Evening star., 1895-03-19
THE RIGHT OF SEARCH
The AlliaDca Case Discussed by Diplomats
and Students Of International Law.
Ex-Attorney General Williams' Opin-
Ion and Ex-Secretary OF state
Evarts' Letter Referred To.

General Williams Opin-
ION and Ex-Secretary of State
Eyarts' Letter Referred To.
Diplomats and students OF internationai
law are discussing the Alliance case with
great animation. The attempted detention
of the mail steamer by Spanish warship
is defended by some and condemned oy
Others Each side of the argument is pro-
life with precedents and decisions. and the
only point upon which there is anything
approaching an agreement is that the
Spanish government Is clearly entitled to
know the facts in the case from its own
officers before repudiating their action and
going to the extent Of an apology to another
government, similarly lacking official in
formation in regard to the occurrence at
issue.
The Right of Senrch.
On the general question of the right OF
search which is the main issue involved IN
the existing controversy with Spain, the
most recent contentious on the part OF the
United States in cases nearly analogous 10
that of the Alliance are those furnished in
the case Of the Virginius. in 1873, and In
the cases of the Mizpah, Rising Sun and
other vessels, in 1877. During the consider
alton of the Virginius affair Attorney Cen
eral Williams rendered an opinion to Sec
1etary of State Fish, in which he said:
Spain, no doubt, has a right to capture
a vessel with an American register ana
carrying an American flag. found in her
own waters assisting or endeavorlng TO
assist the insurrection in Cuba, but she has
no right to capture such vessel on the
high seas upon an Apprehension tnat, IN
violation of the neutrality or navigation
1oxr - he MI tn
way to assist said rebellion"
Mr.. Evnrts' Contention.
This opinion has much less bearing upon
the presen: situation, however, than the
letter addressed by Secretary Evarts to
Mr. Fairchild the American minister at
Madrid in 1880, in regard to the action Of
the Spanish authorities in OBTAINING and
searching several American merchantmen
in Cuba a few years before. Mr.. Evarts
went INTO the question of the right of
search at length, and in the course OF his
argument made many assertions that are
specially applicable to the case of the ALI
anca. He said:
'.The war vessels of Spain off the coast of
Cuba have in at least four instances in rapid
succession exercised the right OF Visitation
and search upon vessels OF the United
States flying the American flag, and pass
ing in pursuit of lawful trade through the
commercial highway of nations which hes
to the eastward of the Island Of Cuba
This government does not lose sight OF the
ex parte declarations made by the spanlsn
local authorities at Santiago de Cuba, that
the two acts thus far verified took place
within the three-mile limit. This point Is
in dispute and evidence as trustworthy as
proof can well be in such cases is adduced
to show that the vessels were at the time
from six to eight miles distant from the
shore. In the cases of the two remaining
searches, tine evidence fixes the distance
R1- hY1Sfc mi
toned and in that of the Hattie Haskell
at over twenty miles from the Cuban coast.
The Higher Confederation Involved.
1.-The question does not appear to this
government to be one to be decided alone
by the geographical position of the vessels.
hut by the higher consideration involved In
This ,nwonted exercise Of a right of search
in time of peace, and to greater extent
| than the existing treaty of 1105. between
| the two nations, in its eighteenth article.
permits 1t to be exercised, even in time
of recognized war, that article permitting
visitation only, with inspection of the YES
sells sea letters, and not search. These
| interferences with our legitimate COM
merce do not even take the form of a rev.
| enue formality performed by the revenue
| vessels of Spain, but carry in their
methods most unequivocal features OF bel
| lgerent searches made by the war vessels
| of Spain. From the unhappy history OF
| the events of the past ten years in and
! about the waters of the Antilles, it is only
| tco cogently to be inferred that these pro-
| ceedings of Spanish war vessels assume a
| right thus to arrest our peaceful commerce
| under motives not of revenue inspection
| but of warlike defense. In this aspect OF
| the case it may well be doubted whether
under color Of revenue investigation. te
| intercept smuggling or other frauds. with
| in the limit of the recognized maritime
league. could be invoked in time Of peace
l To ir,Sf he infn Of Itch
| cruisers with the lawful commerce of ma.
| tions passing along maritime highway
| in regular course of navigation which
| brings them near the Cuban coast, though
| rot bound to it's ports. 1t is not to be sup.
| posed that the worlds commerce Is to be
| impeded, and the ships Of foreign anG
| friendly nations forced to seek an un.
| wonted channel Of navigation; that they
are to be driven out of their proper course
| into adverse winds and currents to avoit
| the offensive exercise of right which Is
| allowed only to the exigencies of a state
| of war, and to avert the imminent risl
| of armed attack and of dscourtesy to the
| flag they bear. And it needs no argument
to show that the exercise of any sucf
asserted rights upon commercial vessels OF
the high seas in time of peace is incon
| s.stent with the maintenance of even tn,
most ordinary semblance of friendly re
lations between the nation which thus con
| ducts itself and that whose merchant YES
sells are exposed to systematic detention
and search by armed force.
The Position Of This Government.
II do not undertake. now, either a full
exposition of the doctrine of this gov
ernment on the subject of the maritim,
jurisdiction Of states over circumjacen
waters. or particular inquiry as to the di
verse views, in some sense, which hav,
been brought forward heretofore in tn,
discussion between Spain and the Unitet
States on the subject of jurisdiction ove
Cuban waters. 1 desire, however, that tn,
position heretofore more than once dis
tinctly taken by this government, in it.
diplomatic correspondence with Spain, shall
be understood by you and firmly adhered t.
in any intercourse you may have in tn,
pending situation with the Spanish ministe e.
of foreign affairs. This government neve
has recognized and never will recogniz,
any pretense of exercise of sovereignty OF
the part of Spain beyond the belt OF
league from the Cuban coast over tn,
commerce of this country in the time O