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1574. In time of peace, according to the law of nations, the armed ships of one nation have no right of visitation or search of the private ships of another, except when, and to the extent in which, it has been conceded by the nation to which the private ship belongs.
1575. PURPOSE.—The only purposes for which search is justified, as between a belligerent and a neutral, are to ascertain the character of a vessel, whether pirate, enemy or neutral, and to ascertain whether, if neutral, she is bound to a blockaded port or carries contraband of war.
Distinctions have been attempted between the right of visitation and search ; but it is vain to attempt to define the limitation between them, for, except to the extent before mentioned, in the case of convoy, where visitation is admitted, the right of reasonable search must be admitted as a consequence. If the flag is false, the papers are probably false, and if so, the cargo may be expected to be contraband; the falsity of the flag and of the papers may be capable of detection only by a more or less rigorous examination of the cargo. But the admission of the right is conditional on its being exercised with care and moderation.
1576. England claimed a right of search for a purpose different from that of contraband; a right to search for deserters from her service, and to impress her own seamen found in neutral merchantmen. This claim was resisted by the United States, and is destitute of foundation. It was an attempt to pursue fugitives from its own into a friendly dominion, and to exercise a municipal authority within the province of another state. It was founded on the pretence of necessity; a pretence which, if a justification, would justify every crime. It is not probable that such a claim will be reasserted.
1577. The pirate is not entitled to use the flag of any nation; he is at war with all, and when he is unmistakably known, he may not only be searched, but captured by any public ship, whatever flag he may have assumed. But in strictness, the ship of one nation has no right to search that bearing the flag of another, on suspicion of piracy. If the result of such a search is the ascertainment of the piratical character, the searcher has not committed any offence; but should the searched vessel prove innocent, and belong to a different nation, not only is compensation due to those interested in her and her cargo for any loss, inconvenience, or delay, but apology and reparation are also due to her sovereign, who should the more or less leniently regard the act according to the reasonableness of the suspicion that the ship was piratical, or if not, that she belonged to the nation whose vessel made the search.
1578. The right of search is a great concession to another state. America most properly refused to permit it in time of peace, on account of the total. inadequacy, as well as uncertainty, of the compensation in cases of mistake. .
1579. It is a concession only to belligerents, a concession to war. It springs out of the congress and conflict of rights. The neutral merchants have a right to traverse the sea, and to carry their commerce to every friendly port, to all the ports of those who are enemies of each other, and to sell their merchandise of every kind and description, from a silk shawl to a ship armed and provisioned; the belligerent has a right to intercept contraband, and to.prevent the interruption of his maritime siege, and, as incidental to those rights, the right of visitation and search. But this power is conceded to the belligerent only on condition that if by mistake he capture innocent vessels, he make full compensation and amends. English prize courts recognized the concession, but the condition was rarely observed.
1580. WHERE.—A belligerent may search the neutral in any part of the open sea, or in the belligerent's own national waters, or in those of her allies, or in the national waters of his enemy and his allies. But a belligerent cannot search any vessel, enemy or neutral, in the national waters of a neutral state.
1581 CONVIC_Bere, toongl z belligerent, is not a theri rigor; it is to be ereresai மற்ற கோர ஈties -par to be a friena, ad oben sbe is found to be neutral upon the stom a friend state, வால்ம ரை பர arise as to the eago sbe beare. If that contain military Kines the penalty is measured, and the punishment is not to be usnecessarily increased. W e it was deemed a right to serve the grids of an enemy in the Deutral ship, the eaptor was under a peculiar duty to alleviate, by all posbible means, the kes and inconvenience which the OW DET o matter at peace with him might sustain from the detentuon of his unoftending vessel, for the purpose of taking out the cargo of his frend search must be conducted as an act of amity, in such a manner that if be detest po offence, the officer who has instituted it may feel that be and those on whom it has been inflicted part as friends.
as friends 1562. The cruiser's signal requiring submission to search should be as inofiensive as practicable,-the exhibition of her own national flag, and firing a gun at first without sbot; there should be the least possible show of hostility. The vennel which institutes the search should, when convenient, remain a mile distant, and send an officer with an ordinary boat's crew. Whatever force is necessary, but no more, may be employed in the exercise of the duty. The officer who conducta it, so long as he acts in a lawful manner, is not responsible for damage which may occur to the ship or crew by her resistance.
