CHAPTER LXVI. VISITATION, SEARCH AND CAPTURE. ARTICLE 865. Right of visitation. 866. Ships under neutral convoy. 867. Ships under hostile convoy. 869. Mode of visitation. 870. Neither boat, persons nor papers to be taken from the ship. 871. Resistance by force. 872. Detention. 873. What is proper evidence. 874. Memorandum of visit to be indorsed on ship's papers. 876. Prize incapable of being sent in. 881. Passive enemies or neutrals on board captured ship. 882. Persons on board a captured armed public ship, or ship without colors. 883. When ship and cargo must be released. 884 Duty of prize officer. 885. Persons and things captured as contraband to be brought before a prize court. 886. Restoration after unlawful capture. 887, 888. Liability of commander. 889. Rights of all ships to defend against attacks. Right of visitation. 865. For the purpose of enforcing the provisions of this Book, concerning contraband of war, intercourse, and hostilities, every private or unarmed ship, whether belonging to the enemy or to a neutral, on the high seas,' and not exempt by the next article because under con voy, is subject to visitation by an armed ship of a belligerent. 1 The right to visit within the territorial jurisdiction of the visiting nation is secured, both for peace and war, by Article 64. The right of visiting and searching merchant ships on the high seas, whatever be the ships, whatever be the cargoes, and whatever be the destinations, is an incontestible right of the lawfully commissioned ships 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 at liberty to ascertain by sufficient inquiry whether there is property which can be legally captured, it is impossible to capture. Even under the rule that free ships make free goods, the exercise of this right must be admitted, for the purpose of ascertaining whether the ships are free or not. The Maria, Opinion of Lord Stowell, 1 Robinson's Rep., 36. By the treaty between the United States and the Dominican Republic, Feb. 8, 1867, Art. XVI., 15 U. S. Stat. at L., (Tr.,) 167, Venezuela, Aug. 27, 1860, XV., 12 Id., 1143, it is expressly stipulated that merchant ships in time of war, bound to an enemy's port, shall be obliged to exhibit upon the high seas, or in ports or roads, passports and certificates showing whether their goods are contraband of war. Ships under neutral convoy. 866. A ship under convoy of an armed public ship of a neutral nation is not subject to visitation, if the commander of the convoy verbally give his word of honor that she is a ship of his nation; and, if destined to a hostile port, that she contains no contraband of war,' and no property of the hostile nation, and is not engaged in illegal intercourse.' 1 Treaty between France and Peru, March 9, 1861, Art. XXIII., 8 De Clercq, 201. Treaty between the United States and Dominican, Feb. 8, 1867, Art. XIX., 15 U. S. Stat. at L., (Tr.,)167. Substantially the same rule was adopted by Italy in the war of 1866 with Austria. Lushington's Naval Prize Law, Introd., p. viii., note. See also Wildman's International Law, v. 2, p. 121. In the absence of treaty the right of search of vessels under neutral convoy is asserted. The Maria, 1 Ch. Robinson's Rep., 340. Twiss, (Law of Nations, Part II., p. 185, § 96,) says, that every belligerent cruiser has a right to insist on verifying the neutral character of every ship which it meets with on the high seas, and which carries a neutral flag; and it is a clear maxim of law that "a neutral vessel is bound, in relation to her commerce, to submit to the belligerent right of search." A neutral merchant accordingly can not adopt any measures, of which the direct object is to withdraw his commerce on the high seas from the free exercise of the right of search or the part of any belligerent cruiser. It is not competent, therefore, for a neutral merchant to exempt his vessel from the belligerent right of search, by placing it under the convoy of a neutral or enemy's man-of-war. Kent, (Commentaries, v. 1, p. 154,) says, that the very fact of sailing under the protection of a belligerent or neutral convoy is a violation of neutrality. Lushington, (Naval Prize Law, p. 5, §§ 19, 20,) says, that if the state of the wind and weather permit, the commander should communicate his intention to visit by hailing, and then cause his ship to go ahead of the suspected vessel and drop a boat alongside of her. If the state of the wind and weather render such a course impracticable, the commander should require the vessel to be brought to. For this purpose he should give warning by firing successively two blank guns, and then, if necessary, a shot across her bows; but before firing, the commander, if he has chased under false colors, or without showing his colors, should be careful to hoist the (British) flag and pendant. Compare Articles 65 and 66. The last clause is new. Ships under hostile convoy. 