By the General Act of the Brussels Conference relative to the African slave trade, signed at Brussels, July 2, 1890, Great Britain, Germany, Austria, Belgium, Denmark, Spain, the Congo, the United States, France, Italy, Holland, Persia, Portugal, Russia, Sweden and Norway, Turkey and Zanzibar, declared the opportuneness of repressing the slave trade, by sea, in the maritime zone, which extends on the one hand between the coasts of the Indian Ocean (those of the Persian Gulf and of the Red Sea included), from Beloochistan to Point Tangalane (Quilimane), and on the other hand, a conventional line which first follows the meridian of Tangalane till it meets the 26th for any commander or officer of any of her Majesty's ships, when duly authorised in that behalf, in pursuance of any treaty with that State, and for any commander or officer of any cruiser of that foreign State, to visit and seize and detain such vessel, and to seize and detain any person found detained or reasonably suspected of having been detained as a slave, for the purpose of the slave trade, on board any such vessel, and to carry away such vessel and person, together with the master and all persons, goods, and effects on board any such vessel, for the purpose of bringing in such vessel, person, goods, and effects for adjudication' (s. 3). The High Court of Admiralty of England and every Vice-Admiralty Court in her Majesty's dominions out of the United Kingdom shall have jurisdiction to try and condemn or restore any vessel, slave, goods, and effects alleged to be seized, detained or forfeited, in pursuance of this Act, and on restoring the same to award such damages in respect of the visitation, seizure, or detention of such vessel, goods and effects, and of any person on board such vessel, and in respect of any act or thing done in relation to such visitation, seizure, or detention, or in respect of any such matters, and in any case to make such order as to costs as, subject to the provisions of this Act and of any existing slave trade treaty, the court may think just. Provided that nothing in this section shall give to any court any jurisdiction inconsistent with any existing slave trade treaty over a vessel which is shown to such court to be the vessel of any foreign State, and which has not been engaged within jurisdiction in the slave trade, but where any vessel of a foreign State is liable to be condemned by a British slave court, such court shall have the same jurisdiction as if she were a British vessel' (s. 5). "The regulations contained in any existing slave trade treaty for the time being in force, with respect to any mixed court or commission, shall have effect as if they were enacted in this Act, and such court or commission shall have all necessary jurisdiction for the purpose of carrying into effect any treaty referring to them, and in particular shall have jurisdiction to try, condemn, and restore British vessels seized in pursuance of such treaty on suspicion of being engaged in the slave trade, and shall, for the purpose of their jurisdiction, have the same power as any Vice-Admiralty Court in her Majesty's dominions has, and may accordingly take evidence, administer oaths, summon and enforce the attendance of witnesses, and acquire and enforce the production of documents in like manner as any such court' (s. 8). By Order in Council of May 9, 1892, the General Act of the Brussels Conference 1890, relative to the slave trade, is declared to be from April 2, 1892, an existing slave trade treaty within the above statute. degree of south latitude, is then merged in this parallel, then passes round the island of Madagascar by the east, keeping 20 miles off the east and north shore, till it crosses the meridian of Cape Amber; from this point the limit of the zone is determined by an oblique line which extends to the coast of Beloochistan, passing 20 miles off Cape Ras-el-Lad. Those of the above Powers, between whom there are special conventions for the suppression of the slave trade, have agreed to restrict to the above-mentioned zone the clauses of these conventions concerning the reciprocal rights of visit, search, and detention (droit de visite, de recherche et de saisie), of vessels at sea; also to limit these rights to vessels of less than 500 tons burthen. All other provisions of conventions concluded between the aforesaid Powers, for the suppression of the slave trade, remain in force in so far as they are not modified by this General Act. The above Powers undertake to exercise a strict supervision over native vessels authorised to fly their flag within the above zone, and over the commercial operations carried on by