neutrality and cargo does not lose its neutral character by being shipped in Forfeiture of a vessel that sailed in a former voyage under belligerent breaches of the protection. (r) ART. 8. Violation of Blockade, carrying hostile Dispatches, trading in Contraband of War. § 235. It is an invariable principle of the law of nations, that if a neutral violates a blockade by carrying supplies to, or in any way trading with, a blockaded port, he is guilty of a high offence against the laws of war, and thereby subjects his ship and cargo to the penalty of confiscation (s); and this penalty may be enforced by seizure of ship and cargo at any time during the continuance of the ship's voyage out and home, though long subsequent to the act of violation. (t) We shall have occasion in a subsequent chapter to enter at some length into the question of what constitutes a violation of blockade (u); it will be sufficient here to lay it down as an undoubted rule, that any act which can be so construed will entail a forfeiture of neutral privileges, and be a breach of the warranty of neutrality. Amongst the various modes by which neutrals may violate the rules of neutral conduct, and thereby expose themselves to the risk of hostile capture, few are of a more aggravated description than carrying hostile dispatches, i. e., communications made by the home government, or the spies of one of the belligerents, to its forces at the theatre of war, or vice versâ. Such conduct in all cases exposes to confiscation the neutral ship so employed, and if there be any connexion between the (r) † Kemble v. Rhinelander, 3 Johnson's Cases, 130. 1 Phillips on Ins. 392. (8) Bynkershoek, Quæst. Juris Publici, lib. i. c. 4. § 11. Grotius de Jure Belli ac Pacis, lib. iii. c. 1. § 5. Vattel, Droit des Gens, lib. iii. c. 7. § 117. (t) The Welvaart van Pillaw, 2 Rob. Rep. 128. The Juffrow Maria Schroeder, 3 Rob. Rep. 147. (u) See chapter on the Illegality of the Risks. warranty. Shipping goods on board a vessel that has sailed on a former voyage under hostile convoy, is not a forfeiture of their neutrality. Violation of the laws of blockade is a breach of the warranty of neutrality. Carrying hos- Forfeiture of neutrality and owner of the ship and cargo, then (but not, it seems, otherbreaches of the wise) the cargo also; (v) it is needless to add that it would amount to a breach of the warranty of neutrality. warranty. Ambassadors' dispatches not within the rule. Carrying articles contraband of war is a breach of the warranty of neutrality. Origin, ob ject, and extent search. But this rule does not extend to the case of a neutral ship carrying the dispatches of the ambassador of one of the belligerents from the neutral country to the sovereign of the belligerent state. (w) As we shall have to consider the whole subject of contraband of war in treating hereafter of the illegality of the risks, we will here only observe that, as carrying contraband articles entails the confiscation of all property on board the neutral ship belonging to the same owner, it would clearly amount to a breach of the warranty of neutrality as to such property with regard, however, to the ship, and such portion of the cargo as belongs to different owners, it will only, it should seem, produce such a result when the circumstances of criminality are such as to involve both ship and cargo in one common penalty: as where they show that the shipowner and the other freighters were cognizant of, and concerned in, the contraband trading. ART. 9. Resistance to the Right of Search. § 236. In order to enforce the rights of belligerent nations of the right of against the various frauds and delinquencies of neutrals, above detailed, and with a view to ascertain the real, as well as the assumed, character of all vessels on the high seas, the law of nations arms them with the power of visitation and search. If, upon making the search, the vessel be found employed in contraband trade, or in carrying enemy's property, or hostile dispatches, or troops, she is liable to be taken, and brought in for adjudication before a court of prize. If either the ship herself, or the vessel under whose convoy she is sailing, resist this right of search when lawfully exercised, or attempt a rescue while being conducted into port (v) The Atalanta, 6 Rob. Rep. 440. (w) The Caroline, 6 Rob. Rep. 461. neutrality and for adjudication, such conduct amounts to a forfeiture of her Forfeiture of neutrality, and exposes both the ship and cargo, without any breaches of the distinction, to the penalties of confiscation. Such is briefly the law of nations upon the right of search, as now recognised by all the doctors of that law, and acted upon in the practice of all the great maritime powers. (x) One memorable endeavour, indeed, was made in European history to put an end to the exercise of this right: this was the armed neutrality of 1780-a league formed by Russia, Sweden, Denmark, and other inferior states, under the auspices of the Empress Catherine, who armed for the purpose of defending and propagating the principle "that free ships make free goods;" and that the neutral flag should be a substitute for all other proof of nationality, and protect all goods carried under it, to the exclusion of the right of search. England, considering this an attempt to introduce by force a new code of maritime law, which would go to extinguish altogether the right of maritime capture, perseveringly resisted it; and when, in the wars of the French Revolution, the armed neutrality reappeared under the title of the Baltic Confederacy, she so vigorously and promptly opposed its pretensions, that the attempt was speedily abandoned, the right of belligerent search was admitted even by Russia to the very fullest extent, and since that time has been considered