every citizen of Lubeck, who was master (patron) of a ship, was bound to hoist the flag of Lubeck, under pain of a fine of three marks of silver for the benefit of the Senators and the City of Lubeck. A similar regulation had been made by the City of Hamburg (mutatis mutandis) with regard to masters of vessels, who were citizens of Hamburg. (A.D. 1270.) On the other hand, by a Statute of the City of Marseilles, of still earlier date, between 1253 and 1255, we find it provided that every ship belonging to men of Marseilles shall be bound to hoist on the ship the flag of the community of Marseilles with a cross extended aloft; and that no citizens of Marseilles who are owners (domini) of ships may or ought to hoist on their ships, within the port of Marseilles or elsewhere, any arms or any flag of another civic community, but only the flag of the community of Marseilles, except in the land of Syria, in which those citizens of Marseilles, who have special privileges in that country distinct from the other citizens, may hoist another flag on their ships, provided also that they likewise hoist always the flag of the community of Marseilles “a. It would thus appear that the Mercantile Flag was originally of ambiguous import, inasmuch as it might denote either the National character of the master or patron69 of the ship, or the National character of the owner of the ship; but that the Pass or Sea-Letter was always a criterion of ownership, that is, whether the ship Lubeck, à moins qu'il n'en soit empêché par des obstacles de force majeure, ou par des dangers aux quels sa personne ou son navire seroient exposés. 68 Pardessus, Lois Maritimes, Tom. IV. p. 272. 69 Emérigon, in his Treatise on Insurances, c. 7. § 5. says, "They 68 also call captain him who commands a merchant vessel intended for a long voyage; but persons commanding trading barques, or merchant vessels not making long voyages, are entitled on the ocean masters, and in the Mediterranean patrons." was the property of an enemy or friend. Hence Bynkershoek justifies the Right of a belligerent cruiser to visit a neutral ship, in order that it may be established from the ship's papers, as distinguished from her flag, that she is neutral property. But the legal incidents of ownership, as regards a ship, are quite irreconcilable with the theory of a ship being the territory of the Nation, whose flag she carries. By the general Maritime Law a ship is capable of being owned in shares, and there is nothing in the Law Maritime which precludes a ship from being owned in shares by citizens of different States. Again, although it may be sometimes the policy of a State to exclude foreigners altogether from the right of owning any part of a vessel entitled by the municipal law of that State to hoist its Mercantile Flag, still that is not the invariable rule, and the actionaries or partowners of a merchant ship are in some cases permitted by the municipal law of a State to be citizens of different countries. In such a case, however, a belligerent cruiser is entitled to look at the Pass or Sea-Letter of the ship, and Courts of Prize have held the ship to be bound by the character imposed upon it by the authority of the Government, from which the Pass or Sea-Letter has issued 70. § 91. In the sight of a belligerent a merchant vessel is regarded simply as a vehicle conveying goods over sea to or from a market. Accordingly, under the Common Law of Nations, if the vehicle and goods should happen to be enemy's property, the belligerent takes possession of them jure belli; if on the other hand the ship should belong to a friend, and the cargo should be enemy's property, the belligerent relieves the carrier of his charge, The Vreede Scholtys, cited in a note to the Vrow Elizabeth. 5 Ch. Rob. p. 5. indemnifying him at the same time for the carriage of the goods. If again the ship should belong to an enemy, and the cargo should be neutral property, the belligerent takes possession of the ship, whilst he restores the cargo to the neutral merchant. Further, both the ship and cargo may be the property of neutrals, whilst their destination is the port of an enemy; in which case a belligerent has a right to prohibit the conveyance of the goods to their destination, if their safe arrival is likely to be prejudicial to his success, and under certain circumstances he is entitled to seize and confiscate them. On the other hand, a neutral merchant is entitled to transport his merchandise over sea to a neutral port, in time of war, free from any interference on the part of a belligerent, beyond that, which may be necessary to assure the belligerent of the innocent character of the voyage. For the purpose, however, of such assurance, a belligerent has a right to visit a merchant vessel on the High Seas, with the object of ascertaining who may be its owner and what may be its destination, and of searching it with the object of ascertaining the nature and ownership of its cargo. "The Right of and Search. visiting and searching merchant ships on the High Seas," observes Lord Stowell, in the well known case of the Swedish Convoy, "whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestable Right of the lawfully commissioned 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 Right of Visitation 66 In ish Convoy. maritime capture, because if you are not at liberty to ascertain by sufficient enquiry whether there is property which can be legally captured, it is impossible to capture. Even those who contend for The Swedthis inadmissible rule, that free ships make free goods, must admit the exercise of this right at least, for the purpose of ascertaining whether the ships are free ships or not. The right is equally clear in practice, for the practice is uniform and universal upon the subject 79." We cannot prevent the carriage of contraband goods," says Vattel", " with- Vattel. out searching neutral vessels that we meet at sea; we have, therefore, a right to search them. order to enforce the rights of belligerent Nations against the delinquencies of neutrals, and to ascertain the real as well as the assumed character of all vessels on the High Seas, the Law of Nations arms them with the practical power of visitation and search." Such is the language of Mr. Chan- Chancellor cellor Kent, who goes on to say, "Neutral Nations have frequently been disposed to question and resist the exercise of this Right. This was particularly the case with the Baltic Confederacy during the American war, and with the Convention of the Baltic Powers in 1801. The Right of Search was Convention denied, and the flag of the State was declared to be tic Powers. a substitute for all documentary and other proof, and to exclude all right of search. Those Powers armed for the purpose of defending their neutral pretensions; and England did not hesitate to consider it as an attempt to introduce, by force, a new code of maritime law, inconsistent with her belligerent rights and hostile to her interests, and one 73 The Maria, 1 Robinson, p. 36. 74 Droit des Gens, L. III. c. 7. § 114. Martens, Précis, L. VIII. PART II. c. 7. § 321. 75 Commentaries on American Law, Tom. I. p. 153. N Kent. of the Bal which would go to extinguish the right of maritime capture. The attempt was speedily frustrated and abandoned, and the Right of Search has, since that time, been considered incontrovertible." Mr. Wheaton. Wheaton 76 coincides in this opinion, when he says the Right of Visitation and Search of neutral vessels at sea is a belligerent right, essential to the exercise of the right of capturing enemy's property, contraband of war, and vessels committing a breach of blockade. Even if the right of capturing enemy's property at sea be ever so strictly limited, and the rule of free ship free goods be adopted, the Right of Visitation and Search is essential, in order to determine whether the ships themselves are tral, and documented as such, according to the Law of Nations and Treaties; for, as Bynkershoek" observes, "it is lawful to detain a neutral vessel in order to ascertain, not by the flag merely, which may be fraudulently assumed, but by the documents themselves on board, whether she is really neutral.” Indeed, it seems that the practice of maritime captures could not exist without it. Accordingly the text writers generally concur in recognising the existence of this Right78. Right of Approach. § 92. The Right of Approach on the High Seas, in time of war, may be distinguished from the Right of Visitation and Search. Upon the general question of the Right of Approach on the High Seas, it may be justly said that no vessel has any exclusive Right to the use of the ocean beyond that extent of it which the vessel physically occupies, and which is essential for her movements. Merchant ships, accordingly, are in the habit of approaching one an 76 Elements, Pt. IV. c. 3. § 29. c. 14. 78 Martens, Précis, L. VIII. c. 7. § 317 and 321. Lampredi, Du Commerce des Neutres, § 12. |