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Mr. Hammond, it being insisted that by the law of nations all provisions were to be considered as contraband, in the case where depriving the enemy was one of the means employed to reduce him to reasonable terms of peace. This position was strenuously resisted on the part of the United States, through Mr. Randolph, Mr. Jefferson, and Mr. Pinckney, contending that com, flour, and meal, being the produce of the soil and labor of the country, were not contraband, unless carried to a place actually invested. Upon this question no other agreement was attained than that provisions were not generally contraband, but might become so, according to the existing law of nations in certain cases, and those cases were not defined, leaving to each party that construction of the law of nations which it had assumed.
As to other articles of merchandise, the treaty provides, that "all arms and ammunition and implements serving the purpose of war, all materials serving directly for the building and equipment of vessels, with the exception of unwrought iron, and fir-plank, tar and rosin, copper in sheets, sails, hemp, cordage, etc.," shall be considered contraband of war. The treaty, so far as its provisions relate to this subject, has always been regarded as mere ly declaratory of the conceded law of nations, and introducing no stipulation which would not have been, by that law, binding upon the parties without the treaty.
The right of The third and only remaining exception to the
visitation and i-i i i i
search a beUi- general rule, which accords to neutrals the unmoeXuLhedln lasted pursuit of their accustomed commerce, is that resulting from the rights of belligerents to enforce the law of nathe previous exception, which prohibits their commerce in contraband commodities, and that is, the right of visitation and search.
This general right of belligerents has uniformly been upheld by all writers of authority in the law of nations. It has always been regarded as a sort of necessary incident to the right of prohibiting contraband trade, which right would be almost nugatory, but for the incidental right of ascertaining the existence of the contraband trade by a visitation and search of the neutral vessel.
Bynkershoek,1 Valin,2 Vattel,8 De Martens,4 all agree in according the right to belligerents, upon the ground that the conveyance of contraband goods by neutrals cannot be prevented without visiting and searching neutral vessels, and that a resistance to the exercise of the right subjects the resisting neutral to the penalty of confiscation.
Lord Stowell says, in the great leading case, in ^e^enai^or which the doctrine is discussed at length, and m resistance to a judgment which of itself is sufficient to place Bearchfht °f the learned judge in the highest position as an authority in the law of nations: "I stand with confidence upon all fair principles of reason, upon the distinct authority of Vattel, upon the institutes of other great maritime countries, as well as those of our own countiy, when I venture to lay it down, that by the law of nations, as now understood, a deliberate and continued resistance to search on
1 Bynkershoek, Qu. Jur. Pub., Lib. I., c. xiv.
• Valin, Ord. de la Ma., Li v. III., Tit. 9, Art. 12.
• Vattel, Droit des Gens, Liv. III., c. vii., § 114. 4 De Marten's, Precis., Lib. VIII., c. vii., § 321.
the part of a neutral vessel, to a lawful cruiser, is followed by the legal consequence of a confiscation."1
Chancellor Kent says: "The duty of self-preservation gives to belligerent nations this right, and the doctrine of the English admiralty on the right of visitation and search, and on the limitation of the right, has been recognized in its fullest extent by the courts of justice in this country."2
The right of search is strictly a war right, and does not exist, except by treaty stipulation, in time Applies to of peace.8 It is a right which is confined to priseuonly! V63" vate merchant vessels, and does not apply to public ships of war. The immunity of public ships and vessels of war from the exercise of any jurisdiction, other than that of the sovereign power to which they belong, has been uniformly asserted and conceded.4
How erer- The right of visitation and search must be conducted with as much regard to the safety of the vessel detained as is consistent with a thorough examination of the character of the vessel.
If the neutral has acted with candor and good faith, and the inquiry has been wrongfully pursued, the belligerent cruiser is responsible to the neutral in costs and damages.5
In the exercise of the right, the cruiser may resort to stratagem, as by assuming the disguise of a friend
1 The Maria, 1 Rob., 368. 2 Kent's Com., I., 153 et seq. * Le Louis, 2 Dob., 248; The Antelope, 10 Wheat., 119.
4 The Prins Frederick, 2 Dod., 451; The Exchange vs. McFadden, 1 Cranch., 116; L' Invincible, 1 Wheat., 238.
5 The Anna Maria, 2 Wheat., 327; 2 Mason, 439.
or enemy ; and if, in consequence of such stratagem, the crew of the detained vessel abandon their duty without being made prisoners of war, and the vessel is thereby lost, the captors are not liable.1 The riffht of visitation and search has been con- Ptm
, •11 • • • visions.
stantly recognized by treaties between maritime nations, and stipulations are introduced specifying the manner in which the rierht shall be exercised. It is usually provided that the searching vessel shall remain not nearer than cannon-shot distance from the ship visited, and shall send a boat with not more than two sitters, beside the rowers, which two persons shall inspect the ship's papers, of which the form is usually fixed by the treaty. If these papers are found regular, and affording no reason for detention, the ship is to be allowed to proceed. If, however, there are circumstances which are regarded as suspicious, it is provided that the ship may be brought in further inquiry, subject to a claim for costs, expenses, and damages, if the detention shall have been capricious or unreasonable. Treaties, embracing substantially these provisions, were made between France and the United States in 1778 ; between the United States and the StatesGeneral in 1782; between the United States and Sweden in 1783.
In the exercise of the right of visitation and Ships' papers search upon a neutral vessel, the first object of in- examined, quiry is, generally, the ship's papers. These are:
1. The passport, being the letter of license from the neutral power to proceed on the voyage. This
• The Eleanor, 2 Wheat, 345; The George, 1 Mason, 24. pass, to be regular, must be specific and not general, and describe explicitly the true parties.1
2. The sea-letter or brief, specifying the nature and quantity of cargo, the place of lading, and place of destination.
3. The documentary proof of property.
4. The muster-roll of the ship's company, which should set forth not only the names, but ages, condition, place of residence, and birth of each.
5. The charter party, if any, which may serve to authenticate the facts connected with the proof of neutrality.
6. The bills of lading, showing the nature of the obligation between the master or owner and shipper.
7. The invoices or manifest, showing the particulars of the cargo, by whom shipped, and to whom consigned.
8. The log-book, being the journal of the ship's voyage, and of each day's progress and occurrences.
9. The bill of health, being a certificate that no contagious disease prevailed at the place of departure of the ship, and that none of the crew were infected with such distemper; and
10. The letter of instructions to the master, with which, especially in times of war, a neutral master should always be provided. These instructions should always be produced. The withholding them has been held a just cause of suspicion, authorizing detention.2 These letters of instruction, or the other papers, should always show the alternative destination of a ship, so as to establish the fact that
1 The Hoop, 1 Rob., 129; The Elizabeth, 5 Rob., 4, • The Concordia, 1 Rob., 120.