council of April, By an order in council of April 20, 1809, the British orders in ports of Holland, France, and Northern Italy, 1809. were to be placed under blockade, while the rest of the coast, embraced under previous orders, was opened to neutral commerce. Napoleon, as yet, however, relaxed his system of measures in no degree. In 1810, he ordered all British manufactures found in France to be burnt, and the same regulation extended to the states under French supremacy. This would seem to show that the prohibition of trade with England was not rigidly enforced, which was owing in part to the deficiency of the French naval force, and in part to the great demand for British manufactures and the venality of revenue officers. On the other hand, the English, being masters of the sea, were able to make their orders in council good against neutral commerce. It would seem that there was an understanding between the French government and our own, that the Berlin decree should not be put into force against our vessels. Such continued to be the state of things until 1812, when the French government annulled its obnoxious decrees, and the British, upon being made acquainted with the fact, rescinded their retaliatory orders, as far as concerned American goods on American vessels. This took place June the 23d,not in time to prevent the war with Great Britain, which the United States had already begun in the same month, and a principal pretext for which was these same orders in council. $190. The right of In order to enforce the right of preventing neutrals from conveying hostile or contraband goods on their ships, and from breaking blockade, it is necessary that the belligerents should be invested with the right of search or visit. By this is intended the right to stop a neutral vessel on the high seas, to go on board of her, to examine her papers, and, it may be, even her cargo,—in short, to ascertain by personal inspection that she is not engaged in the infraction of any of the rights above enumerated. The right of search is by its nature confined within narrow narrow limits. Confined within limits, for it is merely a method of ascertaining that certain specific violations of right are not taking place, and would otherwise be a great violation, itself, of the freedom of passage on the common pathway of nations. In the first place, it is only a war right. The single exception to this is spoken of in § 194, viz. that a nation may lawfully send a cruiser in pursuit of a vessel which has left its port under suspicion of having committed a fraud upon its revenuelaws, or some other crime. This is merely the continuation of a pursuit beyond the limits of maritime jurisdiction with the examination conducted outside of these bounds, which, but for the flight of the ship, might have been conducted within. In the second place, it is applicable to merchant ships alone. Vessels of war, pertaining to the neutral, are exempt from its exercise, both because they are not wont to convey goods, and because they are, as a part of the power of the state, entitled to confidence and respect. If a neutral state allowed or required its armed vessels to engage in an unlawful trade, the remedy would have to be applied to the state itself. To all this we must add that a vessel in ignorance of the public character of another, for instance, suspecting it to be a piratical ship, may without guilt require it to lie to, but the moment the mistake is discovered, all proceedings must cease. (§§ 54, 195.) In the third place, the right of search must be exerted in such a way as to attain its object, and nothing more. Any injury done to the neutral vessel or to its cargo, any oppressive or insulting conduct during the search, may be good ground for a suit in the court to which the cruiser is amenable, or even for interference on the part of the neutral state to which the vessel belongs. ting to a search. It is plain, from the reality of the right of search, that an Duty of submit obligation lies on the neutral ship to make no resistance. The neutral is in a different relation to the belligerents than the vessels of either of them to the other. These can resist, can run away, unless their word is pledged, but he cannot. Annoying as the exercise of this right may be, it must be submitted to, as even innocent persons are bound to submit to a search-warrant for the sake of general justice. Any resistance, therefore, or attempt to escape, or to get free from the search or its consequences, by force, if they do not bring on the destruction of the vessel at the time, may procure its confiscation, even though it had been engaged in a traffic entirely innocent. Treaties often of search. This delicate right is often regulated by treaties prescribing the distance at which the visiting vessel shall remain from the vessel to be visited, which is in regulate the right general not within cannot-shot; the number of persons to undertake the examination, as that only two besides the oarsmen shall pass to the merchant vessel; and the amount of evidence, which shall satisfy,-as that the ship itself shall not be searched, if the proper papers are on board, unless there is good ground for suspicion that these papers do not give a true account of the cargo, ownership, or destination. it § 191. Is there a right of convoy ? A search at sea is