great a desire to limit to the firm land all the operations and incidents of warfare, that they do not hesitate to declare, not merely against the right of capture of enemy's goods, but even against the Right of Search upon which alone all knowledge of a vessel, of her nationality and character must be based. They declare that the mere act of boarding a merchant vessel, and of examining its papers, and if cause appear, its crew and cargo, is an infraction of the sovereignty, and a violation of the territory of the nation to which the vessel belongs; and a writer on the law of nations1 has even been found to lend the inadequate authority of his name to a pretension condemned by all other publicists without exception. Nevertheless the right of visitation and search is assuredly one of the mildest and the least susceptible of abuse that can be exercised. Its object is to verify the nationality and the neutrality of the vessel visited, and to establish the innocent nature of its voyage. The exercise of this right is a necessary consequence and corollary of any other belligerent right whatever. On land the limits of territory are known and apparent, and its character is established by its situation; but this is not the case with a vessel on the high seas. She may hoist false colours, or she may have false papers, practices which indeed have always been common in all wars. The belligerent man-ofwar therefore must needs have, and has, the right to assure himself that the vessel he meets is truly a neutral, and that her cargo is of an innocent nature, having an innocent destination. The method of assurance is settled to the merest detail by the law and the practice of nations. In the first place the

1 De Rayneval, De la Liberté des Mers, t. 1, cap. xvi.

E

66

man-of-war hoists her colours and fires the "affirming gun," which is equivalent to a declaration on honour that the colours are truly those of her sovereign. Thereupon the merchant vessel in view of which the colours are hoisted and thus affirmed, is bound in turn to proclaim her nationality by displaying the flag under which she navigates. This may be, and may be deemed sufficient-but if not, the man-of-war lowers a boat with an armed crew, and sends it away under the command of an officer, who, on boarding the merchantman, forthwith proceeds to examine the ship's papers, and, if necessary, to question the captain and crew. If it should clearly appear from the inquiry that the vessel and cargo are bonâ fide neutral property, and that there is on board no contraband of war destined for an enemy-or if only it should not appear that there is any good cause to suspect the contrary-then (according to present practice) the merchantman is allowed to proceed. If on the other hand it would seem that the vessel is enemy's property, or that, being neutral, she is engaged in conveying contraband of war, or in traffic of an otherwise unlawful nature, the captain of the man-of-war may seize her and take her into port for trial and judgment by the Prize Court-always at his own risk, and with the certainty, if he fails to prove his case, of having to pay costs and damages.

It would seem to require little argument to show that the right of visitation and search is one which cannot reasonably be so much as questioned; it requires none to show that it can by no means be abandoned. By it alone can the flag be verified, by it alone can the carrying to the enemy of contraband of war be prevented, by it alone can any safeguard be

afforded against the many frauds and deceptions which have in all wars been common, and which the very situation invites. The right is undoubted, the exercise of it is necessarily mild and moderate in character, and it amounts to nothing more in the world than affording an opportunity of proving the alleged character. It may be odious to those who wish to evade the duties of neutrality; but to the honest neutral it will hardly be so much as inconvenient.1

It has also been often declared that the visit, seizure, and despatch to port for judgment of unarmed merchantmen by armed vessels of war or privateers, was, when it was practised, accompanied by many grievous abuses; that Privateers especially were occasionally guilty of great barbarities and of acts of lawless violence towards the crews captured, and that they habitually destroyed or altered the papers, embezzled the cargo of, and fraudulently gave an inimical colour and character to, all vessels that fell into their hands.

Upon this it is to be remarked that the assertion thus made is entirely unsupported by proof, and that, on the contrary, the records of the Admiralty Courts show that, as a rule, the seizure and bringing in were effected regularly and without violence-generally, indeed, without any resistance-whether by King's ships or by privateers. The same records also show that it was extremely difficult for the captor to conceal any irregularity which it was the interest of the captured to disclose, and that wherever misconduct was shown, punishment promptly followed.

2

1 See Lord Stowell's judgment on the "Maria" (Robinson, 340).

2 See Robinson's Admiralty Reports, passim.

But now, even if it were true-which it is notthat the capture of property was often accompanied by abuses, that would indeed be a good reason for devising methods to suppress those abuses, but it neither would nor can furnish ground for attacking the right on which those abuses might have been engrafted. And here again, that which has already been said must be repeated-that the capture and confiscation of property at sea is the one operation of warfare which is subject to calm, unimpassioned judicial decision before the act itself is completed; and that therefore, if it be liable to abuse, it is at any rate of all acts of warfare that in which the abuse is most certain to be detected, and due reparation most certain to be made.

Much has been said, though little has been proved, of the abuses to which the capture of property leads. It is alleged that the practice of this kind of warfare renders naval officers and men greedy of gain, and that it induces them to neglect enterprises of mere fighting in order to engage in those which promise prize-money. If this were so it would be in every way a gain. It would be a gain to humanity that the operations of war should be diverted from men's bodies to their goods; it would be a gain to the belligerent which would at once enrich itself and distress its enemy; and it would be a gain to the officers and seamen who would thus be rewarded for their toils by the enemy himself instead of becoming chargeable for increased pay and pension on their own countrymen.

But it is not true that the pursuit of prize has ever been sufficiently powerful a motive to draw officers and men away from duties in which hard knocks alone were to be given and received. It is so little true that all the great naval actions that have been

fought have been fought by sailors trained and practised to their trade in the pursuit of Prize.1 For indeed this is the very pursuit that makes keen sailors; this was the very pursuit which during the wars of the last and the beginning of the present century enabled English Commanders to make excellent seamen out of the sweepings of gaols and the rakings of the shore, brought on board by the pressgang in a frame of mind which would rather have induced them to fight against than for their country. And more than this, it is perhaps the one only inducement that will suffice continuously to draw sailors into the arduous service of a navy in time of war, that will keep them in it, or that will make them fight with any heart or spirit. Even ashore it is found necessary to offer to the soldier the allurements of booty as well as the prospect of increased pay and promotion; how much more then is it necessary to allow Prize to the sailor, whose life is always in his hand, and who has to contend with the elements as well as to do battle with the enemy. Yet without the capture of property there can be no Prize, and without Prize there can hardly be sailors of the stamp of those who fought under Hawke and Nelson, Howe, Rodney and Dundonald."

1 Between November, 1802, and November, 1811, nine years in all, Sir William Parker captured, as captain of the "Amazon," no less than sixty vessels, which produced to him as his own personal share of prize-money the sum of £35,211 118. 3d.Life of Sir W. Parker. Appendix.

2 66

I have seen it openly proclaimed that seamen will fight “for fighting's sake, and without expectation of reward. If the "propounders of such an opinion were to ask themselves the

question whether they engage in professional or commercial "pursuits from mere patriotism, and without hope of further “remuneration, then their reply would show them the fallacy