States sus American § 5. Kent says most emphatically that the right of visita- Views of tion and search 'is strictly and exclusively a war right, and the United does not rightfully exist in time of peace, unless conceded by tained by treaty.' He, however, concedes the right of approach for the publicists sole purpose of ascertaining the real national character of the vessel sailing under suspicious circumstances. The distinction,' says Wheaton, now set up, between a right of visitation and a right of search is nowhere alluded to by any public jurist, as being founded on the law of nations. The technical term of visitation and search, used by the English civilians, is exactly synonymous with the droit de visite of the Continental civilians. The right of seizure for a breach of the revenue laws, or laws of trade and navigation, of a particular nation is quite different. The utmost length to which the exercise of this right on the high seas has ever been carried, in respect to the vessels of another nation, has been to justify seizing them within the territorial jurisdiction of the State against whose laws they offend, and pursuing them, in case of flight, seizing them upon the ocean, and bringing them in for adjudication before the tribunals of that State. This, however, says the Supreme Court of the United States, in the case of the "Marianna Flora," has never been supposed to draw after it any right of visitation or search. The party, in such case, seizes at his peril. If he establishes the forfeiture, he is justified.' Mr. Justice Story, delivering the opinion of the Supreme Court, in the case of the 'Marianna Flora,' says that the right of visitation and search does not belong, in time of peace, to the public ships of any nation. This right is strictly a belligerent right, allowed by the general consent of nations in time of war, and limited to those occasions. Upon the ocean, then, in time of peace, all possess an entire equality. It is the common highway of all, appropriated to the use of all, and no one can vindicate to himself a superior exclusive prerogative there. Every ship sails there with the unquestionable right of pursuing her own lawful business without interruption.' He also says: 'It has been argued that no ship has a right to approach another at sea, and that every ship has a right to draw round her a line of jurisdiction, within which no other is at liberty to intrude. In short, that she may appropriate so much of the ocean as she may deem necessary for her protection, and prevent any nearer approach. ་ By Continental writers This doctrine appears to us novel, and is not supported by any authority. It goes to establish upon the ocean a territorial jurisdiction, like that which is claimed by all nations within cannon-shot of their shores, in virtue of their general sovereignty. But the latter right is founded upon the principle of sovereign and permanent appropriation, and has never been successively asserted beyond it. Every vessel undoubtedly has a right to the use of so much of the ocean as she occupies, and is essential to her own movements. Beyond this, no exclusive right has ever yet been recognised, and we see no reason for admitting its existence. Merchant ships are in the constant habit of approaching each other on the ocean, either to relieve their own distress, to procure information, or to ascertain the character of strangers; and hitherto there has never been supposed in such conduct any breach of the customary observances, or of the strictest principles of the Law of Nations.'1 § 6. The older Continental publicists discuss the general question of search under the terms visit and visitation, as a belligerent right. Several, however, who have written since Wheaton made the statement above alluded to, have discussed the claim of Great Britain to the right of visit in time of peace, as distinguished from the general right of visitation and search in time of war. We refer particularly to the able works of Massé, Ortolan, Hautefeuille, and Pistoye et Duverdy. Massé says: Whatever may be the object of visit in time of peace, it is always an act of police which cannot be exercised by one nation over another, for this act would imply, on the part of the visitor, a sovereignty incompatible with the reciprocal independence of nations (peuples).' Ortolan distinguishes the right of ships of war to ascertain the nationality of a merchantman (droit d'enquête du pavillon), from the right of visitation or search (droit de visite ou de recherche). He thinks that signals, or exchange of words, suffice with respect to the nationality of the flag, except on suspicion of piracy, when all further proceedings must be taken at the risk of the man-of-war. He, however, omits all consideration of vessels committing crimes against municipal 1 Kent, Com. on Am. Law, vol. i. p. 153; Wheaton, Elem. Int. Law, Introduction, by Lawrence, p. cxxiv; the 'Marianna Flora,' 11 Wheat. R., 42. law in territorial waters and of vessels having hostile intent in time of peace. He unites with Wheaton in declaring that the right of visitation or search does not exist except in time He says that if accorded for time of peace, by special conventions between particular States, such treaty stipulations do not bind those who are not parties to them, nor do they make it a part of the law of nations. Hautefeuille discusses the British claim at great length. He agrees with Ortolan with respect to the right of ships of war to ascertain the nationality of a merchantman by approaching her, and requiring her to hoist her flag. But beyond this simple fact of showing colours, he denies any droit d'enquête in time of peace, except in the case of suspected piracy, which in modern times very rarely occurs. Even then the visiting vessel proceeds at her peril, for if her suspicions are not verified, she becomes guilty of an illegal act toward the vessel visited. All three of these writers oppose the policy of granting this right in time of peace by treaty as a measure most dangerous to maritime commerce; Hautefeuille and Ortolan do not hesitate to declare that such treaties are not in general binding even upon the subjects of the States making them, for the reason that they are virtually a surrender of