of it. All writers upon the law of nations unanimously acknowledge it, without the exception even of Hubner himself, the great champion of neutral privileges."

2. That the authority of the neutral sovereign being forcibly in-. terposed cannot legally vary the rights of a lawfully commissioned belligerent cruiser. "Two sovereigns may unquestionably agree, if they think fit, as in some late instances they have agreed, by special covenant, that the presence of one of their armed ships along with their merchant-ships shall be mutually understood to imply that nothing is to be found in that convoy of merchantships inconsistent with amity or neutrality; and if they consent to accept this pledge, no third party has a right to quarrel with it, any more than any other pledge which they may agree mutually to accept. But surely no sovereign can legally compel the acceptance of such a security by mere force. The only security known to the law of nations upon this subject, independently of all special covenant, is the right of personal visitation and search, to be exercised by those who have the interest in making it."

3. That the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search. "For the proof of this I need only refer to Vattel, one of the most correct and certainly not the least indulgent of modern professors of public law. In book iii. c. 7, sect. 114, he expresses himself thus:- On ne peut empêcher le transport des effets de contrebande, si l'on ne visite pas les vaisseaux neutres. On est donc en droit de les visiter. Quelques nations puissantes ont refusé en différents temps de se soumettre à cette visite. Aujourd'hui un vaisseau neutre, qui refuseroit de souffrir la visite, se feroit condamner par cela seul, comme étant de bonne prise.' Vattel is here to be considered not as a lawyer merely delivering an opinion, but as a witness asserting a fact-the fact that such is the existing practice of modern Europe. Conformably to this principle, we find in the celebrated French ordinance of 1681, now in force, article 12, That every vessel shall be good prize in case of resistance and combat;' and Valin, in his smaller Commentary, p. 81, says expressly, that, although the expression is in the conjunctive, yet that the resistance alone is

sufficient. He refers to the Spanish ordinance, 1718, evidently copied from it, in which it is expressed in the disjunctive, in case of resistance or combat.' And recent instances are at hand and within view, in which it appears that Spain continues to act upon this principle. The first time it occurs to my notice on the inquiries I have been able to make in the institutes of our own country respecting matters of this nature, except what occurs in the Black Book of the Admiralty, is in the order of council, 1664, art. 12, which directs, That when any ship, met withal by the royal navy or other ship commissionated, shall fight or make resistance, the ship and goods shall be adjudged lawful prize.' A similar article occurs in the proclamation of 1672. I am, therefore, warranted in saying, that it was the rule and the undisputed rule of the British admiralty. I will not say that the rule may not have been broken in upon, in some instances, by considerations of comity or of policy, by which it may be fit that the administration of this species of law should be tempered in the hands of those tribunals which have a right to entertain and apply them; for no man can deny that a State may recede from its extreme rights, and that its supreme councils are authorized to determine in what cases it may be fit to do so, the particular captor having, in no case, any other right and title than what the State itself would possess under the same facts of capture. But I stand with confidence upon all principies of reason,

upon the distinct authority of Vattel, - upon the institutes of other great maritime countries, as well as those of our own country, when I venture to lay it down that, by the law of nations, as now understood, a deliberate and continued resistance to search, on the part of a neutral vessel, to a lawful cruiser, is followed by the legal consequence of confiscation." 1

The judgment of condemnation pronounced in this case was followed by the treaty of armed neutrality, entered into by the Baltic powers, in 1800, which league was dissolved by the death of the Emperor Paul; and the points in controversy between those powers and Great Britain were finally adjusted by the convention of 5th June, 1801. By the 4th article of this convention, the right of search as to merchant vessels sailing under neutral

J Robinson's Adm. Rep. vol. i. p. 340. The Maria.

convoy was modified, by limiting it to public ships of war of the belligerent party, excluding private armed vessels. Subject to this modification, the pretension of resisting by means of convoy the exercise of the belligerent right of search, was surrendered by Russia and the other northern powers, and various regulations were provided to prevent the abuse of that right to the injury of neutral commerce. As has already been observed, the object of this treaty is expressly declared by the contracting parties, in its preamble, to be the settlement of the differences which had grown out of the armed neutrality by "an invariable determination of their principles upon the rights of neutrality in their application to their respective monarchies." The 8th article also provides that "the principles and measures adopted by the present act, shall be alike applicable to all the maritime wars in which one of the two powers may be engaged, whilst the other remains neutral. These stipulations shall consequently be regarded as permanent, and shall serve as a constant rule for the contracting parties in matters of commerce and navigation." 1 (a)

I The question arising out of the case of the Swedish convoy gave rise to several instructive polemic essays. The judgment of Sir W. Scott was attacked by Professor J. F. W. Schlegel, of Copenhagen, in a Treatise on the Visitation of Neutral Ships under Convoy, transl. London, 1801; and vindicated by Dr. Croke in "Remarks on M. Schlegel's Work," 1801. See also "Letters of Sulpicius on the Northern Confederacy," London, 1801. "Substance of the Speech of Lord Grenville in the House of Lords, November 13, 1801," London, 1802. Wheaton's Hist. Law of Nations, pp. 390-420.

(a) [As neutral vessels, under the existing regulations of all the belligerents during the present war, give immunity to enemy's goods, the visitation must be limited to an inquiry, with a view to the seizure of such contraband goods, as may be on board of neutral vessels bound to an enemy's port and to ascertaining the vessel's neutrality.

The treaty of 1801 was annulled, in consequence of the second attack upon Copenhagen and the destruction of the Danish fleet; and the Russian government published, the 26th of October, 1807, a declaration, proclaiming " anew the principles of the armed neutrality, the monument of the wisdom of the Empress Catharine." The maritime convention has since received no sanction in any international stipulations, to which England was not a party. The recent orders and decrees of the belligerents are silent as to convoy. The treaties which the United States made with France, of 30th September, 1800, with Columbia of 3d of October, 1824, with Brazils of 12th December, 1828, with Mexico of 5th of April, 1831, with Chili of 16th of May, 1832, with Peru