THE RIGHT OF SERACH AND ITS LIMITATION IN TIME OF PEACE.[*]
Visitation and Search in Time of Peace.
One of the striking features of the present century is the growth in the freedom of international trade. This has been the result of the closer relations between states in time of peace, and of the greater influence of those who choose a neutral attitude in time of war. A single example of the former is the downfall of the colonial system, under which trade between a state and its colonies was exclusively reserved to the channels of that nationality, all foreign ships being shut out.
The extent of the neutral interest is best seen in the Declaration of Paris in 1856, which gave him the right to carry enemy's goods safely, and also the privilege of lading his own goods on enemy's ships without liability of capture. Now rights and duties are correlative. It is proper when neutral rights are enlarged that the neutral duties which remain shall be all the more strictly enforced. Such enforcement is possible only through the examination of vessels. In this connection it is well to quote that famous dictum of Lord Stowell, the greatest of the English Admiralty Judges, in the case of the Maria (Robinson, Adm. Rep. V, 367). He asserts "the right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, by the lawfully commissioned cruisers of a belligerent nation…because till they are visited and searched it does not appear what the ships or the cargoes or the destinations are; and it is for the purpose of ascertaining these points that the necessity of this right of visitation and search exists." Necessary it certainly is, but restricted it is likewise, and its limitations as well as its necessity are stated by Lord Stowell. It is applicable to merchantmen only, on the high seas only, and solely in time of war.
Would that the British navy had always observed those restrictions! Even now one cannot think without a flush of rage, of that melancholy day when the Leopard followed our Chesapeake out to sea from Hampton Roads and claimed and exercised the right to impress three seamen from the crew of the helpless frigate. But this at least resulted from the outrage, that once and for all the English Government admitted that its right of search did not apply to a United States man-of-war.
The limitation of the right of search to the high seas is not quite exact, for it may be exercised of course within a state's own waters or the waters of its enemies and its allies, but neutral waters not a part of the high seas are exempt from it.
The third limitation, to war-time, is recognized in the amplest way by all authorities, our own included. "The Government of the United States," wrote Mr. Adams, Secretary of State, to Messrs. Gallatin and Rush in 1818, "has never asserted, but has invariably disclaimed the pretension of a right to authorize the search by the officers of the United States, in time of peace, of foreign vessels upon the high seas without their jurisdiction."
In the light of this statement, the choice of "Visitation and search in time of peace" as our topic may seem rather Hibernian. Like that famous chapter on snakes, my discussion should consist of but a single negative sentence.
And yet though the rule is true, a variety of causes may alter or suspend it. Treaties may do this; the necessity of self-defense may do this; the exigencies of a country's policy may attempt this.
Then, too, there may be search in time of peace on suspicion of piracy, for a portion of your duties, gentlemen, lies in the policing of the seas. Now the modern pirate does not, as a rule, hoist that black flag and Jolly Roger in the presence of a ship of war, which, as every one knows, are essential to his peace of mind. On the other hand, if you search on suspicion and find your pirate to be a harmless trader, you may be personally liable in damages. It will appear, therefore, I think, that there are, if not genuine exceptions to the rule that the right of search is a belligerent right in war only, at least such real or attempted modifications of it as to be worthy of our study. We may not succeed in laying down a hard and fast law, but I trust that we may call attention to some historical aspects and some modern phases of the question which will not be without interest.
During the early years of this century, and in truth for some time before them, there was one matter which embittered our relations with England more than all others—the impressment of seamen on board American ships. The exasperation which sprang from this practice influenced our national policy in another question for nearly fifty years.
The legal basis for the claim to impress seamen out of foreign ships was the doctrine of the indelible allegiance of every British subject to the Crown. Neither emigration, naturalization, foreign marriage, or any other circumstance could wipe it out. This led to some curious inconsistencies. Thus an English woman marrying a foreigner remained an English subject; a foreign woman marrying an Englishman became an English subject.
An Englishman naturalized abroad, acquired thereby obligation of military service, while still retaining the same obligation to the country of his origin. So that in case of war between them, to one of the two he must of necessity prove a traitor. This theory, which our own courts inclined to follow, was not surrendered until the English Naturalization Act was passed in 1870.
The practical need for impressment lay of course in the demand for seamen, the unpopularity of the English naval service, and the tendency to escape from it by shipping on foreign, largely American, vessels. This was particularly true in time of war, and most of all during the tremendous struggle against Napoleon in which Britain was engaged. And while enforcing her genuine belligerent rights against the neutral, it was easy and tempting to class search for impressment purposes amongst them. She pretended to limit it to time of war. In point of fact, however, the right was exercised against foreign vessels in time of peace as well. Diplomatic protest was made in 1792 against the practice; it had become a crying evil in 1794, when Jay's treaty was signed; it is believed to have been enforced likewise during the Peace of Amiens. And as it never was a belligerent right, it is fairly a part of our subject.