sovereignty. Pistoye et Duverdy regard the right of reciprocal visit (droit de visite réciproque) in time of peace, for the suppression of the slave trade, as one which results only from special convention or treaty.2 Stowell § 7. Lord Stowell, than whom no greater authority can be of Lord found in British maritime jurisprudence, says: I can find no authority that gives a right to the interruption of the navigation of the vessels of States in amity upon the high seas excepting that which the rights of war give to both belligerents against neutrals. . . . No one can exercise the right of visitation and search upon the high seas, except a See the 'Virginius,' ante, vol. i. p. 449. * Ortolan, Diplomatie de la Mer, liv. iii. ch. ii. § 15; Hautefeuille, Des Nations Neutres, tit. xi. ch. ii.; Pistoye et Duverdy, Des Prises, tit. i. ch. iii.; Massé, Droit Commercial, liv. ii. tit. i. c. ii. § 2. Pistoye et Duverdy refer to the treaties between France and England of November 30, 1831, March 22, 1833, May 20, 1845; the convention between France and Sweden, and Norway, May 21, 1833; the treaty between France and Sardinia, December 8, 1834; between France and the Two Sicilies, February 14, 1838; France and Tuscany, November 27, 1837 ; and the convention between France and Hayti, August 9, 1840. Distinction between pirates and slavers belligerent power. No such right has ever been claimed, nor can it be exercised without the suppression, interruption and the endangering of the relations with and the lawful navigation of other countries. If the right were to exist at all, it must be universal and extend equally to all countries. If I felt it necessary to press the consideration further, it would be by stating the gigantic mischiefs which such a claim is likely to produce.' And, again : 'All nations being equal, all have an equal right to the uninterrupted use of the ocean for their navigation. In places where no legal authority exists, where the subjects of all States meet upon the footing of entire equality and independence, no one State nor any of its subjects have a right to assume or to exercise any authority over the subjects of another.' The late Sir Robert Phillimore has attempted to sustain the views of Lord Aberdeen, and has argued the question at considerable length. He says: 'It is quite true that the right of visit and search is strictly a belligerent right. But the right of visit in time of peace for the purpose of ascertaining the nationality of a vessel is a part, indeed, but a very small part, of the belligerent right of visit and search.' He then quotes the words of Bynkershoek, 'Velim animadvertas, eatenus utique licitum esse amicam navem sistere, ut non ex fallaci forte aplustri, sed ex ipsis instrumentis in navi repertis constet, navem amicam esse,' and adds, Surely this reasoning applies to the right of ascertaining the national character of a suspected pirate in time of peace; and it may be added, that it appears to have been so considered by no less a jurist than Mr. Chancellor Kent.' The reference, however, is not made by Kent, but by an annotator, since his death. The text of Kent's commentaries, which remains unchanged, declares that 'it (the right of visitation and search) is founded upon necessity, and is strictly a war right, and does not rightfully exist in time of peace, unless conceded by treaty.' ' 1 § 8. The remark of Sir R, Phillimore, that the objection by the United States to the right to visit and search a suspected slaver bearing the American flag, applies equally to the suspected pirate sailing under the same flag, is fully The 'Louis,' 2 Dods. R., 210; Phillimore, On Int. Law, vol. iii. SS 322-326; Kent, Com. on Am. Law, vol. i. p. 153; Coxe, Brief Examinations, p. 26; Lawrence, On Visitation and Search, pp. 79-103; the San Juan Nepocumeno,' 1 Hagg. R., 265. answered by the American Government, which admits the right to visit and search any vessel 'reasonably suspected' of being engaged in piracy. The distinction is pointed out in President Tyler's special message of February 27, 1843, as follows: The attempt to justify such a pretension [i.e. the right of visit for the purpose of suppressing the slave trade] from the right to visit and detain ships upon reasonable suspicion of piracy, would deservedly be exposed to universal condemnation; since it would be an attempt to convert an established rule of maritime law, incorporated as a principle into the international code by the consent of all nations, into a rule and principle adopted by a single nation, and enforced only by its assumed authority. To seize and detain a ship upon suspicion of piracy, with probable cause, and in good faith, affords no just ground either for complaint on the part of the nation whose flag she bears, or claim of indemnity on the part of the owner. The universal law sanctions and the common good requires the existence of such a rule. The right under such circumstances, not only to visit and detain, but to search a ship, is a perfect right, and involves neither responsibility nor indemnity. But, with this single exception, no nation has, in time of peace, any authority to detain the ships of another upon the high seas, on any pretext whatever, beyond the limits of the territorial jurisdiction.' The argument of President Tyler, it will be seen, is founded on the fact that the slave trade admittedly not being piracy by the law of nations, cannot be held to carry with it the same liabilities attached to the latter. The pirate, as an enemy of the human race, may, by the common law of the world, be seized and disposed of by whomsoever taken. Lawful commerce demands the extinction and suppression of maritime depredation; and hence, in consideration of this desirable end, President Tyler held that 'to seize and detain a ship upon suspicion of piracy, with probable cause and in good faith,' affords no just ground for any reclamations in the premises. If, then, the slave trade is placed in the same category with the crime of piracy, why should it not be subject to the same liabilities? For the reason assigned by President Tyler, in common with the consenting voice, not only of American statesmen, but of distinguished European publicists, that such an admission would involve the |