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RESTRICTION OF VISIT AND SEARCH.
inconvenience to neutrals and too seriously disorganizing commerce now of such vital importance to the world. Some maintain that the captured contraband would be “ so trifling in quantity as 'to have no possible effect on the result of the war " or that the same ends could be served by less burdensome means than by visit and search. Various other objections also have been made.
The restriction of the right of search was positively advocated by Secretary Marcy, who said:
It is not inappropriate to remark that a due regard to the fair claims of neutrals would seem to require some modification, if not an abandonment, of the doctrine in relation to contraband trade. Nations which preserve the relations of peace should not be injuriously affected in their commercial intercourse by those which choose to involve themselves in war, provided the citizens of such peaceful nations do not compromise their character as neutrals by a direct interference with the military operations of the belligerents. The laws of siege and blockade, it is believed, afford all the remedies against neutrals that the parties to the war can justly claim. Those laws interdict all trade with the besieged or blockaded places. A further interference with the ordinary pursuits of neutrals, in nowise to blame for an existing state of hostilities, is contrary to the obvious dictates of justice. If this view of the subject could be adopted and practically observed by all civilized nations, the right of search, which has been the source of so much annoyance and of so many injuries to neutral commerce, would be restricted to such cases only as justified a suspicion of an attempt to trade with places actually in a state of siege or blockade.
Humanity and justice demand that the calamities incident to war should be strictly limited to the belligerents themselves and to those who voluntarily take part with them; but neutrals abstaining in good faith from such complicity ought to be left to pursue their ordinary trade with either belligerent, without restriction in respect to the articles entering into it.
Though the United States do not propose to embarrass the other pending negotiations relative to the rights of neutrals by pressing this change in the law of contraband, they will be ready to give it their sanction whenever there is a prospect of its favorable reception by other maritime powers. (Senate Ex. Doc., 34th Cong., 1st sess., No. 104, p. 13.)
Admiral Réveillère has recently said: Le droit de fouiller les neutres est absolument incompatible avec les besoins de circulation des neutres. Le droit de visite est un dernier vestige des temps de petite industrie. (Journal des Économistes, Sept., 1904, p. 395.)
It may be pointed out that the inconvenience of the exercise of the right of visit and search of an innocent vessel should be of very little moment if the right is properly exercised. Further, the innocent neutral would properly have claim for damages in case visit and search is not properly conducted.
The Japanese regulations relating to capture at sea, of March 7, 1904, make specific provisions for the protection of neutrals:
ART. LI. In visiting or searching a vessel the captain of the man-ofwar shall take care not to divert her from her original course more than necessary, and as far as possible not to give her inconvenience.
ART. 62. The boarding officer, before he leaves the vessel, shall ask the master whether he has any complaint regarding the procedure of visiting or searching or any other points; and if the master makes any complaints he shall request him to produce them in writing.
The claim that visit and search disorganizes commerce has probably received more weight than the facts in a properly conducted war would justify. A properly conducted visit and search of an innocent neutral vessel would certainly interfere very little with commerce. Articles which are absolutely contraband of war form a very small portion of an ordinary cargo. The disorganization consequent on the checking of such shipments would accordingly be small. The main interruption of commerce is in the line of articles which may be classed as conditional contraband. These articles, such as foodstuffs, fuel, etc., form a large part of ordinary trade, but the present position is that such articles are liable to seizure only when destined for the military use of the enemy. In transporting such articles for such purpose the neutral is aware of his risk and assumes it in the hope of greater gain and usually pays a corresponding rate of insurance. It is true that war interferes with commerce in conditional contraband, and that commerce in the same goods to the same ports might in time of peace be very large. War does cause inconvenience to neutrals and may cause loss of trade. The denial of the right of a belligerent, except hy blockade, to prevent supplies from reaching his opponent's forces because such supplies are sailing to his opponent
NECESSITY OF VISIT AND SEARCH.
under a neutral flag would certainly be one of the most effective means of prolonging a war. Humanity demands that wars shall be as short as possible. A neutral's desire for the profits of commerce should not be put before the claims of humanity. The rights of neutrals should, however, be carefully protected in the exercise of visit and search and seizure and legitimate commerce should receive the most liberal treatment.