Now the impressment of seamen claimed as British subjects from American vessels involved the stopping and searching of some hundreds of such vessels under circumstances of the greatest exasperation and sometimes of loss. The Yankee skipper, perhaps already short-handed, saw his crew mustered by some arrogant young officer of a country which he liked none too well, and half a dozen of his smartest men dragged into the English service, their British nationality being assumed on the slightest evidence, and thus frequently mistaken. These suffering seamen, the captains and the ship-owners, united for years in unavailing complaints. In 1803 an agreement to abolish the claim was nearly reached. It failed because England insisted upon retaining it in the narrow seas. And some years later came the proposal that the practice should be allowed by the United States, but subject to damages for any mistake as to nationality. This, however, would have authorized the impressment of foreign seamen from our ships and did not meet our real objections.
In truth, the right was never formally relinquished; it simply died out.
What was the flaw in the English theory and practice? It was not in the claim to unchangeable allegiance: that is a matter of state policy.
It was not in the claim to impress men for service on English men-of-war. That was a lawful measure which, though harsh in its working, might well have seemed in that day essential to the safety of the state. It was a naval draft law, irregularly and violently applied. No! The real difficulty in the English theory was, that it was a claim to apply a municipal law outside of English jurisdiction; that it was a violation of the sovereignty of a friendly state. The search of a foreign ship, on the high seas, to enforce, not a belligerent right but a municipal ordinance, had absolutely no foundation except the right of the strongest. And so in time it lapsed, but not without leaving a trail of animosity behind.
For the enforcement of their revenue laws, several states have claimed and exercised the right of search upon the high seas in time of peace, and this practice, if legitimate, would be a genuine exception to our rule. Thus statutes forbidding transshipment of cargoes within four leagues of the coast have been in force from the last century both in England, under the name of the Hovering Acts, and in the United States of America, and according to Wheaton, "have been declared by judicial authority in each country to be consistent with the law and usage of nations." Portugal and Spain have asserted similar rights, but only to find that England was less ready to concede than to make such claims. The fact is that such statutes are good only when acquiesced in by foreign states, in accordance with the comity of nations. For they are only municipal, not international laws. They assert for a special purpose jurisdiction beyond the three miles of coast sea which is commonly conceded to be the limit of a state's territorial waters. Even if the extent of coast sea jurisdiction has been enlarged by the larger range of modern cannon, which is not the theory of our own Government, no such width as four leagues has been claimed for it. These Hovering Acts are really then, so far as legal authority goes, no better founded than the impressment claim. If the United States, for enforcement of revenue or health laws, boards a foreign ship four leagues out from New York and seizes her on suspicion, the said seizure may be complained of by her own Government, and we can point to nothing but many years of acquiescence in justification. In this opinion, I believe, modern publicists are pretty well agreed.
Twiss states his opinion thus: "A state exercises in matters of trade for the protection of her maritime revenue, and in matters of health for the protection of the lives of her people, a permissive jurisdiction, the extent of which does not appear to be limited within any marked boundaries, further than that it cannot be exercised within the jurisdictional waters of any other state, and that it can only be exercised over her own vessels and over such foreign vessels as are bound to her ports," He adds that if these regulations "should be such as to vex or harass unnecessarily foreign commerce, foreign nations will resist their exercise."
Lawrence, the latest English writer on these subjects, quotes Twiss approvingly, and also Dana, the best of the editors of Wheaton, to the effect that "the right to make seizures beyond the three-mile limit (and this involves a preliminary search) has no existence in modern international law." Lawrence adds: "It is very doubtful whether the claim would be sustainable against a remonstrance from another power…When it is submitted to, the submission is an act of courtesy."
Although the law of 1799 still stands upon our statute book, it is doubtful if the attempt to enforce it would now be made, while the British Hovering Act was repealed by the Customs Consolidation Act of 1876, Sec. 134. We have probably seen the last of this curious extension of revenue jurisdiction.
Akin to this right of search for revenue purposes, is the claim to capture outside of the territorial waters of a state, for a breach of revenue laws committed inside, after hot pursuit. Here the theory is that a distinct offense against the state has been committed, and that the application of the penalty should not be limited because in escaping the wrong-doer has crossed the three-mile limit and gained the high seas. Even in this case no right of search exists. For in the case of the Marianna Flora (11 Wheaton, 42) the Supreme Court declared that such chase "has never been supposed to draw after it any right of visitation or search. The party in such case seizes at his peril. If he establishes the forfeiture he is justified."
