They did not consider it a duty or usage of neutral nations to enforce by legal sanction the observance of these rules, but merely to apprise their citizens of the nature of their obligations, arising under treaties or under the general law of nations, by which they would be subjected to such penalties as custom had established. These penalties, the New York merchants asserted, could only be rightfully inflicted by regular tribunals, established by the belligerent nations in such fashion that they should not exceed the right of condemning the property attempted to be illegally concealed or transported: they would, accordingly, cheerfully submit to a law for restraining the armament of private merchantmen, except in conformity with the following principles:
Conditions with respect to private armed vessels.
1st. That the vessels should wholly belong to citizens of the United States.
2nd. That the cargoes laden on board such vessels shall wholly belong to citizens of the United States, and except necessary munitions and merchandise to and from ports eastward of the Cape of Good Hope, and westward of Cape Horn, shall in no degree consist of articles declared contraband of war, either by the general law of nations, or by treaties with the United States.
3rd. That the owners of armed vessels be required to give bonds for a reasonable amount that they shall not sell or charter such vessels in the dominions of any foreign state or nation, in America or elsewhere, to the subjects of the belligerent parties.
4th. That the masters and chief officers of all armed vessels be required to give bonds that they will not enter a blockaded port, and that they will not resist lawful visitation and search by a national ship of any European belligerent power; while, if deemed expedient, the masters and chief officers may be further rendered liable to such personal penalties as the wisdom of Congress may prescribe.
It will be seen that the New York merchants, who might then be presumed to represent the most influential body of the shipowners and merchants of the Union, never attempted to impeach any of the principles which had been held by all civilised nations, as establishing the law of nations, especially as regards the right of search. Indeed the highest authorities in the United States have laid down, “that 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.”[327]
Text writers generally concur in recognising the existence of this right. Sir W. Scott remarks, “All writers upon the law of nations unanimously acknowledge it, without the exception of even Hubner himself, the great champion of neutral privileges.” In fact the many European treaties which have reference to this right deal with it as pre-existing, and merely regulate the exercise of it.
Authorities on the subject.
These authoritative expositions of the law, as drawn from American as well as European text writers, notwithstanding the long period which has elapsed since the eventful struggle at the commencement of the present century, are the more necessary to be here quoted as there are unfortunately still recurrences of these disputes respecting the exercise of the right of search, and it must be conducive to a good understanding between England and all other nations, that an accurate interpretation of the law of nations should be generally established and observed.