cise due diligence" in the treaty of Washington were replaced in the above article by the words "to exercise such vigilance as the means at its disposal permit."1 By Article 26 "the exercise of a neutral power of the rights laid down in the present convention can never be considered as an unfriendly act by either belligerent who has accepted the articles relating thereto." This article and the general tenor of the convention should strengthen the action and duties of a weak neutral power. The convention is, however, far from perfect. There are too many provisions allowing varying action on the part of a neutral. There is also more stress laid upon the rights of neutrals than their obligations, and it is hoped that in a future Hague conference a revision will be made of this convention. 182. The Rights of Visit and Search.-This is a great and ancient war right of the belligerent powers exercised on the high seas toward neutrals and enemies. Co-existent with and growing out of the right of capture, it is essential to ascertain whether neutral vessels are really such or have made themselves subject to capture by the carriage of contraband, unneutral service, or violation of a blockade. Chief Justice Marshall says upon this subject: "It (the right of search) has been truly denominated a right growing out of, and ancillary to, the greater right of capture. When this greater right may be legally exercised without search, the right of search can never rise or come into question."2 Sir William Scott (afterward Lord Stowell) also said in the famous case of the Maria: "The right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destination, is an incontestable right of the lawfully commissioned cruisers of a belligerent nation. . . This right is so clear in principle, that no man can deny it who 1 Higgins, "Hague Conferences," pp. 453, 480. C. J. Marshall, The Nereide, 1815 (9 Cranch, 388, 27). 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 capThe right is equally clear in practice; for the practice is uniform and universal upon the subject."1 ture. As the right of visit and of capture is the right exercised only by a belligerent under direct national authority, it is consequently confined in its exercise to public vessels of war duly commissioned by the state. On the other hand, this right can only be exercised toward enemy vessels and neutral merchant or privately owned vessels. "As a belligerent right it cannot be questioned, but it must be conducted with as much regard to the rights and safety of the vessel detained as is consistent with a thorough examination of the character and voyage. Any detention of the vessel beyond what is necessary is unlawful, as is also any transgression of the bounds within which the examination should be confined." 2 This right should be exercised, as stated above, with due consideration and in conformity (when existing) with treaty provisions by the boarding vessel whose national colors should always be displayed at the time. "The vessel is brought to by firing a gun with blank charge. If this is not sufficient to cause her to lie to, a shot is fired across her bows, and in case of flight or resistance force can be used to compel the vessel to surrender. "The boarding vessel should then send one of its smaller boats alongside with an officer in charge wearing side-arms to conduct the search. Arms may be carried in the boat, but not upon the persons of the men. When the officer goes on board the vessel he may be accompanied by not more than two men, unarmed, and he should at first examine the vessel's papers to ascertain her nationality, the nature of her cargo, and the ports of departure and destination. If the papers 1 Scott's "Cases," p. 858. 2 The Anna Maria (2 Wheaton, 327). show contraband, an offence in respect of blockade, or enemy service the vessel should be seized; otherwise she should be released, unless suspicious circumstances justify a further search. If the vessel be released an entry in the log-book to that effect should be made by the boarding-officer."1 In searching a vessel it should be done in presence of the master of the vessel, no force being applied. If the master should not open locked places, or assist in the examination or search, sufficient cause is given for seizing the vessel as resisting search. In case of suspicious developments of sufficient gravity the vessel can be detained and sent into port for a more thorough examination. In case of innocence the vessel is entitled in such cases to indemnity for losses of time, etc. By the declaration of London, forcible resistance to the legitimate exercise of the right of stoppage, search, and capture involves in all cases condemnation of the vessel. The cargo is liable to the same treatment as that given to the cargo of an enemy vessel. Goods belonging to the master of the vessel or its owner are treated as if they were enemy goods. An attempt to escape is not considered as forcible resistance as the term is used in its literal sense. Force can be used to overcome either resistance or flight, but condemnation follows forcible resistance alone. An authority given privately owned vessels to carry arms for protection does not give it exemption from proper visit and search. 183. Convoy.-Articles 61 and 62 of the declaration of London, of which the United States is a signatory and ratifying power, treat the subject of convoy as follows: "Neutral vessels under national convoy are exempt from search. The commander of a convoy gives, in writing, at the request of the commander of a belligerent war-ship, all information as to the character of the vessels and their cargoes, which could be obtained by search. 1 Stockton, "Laws and Usages of War at Sea," art. 32. "If the commander of the belligerent war-ship has reason to suspect that the confidence of the commander of the convoy has been abused, he communicates his suspicions to him. In such a case it is for the commander of the convoy alone to investigate the matter. He must record the result of such investigation in a report, of which a copy is handed to the officer of the war-ship. If, in the opinion of the commander of the convoy, the facts shown in the report justify the capture of one or more vessels, the protection of the convoy must be withdrawn from such vessels."1 This exemption from search of neutral merchant vessels under convoy of a man-of-war of their own nationality was largely due to the efforts of the American delegation at the London naval conference and is in accordance with American contentions in the past. If a neutral vessel seeks the convoy of enemy men-of-war her position, according to general ruling, becomes that of an enemy vessel from what may legitimately be considered as constructive resistance. By a treaty with Prussia of 1785, revived in 1828, and held to be still in force with Germany, if Germany and the United States are both neutrals or have a common enemy there is a mutual right of protection and convoy to each other's merchantmen. 184. Spoliation of Papers.-If a vessel presents fraudulent papers, conceals, alters, or destroys papers or is without the necessary papers she can be properly detained or seized. This is generally known as the spoliation of papers. A discussion of this matter in the accompanying report to the declaration of London, drawn up by Doctor L. Renault, reads: "It is perhaps useful to indicate certain cases in which the capture of a vessel would be justified, whatever be the ultimate decision of the prize-court. Notably, there is the case where some or all of the ship's papers have been thrown overboard, 1 See declaration of London, Appendix IV. suppressed, or intentionally destroyed on the initiative of the master or one of the crew or passengers. There is in such a case an element which will justify any suspicion and afford an excuse for capturing the vessel, subject to the master's ability to account for his action before the prize-court. Even if the court should accept the explanation given and should not find any reason for condemnation, the parties interested cannot hope to recover compensation. "An analogous case would be that in which there were found on board two sets of papers, or false or forged papers, if this irregularity were connected with circumstances calculated to contribute to the capture of the vessel."1 185. Hostile Expeditions.-The formation of hostile expeditions in neutral territory and their departure for warlike operations therefrom is a violation of the tenets of international law and, in most cases, of the municipal laws of states. So far as international law is concerned the following rules are in force to the signatories of The Hague Conventions V and XIII of 1907. In Convention V it is stated, in Article 4, that "corps of combatants cannot be formed nor recruiting offices opened on the territory of a neutral power in the interests of belligerents." By Article 8 of Convention XIII we have also seen that “a neutral government is bound to employ the means at its disposal . . . to prevent the departure from its jurisdiction of any vessel intended to cruise or engage in hostile operations which has been adapted in whole or in part within the said jurisdiction to warlike use." This general restriction is supplemented by a previous prohibition in Article 5 of the same convention in which the belligerents are forbidden to use and, by analogy, neutrals prohibited from allowing the use by belligerents of neutral waters as a base of naval operations against their adversaries. A hostile expedition in the sense under discussion can be defined in accordance with international law as one starting 1 Declaration of London, accompanying report, Appendix IV. |