I have sometimes wondered on what ground that sensational pursuit of the Itata by the Charleston was ordered. As a speed trial it was interesting, and I believe satisfactory. But the only fault committed by the Chilian ship was a petty breach of the port regulations of San Diego, as the Government might have learned, while the pursuit was not hot, but began at San Francisco, four hundred miles away. The trial of the Itata, after her voluntary surrender by the Chilian Junta, showed that she was not fitted as a man-of-war, nor was she an armed expedition. The Chilian revolutionists had the same right to buy arms in the United States that the Cubans have now. Suppose a Cuban brig to enter at New Haven, act rather mysteriously, ship a cargo of Winchester rifles and cartridges, and make off without clearance papers. Then let the New York or the Columbia, lying in Boston harbor, be ordered in pursuit. The brig eludes her pursuer, reaches her port safely, but is surrendered with her cargo by the insurgents, who desire to stand well with our Government. This is a parallel case to that of the Itata. I think it has only to be stated to show the wrong-headedness of the Itata order.
The Bering Sea controversy is another instance of a claim to search and capture on the high seas, in enforcement of municipal, not international laws, which rightly, and fortunately, as it seems to me, has not been upheld. For it would have been unfortunate indeed if the United States, which has so consistently and manfully in the past stood for the freedom of the seas, should suddenly from interested motives try successfully to establish the opposite.
We approach now another topic, in connection with which the right of search in time of peace rests upon a surer basis—that of treaty agreement.
Early in the present century a remarkable agitation in England, led by men like Sir Fowell Buxton, Wilberforce, and Clarkson, forced upon the Government the policy of slave trade prevention. To accomplish this, the right of search was essential. This right, with seizure in case of guilt, was secured by a series of treaties between Great Britain and Spain, Portugal, the Netherlands, Sweden, and finally France, each of these states making the slave trade a criminal act by law. Now, since several of these treaty powers had no efficient cruising navy, the responsibility of making these laws effective was assumed by the British Government, though of course the treaties were reciprocal in terms. In one or two cases a considerable sum was paid to secure this treaty concession of search; in fact the action of England, which has been followed even down to the present day, is a remarkable, perhaps unique, instance of national altruism.
But to put down the slave trade, the concession of search was needed from every important maritime state, for otherwise every slaver would hoist that state's flag. The United States, even earlier than England, had forbidden its citizens to engage in the slave trade, but when asked to arrange a mutual right of search with Great Britain, the memories of impressment were too unpleasant, and of British search too distasteful. Thus it happened that many slavers with an American register, or at least flying the United States flag, traded between the African coast and the ever lessening negro markets. We must remember, in this connection, that the abolition of the slave trade long preceded, here as in most other countries, the abolition of slavery.
This American slave trade was in violation of various statutes and of the national policy. Two curious decisions by English admiralty judges took advantage of this fact. One was rendered in the case of the Amedie (1 Acton, 240), an American ship trading in slaves between Africa and Cuba in 1810. She was taken, tried and condemned on the ground that under the English statute of 1808, and because of that statute, the slave trade was prima facie illegal, but that it was open to a ship-owner engaged in this traffic to show that by the laws of his own country it was permitted, which would work his acquittal. In conformity with this theory, a Swedish slaver, the Diana (1 Dodson, 95), was released because Sweden had not then prohibited such trading. By the condemnation of another American ship, the Fortuna (1 Dodson, 81), Lord Stowell added his great authority to that of Sir William Grant, in favor of this amazing judgment. It is amazing because it consisted in the claim of a right to enforce the municipal law of another state upon the ships of that state by foreign capture and foreign judicial procedure. Such a decision could not stand. It was overruled in Le Louis (2 Dodson, 210) a few years later, by Lord Stowell himself. This judgment is thus summarized by Mr. Pitt Cobbett in his "Leading Cases," page 77. "Neither any British act of Parliament, nor any commission founded on it, could affect any right or interest of foreigners, unless it was founded upon principles and imposed regulations consistent with the law of nations. The first matter of inquiry was whether there was any right to visit and search. If there was no such right, and if it was only in the course of an illegal exercise of this right that it was ascertained that Le Louis was a French ship trading in slaves, then this fact having been made known to the captor by his own unwarranted acts, he could not avail himself of discoveries so produced. At present no nation could exercise a right of visitation and search upon the common and unappropriated parts of the sea, save only on the belligerent claim. The tight of visit in this case could only be legalized upon the ground that the captured vessel was to be regarded legally as a pirate. But slave trade was not piracy in legal consideration, not was it a crime by the universal law of nations. A nation had a right to enforce its own navigation laws so far as it did not interfere with the rights of others, but it had no right in consequence to visit and search all apparent vessels of other countries on the high seas in order to institute an inquiry whether they were not its own vessels, violating its own laws." This was ten years and more before the French treaty granting search reciprocally. A similar mistaken reasoning, to be followed by a similar return of reason, took place in our own country, the Supreme Court in the Antelope (10 Wheat. 66) declaring that it was not the practice of the courts of any country to execute the penal laws of another.
