1902 Encyclopedia > Right of Search

Right of Search

SEARCH, RIGHT OF. "The right of visiting and searching ships on the high seas," says," Lord Stowell, "whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestable right of the lawfully com missioned ship 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. This right is so clear in principle that no man can deny it who admits the right of maritime capture, because if you are not a liberty to ascertain by sufficient enquiry whether there is property which can be legally captured, it is impossible to capture" ("The Maria," 1 C. Robinson’s Reports, 36). This right of search or visitation and search has not been at all times recognized. The second armed neutrality of the Baltic powers in 1800 attempted to withdraw their vessels from the right. The bombardment of Copenhagen in 1801 was one of the results of this policy. Since the convention which followed that event the right has been regarded as established within proper limits, and is often regulated by treaty, especially as to the search of vessels suspected of being engaged in the slave trade. Apart from treaty, the main rules which govern the right are these. (1) It is a belligerent right, and can be exercised only in time of war, unless in the case of a vessel reasonably suspected of piracy or breach of revenue regulations. (2) It can be exercised only by a ship of war duly commissioned by the sovereign of the belligerent power and only in the case of a merchant vessel, whether of an enemy or neutral power. (3) It cannot be exercised in neutral waters, and an attempt to exercise it in such waters is a gross violation of neutrality. (4) It can be exercised only for certain purposes, such as to examine the ship’s papers and to see whether she carries any contraband goods. (5) After the ship of war has raised her flag an affirming gun (coup d’assurance) loaded with blank cartridge must be fired to bring the merchant vessel to. (6) In case of reasonable suspicion it is the duty of the ship of war to detain the merchant vessel for the decision of a prize court. Resistance by a neutral vessel, whether along or in convoy, renders her liable to capture according to the English and United States doctrine. But most Continental authorities lay down that the declaration of the officer in charge of the convoy is to be accepted, and that a refusal to accept such declaration may justify the convoy in resisting search. There is also a conflict of opinion as to whether a neutral loses his neutral rights by loading his goods on board an armed ship of the enemy. It has been held in England that such a proceeding is a violation of neutrality, as affording a presumption of resistance to search.

The right of search is historically interesting, as on two occasions it has brought Great Britain into collision with the United States. One of the causes of the war of 1812 was the right then claimed (but since abandoned) by Great Britain of searching vessels of the United States for British subjects serving in them as seamen, with a view to impressing them for the royal navy. In 1861 the British mail steamer "Trent" was stopped on the high seas by a United States ship of war, and Messrs Slidell and Mason, two commissioners of the Confederate States proceeding to Europe, were taken out of her and afterwards imprisoned in the United States. On diplomatic representations being made at Washington by the ambassadors of Great Britain and other powers the commissioners were released, and a war was avoided.

See in addition to the ordinary authorities on international law, Visitation and Search by W. B. Lawrence, Boston, U. S., 1858.

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