EXTENT OF U. S. NAVAL POWERS, DURING WAR. 627

local station, or cruising ground, the character of their command and nature of their special instructions from the Navy Department; upon which it devolves as a duty ever to anticipate the exigencies and wants of all commands, whether cruising, stationed, or convoying vessels, transporting troops, provisions, or munitions of

war.

If precise and positive instructions cannot be seasonably prepared, then provisional general directions should be framed for all possible contingencies, and kept on hand by the Navy Department for sudden emergencies. Indeed, no expedition should be ordered, unless well and duly considered beforehand, and every preliminary step taken that may be requisite to insure success, however suddenly it may have been conceived or hastily got up.

After starting, the chief in command of the expedi tion, be he admiral, vice-admiral, rear-admiral, commodore, captain, or commander, should have a well-matured plan for successfully accomplishing it, according to official instructions; committing no indiscretions and violating no international law, nor treaty or other mutual stipulations. And for this purpose, he should fortify himself, in advance, with the best legal advice and the most prudent official hints and counsel.

Powers of Naval Commanders.

1. The powers of a commander of national vessels, in time of war, are ample for making captures; and they should be discreetly used, whether it be in the exercise of the right of approach, visitation, search, seizure, interception, or detention merely. He may lawfully exercise all these powers over merchant vessels of any state, except within a neutral's territorial waters

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SPECIFIC SUGGESTIONS, TO GUIDE THE COURSE

and not within three miles of neutral land; but not, in any situation, over vessels of war, attached to the public navy of a foreign state.

2. But, in the exercise of these rights the utmost propriety of conduct toward the master and crews of other vessels should be observed by the commander himself; and the same should by him be strictly enjoined upon his own officers and crew.

3. If he commit an act not warranted by subsisting treaties, or recognized municipal regulations, or international law, his conduct may become a subject of complaint by another government, inquiry by his own, and perhaps ultimately of reproach to himself.

4. If he detain or intercept a vessel at sea without probable cause, the penal consequences may attach to himself personally, in the shape of costs and possibly of damages.

5. Probable cause is judicially understood to be evidence sufficient to justify suspicion, though inadequate to warrant condemnation, as prize.

6. If any wrong, impropriety, or offense be done to the captured vessel, cargo, or crew, the captors may forfeit all share or interest in the capture, even if both vessel and cargo shall be condemned as lawful prize of war. (New Prize Act of 1864, § 37.)

7. For all wrong-doing, the commanding officer is ab initio responsible, whether present or not, if it be done under his command; and this responsibility cannot be shifted from himself to his superior, unless such superior officer were personally present and commanding. (2 Wheat. 340, The Eleanor; 1 Ch. Rob. 179, The Mentor; 1 Dods. 404, The Diligentia; and 2 Dods. 48, The Actæon.

AND CONDUCT OF U. S. NAVAL COMMANDERS. 629

As to Interception and Detention.

1. No neutral vessel, though trading with an enemy, can be lawfully intercepted or detained, unless engaged in carrying articles contraband of war, breaking a blockade, or intending or attempting to break a blockade, the intent or attempt being, in law, a constructive breach or violation thereof.

2. By the states which were originally parties to the Paris Convention of 1856, as well as by those which have subsequently become parties to that international proceeding by acceding to its terms, enemy's goods, though found on board a vessel, are not held necessarily to constitute adequate cause for detaining the vessel or seizing the goods.

3. Americans, though not allowed to trade with an enemy in American bottoms, ought not to be interfered with in neutral vessels, unless detected in committing breach of blockade or trading in goods contraband of

war.

What and who may be Detained,

may be thus enumerated:

Enemy vessels may be detained;

A cartel vessel, guilty of breach of cartel; American or allied vessels, trading with the enemy; American vessels, recaptured from the enemy, if started on a cruise, as a hostile ship of war; and

Any vessel, of any nation, may be detained, either for breach of blockade, carrying contraband goods, resisting search, willfully evading visit, or for concealment, spoliation, destruction, or simulation of ship's

papers.

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SPECIFIC SUGGESTIONS, TO GUIDE THE COURSE

Where a Claim for Joint Capture is possible or probable, the duty of a commander, in reference to a suspected lawful prize, should be performed with precision, under the three following predicaments:

(a) When the presumed prize is first sighted; (b) During the time of pursuit;

(c) After the chase is over, and at the time of cap

ture.

1. When sighted, the distance, direction, and course should be duly noted by a competent officer, detailed for that purpose, and by the appointment of the commander; and if other vessels are in sight, their course, direction, and distance should also be noted.

2. During the chase, if the course of the expected prize be altered, a note should be made of the alteration, and the time and manner of the change; also if any other American ship were in sight, or hove in sight during the pursuit, or joined in the pursuit; how far, when and where, and her course, distance, and direction; and now under the modern mode of maritime warfare, whether such vessel or any vessel were within signal distance.

3. At the time of capture, a note should be made as to when and where the prize was overhauled by the actual captor; if any other American vessel were within signal distance or sight; and if so, her distance, direction, and course.

The presumed prize may be pursued under false colors, but not fired upon: vide The Peacock, 4 Ch. Rob. 187, where Sir Wm. Scott says: "To sail and chase under false colors, may be an allowable stratagem of war; but firing under false colors is what the maritime law of this country does not permit; for it may be at

AND CONDUCT OF U. S. NAVAL COMMANDERS.

631

tended with very unjust consequences; it may occasion the loss of the lives of persons who, if they were apprised of the real character of the cruiser, might, instead of resisting, implore protection."

It is a high-handed act to visit, search, or detain any vessel at sea, if engaged in a lawful trade and peacefully pursuing her voyage; the exercise, therefore, of either the belligerent right of visit, search, or detention, should be resorted to with great circumspection, and exercised only in cases of grave suspicion and extreme emergency.

In the United States, the customary and material ship papers are as follows:

Register,

Custom-house clearance,

Crew List,

Log Book,

Charter Party (if chartered),

Invoice,

Bill of Lading.

Visit for the purpose of search, and search itself, should be conducted by a visiting or boarding officer. After looking over the ship papers such officer should decide, if possible, whether the arrested ship should be further detained; if not, and he be in doubt, by reason of any circumstance of suspicion or distrust, he should commence a search; and if this be permitted, he may be assisted by the boat's crew or others from the capturing ship.

While, during the process of search, the utmost latitude of civil inquiry is permissible; menacing, or intimidating language and conduct should be avoided. (Vide United States Prize Act.)