incontrovertible. (y) The ablest and most eloquent exposition any where to be met with of the whole doctrine of the right of search is contained in the celebrated judgment of Lord Stowell, in the case of the Maria. (z) warranty. The armed neutrality of 1780 in favour of the principle that "free ships make free goods." Exposition of the right of search by Lord the doctrine of Stowell in the case of the Maria. The points established in it are thus expressed by that 1 Rob. Rep great master of law and language: (x) See Vattel, lib. iii. c. 7. § 114. The case of The Maria, 1 Rob. Adm. Rep. 287. The convention between Russia and England, 17th June, 1801, in the United States, † The Nereide, 9 Cranch, 427. The Mariana Flora, 11 Wheaton, 42. (y) In the convention between England and Russia, 17th June, 1801, the latter admitted the right of search, even of merchant ships under convoy of a ship of war. (z) 1 Rob. Rep. 287. 287. Forfeiture of neutrality and breaches of the warranty. Resistance of search by convoy is a for feiture of neutrality as to all the fleet sailing under it. Even sailing with convoy for the purpose of such resistance is a violation of neutrality. The right of search includes 1. That the right of visiting and searching merchant ships on the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontrovertible right of the lawfully commissioned cruisers of the belligerent nation. 2. That the authority of the sovereign of the neutral country being interposed in any manner of mere force, cannot legally vary the rights of a lawfully commissioned belligerent cruiser. 3. That the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search. Agreeably to these principles, Lord Stowell, in the case in which they were thus established, pronounced sentence of condemnation on a whole fleet of Swedish ships, which were sailing under convoy of a Swedish man-of-war, and under instructions to resist by force the right of search claimed by lawfully commissioned British cruisers. The resistance of the convoying ship his lordship held to be the resistance of the whole convoy, justly subjecting the whole to confisca tion. (a) The very act of sailing under the protection of a belligerent or neutral convoy, for the purpose of resisting search, is a violation of neutrality. (b) The right of search includes that of sending a vessel into port for examination; for it would be to no purpose to permit search without permitting, as incident to it, the right to send the neutral into port, for the more satisfactory examination port for adjudi- of the national character of the property, in cases where there is a reasonable ground of doubt. (c) that of sending a vessel into cation. Attempt at rescue by the captain and crew of a neutral ship thus sent in for adjudication is a breach of neutrality. It is therefore a breach of the warranty in the captain and crew of a neutral vessel, sent into port under these circumstances, to attempt to rescue and gain possession of the vessel. (d) (a) The Maria, 1 Rob. Rep. 287. (b) The Maria, 1 Rob. Rep. 287. See the authorities collected as to this point in Kent's Comm., vol. i. p. 155, notes (b) and (c), ed. 1844, and 1 Phillips on Ins. 391. (c) The Maria, 1 Rob. Rep. 287. (d) Garrels v. Kensington, 8 T. Rep. 230. S. P. decided in the United States, † Wilcocks v. Union Ins. Comp., 2 Binn. 574, cited 1 Phillips, 388. See also The Dispatch, 3 Rob. Rep. 295. neutrality and With regard to the limitations upon the exercise of the Forfeiture of right of search, it must be observed— 1st, that it can only be exercised by ships of war or lawfully commissioned cruisers of the belligerents; 2dly, that it can only be exercised upon private merchant ships of the neutrals, and not in any case upon public ships of war. With regard to the mode of its exercise, it may be laid down generally that it must be conducted with due care and regard to the rights and safety of the vessel. (e) As to the objects to which the search ought to be confined, the principle seems to be, that the belligerent may, when his character and commission are made known, take every reasonable means to ascertain the national character of the vessel and cargo, and may, therefore, seek for any thing by which that character may be made known. The exercise of the right of search is, however, liable to modification by the provisions of international treaties, and, in some respects, is understood in a different sense by differ ent states. Thus, the government of the United States admits the right of visitation and search, by belligerent cruisers, of their private merchant vessels for enemy's property, articles contraband of war, or men in the land or naval service of the enemy. But it does not admit the right of search for the subjects or seamen of the belligerent. Our own country, on the other hand, insists on the right to search neutral ships on the high seas for British seamen, and frequently exercised it during the last American war. The belligerent government ship, in exercising the right of visitation and search, ought to show her colours, or make known the authority by which the right of search is demanded. If she fails to do this, it has been decided in the United States that the neutral ship will be justified in resistance, so as not thereby to incur a forfeiture of her neutrality. (ƒ) (e) Thurlow's State Papers, vol. ii. p. 503. Mr. Canning's letter to Mr. Monroe, August 3rd, 1807, cited in Kent's Comm., vol. i. p. 156, note (a), ed. 1844. (ƒ) † M'Clellan v. Maine Fire and Mar. Insurance Comp., 12 Mass. Rep. 246. can only be ex- and against due care and moderation. The right is fication by international liable to modi treaties, and is differently understood in dif ferent states. The cruiser exercising the right of search ought to show her colours. |