SEARCH, RIGHT OF. In International Law. In time of peace. The right of a pub lic vessel to visit and search private vessels for the purpose of investigating their char acter. Within the territorial waters of a state it may be exercised by the public ves sels of said state for the enforcement of revenue and other domestic, laws. As it is a police measure it cannot, apart from treaty stipulations, be exercised upon the high seas, except after pursuit of an offending vessel which has escaped from the territorial wa ters of the state, and by public vessels gen erally where there is a well grounded sus picion of piracy (q. v.).
The right of visit and search was long a subject of controversy between the United States and Great Britain in connection with the suppression of the slave trade.. Great Britain claimed that there was a distinction between the right of visit (q. v.) and the right of search, and that while the latter was strictly a belligerent right, the former might be exercised in time of peace for the purpose of ascertaining the nationality of suspected vessels. The United States held that the right of visit on the high seas was necessarily associated with the right of search and had no meaning apart from it, and that neither could be exercised in time of peace except under treaty. Finally, by the treaty of 1862, the two countries agreed to permit a reciprocal right of search within a specified zone. A similar agreement had previously been entered into, in 1841, be tween five of the great powers, and the right is now embodied in article 22 of the genera] act concluded between the great powers in 1890.
In time of war. The right of a belligerent to visit and search neutral merchant vessels. It is exercised, first, as an incident to the belligerent right to capture, upon the high seas, private property of enemy subjects. In the case of The Maria, 1 C. Rob. 340, Lord Stowell held that the "right is so clear in principle, that no man can deny it who ad mits the legality of maritime capture, be cause if you are not at liberty to ascertain, by such inquiry, whether there is property that can legally be captured, it is impossible to capture." Secondly, it is exercised as an incident to the recognized belligerent right to prevent the carriage of contraband (q. v.) by neutral vessels to the enemy, and to punish breaches of blockade. The Declaration of London, of 1909, embodies (article 63) the established rule that "forcible resistance to the legitimate exercise of the right of stop page, search, and capture, involves in all cases the condemnation of the vessel ;" but mere flight does not constitute resistance.
In making the search the ship's papers are first examined, and if anything suspicious appear in them, the ship and cargo may be examined. If the ship's papers are missing or are fraudulent the ship may be captured.
Neutral vessels sailing under convoy (q. of enemy war-ships have almost universally been held subject to capture as resisting search, though the principle was contested by the United States in 1810 ; 2 Opp. 542. The question whether sailing under the convoy of neutral war-ships confers exemp tion from search, has been one of long stand ing controversy. The British courts held that neutral convoy was equivalent to resis tance to search; 1 C. Rob. 340; and this doctrine was followed by Kent, Story, and Wheaton in the United States, in spite of the fact that between 1782 and 1800 the United States had concluded treaties with several continental powers stipulating exemption from search under neutral convoy. Conti nental jurists held the contrary doctrine,. which was recognized by the United States in the Navy Regulations of 1876 and in the Naval War Code of 1900 (article 30), and it is now embodied in the provision of the Declaration of London (article 61) that "neu tral vessels under convoy of war-ships of their own nationality are exempt from search," but this is made conditional upon evidence in writing from the commander of the war-ship as to the character of the ves sels and their cargoes ; 2 Opp. 533-545; Bon fils, §§ 586-593, 1589-1605.
Great Britain formerly claimed, as an in cident to the belligerent right of visit and search, the right to effect the impressment (q. v.) into her navy of British seamen found on board the vessels of other nations on the high seas. On the other hand, the United States contended that the fact that the vessels were American should be evidence that the seamen on board were such. The controversy, which was one of the causes of the War of 1812, was definitely settled, on the part of the United States, in 1842, when Webster declared that the American govern ment was ready to protect the crew of every "regulated documented American merchant vessel ;" 2 Moore, §§ 317-320.
See APPROACH.