867. Ships of whatever character, under convoy of a public armed ship of the hostile nation, are liable to capture and confiscation as contraband of war. It may be thought better to retain this rule, upon the ground that the exemption of private property at sea would render military protection by a belligerent unnecessary and offensive. Duty of submission. 868. Every ship subject to visitation, when hailed by a public armed ship of a belligerent nation, must shorten sail, and await the approach of the hailing ship; and if required must submit to visitation as regulated by the next two articles. Mode of visitation. 869. The visiting ship must send to the ship visited, a boat bearing the national flag of the former, and an officer in uniform,' who shall be received on board, and be permitted to examine the ship and her contents, and the papers relative to the character of both." If, for any cause, it be impracticable to send a boat. immediately, the commander may require the visited ship to lower her flag, and steer according to his orders.' Lushington's Naval Prize Law, p. 5, § 25. 2 Treaty between France and Peru, March 9, 1861, 8 De Clercq, 201, Art. XXIII. 3 Lushington's Naval Prize Law, p. 10, § 60. The Hercules, 2 Dodson's Rep., 368; The Edward and Mary, 3 Ch. Robinson's Rep., 306. Neither boat, persons, nor papers to be taken from the ship. 870. The commander of the visiting ship can not require any boat, person, or paper to be brought to his ship from the ship visited, except as provided by articles 877 and 878. Lushingtons' Naval Prize Law, p. 5, § 18. Treaty between the United States and the Dominican Feb. 8, 1867, Art. XVIII., 15 U. S. Stat. at L., (Tr.,) 167. 66 1860, XXI., 12 ld., 1003. Resistance by force. 871. If the lawful exercise of the right of visitation or search be resisted by force, the resisting ship and the property on board belonging to her owner, are liable to capture and to condemnation. Resistance alone, though not amounting to combat, is sufficient ground for confiscation. Wildman's International Law, vol. 2, p. 122. If the clause as to convoy in Article 865 be not retained, it should be observed, that resistance by the convoying ship is a resistance by the whole convoy; (Wildman's Intern. Law, vol. 2, p. 124, citing, The Elsabe, 4 Robinson's Rep., 408;) and that sailing under instructions to resist is equivalent to resistance. (Ib.; citing The Maria, 1 Robinson's Rep., 374.) Detention. 872. If upon visitation and search the commander of the visiting ship be satisfied that there is proper evidence, amounting to probable cause,' for the detention of the ship, under the provisions of this Code, he may detain her. It is his duty to give the master an opportunity of explanation, if the case admit of doubt. Lushington's Naval Prize Law, p. 9, § 53. The right of detention for inquiry is a corollary to the right of visitation and search. If the commander of a belligerent ship of war, having examined the papers found on board a merchant vessel, perceive just and sufficient reasons for detaining her, in order to proceed to a further examination, he may order a prize crew to go on board of her and conduct her to the nearest port belonging to the nation, subject to a full responsibility in costs and damages, if this should have been done without just and sufficient cause in the opinion of a duly constituted court of prize. Twiss, Law of Nations, pt. II., p. 184, § 95. Lord Stowell, in his opinion in the case of The Maria, 1 Ch. Robinson's Rep., 374, said, "It is a rule of law that the neutral vessel shall submit to the inquiry proposed, looking with confidence to those tribunals whose noblest office, . . . is to relieve by compensation inconveniences of this kind, if they have happened through accident or error, and to redress by compensation and punishment injuries that have been committed by design." To constitute a probable cause of capture, it is not necessary that there should be presumptive evidence sufficient to condemn. It is sufficient, if there be circumstances which warrant a reasonable suspicion of illegal conduct. The George, 1 Mason's U. S. Circ. Ct. Rep., 24, 29. What is proper evidence. 873. The proper evidence, mentioned in the last article, is such as will be admissible before the prize court. It includes: 1. Facts appearing by inspection-as the character of the ship, her equipment, cargo, crew, and pas sengers; 2. The papers on board of. her; and, 3. The testimony of her master and crew. Lushington, (Naval Prize Law, p. 9, § 54,) adds, that the commander should rememember that evidence of the captors in their own behalf will not be received by the court, at least in the first instance. See The Fortuna, 1 Dodson's Rep., 81; The Charlotte Caroline, Id., 192, 199; The |