visitation Right of § 524. The right of visitation and search of neutral vesand search. sels at sea is a belligerent right, essential to the exercise of the right of capturing enemy's property, contraband of war, and vessels committing a breach of blockade.240 Even if the right accompanied by effective blockade. New Granada, in 1861, announced the closing of certain of her ports, then in the possession of parties to a civil war. The British Government, admitting the right of New Grenada to close ports under her actual jurisdiction and control in time of peace, for reasons of State policy, instructed Admiral Milne to disregard the closing of those ports, unless on the principle of an effective blockade. During the Circassian insurrection, the Russian Government gave notice that certain ports in the hands of the insurgents were under naval surveillance, and that a naval force was stationed there to warn off trading-vessels and prevent all communication, but not making use of the word " blockade." The owner of a British vessel which had been so warned off, and lost her voyage thereby, applied to her government to obtain indemnification from Russia. The government did not, however, urge the claim to a decision; and the subject received no judicial or political determination. Russia seems not to have been willing to call it a blockade, and thus to open questions of belligerent rights with neutrals; yet she did not undertake a simple prohibition, but accompanied it with such force and notice as would have made it effectual as a blockade.]-D. - [24 The Cagliari. — In June, 1857, the Cagliari, a Sardinian merchant-steamer, sailed from Genoa bound to Tunis, when twenty-seven persons, who had embarked as passengers, but whose object was to promote an insurrection and civil war in the kingdom of Naples, rose and compelled the master to go to a small island where some Neapolitan political prisoners were confined. At this island the insurgents released these prisoners, and took them on board; and, sailing for the Neapolitan coast, the insurgents and the released prisoners left the vessel. The master stood out to sea, and was captured by a Neapolitan cruiser beyond the limits of Neapolitan waters. The case was submitted to the decision of a prize court of Naples, by which the vessel was condemned; and the government held her master and crew as prisoners of war at Salerno. Among the crew, were two English engineers, Watt and Park. The Sardinian Government demanded the release of the vessel and crew, on the ground that the master acted under coercion, not suspecting the character of the passengers until they rose, and that at the time of capture he had resumed his lawful voyage. The Neapolitan Government refused the demand, and justified the condemnation on the ground that the vessel had been employed in acts of war against Naples, and denied the innocence of the master and crew. The Sardinian Government obtained opinions from Dr. Twiss and Dr. Phillimore, both of which eminent jurists took the ground that, as the vessel was under Sardinian flag and papers, and in the peace of nations, pursuing her lawful voyage on the high seas, at the time of the capture, it was illegal: she not being at the time under suspicion of a piratical condition, and the seizure not being belligerent, but by municipal law. They held that, for her prior acts, the Neapolitan Government could have recourse only to the government of Sardinia, as in any other case of an alleged wrong-doer who had escaped from its jurisdiction. M. de Cavour brought the matter to the attention of the governments of the principal powers of Europe, who proposed an arbitration under the provisions of the convention of Paris of 1856. The imprisonment of the English engineers, prolonged ten months, and attended with danger to their health, led the British Government to make a separate demand on the king of Naples for their release, by a special envoy, to which demand the king 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 themacceded; not admitting any obligation to release them, but putting it on the ground of humanity to the prisoners, and of favor to England, under the circumstances. The crown lawyers of England had given an opinion that the original seizure was within the law of nations, but that the condemnation was unjustifiable. England further gave pressing advice to the court of Naples to release the vessel, on the ground that, whatever might be said of the seizure, the condemnation was unwarranted, but did not commit herself to an enforcement of the advice. (Speeches of Lord Derby and Lord Malmesbury, April, 1858.) The Neapolitan Government having refused restitution and delayed action on the demand for arbitration until eleven months had passed since the capture, Lord Malmesbury, by a despatch of 25th May, 1858, urged that government to agree at once to the arbitration of a third power, and declared that the delay to release the vessel or agree to arbitration for so long a time, was, in the opinion of the most eminent jurists, a violation of the law of nations, and suggested that the crew of the vessel should be released, under bail, during the arbitration. It was understood that Sardinia was about to make a like demand. The court of Naples placed itself in the attitude of yielding