such vessels. When the officers in command of vessels of war of any of the above Powers have reason to believe that a vessel of less than 500 tons burthen, in the above zone, is engaged in the slave trade or is guilty of a fraudulent use of a flag, they may proceed to the verification of the ship's papers; it is, however, stipulated that this verification does not imply any change in the existing state of things, as regards jurisdiction in territorial waters. A boat commanded by a naval officer in uniform may be sent on board the suspected vessel after it has been hailed, to give notice of intention to verify the ship's papers; but investigation of the cargo, or search, can only take place with respect to a vessel navigating under the flag of a Power who has concluded, or may conclude, a special convention for rights of visit, search, and detention. If the officer in command of the cruiser is convinced that an act of slave trade has been committed on board during the passage, or that irrefutable proofs exist against the captain, or fitter-out, to justify a charge of fraudulent use of the flag, of fraud, or of participation in the slave trade, he shall take the detained vessel to the nearest port of the zone, where there is a competent authority, of the Power whose flag has been used. The suspected vessel may also be handed over to a cruiser of its own nation, if the latter consents to take charge of it.' search in § 10. Although it is universally conceded that the vessels Visit and of one State cannot search a duly documented vessel of time of another State in time of peace, and although the right of war visitation, if it exists at all (and since the announcement by Great Britain in 1858 probably no respectable Power will claim that it does exist, except in cases of piracy everywhere, or of vessels committing crimes against municipal law in the territorial waters of the Power making the visit, or of vessels suspected of having hostile intent against a Power in time of peace), must be limited, in time of peace, to the sole purpose of ascertaining the national character of a suspected vessel, it is, nevertheless, the incontestable right of the lawfully commissioned cruisers of every belligerent, in time of war, to visit and search, on the high seas, the merchant ships of every nation, whatever may be their character, cargoes, or destination. This right of visitation and search in time of war springs directly from the right of maritime capture; for without the former we must abandon the latter, or so extend it as to authorise the indiscriminate seizure of all merchant vessels that may be found upon the ocean; until they are visited and searched, it would be impossible to know whether or not they are liable to capture either from the ownership of the vessel, the nature of the cargo, or the character of the voyage. It will be shown hereafter, that while nearly all are agreed as to the general right of visitation and search, there is great diversity of opinion with respect to the circumstances under which a neutral vessel is liable to search, and with respect to the character and extent of the search which the belligerent is authorised to make.2 1 See Appendix at end of this volume, Articles xxi., xxiii., xxiv., xxx. xlii., xliii., xlix.; also vol. i. p. 254. It should be observed that the above General Act came into force on April 2, 1892. 2 Kent, Com. on Am. Law, vol. i. p. 153; Duer, On Insurance, vol. i. P. 725; Phillimore, On Int. Law, vol. iii. § 325; Martens, Précis du Droit des Gens, §§ 317, 321; Gallani, Dei Doveri de P. Neut., p. 458; Lampredi, Del Commercio de Popoli Neut., p. 185; Kluber, Droit des Gens Mod., $293; Hubner, Saisie des Bâtimens Neutres, tome i. pt. ii. p. 227; Azuni, Droit Maritime, tome ii. ch. iii. § 4; the Antelope,' 10 Wheat. R., 66 Ortolan, Diplomatie de la Mer, tome ii. ch. vii.; Pistoye et Duverdy, Traité des Prises, tit. vi. ch. i.; Bello, Derecho Internacional, pt. ii. ch. viii. § 10; Heffter, Droit International, § 168; Hautefeuille, Des Nations Neutres, tit. xi. ch. i.; De Cussy, Droit Maritime, liv, i. tit. iii. § 15. 