This attempt to secure the right of search by judicial interpretation thus broke down, but the problem of slave trade prevention remained, and two attempts were made to solve it by treaty agreement. It was not until 1842, however, that this policy resulted in anything. It took the form of an agreement with Great Britain to maintain separate squadrons of eighty guns each on the African coast, to act in concert so far as possible. This still excluded a mutual right of search, and this omission was the cause of ineffectiveness. For unless ships of both countries cruised together, a vessel with American papers could escape British search and capture, in spite of the strongest suspicion, while damages were due for the detention of a lawful trader.
It was just before this treaty that the British Government propounded a new theory—the right of visit as disconnected with the right of search. Now really this claim to visit a ship for the purpose of inspecting her nationality—(to see if she might not belong to a state with which the treaty right of search subsisted, using a false flag for concealment)—though expressly denying it to be so, was simply the belligerent right of search in disguise. It was stated by Lord Aberdeen thus: "The sole purpose of the British cruisers is to ascertain whether the vessels they meet with are American or not. The right asserted has in truth no resemblance to the right of search, either in principle or in practice. It is simply a right to satisfy the party who has a legitimate interest in knowing the truth, that the vessel actually is what her colors announce. This right we concede as freely as we exercise. The British cruisers are not instructed to detain American vessels under any circumstances whatever, on the contrary they are ordered to abstain from all interference with them, be they slavers or otherwise. But when reasonable suspicion exists that the American flag has been abused for the purpose of covering the vessel of another nation, it would scarcely appear credible…that the Government of the United States, which has stigmatized and abolished the trade itself, should object to the adoption of such means as are indispensably necessary for ascertaining the truth." The same claim was asserted by others even more forcibly, but with the promise of damages in case of mistake and loss from its exercise.
Mr. Webster, in combating Lord Aberdeen's view, denied "any broad and generic difference between what has been usually called visit and what has usually been called search," asserting "that the right to visit, to be effectual, must come in the end to include search, and thus to exercise in peace an authority which the law of nations only allows in time of war. If such well-known distinction exists, where are the proofs of it? What writers of authority on public law, what adjudications in courts of admiralty, what public treaties recognize it?" And he goes on to assert that by publicists of all nations, by judges in their courts, and by statesmen in their diplomacy, the words visit and search have been used hitherto in the same sense.
To a practical mind it seems to me clear, that even if permitted, the right to gather surface evidence of nationality would be valueless. The guilty would be provided with means of deception, and only the innocent would suffer. Quite apart from this, however, the contention of the United States was sound, that without precedents and in default of treaty, no right of jurisdiction, even the smallest, over a vessel apparently American, could possibly be recognized as belonging to Great Britain.
In spite of this discussion and these protests, in spite of the treaty of 1842 providing for separate action against the slave trade, the English navy was still instructed to use police surveillance over ships carrying the American flag, and to ascertain their nationality upon suspicion, but paying damages in cases of mistake. The diligence of Her Majesty's officers is thought to have been stimulated by the prize money involved, and their operations were transferred from the African coast to Cuban waters and the Gulf of Mexico. There many vessels were visited and some were captured; then our Government saw that it was time for an ultimatum. The Senate declared that any visitation, molestation, or detention by force, of the merchant ships of the United States was in derogation of its sovereignty; our diplomatists forcibly pressed this action and the arguments for it upon the notice of the British Government, and at last the latter yielded. The Earl of Malmesbury announced in the House of Lords, July 25, 1859, that acting upon the unanimous opinion of the law officers of the Crown, Her Majesty's Government frankly confessed that it had no legal claim to the rights of visit and of search which had been assumed, and therefore abandoned both. To the complaint that the Government was giving up a most valuable right. Lord Lyndhurst replied: "We have surrendered no right at all; for in point of fact no such right as that contended for has ever existed. We have, my Lords, abandoned that assumption of right, and in doing so I think that we have acted justly, prudently and wisely."
Throughout this whole discussion we must not for a moment think that the Government of the United States was disposed to sustain the slave trade. Its object and its duty were to oppose the unfounded British theories of search in time of peace. When these claims have been frankly given up as a matter of right, the mutual right of search could be safely conceded under treaty, and this was done in 1862.
Under this treaty of 1862, twice modified, the two countries are still acting. The right of search is granted only to vessels of war expressly authorized, thus denying it to the ordinary cruiser not on prevention of the slave trade service. It applies to merchantmen 'only, and in certain waters, namely, within two hundred miles of the coast of Africa south of the thirty-second degree of north latitude, and within thirty leagues of Cuba, Porto Rico, San Domingo, and Madagascar. Its method of application is carefully laid down to insure courteous treatment and prevent abuse, and damages for loss by illegal detention shall be borne by the respective governments. Mixed courts were set up to try slave-trading cases, but in 1870 these were abolished. The evidences of character, such as extra water casks or mess tubs, shackles, grated hatches, an unusual quantity of rice or other food with boiler for cooking it, and so on, were specified. And finally the treaty was made terminable after 1872, at a year's notice. Thus search as a right, asserted for seventy years by Great Britain for one purpose or another, gradually whittled down into visitation, then yielded altogether, became search under treaty. It is one more proof of our dictum that the right of search in time of peace does not exist.
