the idle and mischievous curiosity of looking into neutral trade? or the assumption of a right to control it? If it be such a substantive and independent right, it would be better that cargoes should be inspected in port before the sailing of the vessel, or that belligerent licenses should be procured. But this is not its character. It [the right of search] has been truly denominated a right growing out of, and ancillary to the greater right of capture. Where this greater right may be legally exercised without search, the right of search can never rise or come into question." Marshall, Ch. J., The Nereide (1815), 9 Cranch, 388, 427. "As neither China nor Japan has made known an intention to exercise the belligerent right of visitation and search on the high seas, it is hoped that neutral commerce may escape the inconvenience and obstruction which the exercise of that right must necessarily entail." Mr. Gresham, Sec. of State, to Mr. Denby, jr., chargé at Peking, Sept. 28, 1894, MS. Inst. China, V. 95. China and Japan, however, both claimed and exercised the right of search during the war of 1894, of course with the acquiescence of the powers. For. Rel. 1894, App. I. 69; Takahashi, International Law during the As to the exercise by France of the right of search in the Tonquin war, "12. The belligerent right of search may be exercised without previous notice, upon all neutral vessels after the beginning of war, to determine their nationality, the character of their cargo, and the ports between which they are trading." Instructions to U. S. Blockading Vessels and Cruisers, General Orders, In the French Chamber, Nov. 24, 1899, Mr. de Montaign complained that a steamer belonging to the French Navigation Company (the Chargeurs Réunis) had lately been stopped and searched by a British man-of-war. Mr. Delcassé, minister of foreign affairs, replied that in time of war a belligerent possessed the right of search, and that, if the steamer had been searched by the British, they had accomplished an act which was not prohibited by any convention. Concerning the incident itself, however, he had no precise information. The Standard (London), Nov. 25, 1899. 2. MODE OF EXERCISE. $1200. In the draft convention suggested on January 5, 1804, by Mr. Madison, Secretary of State, to Mr. Monroe, minister to England, occurs the following: “ARTICLE III. If the ships of either of the parties shall be met with, sailing either along the coasts or on the high seas, by any ship of war, or other public or private armed ships of the other party, such ships of war, or other armed vessels shall, for avoiding all disorder in visiting and examining the same, remain out of cannon shot unless the state of the sea, or the place of meeting render a nearer approach necessary; and shall in no case compel or require such vessel to send her boat, her papers, or any person from on board to the belligerent vessel; but the belligerent vessel may send her own boat to the other, and may enter her to the number of two or three men only, who may, in an orderly manner, make the necessary inquiries concerning the vessel and her cargo; and it is agreed that effectual provision shall be made for punishing violations of any part of this article." On this Mr. Madison makes the following observations: "This regulation is conformable to the law of nations, and to the tenor of all treaties, which define the belligerent claim of visiting and searching neutral vessels. No treaty can be cited, in which the practice of compelling the neutral vessel to send its boat, its officers, its people or its papers, to the belligerent vessel, is authorized. British treaties, as well as those to which she is not a party, in every instance where a regulation of the claim is undertaken, coincide with the article here proposed. The article is in fact almost a transcript of the article of the treaty of 1786 between Great Britain and France. "The regulation is founded in the best reasons: 1st. It is sufficient for the neutral that he acquiesces in the interruption of his voyage, and the trouble of the examination, imposed by the belligerent commander. To require a positive and active co-operation on his part in behalf of the latter, is more than can be justified on ony principle. 2d. The belligerent party can always send more conveniently to the neutral vessel, than this can send to the belligerent vessel; having neither such fit boats for the purpose, especially in a rough sea, nor being so abundantly manned. 3d. This last consideration is enforced by the numerous and cruel abuses committed in the practice of requiring the neutral vessel to send to the belligerent. As an example, you will find in the documents now transmitted a case where neither the smallness and leakiness of the boat, nor the boisterous state of the weather, nor the pathetic remonstrances of the neutral commander, had any effect on the imperious injunctions of the belligerent, and where the task was performed at the manifest peril of the boat, the papers, and the lives of the people. The limitation of the number to be sent on board the neutral vessel is a reasonable and usual precaution against the danger of insults and pillage." Am. State Papers, For. Rel. III. 81, 82, 87. "Another unjustifiable measure is the mode of search practised by British ships, which, instead of remaining at a proper distance from the vessel to be searched, and sending their own boat with a few men for the purpose, compel the vessel to send her papers in her own boat, and sometimes with great danger from the condition of the boat and the state of the weather." Mr. Madison, Sec. of State, report, Jan. 25, 1806, Am. State Papers, For. As a belligerent right it can not be questioned, but it must be conducted with as much regard to the rights and safety of the vessel detained as is consistent with a thorough examination of the character and voyage. Any detention of the vessel beyond what is necessary is unlawful, as is also any transgression of the bounds within which the examination should be confined. The Anna Maria, 2 Wheat. 327. It is lawful, in order to facilitate the exercise of the right of search, to assume the guise of a friend or of an enemy. If, in consequence of the use of this stratagem, the crew of the vessel detained abandon their duty before they are actually made prisoners of war, and the vessel is thereby lost, the captors are not responsible. The Eleanor, 2 Wheat. 