5; English views as § II. Sir William Scott, in the case of the Maria' (1 Rob., to extent 360), said, that to visit and search merchant vessels on the of search high seas, whatever may be the ships, the cargoes, or the destinations, is the indubitable right of the lawfully commissioned cruisers of a belligerent nation, because, until they are visited and searched, it is impossible to know the character of a vessel or its destination. This right,' he says, 'is so clear in principle, that no man can deny it who admits the right of maritime capture; because, if you are not at liberty to ascertain by sufficient inquiry whether there is property that can legally be captured, it is impossible to capture. Even those who contend for the inadmissible rule, that free ships make free goods, must admit the exercise of this right for the purpose of ascertaining whether the ships are free ships or not. The right is equally clear in practice, for practice is uniform and universal on the subject. The many European treaties which refer to this right, refer to it as pre-existing, and merely regulate the exercise of it. All writers upon the law of nations unanimously acknowledge it, without the exception of even Hubner himself, the great champion of neutral privileges. American § 12. The same view of this question is taken in the United States. Chancellor Kent says that the belligerent right of visitation and search is now 'considered incontrovertible;' and after giving a summary of the opinion of the English High Court of Admiralty in the case of the 'Maria,' he adds, the doctrine of the English Admiralty 'has been recognised, in its fullest extent, by the courts of justice in this country' (the United States). The opinion of Wheaton is equally decided. The right of visitation and search,' he says, 'of neutral vessels at sea, is a belligerent right, essential to the exercise of the right of capturing enemy's property, contraband of war, and vessels committing a breach of blockade. . . . Indeed, it seems that the practice of maritime captures could not exist without it. Accordingly, the textwriters generally concur in recognising the existence of this right.' Chief Justice Marshall, in the case of the Anna Maria,' said that 'the right to visit and detain for search is a belligerent right which cannot be drawn into question.' Notwithstanding that the ship's papers in this case were perfectly satisfactory, the Supreme Court held that the right to search the ship, in order to examine fully as to the character of her trade, was a complete right. The same court, in other cases, has writers fully sustained Sir William Scott's opinion with respect to the extent of search authorised by the rules of international law.1 Conti § 13. The Continental publicists admit the general right of visitation and search, as a belligerent right authorised by the nental rules of international law, but they would restrict its exercise writers within very narrow limits. Hubner thinks it should be limited to the examination of the papers on board, in order to ascertain the neutrality of the vessel. Rayneval says that it should be limited to the coasts of the belligerents, and ought not to be exercised upon the high seas, any further than may be necessary to ascertain the actual neutrality of the vessel visited, because, he says, a neutral vessel on the high seas has no other duty to perform toward a belligerent than that of showing that she does not belong to the enemy, and that she is not sailing under a false flag; any further examination he deems an act of hostility. Hautefeuille considers that the right of visit may be exercised whatever acts of hostility are permitted; that is, in the territorial seas of the belligerents, and upon the occan, but not in neutral waters. Moreover, that its object is not merely to ascertain the character of the vessel, whether it be enemy or neutral, but also, if the latter, to ascertain whether it is not violating neutral duty, and thereby rendering itself subject to capture. He, however, limits the examination to the papers produced, and will permit no further investigation where the visiting officer doubts, or pretends to doubt, their genuineness or the truth of their statements. To search for other papers, to interrogate the captain and crew, or to investigate the character of the cargo, he deems an abuse of the right of visit-acts entirely unauthorised, and which neutrals may and ought to resist with force. Lampredi, Azuni, and Ortolan are of the opinion that the visit cannot proceed beyond the examination of the papers, except where there is suspicion of fraud. Martens and Massé, though in some respects differing in their views, limit the right of search to the single case where the papers are incomplete or irregular." 1 Kent, Com. on Am. Law, vol. i. p. 154; Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 29; the ‘Anna Maria,' 2 Wheat. R., 327. 2 Hautefeuille, Des Nations Neutres, tit. xii.; Rayneval, De la Liberté des Mers, tome i. chs. 16-21; Hubner, De la Saisie de Bâtimens, tome i. pt. ii. ch. iii.; Ortolan, Dip. de la Mer, liv. iii. ch. vii.; Massé, Droit Commercial, liv. ii. tit. ii. ch. ii.; Martens, Essai sur les Armateurs, ch. ii. ; VOL. II. S |