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.3 1 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 cannot require any boat, person, or paper to be brought to his ship from the ship visited, except as provided by articles 877 and 878. Lushington's Naval Prize Law, p. 5, § 18. Treaty between the United States and Dominican Republic, Feb. 8, 1867, Art. XVIII., 15 U. S. Stat. at L., (Tr.,)167. 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." 1 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. Proper evidence 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 remember 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 Henrich and Maria, 4 Ch. Robinson's Rep, 57; The Haabet, 6 Id., 54; Dominican Feb. 8, 1867, Art. XVII., 15 U. S. Stat. at L., (Tr.,) 167. Venezuela, Aug. 27, 1860, XVI., 12 Id., 1143, if it does not appear from the ship's certificates that there are contraband goods on board, she shall be permitted to proceed on her voyage. Memorandum of visit to be indorsed on ship's papers. 874. It is the duty of the visiting officer to write upon, or attach to the passport or other document supposed to determine the national character of the ship visited, a memorandum of the visit or search, specifying date and place, and the name of the visiting ship and commander, and to sign his name to the same with the addition of his rank. Lushington's Naval Prize Law, p. 6, § 33; p. 8, § 50. The instructions to British commanders, in Lushington's Naval Prize Law, require the officer having made visitation or search to inquire if the master of the ship has any complaint to make of the manner of the act, or on any other ground, and if so, ask him to reduce it to writing. Also that a memorandum of the visit should be made on the ship's passport. Sending in for condemnation. 875. Except in the cases otherwise provided for in the next two articles, every private ship detained, must be immediately sent to the nearest safe port of the captor's nation' for adjudication on the validity of the capture," whether of ship or contents.3 Treaty between France and Peru, March 9, 1861, Art. XXV., 8 De Clercq, 202. 1 Lushington, (Naval Prize Law, p. 14, § 76,) states the following rules for selecting the port of adjudication. It should, 1. Be capable of giving safe harborage to the ship; 2. Be large enough to admit her without unlivery of cargo; 3. Offer easy communication with the prize court; and, 4. Be as near as possible to the place of capture. In the case of The Fanny, 1 Dodson's Rep., 443, Lord Stowell held, that if a neutral merchant ship his goods on board an armed ship of the enemy, he betrays an intention to withdraw his goods from visitation and search,—for it is a presumptio juris et de jure that an armed ship will resist visitation and search,--and is deemed to have abandoned the protection of neutrality, and to have adhered to the enemy. But in the opinion of Chief Justice Marshall, in the case of The Nereide, (9 Cranch's U. S. Supr. Ct. Rep., 388.) " a neutral merchant had a right to charter and lade his goods on board a belligerent armed vessel without forfeiting his neutral character:" and the same opinion was held in The Atalanta, 3 Wheaton's U. S. Supr. Ct. Rep., 241. 2 This applies the rule of adjudication to public property of an enemy on a private ship, but not to private property found on a public ship of an enemy. 3 Contraband despatches, or persons captured at sea, wholly or partly by the agency of naval forces, must be brought in with the ship upon which they were taken, for the like adjudication. See Mr. Seward's letter in The Trent case. Prize incapable of being sent in. 876. If the captured ship or cargo be not in a condition to be sent into port for adjudication, the captor must cause a survey and appraisement to be made, and the report to be sent to the prize court; but if any of the property can be sold, it must, unless appropriated for the use of the government of the captor, be sold,' and the proceeds deposited with the authorized officer of the captor's nation, subject to the order of the prize court. Suggested by Act of Congress of the United States, June 30, 1864, § 1, 13 U. S. Stat. at Large, 306. 1 By the present rule,'the sale may be made in any neutral port where the local authorities will allow the same to be brought in and sold. Lushington's Naval Prize Law, p. 17, §§ 90, 96; but Division V., concerning NEUTRALS, forbids such use of neutral ports. Surrender of contraband of war. 877. When only the contents of a ship or some of them are subject to condemnation under the provisions of this Book, and they are surrendered by the officer in command, the ship and the rest of the contents remain free, except that if the seizure be made at sea, and the persons or things surrendered cannot be transshipped without grave inconvenience, the ship and all its contents may be sent in as provided in article 875. Treaty between France and Peru, March 9, 1861, 8 De Clercq, 200, Art. XXIV. According to the treaty between the United States and Bolivia, Art. XIX., May 13, 1858, 12 U. S. Stat. at L., 1003, no vessel shall be detained on the high seas on account of having on board articles of contraband, whenever the master, captain or supercargo of said vessel will deliver up the articles of contraband to the captor, unless th quantity of such articles be so great or of so large a bulk that they cannot be received on board the capturing ship without great inconvenience: but in this as well as in all other cases of just detention, the vessel detained shall be sent to the nearest convenient and safe port for trial and judgment according to law. By the treaty between the United States and Dominican Republic, Feb. 8, 1867, Art. XVII., 15 U. S. Stat. at L., (Tr.,) 167. Venezuela, Aug. 27, 1860, XVI., 12 Id., 1143, if it shall appear from any ship's certificates that there are contraband goods on board, and the commander of the same shall offer to deliver them up, they shall be received on board the belligerent ship of war, and a receipt given therefor, and the ship shall then be at liberty to pursue her voyage, unless the quantity of the contraband goods be greater than can conveniently be received on board the belligerent's ship of war; in which case, as in all other cases of just detention, the ship shall be carried into the nearest safe and convenient port for the delivery of the same. See also Katchenovsky's Prize Law, by Pratt, p. 118. The principle recognized by these treaties commends itself to general adoption. The difficulty which it presents in the case of contraband persons and dispatches, in relinquishing the existing method of adjudication, may perhaps be obviated by the adoption of a more simple and direct procedure in such cases. See Chapter LXVIII., concerning PRIZE. Detention of papers and persons. 878. The commanding officer of any ship making a capture must, 1. Secure the papers found on board of the captured ship, which relate to the prize, and make an inventory of the same, seal them up, and send them, with the inventory, to the prize court in which proceedings are to be had,' with a written statement that they are all the papers found, and in the condition in which they were found, or explaining the absence of any, or any change in their condition; 2. Except in the case of a surrender provided for |