The exercise of the Right of can of Right be required by the master of a neutral merchant vessel to show his Commission and Ship's Papers, before he is to be allowed to exercise his belligerent Right of Visit and Search. Besides, the exercise of the Right of Visit and Search by privateers has been a subject of Treaty-arrangements between most of the maritime Powers of Europe; and one object of such Treaty-arrangements has been to regulate the approach of every privateer, so that it shall not come within a certain distance of a merchant vessel at the time, when its affirming gun is fired by way of summons (la semonce). To this summons every merchant ship is bound to pay attention and to lay her sails to the mast, and if possible, to anchor. But no provision is found in any of these Treaties, which authorises the master of the neutral merchant ship to demand the production of the Commission of the Commander of the privateer before he submits to the Visit; on the contrary, if any flight is attempted, the privateer may fire into the neutral merchant vessel, and if the neutral merchant vessel should offer resistance and should be captured, she will be good prize, although her neutral character should be afterwards established 68. $ 200. The mode of exercising the belligerent Right Belligerent of Visit and Search is of no slight importance in its Visit and bearings upon the degree of respect, which is due Search re- from every Belligerent Power towards a Neutral Treaties. Power. A state of War does not authorise the ex gulated by ercise of force on the part of a Belligerent Power against any Power with which it is at amity; it is only when another Power ceases to be at amity with it, in other words, when it conducts itself as an Enemy, that a Belligerent Power may exercise jure 68 Martens on Privateers, p. 58, who cites a long series of Treaties on the subject. belli force against it. The Right of Visit and Search is not a Natural Right on the part of a belligerent, as such, against a neutral, as such; it is a Positive Right, resting upon custom and tacit compact (moribus et pacto tacito introductum70), and, as such, is to be exercised according to certain rules. Accordingly we find that no question has been more frequently the subject of Treaty-regulation than the forms to be observed by every Commander of a belligerent ship of war in visiting and searching a merchant vessel sailing under a neutral flag. Private ships of war equally as Public ships of war are empowered by their Instructions to visit and search neutral vessels, and their Commission of war is their sufficient warrant against neutral Powers for exercising such belligerent Rights. It was an invariable provision of such Treaty-regulations that privateers should fire a blank charge from a gun at a given distance from every merchant vessel, which they intended to visit; and this distance was in some Treaties specified as beyond cannon-shot, in others as within cannon-shot, but in no treaties as a less distance than a half cannon-shot. Thus it was specified in the Treaty of Commerce between Great Britain and France of 1786", that all cruisers, whether public or private ships of war, should remain at a distance beyond cannon-shot (demeureront hors de la portée du canon) whilst exercising the Right of Visit; on the other hand, in the Treaty of Commerce between France and Russia of 1787 it was stipulated that no public or private ship of war should approach nearer than a half cannon-shot, whilst exercising the Right of Visit72. One 70 Cf. Part I. § 76. 71 Martens, Récueil, IV. p. 171. 72 Il n'est pas moins strictement ordonné aux dits vaisseaux de guerre ou armateurs, de ne jamais s'approcher desdits navires marchands qu'à la distance au plus de la demi-portée du canon. Martens, Récueil, IV. p. 212. object of a cruiser's remaining at a reasonable distance on such occasions is to avoid giving rise to any alarm or misgiving on the part of the master of the merchant vessel as to the true character of the cruiser; on the other hand, it will be necessary for the cruiser to remain within such a distance, as will enable it promptly to give support, if required, to the boat's crew, which it may have sent alongside the merchant vessel. According as one or other of these two considerations have preponderated in the minds of the framers of Treaties, the distance at which cruisers are to remain, whilst exercising the Right of Visit, has been enlarged or reduced. Although there may thus be some variations in the stipulations of Treaties as to the actual distance at which a cruiser is bound to remain after it has fired its affirming gun, and whilst its boat's crew goes alongside the merchant vessel, there is a general uniformity in the provisions of such Treaties as to the mode in which the actual visit shall be made, namely, by sending a boat alongside the merchant vessel manned by so small a crew, that its approach can cause no just alarm to the master of the merchant vessel. It was a provision of the Swedish Ordinance of 1715, as well as of the Spanish Ordinance of 1779, that the Commander of a privateer might require the master of a merchant vessel to come with his papers, or to send them by one of his crew on board the privateer, and that if the Commander of the privateer was not satisfied with the papers, he might send some of his own men on board the merchant vessel to inspect still further her documents. But Sweden, in a Treaty of Commerce concluded with the Two Sicilies in 174273, agreed that the privateers of either Nation should not approach nearer to the merchant ships of the 73 Wenck, Codex Jur. Gent. Tom. II. p. 137. other Nation than a cannon-shot, and should send a boat alongside them for the purpose of visit with two or three men on board at most, besides the rowers, and that not more than those two or three men should go on board the merchant vessel. Sweden likewise, in her Treaty with the United States of America in 1783", agreed that the respective cruisers of the two Powers should exercise their belligerent Right of Visit at a distance greater than a cannon-shot, and should send a boat alongside with two or three men at most to go on board of the merchant vessel. Spain in like manner, in her Treaty with the United States of America in 179575, agreed that the cruisers of either Nation in exercising their belligerent Right of Visit should remain out of cannon-shot, and should send a boat's crew alongside the merchant ship, out of which two or three men only should go on board the vessel. Spain had agreed to observe the same rules in a Treaty concluded with England in 1667, which was renewed by Art. II. of the Treaty of Versailles, 1783, which latter Treaty was confirmed by the first additional Article to the Treaty of 5 July 181476. There is thus a general concurrence of principle amongst Nations as to the mode in which the actual Visitation of a neutral merchant ship is to be made by every belligerent cruiser, namely, that it is to be conducted in such a manner as to cause no alarm to the commander and crew of the merchant ship, and at the same time without any hostile demonstration of force; and it may fairly be maintained that no Commander of a belligerent cruiser can capriciously depart from the established practice without 74 Martens, Récueil, III. p.597. 75 Art. 18. Martens, Récueil, VI. p. 160. 76 Art. 14. ties, II. p. 147. Hertslet's Trea Privateers not ad the same Comity as incurring a responsibility to the Neutral Nation, upon whose Rights of Independence it will have thereby unduly trespassed. It should be borne in mind that it is by the Custom of Nations that the cruisers of a belligerent Power are authorised to visit and search neutral merchant ships on the High Seas in assurance of their good Faith, and that although a Belligerent Power would be justified in regarding a Neutral Power, which should refuse to allow its merchant vessels to be duly visited and searched, as an adherent of the Enemy, and in treating it accordingly, yet the Belligerent is not the less bound in good Faith towards the Neutral to observe those forms, which are of the essence of the Custom, and the observance of which enables a Neutral to recognise the exercise of Belligerent Right in a proceeding, which under any other form would be a Maritime Trespass. § 201. The Comity which is extended by the pracmitted to tice of Neutral Powers to the Public vessels of war of a belligerent Power, in admitting them into its ports, is not invariably extended in an equal manner to Private ships of war. It is competent indeed for a Neutral Power to grant free access to its ports to all privateers with their prizes; and if it has granted such access to them, it is not at liberty to interfere with their possession of those prizes, whilst they are within its jurisdiction, unless the capture of them should have involved a violation of the Sovereignty of the Neutral Power. For instance, if a privateer should have entered any port of the Neutral Power prior to making capture of an enemy's ship, and should have augmented her crew in that port without the permission of the Neutral Power, and thereupon should have sailed out and captured a merchant vessel, and brought her as prize of war into a port |