The Essentials of International Public Law and Organization

By Amos S. Hershey | Go to book overview

CHAPTER XXXVII
RIGHTS OF VISIT AND SEARCH, OF CAPTURE, AND CONDEMNATION BY PRIZE COURTS

516. The Right of Visit and Search. -- In order to discover whether neutral vessels are engaged in such acts as carriage of contraband, unneutral service, breach of blockade, etc., as well as to determine the enemy or neutral character of ships and their cargoes, it is necessary to concede to properly commissioned warships of belligerent Powers the right of visit and search as ancillary to the rights of capture and subsequent condemnation by properly constituted prize courts.1

As Lord Stowell (then Sir William Scott) said (in 1799) in the famous case of the Maria (1 C. Robinson 340, 359, and Evans, Cases, 535 or Scott, 1003):

"The right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestible right of the lawfully commissioned cruisers of a belligerent nation. . . . 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 legally be captured, it is impossible to capture. . . . The right is equally clear in practice; for the practice is uniform and universal upon the subject."2

____________________
1
"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." C. J. Marshall, in The Nereide ( 1815), 9 Cranch, 388, 427.

Strictly speaking, it is a belligerent right and there is no right of visit apart from that of search.

The only exceptions to the non-exercise of the right of visitation and search in time of peace are in the case of a well-grounded suspicion of piracy (see supra, No. 215), and when given by treaty to prevent slave trading (see supra, No. 216).

2
But Lord Stowell added that "the right must unquestionably be exercised with as little of personal harshness and of vexation as possible."

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