Cyclopædia of Political Science, Political Economy, and the Political History of the United States
SEARCH, Right of. M. Hautefeuille is of opinion that the search of vessels at sea is not, properly speaking, a right, but the manner of exercising various rights which may belong to belligerents.
—Martens expresses himself thus: "The mere hoisting of a neutral flag by a merchant vessel met with, not being sufficient proof that it is not a vessel of the enemy, natural law can not refuse to belligerent powers the right of searching merchant vessels encountered by their men of war or privateers in a place where it would be allowable to seize an enemy's vessel, and therefore to conduct such vessels into port if the proof that they are not subject to confiscation be insufficient. But according to universal international law, the decision of the suit between the subjects of the two nations as to the lawfulness of the capture does not belong exclusively to either of them, and in default of an amicable settlement, a mixed tribunal must be established to decide it. (Précis du droit des gens, t. ii., § 317.) A merchant vessel which refuses to allow itself to be searched is suspect, and runs the risk of being declared a good prize.
—M. Cauchy is right in saying that "the right of search would never have given rise to any objections if the thing had not gone beyond what the term conveys." It is against the abuse of it that objection has been taken; for, as Hubner, Lampredi, and, we may say, all impartial men, acknowledge, the flag is not of itself a proof of the nationality of a vessel; it is also necessary to know if the ship has a right to the colors which it carries.
—M. Cauchy (Droit Maritime, t. i., p. 55) distinguishes three degrees of verification: 1, the production of a pass, or congé du prince, a naval passport which shows the nationality, the port from which the vessel sailed, and its destination: 2, the representation of the charter parties or freighting, in which are found the nature and the quantity of the merchandise on board; and 3, the visit of the vessel, or the direct search of its contents. The first two means have raised no serious debate, while the third has been much disputed. M. Cauchy compares the first two modes of verification to the proofs usual in civil procedure, and the third to a beginning of criminal proceedings. The visit of a ship appears to us a means which should be employed only in cases where there is suspicion that it carries contraband of war, or where there is suspicion of any other serious fraud. As a rule, the ship's papers should be sufficient.
—It appears clearly from the foregoing that the right of visit is practiced only in time of war; in time of peace there would be no occasion for visiting a ship except in pursuance of especial conventions, and for the object indicated in such conventions. Thus, the United States and England concluded, April 9, 1862, a treaty granting to each other for a period of ten years the mutual right of visit and search of vessels suspected of being engaged in the slave trade. France did not ratify a similar treaty proposed by England in 1841; but she concluded another, May 29, 1845, which shows clearly her repugnance to grant this right, under no matter what pretext, in time of peace.
—Men of war are not, in any case, subject to the right of visit or search.
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