Enforcement of § 14. The exercise of this right, within its true limits, the right whatever they may be, implies the right of using lawful force, of search if necessary, in its execution, the same as in the execution of a civil process on land. The right of search on the one side implies the duty of submission on the other; and as the belligerent may lawfully apply his force to the neutral property for the purpose of ascertaining its character and destination, it necessarily follows that the neutral may not lawfully resist the lawful exercise of the right of search. This duty of the neutral, says Sir William Scott, is founded on the soundest maxims of justice and humanity. There are no conflicting rights between nations at peace, and the right of search in the belligerent necessarily denies the right of resistance in the neutral. Any attempt, therefore, on the part of the neutral vessel, its owner, officers, or crew, to resist the lawful search of a duly commissioned cruiser of a belligerent power, is a violation of a duty imposed by the laws of war, and incurs a penalty proportioned to the nature of the offence.1 It must be exercised in a lawful man ner § 15. But, although it is the duty of the neutral to submit to the lawful search of the belligerent, and to all acts that are necessary to accomplish that object, it by no means follows that the belligerent is subject to no restraints in the exercise of this right. It is not sufficient that the right is lawful, it must be exercised in a lawful manner. The right is limited. to such acts as are necessary to a thorough examination into the real character of the vessel, her cargo, and voyage, and all acts that transcend the limits of this necessity are unlawful. For any improper detention of the vessel, or any unnecessary, and therefore unlawful, violence to the master or crew, the belligerent court of Admiralty is pretty certain to award full compensation in damages; and if this should be denied to the neutral, his own government may demand and enforce the redress of his wrongs. 'Whatever,' says Phillimore, 'may be the injury that casually results to an individual from the act of another, while pursuing the reasonable exercise of an established right, it is his misfortune. The law pronounces it damnum absque injuria, and the individual from whose act it proceeds is liable neither at law, nor in the forum of con Azuni, Droit Maritime, ch. iii. art. iv.; Lampredi, Commerce des Neutres, 12; De Cussy, Droit Maritime, liv. i. tit. iii. § 15. The Maria,' 1 Rob. R., 340; the 'Eleanor,' 2 Wheat. R., 345. science. The principal right necessarily carries with it also all the means essential to its exercise. A vessel must be pursued in order to be detained for examination. And if, in the pursuit, she has been in any way injured (e.g. dismasted, upset, stranded, or even run on shore and lost), it would be an unfortunate case, but the pursuing vessel would be acquitted. The usual mode, adopted by most of the maritime powers of Europe, of summoning a neutral to undergo visitation, is the firing of a cannon on the part of the belligerent. This is called by the French semonce, coup d'assurance, and by the English affirming gun. It is, undoubtedly, the duty of the neutral to obey such a summons, but there is no positive obligation on the belligerent to fire such an affirming gun, for its use is by no means universal. Moreover, any other method, as hailing by signals, &c., of summoning a neutral to submit to an examination, may be equally as effective and binding as the affirming gun, if the summons is actually communicated to, and understood by, the neutral. The means used are not essential, but the fact of a summons actually communicated, is necessary to acquit the visiting vessels of all damages, which may result to the neutral disobeying it.'1 for re § 16. The penalty for the violent contravention of this Penalty right is the confiscation of the property so withheld from sisting visitation and search. 'For the proof of this,' says Sir William search Scott,' 'I need only refer to Vattel, one of the most correct, and certainly not the least indulgent of modern professors of public law.' He then quotes § 114, ch. vii., liv. iii., of Vattel, Droit des Gens, and continues: 'Vattel is here to be considered not as a lawyer delivering an opinion, but as a witness asserting a fact-the fact that such is the existing practice of modern Europe.' After referring to other authorities, he closes his remarks on this point with the following emphatic declaration: 'I stand with confidence upon all principles of reason-upon the distinct authority of Vattel-upon the institutes of other great maritime countries, as well as those of our own country, when I venture to lay it down that, by the law of nations, as now understood, a deliberate and con 1 Ortolan, Diplomatie de la Mer, tome ii. ch. vii.; Phillimore, On Int. Law, vol. iii. §§ 331-333; Heffter, Droit International, § 169; Hautefeuille, Des Nations Neutres, tit. xi. ch. ii.; the 'Jeune Eugénie,' 2 Mason R., 439; the 'Mariana Flora,' 11 Wheat. R., 48; the 'Nereide,' 9 Cranch. R., 392; Bello, Derecho Internacional, pt. ii. cap. viii. § 10. Can they exempt their tinued resistance to search, on the part of a neutral vessel, to a lawful cruiser, is followed by the legal consequence of confiscation.' This penalty is not averted by the orders of the neutral Sovereign to resist the visitation and search of the belligerent cruiser. The law of nations,' says Duer, 'does not permit the sovereign power of a neutral State to interpose its authority for such a purpose, so as to vary the legal rights of the belligerent. . . . Hence the obedience of the neutral subject to the unlawful orders of his Government, so far from justifying his conduct, will impress him with the character of an enemy.' The resistance of the neutral cannot, therefore, be protected by any orders or instructions from his own Government, but the act must be judged of according to its own character.1 § 17. Nor, according to the opinion of Sir William Scott, can the interposition of the authority of the neutral Sovereign, convoys? by the presence of an armed convoy, deprive the lawfully Vessels of war are exempt from search commissioned cruiser of the legal right of visitation and search. His language on this point is very clear and decided. 