66 66 American Prize Courts has been adopted. It is in perfect harmony with the doctrine of the British Courts of International Law: The right (Lord Stowell observes) of visiting and searching merchant ships, upon the high seas, whatever be the ships, whatever be the cargoes, "whatever be the destinations, is an incontestable right of "the lawfully commissioned cruisers of a belligerent na"tion-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 cargoes, or the "destinations 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 legality of mari"time capture; because if you are not at liberty to ascer"tain by sufficient inquiry whether there is property that 66 66 can legally be captured, it is impossible to capture. Even "those who contend 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 as clear in practice as in theory; 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 ac"knowledge it, without the exception even of Hübner. “The right must unquestionably be exercised with as little "of personal harshness and of vexation in the mode as pos"sible; but, soften it as much as you can, it is still a right "of force, though of lawful force-something in the "nature of civil process where force is employed, but a "lawful force, which cannot lawfully be resisted" (o). CCCXXXIII. But a very different principle applies to cases of wilful misconduct on the part of seizors. (2) The Maria, 1 Rob. Adm. Rep. p. 361. If a neutral ship be destroyed by a captor, either wantonly or under an alleged necessity, in which she herself was not directly involved, the captor, or his Government, is responsible for the spoliation. The gravest importance of such an act to the public service of the captor's own State will not justify its commission. The Neutral is entitled to full restitution in value (p). Severe damages ought to be inflicted upon those captors who have behaved with cruelty towards the captured crew, and also for negligence in the care of Prize property (q), e.g. for refusing to receive such nautical assistance as would in all probability have prevented the happening of damages which have actually accrued to the ship (r). The captor who takes his prize, without necessity, to an inconvenient port for adjudication, may be justly mulcted in demurrage, costs, and damages, as the exigency of the case may require (s); and a similar principle governs cases in which the captor has shown an unnecessary delay in proceeding (t). Captors who have made a justifiable seizure may forfeit their title by subsequent misconduct (u). CCCXXXIV. Fifthly. Upon what kind of property this right may be exercised? It may be exercised upon the merchant or the merchant or private ships (p) The Felicity, 2 Dodson's Adm. Rep. p. 381. (q) The Maria and the Vrow Johanna, 4 Rob. Adm. Rep. p. 348. The Concordia, 2 ib. p. 102. The St. Juan Baptista and La Purissima Conception, 5 ib. p. 33. (r) Die Fire Damer, 5 Robinson's Adm. Rep. p. 357. The St. Juan Baptista and La Purissima Conception, ib. p. 33. (s) The Anna, 5 ib. p. 385. The Wilhelmsberg, ib. p. 143. The Principe Athalante, Edwards' Adm. Rep. p. 70. The Catherina Elizabeth, 1 Acton's Adm. Rep. p. 309. (t) The Eliza, ib. p. 336. The Zee Star, 4 Rob. Adm. Rep. p. 71. (u) The Speculation, 2 Robinson's Adm. Rep. p. 296. of all Neutral States, but not upon their ships of war or public vessels. An universal and long-established usage of nations, growing, perhaps, originally out of comity, but long ago transplanted into the domain of right (x), exempts all such vessels from the belligerent right of Visit and Search. The same usage would no doubt, upon the other element, exempt all military equipage, and all such as belonged to the executive of a State, from detention and spoliation by belligerent armies. CCCXXXV. A question has arisen in time of war, often rife with international quarrels of the bitterest kind, viz., as to the right of a Belligerent to search all vessels, public and private, suspected of harbouring deserters from the navy and army of the Belligerent. The Government of the United States of North America admits the Right of Visitation and Search by belligerent men-of-war of their private merchant vessels, for enemy's property, articles contraband of war, or men in the land or naval service of the enemy; but it does not understand the Law of Nations to authorise, and does not admit the Right of Search for subjects or seamen. England, on the other hand, has asserted the right to look for her subjects on the high seas, into whatever service they may embark. The claim of England to the Right of Search, on the high seas, of neutral vessels, for deserters and other persons liable to military and naval service, has been a question of animated discussion between her and the United States of North America. It was one principal cause of the war of 1812 between these States, and remains theoretically unsettled to this day. In the discussions in 1842, between Lord Ashburton and Mr. Webster, relative to the boundary line of the State of Maine, the American Minister incidentally discussed the subject (y); but no conclusion was arrived at. (x) Vide antè, vol. i. pp. 11-12, 182–3. (y) Kent's Comm. vol. i. p. 157 (note). An Inquiry into the Validity of the British Claim to a Right of It appears to me, however, that this claim must now, all things considered, be pronounced untenable, and that the doctrine of International Law, as now understood, is that one State has not a right to take even its own subject out of a merchant ship, on the high seas, belonging to another State, with whom it is at peace (z). This position is strengthened by the fact that, since 1858, England has abandoned the claim, which rested on high American, as well as British authority, to stop, visit, or search, in time of peace, the vessel of any Foreign State, however strongly suspected, or even known, to bear the infamous cargo of slaves on board, unless, of course, she is, by treaty with that Foreign State, authorised so to do (a). CCCXXXVI. Sixthly, what are the consequences which flow from a resistance, on the part of the Neutral, to the exercise of this belligerent right? This resistance may be exercised (1) either by the ship herself, or (2) by an armed vessel or vessels accompanying her by way of escort or convoy. XVI CCCXXXVII. It is admirably said by Lord Stowell, that it is a wild conceit, that wherever force is used, used, it may be lawfully resisted: a lawful force cannot lawfully be resisted. The only case where it can be so is in the state of war and conflict between two countries, where one party has a perfect right to attack by force, and the other has an equally perfect right to repel by force; but in the relative situation of two countries at peace with each other, no such conflicting rights can possibly co-exist (b). It is upon these principles that International Law universally, by its accredited voice, inflicts the penalty of confisca Visitation and Search of American Vessels suspected to be engaged in the African Slave Trade, by Mr. Wheaton. London, 1842. Webster's Works, vol. v. p. 142, vol. vi. p. 329, cited by Mr. Lawrence in his edition of Wheaton's Elem. note to p. 188. (z) See Dana's note to Wheaton, pp. 175-6. (a) Dana's Wheaton, p. 213 (note). (b) The Maria, 1 Robinson's Adm. Rep. p. 36. tion upon the neutral merchantman or private vessel which resists the Belligerent's Right of Search. CCCXXXVIII. It remains to be considered whether the fact that the private is accompanied, or, according to the usual phrase, convoyed, by a public vessel, makes any, and, if any, what difference in the application of this principle. Upon this subject I will use the language of Lord Stowell, in one of his most careful and best reasoned judg ments: 66 "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 que l'on ren"contre en mer. On est donc 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 con"damner 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 the fact-the fact "that such is the existing practice of modern Europe. "And to be sure, the only marvel in the case is, that he "should mention it as a law merely modern, when it is "remembered that it is a principle, not only of the Civil "Law (on which great part of the Law of Nations is "founded), but of the private jurisprudence of most coun"tries in Europe,-that a contumacious refusal to submit "to fair inquiry infers all the penalties of convicted guilt. "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 |