Search on Suspicion of Piracy.
At one period of the slave-trade agitation (1824) the United States proposed to unite with a number of other powers in making that inhuman traffic piracy by statute and treaty. By this was meant only that slave-trading, as between the signatories, should be punished like piracy. Statutory piracy like this is under the ban of that state only which legislates against it. But the genuine article, piracy jure gentium, is quite another thing. It has two important characteristics. The first is that being committed upon the high seas, or by descent upon unoccupied land from the high seas, it is a crime which is not within the jurisdiction of any one state. The second is that it is not aimed at any one state, like privateering, but its animus furandi is general, it is war upon civilized society. It follows that all states have laid upon them the duty of suppressing piracy, and the courts of any nation have jurisdiction over it. In other words, it is part of the duty of every ship of war to search for and arrest pirates, while any admiralty court is competent to pass upon their character. This is sufficiently familiar ground. But to us here there comes the practical question how this duty shall be exercised. It is inaccurate to call such right of search a belligerent right, because piracy is war upon human society. There is no more war than there is between a gang of ruffians in Oklahoma and the United States. It is simply a detail of naval police duty, in which you suspect a ship from her history or her appearance, and search or perhaps seize her in order to make her character clear. But suppose you make a mistake. By your action freight goes unearned, wages are wasted, a voyage is lost. Who stands the damage? And, moreover, what does search mean, when is it justifiable, how can you lawfully find out the character of a ship which appears to you in doubt?
Here we come upon the American doctrine of the right of approach. The English theory of visitation meant stopping a merchantman, inspecting her papers, ascertaining her real nationality and character by means which fell little short of search. The American theory of approach involved only closing in upon a ship for a nearer look, she meanwhile pursuing her voyage. It seems to have been first definitely laid down by the court in the noted case of the Marianna Flora (11 Wheaton, 40). It was in November, 1821, that the United States armed schooner Alligator, cruising against pirates and slavers, fell in with a strange sail. Their courses crossed, and the ships were separating, when the stranger shortened sail and slightly lowered a vane or flag—not a national flag—on her mast. These acts Lieutenant Stockton interpreted to be signals of distress, and approached accordingly. As he came up he was fired upon, and an encounter took place which ended in the surrender of the Portuguese trader Marianna Flora.
Stockton made no careful examination, but sent his prize in on the charge of piratical attack. Her story was that she mistook the Alligator for a pirate and acted in self-defense. The lower court acquitted the ship and awarded damages against Stockton. Appeal was taken to the Supreme Court on this question of damages, a matter of close upon twenty thousand dollars. In behalf of the claim it was urged that Lieutenant Stockton's approach, as well as the subsequent seizure, was unjustifiable; that the mere fact of approach authorized the attack. This claim, said Mr. Justice Story in giving the opinion, the court feels itself bound to deny. It was argued again that the Alligator was bound to lie out of cannon-shot in making visitation and search. The answer was that this was no visitation and search, but an approach induced by the supposed signals of distress and other reasons.
"As we understand the general and settled rules of public law," said the court, ''in respect of ships sailing under the authority of their government to arrest 'pirates and other offenders,' there is no reason why they may not approach any vessels descried at sea for the purpose of ascertaining their real characters. Such a right of approach seems indispensable for the fair and discreet exercise of their authority; and the use of it cannot be justly deemed indicative of any design to insult or injure those they approach or to impede them in their lawful commerce. On the other hand it is clear that no ship is, under such circumstances, bound to lie by, or wait the approach of any other ship."
And accordingly the decision of the lower court was reversed and damages refused. The Alligator had acted honestly though mistakenly, and there was enough ground for suspicion to warrant the capture.
In 1843 Mr. Webster quoted this opinion as expressing his view of the means which a vessel of war may use in peace to ascertain the character of any other ship on the high seas.
President Tyler, in a message to Congress the same year, incidentally lays down the same rule. "To seize and detain a ship upon suspicion of piracy with probable cause and in good faith, affords no just ground either for complaint on the part of the nation whose flag she bears, or claim of indemnity on the part of the owner. The universal law sanctions and the common good requires the existence of such a rule. The right under such circumstances, not only to visit and detain, but to search a ship, is a perfect right and involves neither responsibility nor indemnity." Do not overlook his phrase "upon suspicion of piracy with probable cause," for it conditions the whole statement.
With these opinions, judicial and official, the text-writers seem to agree.
Chancellor Kent concedes the right of approach (as described by the United States Supreme Court in the Marianna Flora) for the sole purpose of finding out the real character of a vessel under suspicion. (Kent's Com. I, 153.)