1688, On the other hand, the neutral is bound to observe the like courtesy and friendly conduct towards the ships of war and of commerce of each belligerent, whatever sympathy he may entertain for the one, or whatever towards the other may be his sentiments of distrust or dislike. He must exhibit towards each all acts of friendship, and submit complacently to such inconveniences, however distressing, as are indispensable to the rights and conditions of war, and, as one of them, to the due exercise of the right of search.
1584. On the signal from the belligerent, the neutral vessel should exhibit her own national flag, unless already displayed, and should lie-to if required by the cannon.'
1585. Such is the ordinary conduct when the cruiser falls in with a vessel on the sea, or when one under no personal suspicion issues from even a suspected port; but rumour, and often distinct information, attaches such suspicion to a ship starting forth like a courser on the race, that little time is afforded for the interchange of signals, or the ceremonial to which we have referred.
1586. FLIGHT.--A ship is not bound to put herself in the way of, or without necessity to submit to the inconvenience of search, seizure, detention, prize-court expenses, loss of voyage, and other injuries, to gratify the suspicion of persons whose interest it is to suspect, whose right rests in its execution and the power of interception.
1587. Consequently, a ship is justified in escaping by fight and skill in navigation ; she is entitled to pursue her course as speedily, and with as little inconvenience as she can, and to avoid alike cruisers, privateers, pirates, and the storms, rocks, and shoals, and other perils of the sea. She is exercising her right in flying with her cargo of shells and mortars as well as with her cargo of cinnamon and silks. The cruiser is exercising her right in the pursuit. Neither owes allegiance or duty to the other. The chase may seek the sanctuary of her own or any neutral shore; so also may she seek the asylum of the belligerent port, and the shelter and protection of the land batteries of the adversary of her pursuer.
1588. By parity of reason, she is entitled to fly to the floating batteries, the ships of war of either belligerent, to seek protection from the visitation which the pursuer desires to inflict. · 1589. On the same principle, she may fly to the asylum afforded by the armed convoy of another neutral Power; although it is the duty of the coinmander of the convoy, except under convention, to refuse protection to the ships of any nation except his own.
tion, to refue coinmander of neutral Power cum
1590. Flight involves no penalty ; but prize courts have violated this law, and condemned vessels for seeking the protection of the hostile ships.
1591. Flight however involves some degree of suspicion that the cargo will not bear inspection, and, though not sufficient of itself, may give such a colour to other circumstances as to warrant detention for a more rigorous examination than can be prosecuted on the sea.
1592. It is said that the English prize courts were inclined to hold the attempt of a neutral to withdraw from search, simply by flight or evasion, sufficient to warrant their condemning her as prize. (3 Phil. 440, 441.) That is, they will rob a man of his property because he runs away.
1593. The belligerent has small right to complain of the trouble occasioned by the attempt to prevent flight or evasion; it is trivial indeed, when compared with the injury which the exercise of his process inflicts on the commerce of the neutral.
SECTION 9. DETENTION, ARREST, AND CAPTURE. 1594. These are consequences of the right of visitation and search. We have said that the visit is to ascertain whether the vessel is hostile, is freighted with contraband, or meditating the breach of blockade.
1595. The first proceeding is visitation,—that is, inquiry of the officers of the vessel ; if that is satisfactory she may proceed, but if not, the visitation extends to inspection of papers, which may remove all suspicion ; if so, she must be allowed to proceed. But if the inquiry still leave suspicion, she is to be detained for the institution of such search as can be conveniently pursued on the sea under the circumstances of the ships. Suspicion may be satisfied, and the vessel entitled to continue her voyage. It is the duty of the searcher to give a certificate of the result of his visit and examination, to obviate as much as possible the inconvenience of further molestation. Of course, new grounds of suspicion may