Sonie Questions of International Law. v hatever be the cargo, whatever be the des tination, is an incontestable right of the law fully commissioned ship of a belligerent na tion. . . . This right is so clear in principle that no man can deny it who admits the legality of maritime capture, because if you are not at liberty to ascertain by sufficient inquiry whether there is property that can be legally captured it is impossible to capture." It is," admits Premier Balfour. "undoubt edly the duty of a Captain of a neutral ship to stop when summoned to stop by a cruiser of a belligerent and to allow, without diffi culty, his papers to be examined."1 Resist ance whether real or constructive (as in the case of convoy),2 to the attempted exercise 'Premier Balfour in the House of Commons on July 28. 19x34. In his remarks to the House of Commons on August n. Premier Balfour admit ted, however, that "in these days of huge ships, there were difficulties in the way of ex amination of cargo which did not exist formerly; and this examination, though not forbidden by International Law, was made almost impossible by the difficulty of the operation." The right of visit and search must not be confounded with the right of capture, which is much less absolute and which is only justifiable under certain conditions which we need not enumerate. Of course, the right of visit and search is also limited in several ways. In the first place, it is strictly a belligerent right, and unless there is a strong suspicion of piracy, it cannot be exercised in time of peace. In the sec ond place, it is restricted in its application to merchantmen alone. In the third place, the right of search should be exercised in such a way as to cause the least possible inconvenience or injury to neutrals. In other words, as much regard should be paid as possible to the susceptibilities and in terests of neutrals. On the limitations of the right of visit and search, see especially Woolsey, §208. and Wharton's Dig. III., §325. 2See especially the cases of the Maria, 1799: Robinson, 340; The Schooner Nancy, 1812, 27 Court of Claims, 99; and The Ship Kost v. U. S. 1901, 36 Court of Claims, 291; also the dissent ing opinion of Judge Story in the Nereide, 9 Cranch. 440; and the opinion (obiter dicta) of Justice Johnson in the case of the Atalanta, 3 Wheat. 424. The judges do not always distin guish clearly between neutral and enemy convoy. In view of the suggestion which has been made in some quarters that Great Britain send her merchant vessels to the Far East under the con voy of her warships, it may be of interest to pre sent the results of my investigation of the subject of convoy. It is still a matter of controversy whether neu-
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of this right entails condemnation and con fiscation. After this statement of the law and the facts so far as these can be ascertained, we may conclude that it is impossible for Russia tral merchantmen under convoy of warships of their own nation are bound to suffer visit and search. The English doctrine. is best set forth by Lord Stowell in the case of the Maria, above cited. American jurists have generally followed the English decisions. In the case of the Xancy, it was held that the presence of an enemy convoy is constructive resistance and a denial of the right of search, which authorizes seizure and con sequent condemnation. See also the dissenting opinion of Judge Story in the Nereide. 9 Cranch, 440. English and American writers are also gener ally agreed that "International Law does not pro hibit search of convoyed vessels nor substitute the word of the commander for actual search." Dana's Wheat on, note 242, p. 695. Cf. Hall. §272; Lawrence, §268; Kent. Com. Lect. VII., p. 154; Wheaton, Elem., §§525«; Phillimore, III., §338. Woolsey appears to be alone in expressing the opinion that the right of convoy is destined to become a part of International Law. Continental publicists are, on the other hand, almost unanimously in favor of exemption from search in the case of convoy. See, e. g., Blunt schli. §§824 and 826; Calvo. V., §§2o69ff. and the authorities there cited; Ortolan, Dip. de la Mer liv., III., c. 7; Haulefeuille, Droits des Xfutres, Tit. XII., c. i: Hcffter, §170; Perels, Droit Maritime, §56; Bonfils, Manuel. §§1597-1605. Nearly all the maritime Powers of Europe have instructed their naval commanders to respect the word of the commander of a convoy, and many of them have incorporated the principle of free dom from visit of ships under convoy into trea ties. Great Britain, on the other hand, still maintains her old position of opposition to this innovation on the rights of belligerents, and has always refused to recognize this right, even in treaties. The United States occupies a sort of interme diate position on this question. While her writ ers and jurists have, as a rule, sanctioned the English doctrine, the Government had accepted the principle of freedom from search under con voy in no less than thirteen treaties, mostly with American States, prior to 1872. (For list, see Hall, p. 729.) Article 30 of our Naval War Code, issued in looo. declares that "convoys of neutral merchant vessels, under escort of vessels of war of their own State, are exempt from the right of search, upon proper assurances, based upon a thorough examination from the commander of the convoy." If the support or example of the British Government could be secured, the prin ciple of freedom from search of vessels under convoy of ships of war of their own nation would, with certain restrictions, have an excellent chance of becoming incorporated among the undoubted principles of International Law. For the pres ent such a prétention must be denied.