Ortolan, the French publicist, himself an officer in the navy. distinguishes inquiry into the nationality of a ship from a search of her. Upon legitimate suspicion of piracy, however, you may search, but subject to the payment of damages by your government. (Ortolan, Dipl. de la Mer, III, 7, p. 258, 4th ed.)
The English writer Lawrence, publishing in 1895, when speaking of prize court procedure, says: "If the grounds on which the capture was effected turn out to be good, condemnation will ensue and the captors will receive the proceeds of the sale of the captured property in the form of prize money. If the evidence against the vessel is not conclusive in spite of circumstances of just and reasonable suspicion, she will be released, but her owners will have to bear the expense of detention and delay. But if the capture was effected on foolish and frivolous grounds, the officer responsible for it will be condemned in costs and damages. And the same rule holds good in the more difficult matter of the treatment of vessels suspected of piracy by the cruisers of non-belligerent powers. Being at peace, they have no right to search unless the ship they have in view is really a pirate, in which case they are free to go further and capture. But they cannot tell whether the right to seize the vessel exists until they have visited and overhauled her. They must, therefore, be guided by surrounding circumstances. Should the information they have received and the behavior of the vessel when approached give rise to a reasonable suspicion that she is a pirate, their commanders are not liable for damages for seizing her, even if it should turn out that her errand was perfectly lawful. But if they have made an inexcusable mistake they must suffer for it. On the other hand, should the vessel be really a pirate, their action is lawful from the beginning, and they have performed a meritorious service." (Lawrence, Int. Law, p. 395.)
Here, then, we have the rule clearly stated. Yet the rule itself is not clear. It is part of a navy's duty to suppress piracy. A ship of war may lawfully take a close view of any vessel. Upon suspicion of piracy it may search and even seize that vessel. If the suspicion turns out to be well founded, the search and arrest were meritorious acts. But if the search shows no fair ground for suspicion, then damages are due. To determine whether a suspicion was justified or not is easy for a court with means of securing evidence at its command. To determine from an outside view whether search is likely to be justified, is not so easy for the naval officer who between duty and damage is between the devil and the deep sea.
We must hope that the new photography will be equal to this dilemma, and that a search-light may be discovered of such power and quality as to give us a shadowgraph of the ship's interior, the captain's intentions and the hearts of the crew.
One more inquiry, gentlemen, and my topic will be threadbare May there not be a right of search on the high seas in time of peace, founded upon and justified by the right of national defense? Self-defense has been called the first law of nations as of individuals. It has sometimes been held to justify very gross violations of the jurisdiction of one state by another, as in the case of the Caroline. Have we not here a genuine exception to our general rule? A case which brought up this question among others is that of the Virginius. It was in 1873 during the first Cuban insurrection, to which no belligerent rights were accorded by this country. The Virginius had an American register and flew our flag. For nearly three years she had been employed by Cuban sympathizers in delivering men and arms from various points. Late in October, 1873, at Kingston, Jamaica, she took on a body of drilled Cubans, nearly one hundred in number, who had come down by steamer from New York. To these were added certain Cuban leaders and eighty men who had been picked up separately. She sailed for San Domingo, was warned away, and then went to Port-au-Prince, in Haiti, where she loaded a quantity of arms and ammunition. She made a further stop at Corinto, shipping additional military supplies, with shoes and clothing. Thus assembling an organized body of men and material of war for their use, she was clearly engaged in transporting a military expedition and not mere contraband articles. From Corinto crossing to Cuba she cruised eastward along the coast seeking a landing. Off Point Guantanamo, six miles from shore, the Spanish cruiser Tornado came in sight. All the Spanish men-of-war had been warned to look out for and capture the Virginius; that is, her character and business were notorious. She ran out to sea towards Jamaica, but finding herself overhauled, threw the military portion of her cargo overboard and then surrendered, relying upon her American flag and register. At Santiago de Cuba, where she was taken, her passengers and crew were summarily tried by court-martial. Four were shot on the fourth of November, thirty-seven on the seventh, sixteen on the eighth; of those executed, nine were Americans and sixteen British subjects. There were over one hundred left, but further executions were stopped by the remonstrances of the British officials.
The effect of the news of this affair in the United States was tremendous. A cry of rage and warlike desire went up, the like of which was not heard again until 1891, apropos of the attack by a Valparaiso mob upon the seamen of the Baltimore.
Although aware that a doubt existed as to the real ownership and nationality of the Virginius, Secretary Fish completely disregarded this and through General Sickles, our minister at Madrid, demanded the surrender of the survivors, the restoration of the ship, and a salute to the United States flag, under threat of breaking off diplomatic relations in twelve days. To this the Spanish Government yielded, with the single proviso that if the ship proved to have gotten her American register fraudulently, as turned out to be the case, the salute should be dispensed with.
Now there are several interesting questions involved in this Virginius case, and perhaps it is simpler to reach that particular inquiry which relates to the right of search by process of exclusion.
