The sun. [volume] (New York [N.Y.]) 1833-1916, 1896-11-01
THE RIGHT OF SEARCH.
THE VISITATION or VESSELS nv
TIME OF PEACE.
How This Right IL Limited-It Cannot FIX
ist on Tho High seru TO Enforce I'm.
pressment Laws-Even for Rcyepuo

erb 10 interfere with American vessels during
the progress of the Cuban revolution gives
special timeliuess to n lecture on visitation and
search delivered by Prof. Theodore s. Wool
sey before the Naval, War College at its re-
cent session land just issued for more general
Information.
The whole tendency of modern times Is, as
Prof. Woolsey points out. toward tho freedom
OF international trade. Not only have other
nations been admitted to the ommerc which
In old lines each nation sought to maintain
exclusively between its colonies and itself. but
the rights of n~eutrals have been extended.
Forty years ago the famous Declaration OF
Paris gave a neutral tho right to carry an
encmy's goods In his own ship or his own
goods In an eLem"'s ships, without liability
OF capture. No strurge proof of the modern
enlargement of neutral rights need be sought.
As. to the right of beiligerents 10 search mcr-
chant ships upon tho high seas, Lord Stowell
~lonE.ago asserted that "till they are visited pnd
searched. 1t 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 valuation
and search EXITS" This view, however,
was applied TO the case Of merchantmen On
the hi'h seas In time OF war.
1t was the failure to observe these ~restrio-
lions that brought us into sharp conflict with
England carly in the century. EVEN now"
says Prof. Woolsey, "one cannot think without
a.blush OF raHe of. that melancholy day when
the Leopard followed our Shesa peake out to
sea from HAMPTON Roads. and claimed and ex-
ercised the right TO impress three seamcn from
tho crew of the helpless frigats. But this at
least resulted from the outrage. that once aud
foriall the English Government admitted that it's
right OF search did not apply to q United States
man-of-war." or course, the right of search
may be exer Used within n country's own waters,
or In those OF It's enemies AMI Its allies, but
neotral waters that are not u part OF the high
seas are exempt from IL.
The main question to which Prof. woolsey
devotes himself Is that of the exceptions which
create or attempt to create a right Of search
In time OF peace. The, Sc, he says, may come
from treaties or from the necessity of selr-de-
fence" and the exiRencies of II counrry's policy.
The impressment OF seanen on American ships
was based upon the old British theory of in
delible allegiance to the crown. This theory,
says PROF.. Woolsey. was not formally surren-
dered prior TO he English naturalization act
In 1870. In attempting to impress seamen
England stopped and searched American yea
sels without regard to any losses inflicted. A
diplomatic protest was made against the prac-
tice as early as 1892, but 1t was destined to 20
on many years longer. In 1903 an agreement
to-abolish the LEGGED right was nearly reached,
but failed because England insisted upon re-
tanning it in the narrow seas. But the claim
itself was an ATTEMPT to apply a municipal
law outside OF English Jurisdiction, and mus
rested on sheer force.
However, for the enforcement of their revs-
nue laws several countries have exercised the
right OF search UPON the high seas IN time of
peace. Thus both England and our co untry
have for genera tons had statutes In force that
forbid the traassh!pment OF cargoes within
Tour leagues OF the coast. In England these
were called the lowering acts. Are sucn sino
tutes binding on foreign countries; Only 3.
FAR as the latter choose TO acqulesce in them.
II, for example. GU: Government should. for
the enforcement of its revenue or health laws,
BOARD q foreign shin four leagues out from New
YORK. and seize her on suspicion. this seizure
quiescence could DO pleaded in Justification.
Sir Travers Twtss insists that IL such ''pcrmts-
eign commerce. tie Government SO troHbied
could resist its exercise. Other authorities
take the same ground. In fact, while our law
lowering act was repealed twenty years ago.
Prot. Woo'sey thinks IL doubtful whether an
be made.
But the question, may. arise whether, II a
breach OF revenue laws Is committed within q
country's territorial waters. the wrongdoer
nay be pursued and captured beyond the three
nile aj limit rs to that our supreme Court has
or search. so that "thr party in such case seizes
at its peril II he establishes the forfeiture. he
ltata. which had committed h breach Of the
port regulations OF San Diego. ought not TO
have been pursued as She was.
The trial of the Itata, after her voluntary surren-'
der b. the ChiIian juuta. showed mat she was not
nttei aB a MAJ OF. war, nor was she an armed rx.
petition. The CHILEAN revoidtionists had the same
right to buy arms Ia tie United states that the
Cuoans have now. suppose a Cuban brig TO enter
cargo OF Winchester rifles and cartridges, and make
on without c!earance papers. Then let the New
be ordered In pursuit.. The brig eiudes her pur-
her cargo nv The tnAlTgRnta. who npairn IN EfuDi
wei with our Government. This is a parallel case
TO that of the Itata.
In Behring Sea British and American cruisers
visit sealing vessels under an agreement.
Again, We have subsistinG the treaty of 1859
between the two countries, which allows YES
sells OF war expressly authorized for the pro-
ven:ion of the slave trade to search merchant
vessels within 200 miles Of the coast OF Africa.
south OF, the 32d parallel OF north latitude. or
within thirty leagues OF Cuba. Porto Rico, San
Domingo, aud Madagascar. This treaty is now
termtnable at u years notice. But it is worth
noting that Great Britain asserted he- right TO
search for this purpose without a treaty. and
then TO visit" us distinct from searching.
vlew. denied Tint there was any broad and
generic difference between the alleged right OF
visitation and the belligerent right OF earch.
The Hrgu nent went on for a long time. but At
length Great Britain abandoned both claims.
When. In tho House of Lords. on July 20, 1850,
eism arose, this was the reply of Lord Lynd-
hurst: We have surrendered no right at all.
t .end ,a Point fr 6 q. is sSsr NO sx knGs risH Ws as h .h". '0 %v
80
Lords, abandoned that assumption of rights.
and In doing 30 | tiliuk that We have acted
Justly. prudently, md wisely Our Govern
ment risked ad verse criticism as 10 putting
obstacles In the way OF suupressing the slave
trade. by its determined front against the Brir-
ish effort to establish a right OF search without
treaty, and was rewarded by success: The
agreement at length reached provided that
damages for 81 by illegal detention should be
borne by the respective governments.
Piracy furnished another subject for the
maintenance OF The right. of search, and ono
which Is still well foun led, Yet with full liza
bi!tty for blundrrs." Here We come upon tile
American doctrine OF tho right OF approach,
which IL quite different from the English theory
of visitation. Approach Is only the closing In
upon a ship for u nearer look. without bringing
her to. 1t was held that this was 'he privilege
OF u Government ship under obligation to find
out the real character of a vessel under suspi-
cion of piracy, and that the weasel itself could
not Justly complain as she niuht continue I'M
checked on her voyage. However. IN tho >ase
OF piracy. tho English writer Lawrence as
serts that even stopping and searching the yes-
sci suspected Is justihahle, provided that there
is reasonable ground for suspicion; and Prof.
Wooisey also puts the matter thus:
A ship OF war may lawfully take a close view OF
any weasel. Upon %su,pIcion o.. piracy It may search
and even seizs that 'essel. II the suspicion turns
nut TO be well founded, the search ald arrest were