to superior force, and immediately delivered both the vessel and her crew into the hands of the English Consul, as an agent of the British Government, taking no notice of Sardinia; and by that consul they were taken to Genoa, and delivered to the custody of the authorities of Sardinia. After this release, the Neapolitan prize tribunals of last resort proceeded to decide that the Cagliari was reasonably suspected of being engaged in acts which were mixed of war and piracy, and was therefore rightly seized, on the high seas, by a regular cruiser; and that she had been in fact so engaged, with the fault of her master and crew; and pronounced a decree condemning the owners of the Cagliari in costs. If Naples was at war with the insurgents, and in the exercise of recognized maritime belligerent powers, the visit and search were lawful. If the persons lawfully in possession of the vessel had been using her in the service of the insurgents, she was rightfully condemned; and, as there was no pretence of a piratical state at the time when the vessel was searched, that was the only ground for condemnation. If the vessel had been temporarily used against the government, giving aid to its enemy, but had come back into the full possession of her neutral master, and was pursuing her peaceful voyage, there is no precedent justifying condemnation, and the case is novel; although, if taken in the act, or before being fully restored to peaceful custody, the rules of war would sustain a condemnation. (Carolina, Rob. iv. 256.) If Naples was not exercising war-powers against the insurgents, the visit and capture were unjustifiable, except on suspicion that the vessel was a pirate jure gentium; and there was certainly no proof to warrant condemnation on that ground. If she was not in the status of a pirate or outlaw at the time she was seized, as she certainly was not, she should have been restored with her crew, unless condemnable on strictly belligerent grounds. Belligerency between Naples and the insurgents had not been recognized by the other powers, and it does not seem to have been publicly asserted or claimed before by Naples; so that it is not easy to see how her prize tribunals had jurisdiction; and, if they had, the vessel could not have been condemned except upon the ground above stated, for which there is no precedent, — viz., that she had, at a previous period of the voyage, been in the enemy's service by force or fraud practised upon her, although she had regained her neutrality before capture. If Naples was in the exercise of war-powers, and so recognized by the nations concerned, and her prize court selves 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. (a)241 Right of search, how voy. § 525. The international law on this subject is ably affected by summed up by Sir W. Scott, in the case of The Maria, neutral con- 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: Sir W. § 526. 1. That the right of visiting and searching Scott's judgment in merchant-ships on the high seas, whatever be the ships, the Maria. 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 believed the master to have been in complicity throughout, it would seem that, as the vessel was captured on the same voyage, though after return to neutral duty, a decree of condemnation might be sustained. Martens, Causes Célèbres, v. 600. See note 89, ante, Slave Trade - Visit and Search.] — D. (a) 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. [241 Hautefeuille, Droits des Nat. Neutr. tit. 11, 12, and in his pamphlet on the Trent, attempts a distinction between visit and search, and would confine the right of the belligerent to stopping the vessel, and inspecting the papers presented to him, and would make these papers conclusive on the question of nationality, ownership, contraband, and destination. But this is merely a suggestion of the learned commentator as to a possible policy, and has no support of authority either in the practice of nations, or the works of publicists. See notes, ante, 67, Impressment of Seamen; 89, Slave Trade - Visit and Search; 108, Municipal Seizures beyond the Marine League; and 223, Free Ships, Free Goods.]-D. 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 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 even of Hübner himself, the great champion of neutral privileges." 2. That the authority of the neutral sovereign being forcibly interposed 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 merchant-ships 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 done 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 principles 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.” (a) 242 (a) The Maria, Robinson's Adm. Rep. i. 340. [242 Convoy. The history of the subject of convoy may be stated thus :-Belligerents naturally tried to protect their own merchantmen, by sending them under the charge of their ships of war. The whole fleet being belligerents alike, and entitled alike to resist and deceive the common enemy, and alike subject to his right of capture, no objection could arise to their attempts to escape it by force or stratagem. When some of the continental nations were interested as neutrals in resisting altogether, or restricting to the utmost, the right of search, the device was adopted of throwing over |