exceedingly annoying, not only because may affect an innocent party, and may cause expensive delays, but also because those who are concerned in it are often insolent and violent. What can be expected of a master of a privateer, or of an inferior officer in the navy, urged perhaps by strong suspicion of the neutral's guilt, but that he will do his office in the most offensive and irritating manner? To prevent these annoyances, governments have sometimes arranged with one another, that the presence of a public vessel, or convoy, among a fleet of merchantmen, shall be evidence that the latter are engaged in a lawful trade. But neutrals have sometimes gone farther than this, they have claimed, without previous treaty, that a national ship convoying their trading vessels, shall be a sufficient guaranty that no unlawful traffic is on foot. The beginnings of such a claim proceeded from the Dutch in the middle of the Historical illustra 17th century, but the first earnest and concerted tions. movement on the part of neutrals for this end, was made near the end of the last century, at which time, also, the principal maritime powers, excepting Great Britain, made treaties establishing the right of convoy between themselves. From this starting point, neutrals went on to claim that this right ought to be regarded as a part of the law of nations, and to employ force, when Great Britain exercised, without respect to the convoy, the right of search on the old plan. In 1798, the convoy of a fleet of Swedish merchantmen, having, in conformity with instructions, taken a British officer out of one of the vessels of commerce, the whole fleet was captured, and Sir William Scott, in the British admiralty court, decided that the act of violence subjected all the vessels to condemnation.* Not long after this, in 1800, a Danish frigate in the Mediterranean, acting as a convoy, fired on the boats sent from British frigates to examine the merchant vessels under its protection. The act was repeated in July of the same year by another frigate of the same nation, then neutral but ill-affected towards England. The frigate, named the Freya, with six trading vessels under its care, met six British ships of war, when the refusal of a demand to search the merchantmen led to acts of hostility, which resulted in the surrender of the Danish national vessel. In consequence, however, of negotiations between the two governments, the ship was released, and it was agreed, on the part of the Danes, that the right of convoy should not be exercised, until some arrangement should be made touching this point. These collisions were one of the reasons for the formation of the second armed neutrality of 1800. In that league the contracting powers (Russia, Sweden, Denmark, and Prussia) laid down the following basis of a right of convoy, and of visit generally: (1.) That the right of visit, exercised by belligerents on vessels of the parties to the armed neutrality, shall be confined to public vessels of war, and never committed to privateers. (2.) That trading vessels of any of the contractants, under convoy, shall lodge with the commander of the convoying vessel their passports and certificates or sea-letters, drawn * Case of the Maria, 1 Robinson's Rep. 340-379. up according to a certain form. (3.) That when such vessel of convoy and a belligerent vessel meet, they shall ordinarily be beyond the distance of cannon-shot from one another, and that the belligerent commander shall send a boat to the neutral vessel, whereupon proofs shall be exhibited both that the vessel of convoy has a right to act in that capacity, and that the visiting vessel in truth belongs to the public navy. (4.) This done, there shall be no visit, if the papers are according to rule. Otherwise, the neutral commander, on request of the other, shall detain the merchantmen for visits, which shall be made in the presence of officers selected from the two ships of war. (5.) If the commander of the belligerent vessels finds that there is reason in any case for further search, on notice being given of this, the other commander shall order an officer to remain on board the vessel so detained, and assist in examining into the cause of the detention. Such vessel is to be taken to the nearest convenient port belonging to the belligerent, where the ulterior search shall be conducted with all possible despatch.* The armed neutrality was succeeded by retaliatory embargoes, and on the 2d of April, 1801, the battle of Copenhagen prostrated the power of Denmark. Conventions were soon afterwards effected between Great Britain and the northern powers, by which they gave up the principle of "free ships, free goods;" and she acceded to their rules of convoy, stipulating also, in addition to the articles we have given above, that detention without due cause, and all acts of wrong, should render the commander of the belligerent force not only liable for damages to the proprietors of the vessels, but obnoxious to punishment. The right of convoy, although not entitled to take a place in the international code, apparently approaches such a destiny, inasmuch as it is now engrafted into the conventional law of almost all nations. Whether, as some put it, the word of honor of the commander of the convoying vessel ought to be * Cited from Heffter, § 170, note 2. See append. II. p. 397. |