Let us set apart then entirely the summary execution of two-fifths of the crew as an act barbarous, unjustifiable and directly in violation of treaty. They were taken with no arms in their hands; they were shot, not in self-defense, but in revenge; they were in no sense pirates jure gentium; they were tried by drumhead court-martial, whereas Art. VIII of the treaty with Spain of 1795 distinctly provides that "in all cases of seizure, detention or arrest for…offenses committed by any citizen or subject of the one party within the jurisdiction of the other, the same shall be made and prosecuted by order and authority of law only, and according to the regular course of proceeding usual in such cases," with full right to employ counsel. This same treaty provision has been successfully invoked within a few months to protect the few Americans captured on the filibustering ship Competitor from similar execution as the sequence of a similar trial.
When Americans are captured fighting against Spain, with arms in their hands, they must be held to have entirely identified themselves with the insurgent cause and to have lost the right to protection which their nationality would give them. Under other circumstances a fair trial, under the treaty, cannot be refused them. But however indignant we may be at this instance of Spanish inhumanity, we must not allow our calm estimate of Spanish rights to be prejudiced thereby.
The next inquiry turns on the nationality of the ship. The investigation of the Attorney-General brought out these facts: The Virginius had been granted an American register on the oath of an American citizen that he was her owner. The law requires in addition a bond signed by the owner and captain with sureties, but no sureties were furnished. It appeared also that the real owners were certain Cuban sympathizers who furnished the purchase money and had controlled the ship's movements for nearly three years.
On these two grounds of defective bond and foreign ownership, the ship was declared to have no American nationality. If not an American ship, what ship was she? Clearly she belonged to that state to which her real owners belonged, that is, to Spain. Mr. R.H. Dana, the learned editor of Wheaton, is explicit on this point, writing in a Boston paper of January 6th, 1874, that actual ownership by a person belonging to a state places a ship on the high seas under the jurisdiction of that state, and applying this law to the Virginius. Over a Spanish ship on the high seas the Spanish Government had complete jurisdiction to search, to seize, to condemn her according to its own laws.
And conversely over a Spanish Virginius our own Government had no jurisdiction. For the surrender of the ship, for the release of the foreign portion of the crew, for the apology due our flag, it had no lawful claim. But of all this the administration seems to have been singularly heedless. For President Grant in his message to Congress of January 5th, 1874, declares that the Virginius would "appear to have had, as against all powers except the United States, the right to fly its flag." And again, "If her papers were irregular or fraudulent, the offense was one against the laws of the United States, justiciable only in their tribunals." And in the promise of surrender by Spain he finds recognition of the soundness of his position. He knows of the doubtful registry and ownership of the Virginius, yet completely ignores the consequences which would flow from proof of Spanish ownership. His claim amounts to saying that a foreign ship which has fraudulently secured an American registry and fraudulently flies an American flag is thereby divested of foreign nationality and becomes an American vessel subject to the punishment of its owners for a violation of our laws.
The third point to which I ask your attention is akin to this, but bears directly upon our subject. After showing that the American register of the Virginius was fraudulent and that she had no right to fly the American flag, the Attorney-General added: "I am also of opinion that she was as much exempt from interference on the high seas by any other power on that ground as though she had been lawfully registered." This is equivalent to saying that, so far as Spain was concerned, the fact that the Virginius carried an American flag—whether fraudulently or not—was conclusive; that Spain lost its jurisdiction over its own ships if they could fraudulently show another flag and register. It is safe to say that we should never allow another state to assert such a monstrous doctrine against us. It was warmly attacked by some of the leading jurists in the country at the time, in spite of the popular outcry. Thus, Mr. Dana said: "The register of a foreign nation is not, and by the law of nations is not recognized as being a national voucher and guarantee of national character to all the world, and nations having cause to arrest a vessel would go behind such a document to ascertain the jurisdictional fact which gives character to the document, and not the document to the fact." Pitt Cobbett (Leading Cases Int. Law, p. 93) comments thus upon the question of the finality of the flag: "It is necessary to remember that had the Cuban insurgents been recognized as belligerents the public vessels of each combatant would have been entitled to exercise the right of visit and search in regard to neutral vessels on the high seas. In default of a recognized state of belligerency it can scarcely be maintained that even on the high seas the flag is final, and absolutely precludes a state engaged in suppressing an insurrection from molesting a vessel suspected of aiding rebels." And he goes on to say that upon suspicion that a ship is waging war against a state, or is really owned by its subjects, search is justifiable, but limited by the necessity of compensation in case of mistake.
And now to go one step farther.