345. The modern usages of war authorize the bringing of one of the principal officers on board the cruising vessel, with his papers, for examination. But in a case of detention merely for search, where the vessel is never actually taken out of the possession of her own officers, the captain of the cruiser may detain the vessel by orders from his own quarter-deck, and the officers of the captured vessel must obey at their peril. The Eleanor, 2 Wheat. 345. A cruiser of one nation has a right to know the national character of any strange ship he may meet at sea, but this right is not a perfect one, and the violation of it can not be puni hed by capture and condemnation, nor even by detention. The party making the inquiry must put up his own colors, or in some other way make himself fully known, before he can lawfully demand such knowledge from the other vessel. If this be refused, the inquiring vessel may fire a blank shot, and, in case of further delay, a shotted gun may be fired across the bows of the delinquent, by way of positive summons. Any measures beyond the summoning shot, which the commander of an armed ship may take for the purpose of ascertaining the nationality of another vessel, must be at his peril; for the right of a ship to pass unmolested depends upon her actual character, and not upon that which was erroneously attributed to her, even though her own conduct may have caused the mistake. The latter may affect the amount of reparation, but not the lawfulness of the act. The right of a public ship to hail or speak with a stranger must be exercised within the same limits as that of any other authorized armed vessel. When a vessel thus interrogated answers either in words or by hoisting her flag, the response must be taken for true, and she must be allowed to keep her way. But this right of inquiring can be exercised only on the high seas, and is limited to time of peace. Black, At. Gen., 1860, 9 Op. 455. The captain of a merchant steamer when brought to by a man-ofwar is not privileged from sending his papers on board, if so required, by the fact that he has a Government mail in his charge. On the contrary, he is bound by that circumstance to strict performance of neutral duties and to special respect for belligerent rights. The Peterhoff, 5 Wall. 28. Early in August, 1862, Mr. Stuart, British chargé d'affaires ad interim, represented to Mr. Seward, on the strength of information received from British naval officers, that a British steamer had been chased and fired on by a United States cruiser without display of her colors, and had then been captured without any search, and that the senior United States naval officer present had declared that the American cruisers had orders to seize any British vessels whose names had been forwarded to them from the Government at Washington. Mr. Stuart protested against these instructions as being "entirely at variance with the recognized principles of international law." On the 9th of August Mr. Seward communicated to Mr. Stuart a copy of a letter which he had addressed on the preceding day to Mr. Welles, Secretary of the Navy, conveying the direction of the President that certain instructions, which were set forth in the letter, should be issued to naval officers. Instructions were issued by Mr. Welles August 18, 1862. They embodied the substance of Mr. Seward's draft with certain amendments. They contained the following clauses : "First. That you will exercise constant vigilance to prevent supplies of arms, munitions, and contraband of war from being conveyed to the insurgents, but that under no circumstances will you seize any vessel within the waters of a friendly nation. "Secondly. That, while diligently exercising the right of visitation on all suspected vessels, you are in no case authorized to chase and fire at a foreign vessel without showing your colors and giving her the customary preliminary notice of a desire to speak and visit her. You are specially informed that the fact that a suspicious vessel has been indicated to you as cruising in any limit which has been prescribed by this Department does not in any way authorize you to depart from the practice of the rules of visitation, search, and capture prescribed by the law of nations." Blue Book, North America, No. 5 (1863); Official Records of the Union For the letter of Mr. Seward to Mr. Welles of August 8, 1862, see Parl. October 21, 1888, the American steamer Haytian Republic, while coming out of the Bay of St. Marc, in Hayti, was stopped by the Haytian war steamer Dessalines for an alleged attempt to break a blockade. The commander of the man-of-war then sent a boat load of armed men alongside the Haytian Republic and ordered her master to repair on board the Dessalines with his papers. No officer was sent on board the Haytian Republic to examine her papers, nor were the papers, ship, or cargo examined. The first officer of the Haytian Republic was, on the contrary, taken on board the Dessalines with the passenger list and a statement as to the voyage of the vessel; and he was detained on the Dessalines as a prisoner till her arrival at Port au Prince, when he was sent to the office of the captain of the port, where he was held till set at liberty at the request of the United States minister. By article 24 of the treaty between the United States and Hayti, of November 3, 1864, it was provided that where a ship of war of one of the contracting parties should meet with a neutral vessel of the other the former should remain at a convenient distance and might send its boats, with two or three men only, to examine the papers relating to the ownership and cargo of the vessel, without causing any extortion, violence, or ill-treatment; and that in no case should the neutral party be required to go on board the examining vessel for the purpose of exhibiting his papers or for any other purpose whatever. By article 27 it was further provided that it should not be lawful to remove the master, commander. or supercargo of any captured vessel from on board thereof during the time the vessel might be at sea after her capture, or pending the proceedings against her or her cargo, and that in no case should her officers, passengers, and crew be imprisoned. It was therefore held that the |