'Two Sovereigns,' he says, 'may unquestionably 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 understood to imply that nothing is to be found in that convoy of merchant 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 any 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, independently of all special covenant, is the right of personal visitation and search, to be exercised by those who have the interest in making it.' 18. This question leads to an examination of the powers, duties, and exemptions of public armed vessels on the high seas. The belligerent right of visit and search, whatever its extent or limitation, is undoubtedly confined exclusively to private merchant vessels; it does not apply to ships of war or to privateers. The immunity of such vessels on the high seas from the exercise of any right of visit and search, or of any 1 The 'Elsabe,' 4 Rob. R., 408. other belligerent right, has been uniformly asserted and conceded. 'A contrary doctrine,' says Kent, 'is not to be found in any jurist or writer on the law of nations, or admitted in any treaty, and every act to the contrary has been promptly met and condemned.' 'A public vessel,' says Wheaton, 'belonging to an independent Sovereign, is exempt from every species of visitation and search, even within the territorial jurisdiction of another State; à fortiori, must it be exempt from the exercise of belligerent rights on the ocean, which belongs exclusively to no one nation?' 1 convoy § 19. One of the most common, as well as one of the most Merchant ships important duties of public ships of war, is the convoy or under protection of merchant vessels on the high seas. Can such their convoying ships exempt the merchant vessels, under their protection, from the exercise of the right of visitation and search, from which they themselves are exempt? If so, may neutral vessels place themselves under such protection, and lawfully resist any attempt on the part of belligerent cruisers to subject them to such visitation and search? In other words, is the opinion of Sir William Scott, before referred to, a true exposition of the law of nations on this subject? If private Kent, Com. on Am. Law, vol. i. p. 157; Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 18. The right of search does not apply to vessels of war (Thurloe's State Papers, vol. ii. 503; Mr. Canning to Mr. Munroe, August 3, 1807; American State Papers, vol. vi. p. 89), nor to civil or criminal process in ports, although this exemption is not founded on any absolute right, but upon principles of public convenience and the comity of nations. (The 'Prins Frederik,' 2 Dods., 451; the 'Exchange,' 7 Cranch., 116.) Further, it would seem that this concession may be withdrawn by the local authorities, and that although the ship and equipage existing as a ship of war, remain exempt, persons not forming part of the crew, and prize or other property, may become subject to the local authority. (Opinions of the Attorneys-General of the United States, vol. i. 47; vol. vii. 131; vol. viii. 79.) When a war ship is boarded off a blockaded port, evidence of her character may be given by production of the captain's commission, and of the colours; also by the statement of the consul at the port. The captain of a merchant steamer, when brought to by a vessel of war, is not privileged, by the fact that he has a government mail on board, from sending, if required, his papers on board the boarding vessel for examination; on the contrary, he is bound by that circumstance to the strictest performance of neutral duties and to special respect of belligerent right. (The 'Peterhoff,' 5 Wall., 28.) Two or three Danish ships of war were, during the war, seized by the Spaniards, carrying stores to Gibraltar. On the remonstrance of the Danish minister at Madrid, it was answered that they were not men-of-war that were stopped, but vessels which had made themselves merchantmen for the time. August 15, 1798. (Life of Nelson, vol. ii. p. 241.) Treaties respecting neutral convoy merchant vessels, so convoyed, are exempt from visitation and search, there can be no doubt that no resistance on their part to an attempt to visit or search them can draw after it any penalty; for in doing so they violate no duty. This question is properly divided into two parts: First, the case of convoy, by ships of war, of private vessels of the same State; and second, the case of convoy of merchant vessels of other neutral States. The discussions of publicists have been mainly confined to the first class of cases, although some have claimed that the convoying ship extends its own exemption to all neutral merchant vessels under its protection. Before examining into this distinction, we will give a brief summary of the various treaties on the subject of convoy, and the opinions of text-writers. § 20. Whatever may have been the ancient practice with respect to the effect of neutral convoy on the exercise of the belligerent right of visitation and search, it was not till near the middle of the seventeenth century that the question assumed any considerable importance. In the war of 1653, between England and Holland, Queen Christina, of Sweden, directed her merchant vessels to take all possible advantage of the convoy of her ships of war, and ordered such convoying ships to resist, even by force, every attempt on the part of the belligerents to visit the merchant vessels placed under their protection. This ordinance, however, was never executed, and the war was terminated soon after its publication. In the succeeding war, between England and Spain, Holland, now a neutral, claimed the exemption of her merchant ships under convoy, and an English squadron was obliged to content itself with the word of De Ruyter, that the vessel under his convoy carried nothing belonging to the King of Spain. England, however, refused to acknowledge any such right of exemption, and Holland herself, whenever a belligerent, always attempted to visit merchant vessels, under neutral convoy. Even when a neutral, she admitted the duty of the convoying ship to exhibit the papers of the merchant vessel under its escort, and if found to be irregular, the right of the belligerent cruiser to visit the suspected vessel, and even to seize and conduct it into port for trial. Nevertheless, she applauded the conduct of Captain Deval, in 1762, and of Admiral de Byland, in 1780, in forcibly resisting the attempt |