The argument that the contraband is “so trifling in quantity as to have no possible effect on the result of the war,” can not weigh against the practical consideration that the “quantity” is not necessarily a matter of so great importance in military operations as is the timeliness of a particular article in meeting a need. It may happen that a little more ammunition, coal, food, or supplies of some kind may turn defeat into victory. A little more ammunition may enable a belligerent to hold out till reenforcements arrive; a little more coal may enable a vessel to pursue and capture an enemy; a telegraphic outfit may make possible communications which determine the issue of the war. Though quantity may be trifling, and small quantities are the rule in some articles, this amount may be no less vital for the successful prosecution of the war.
The right of visit and search is not merely a right exercised to determine the presence of contraband or guilt in regard to blockade, but is still more essential in order that the belligerent may be convinced as to the nature and character of the vessel. The belligerent has a right to learn for himself whether the vessel flying a neutral flag really is a properly documented neutral vessel.
In general, as the neutral is supposed to refrain from all participation in the war, he can not complain if the belligerents take reasonable precautions to prevent participation.
A careful consideration of the grounds of objection to the exercise of the right of visit and search seems to show that the objection is rather to the method than to the visit and search itself. To objections to the method full weight should be given. Improper methods and careless exercise of this supervision of neutral commerce is of no advantage to the belligerent and may work great disadvantage to the neutral. Nothing can be said in support of an act that brings only injury to the neutral and no benefit to the belligerent, but in some cases the direct disadvantage of making payment for the improper act. Recent court decisions have shown that prize courts are inclined to regard reasonable neutral rights even against actions of their own commanders.
The right of visit and search is now generally admitted, and visit is not now considered an offense by a neutral, provided the visit is properly conducted. Up to the seventeenth century the exercise of this right was often regarded as in derogation of the dignity of the sovereignty of the neutral vessel visited. For a time the exercise of the right of search was permitted under treaty provisions. Later it was regarded as generally admitted, and treaty provisions merely prescribe the method of exercise of the right. (Treaty United States and Italy, 1871.)
Sir William Scott, in the case of the Maria in 1799 (1 C. Robinson's Admiralty Reports, 340), speaking of the law of nations applying to visit, search, and capture, says:
I state a few principles of that system of law which I take to be incontrovertible.
1. That the right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestible right of the lawfully commissioned cruisers of a belligerent nation. I say, be the ships, the cargoes, and the destinations what they may, because 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. This right is so clear in principle that no man can deny it who admits the legality of maritime capture, because if you are not at liberty to ascertain by sufficient inquiry whether there is property that can be legally captured it is impossible to capture.
Judge Story asserts the acceptance of Lord Stowell's position by the United States, affirming that visit and search “is allowed by the general consent of nations in the time of war and limited to those occasions.” (The Marianna Flora, 11 Wheaton, U. S. Reports, 1.)
METHOD OF VISIT AND SEARCH.
Method and scope of visit and search. The general object of the exercise of this right is to secure from the neutral observance of neutrality. The method is prescribed in the rules governing naval operations.
The general position is that the right can be exercised 1. By the properly commissioned vessels. 2. Over neutral private vessels.
3. On the high seas and at other points outside neutral jurisdiction.
The British Regulations are as follows: (Manual of Naval Prize Law, Holland, Chaps. I and II.)
1. The powers with which the Commander of one of Her Majesty's cruisers is invested for the purpose of making Lawful Prize in time of war are those of
IN WHAT WATERS EXERCISABLE.
2. These powers may be exercised in any Waters except the Territorial Waters of a Neutral State. The Territorial Waters of a State are those within three miles from low-water mark of any part of the Territory of that State, or forming bays within such Territory, at any rate in the case of bays the entrance to which is not more than six miles wide.
3. These powers may not be exercised over a vessel in Neutral Territorial Waters, although she may have been beyond those limits when first descried or chased.
4. The Commander may not use Neutral Territorial Waters as an habitual War Station, whence to sally out with his Ship or Boats and exercise the powers of Visit, Search, or Detention upon vessels lying beyond the limits of such Waters. a But he may pass over Neutral Territorial Waters in order to effect a Capture beyond, provided they are not Waters which can not usually be passed through without express permission.
5. Sometimes it happens that, after capturing a Vessel, the Commander ascertains that the Capture was made in Neutral Territorial Waters. In such case he should release her, if an express application is made by the Authorities of the Neutral Territory for her restoration.
a Twee Gebroeders, 3 C. Rob., 162.