It seems to me not unreasonable to assert that, even if the Virginius had been an American ship, entitled to her flag and with a register of unquestioned validity, Spain had nevertheless the right to search her and to seize her on the high seas, on the ground of self-defense. She and her like were feeding the insurrection with supplies and with men. They were dangerous, the Virginius notoriously so. Is not the right of self-protection under such circumstances paramount to every other right? It is noticeable that the English Government, though protesting against the hasty execution of her subjects on the Virginius, made no complaint of the seizure of the ship. It demanded their release, yet said at the same time, "Much may be excused in acts done under the expectation of instant damage in self-defense by a nation as well as by an individual. But after the capture of the Virginius and the detention of the crew was effected, no pretense of imminent necessity of self-defense could be alleged."[*]
And Hall adds (2nd ed., p. 252): "It is clear from this language that the mere capture of the vessel was an act which the British Government did not look upon as being improper, supposing an imminent necessity of self-defense to exist." Yet there were more British subjects executed than American, and Great Britain is thought to take uncommonly good care of her citizens' lives.
Similarly Mr. Geo. Ticknor Curtis, in an able discussion of the case in 1874, says: "It will be seen, therefore, that we rest the seizure of this vessel on the great right of self-defense, which, springing from the law of nature, is as thoroughly incorporated into the law of nations as any right can be. No state of belligerency is needful to bring the right of self-defense into operation. It exists at all times, in peace as well as in war. The only questions that can arise about it relate to the modes and places of its exercise."[†]
To quote one more authority, President Woolsey [‡] states the rules of International Law illustrated by the Virginius case as follows:
"1. The right of self-defense authorizes a nation to visit and capture a vessel, as well on the high seas as in its own waters, when there is reasonable ground to believe it to be engaged in a hostile expedition against the territory of such nation,
"2. A nation's right of jurisdiction on the high seas over vessels owned by its subjects, authorizes the detention and capture of a vessel found on the high seas which upon reasonable ground is believed to be owned by its subjects and to be engaged in violating its laws. The flag or register of another nation, if not properly belonging to a vessel, does not render its detention unlawful by the cruiser of a nation to which its owners belong."
From these opinions in opposition to that of the Attorney-General I do not find amongst the publicists who have discussed the affair a single dissenting voice, though one or two do not go quite so far or express themselves quite so clearly.
To me it becomes a clear case if we can imagine the tables turned. Let us suppose that in 1861 Mr. Seward had carried his point and had prevented the recognition of Southern belligerency by any foreign power.
Let us suppose a ship under British colors, but which almost certainly belongs to certain Confederates, to be engaged several times a year in landing men and arms at various points of the Southern coast.
There is no legal blockade because there is no legal war. You have been warned to look out for this ship. You find her attempting a landing. She runs away and you catch her. British ship or not, entitled to her flag or not, is there an officer in our navy, or an official of our government, who would not believe her to be lawfully captured in self-defense and applaud the captor?
But though we admit the right of search in peace on the ground of self-defense, there is still and always will be the practical difficulty of knowing when it is applicable. As in search on suspicion of piracy, there is a duty and there is a danger. We can be sure only in extreme cases. We must weigh every fact and act calmly. Here then is the one real and only exception to the rule that the right of search on the high seas in time of peace does not exist.
In one of Norris' stories, Thirlby Hall, the hero goes to the village church and pictures for us the drowsy service and the quaint building. There was the old, square pew with its shabby hassocks; the well-remembered musty smell, for which partly damp and partly the remains of his decaying ancestors were responsible; and there was the village choir in the gallery bawling out "I will arise," to the accompaniment of various scriptural rather than musical instruments. And then there was the sermon. "This, like all the rector's discourses, was constructed upon time-honored and unvarying lines. Firstly, what was so-and-so? Was it this? No! Was it that? No! Was it something else altogether improbable? Again no! What then was it? Which led to the agreeable discovery that after all it was very much what the untutored mind would have pronounced it to be at first sight.
"Secondly, how was this doctrine illustrated by examples from holy writ? Examples from holy writ, more or less apposite, followed.
"Finally, brethren, how did this great truth come home to all of us? The unsatisfactory conclusion being that it ought to come home to us in many ways, but that by reason of the hardness of our hearts it didn't. Then there was a great shuffling of hob-nailed boots, a great sigh of relief, and we were dismissed."
I fear, gentlemen, that my lecture is constructed like the old rector's sermon.
The right of search in time of peace, does it exist to enforce impressment laws? No.
Does it exist for revenue purposes? Not as a right, and only by acquiescence.
Does it exist for putting down the slave trade? Only under treaty.
When then is it permissible? Only for suppression of piracy and self-defense, and then with full liability for blunders. And after reaching this very natural conclusion, I seem to hear that same sigh of relief which closed the old clergyman's exhortations.
[*] Lecture delivered at the U. S. Naval War College, Agust 4. 1896.
[*] Parl. Papers CXXVI, 76, 1874, 85.
[†] The case of the Virginius, pp. 36, 37, by Geo. T. Curtis, New York and London, 1874.
[‡] Woolsey's International Law, 6th edition, page 370.