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Right of Search

ships, neutral, powers, ship, visitation and convoy

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SEARCH, RIGHT OF. The gene ral principles upon which that part of the Law of Nations is constructed which re spects the usages to be observed towards neutral powers in time of war by the belligerent powers, have been explained under the head of BLOCKADE. Here it is only necessary farther to remark that manifestly no other right can be exer cised by the belligerent over the ships of the neutral without the right of visitation and search. The existence of that right, accordingly, is admitted on all hands as the rule, whatever may be the limitations or exceptions- As Lord Stowell has said in his judgment on the case of the Maria (Garrels v. Kensington, 8 T. R. 230), " 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." In the exercise of the right of search upon a neutral vessel, the first and prin cipal object of inquiry is generally the ship's papers. These are, the passport from the neutral state to the captain or master; the sea letter, or sea brief, speci fying the nature and quantity of the cargo; the proofs of property ; the mus ter-roll of the crew, containing the name, age, rank or quality, place of residence, and place of birth of each of the ship's company ; the charter party ; the bill of lading ; the invoices; the log-book ; and the bill of health. (Chitty on the Law of Nations, pp. 196-199.) The penalty for the violent contraven tion of the right of visitation and search, is the confiscation of the ship and cargo ; and a rescue by the crew after the captors are in actual possession is considered as the same thing with a forcible prevention. In either case the resisting ship may oe seized in the same manner as if it be longed to the enemy, and, being brought into port, will be condemned as prize. Of course, any of the belligerent powers may agree with any of the neutral states that the right of search shall only be ex ercised in certain circumstances ; and this is the first limitation that falls to be no ticed. " Two sovereigns," Lord Stowell

has said in the same judgment, " may un questionably agree, if they think fit, as in some late instances they have agreed, by special covenant, that the presence of one of their armed ships along with their merchant-ships shall be mutually under stood to imply that nothing is to be found in that convoy of merchants' ships incon sistent with amity or neutrality ; and, if they consent to accept this pledge, no third party has a right to quarrel with it, any more than with any other pledge which they may agree mutually to accept. But surely no sovereign can legally com pel the acceptance of such a security by mere force. The only security known to the Law of Nations upon this subject, in dependent of all special covenant, is the right of personal visitation and search, to be exercised by those who have the in terest in making it." Lord Stowell here alludes to the pretensions of the northern powers in their convention for the esta blishment of what was called an armed neutrality in 1800, one of the clauses of which was, "That the declaration of the officers who shall command the ship of war, or ships of war, of the king or em peror, which shall be convoying one or more merchant-ships, that the convoy has no contraband goods on board shall be sufficient; and that no search of his ship, or the other ships of the convoy, shall be permitted." It is sometimes stated that this was also one of the principles of the previous convention of the same kind formed by the northern powers in 1780 ; and there may perhaps have been an un derstanding among the contracting parties to that effect ; but we do not find it dis tinctly avowed in any of their published announcements. The position in ques tion, namely, that the presence of a ship of war should protect from search the merchantmen under its convoy, never has been admitted by Great Britain.

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