SEARCH, RIGHT OF. The general principles upon which that part of the law of nations is constructed which respects the usages to be observed towards neutral powers in time of war by the belligerent powers, have been explained under the bead of BLOCKADF. Here it is only necessary further to remark that manifestly no other right can be exercised by the belligerent over the ships of the neutral without the right of visitation and search. The existence of that right, accordingly, to use Lord Stowell's language in the well-known case of the Maria (1 Robinson, 340), is acknowledged beyond all con troversy as attaching to the lawfully commissioned cruisers of the belligerent nations, whose rights cannot legally be varied by the inter position, in any manner of mere force, of the authority of the sovereign of the neutral country : a right that is as reasonable as it is necessary, for, as his lordship says, "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, which must be conducted with as much regard to the rights and safety of the vessel detained as is consistent with a thorough examination of her character and voyage (the Anna Maria, 2 Wharton's (Amer.) Rep. 332), the first and principal 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, specifying the nature and quantity of the cargo ; the proofs of property ; the muster-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-hook ; and the bill of health. (Abbott, On Shipping,' 9th edit., 283.) Upon the subject of the ship's documents, it should be observed, that if she is not properly documented, or if there has been a spoliation of papers, and other signs of bad faith, these are grounds of unfavourable pre sumption, the effect of which is not to be avoided except by clear and satisfactory evidence to the contrary. (M`Lachlan, Law of Merchant Shipping, p. 431.) The penalty for the violent contravention 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 be seized in the same manner as if it belonged 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 he exercised in certain circumstances; and this is the first limitation that falls to be noticed. "Two sovereigns," Lord Stowell has said in the same judgment, "may unquestionably agree, if they think fit, as in some late iustances 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 inconsistent 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 compel the acceptance of such a security by mere force. The only security known to the Law of Nations upon this subject, independent of all special covenant, is the right of personal visitation and search, to be exercised by those who have the interest in making it." Lord Stowell here alludes to the pretensions of the northern powers in their convention for the establishment 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 emperor, 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 couvoy, 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 understanding among the contracting parties to that effect ; hut we du not find it distinctly avowed in any of their published announcements. The position in question, 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.