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§ 2. The right of search upon the high seas is now universally regarded as simply a belligerent right, and one which cannot be exercised in time of peace, except when it has been conceded by treaty. Whatever difference of opinion may formerly have existed on this point, this right of search in time of peace has more recently been entirely and utterly disclaimed by the British Government-the only maritime power which was supposed to advocate it as a principle of the law of nations. This general rule, with respect to vessels on the high seas, does not, of course, apply to the execution of revenue laws or other municipal regulations in the ports and bays, or within one marine league of the coast.1

§3. That government, however, at one time attempted to draw a distinction between the right of visit and the right of search, and while it distinctly disavowed any claim to exercise the latter in time of peace, it insisted upon the right of visit for the purpose of ascertaining whether a merchant vessel is justly entitled to the protection of the flag which she may happen to have hoisted, such vessel being in circumstances which render her liable to suspicion; the right 'to know whether the vessel pretending to be American, and hoisting the American flag, be bond fide American;' and yet, says Lord Aberdeen, 'if, in the exercise of this right, either from involuntary error, or in spite of every precaution, loss or injury should be sustained, a prompt reparation would be afforded.' 2

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§ 4. The government of the United States, on the other hand,' said Mr. Webster, maintains that there is no such well-known and acknowledged, nor, indeed, any broad and generic difference between what has been usually called visit, and what has been usually called search; that the right to visit, to be effectual, must come, in the end, to include search;

Off. Papers, p. 143; Wildman, Int. Law, vol. ii. p. 40; Lawrence, Visitation and Search, p. 4; Hubner, Saisie de Bâtiments, pt. ii. ch. iii.; Kluber, Droit des Gens Mod., § 293, a; Jouffroy, Droit Maritime, p. 213; Heffter, Droit International, § 167; Hautefeuille, Des Nations Neutres, tit. xi. ch. i.; the 'Antelope,' 10 Wheaton R., 66.

1 Ortolan, Diplomatie de la Mer, tome ii., ch. vii.; Lord Aberdeen to Mr. Everett, December 20, 1841; Webster, Works, vol. vi. pp. 329, et seq.

Phillimore, On Int. Law, vol. iii. § 326; Lawrence, Visitation and Search, p. 4; Riquelme, Derecho Pub. Int., lib. i. tit. ii. cap. vii.; British and Foreign State Papers, vol. xxx. p. 1165.

and thus to exercise, in peace, an authority which the law of nations only allows in time of war. If such well-known distinction exists, where are the proofs of it? What writers of authority on public law, what adjudications in courts of Admiralty, what public treaties, recognise it? No such recognition has presented itself to the Government of the United States; but, on the contrary, it understands that public writers, courts of law, and solemn treaties have, for two centuries, used the words "visit" and "search" in the same sense. What Great Britain and the United States mean by the "right of search," in its broadest sense, is called by Continental writers and jurists by no other name than the "right of visit." Visit, therefore, as it has been understood, implies not only a right to inquire into the national character, but to detain the vessel, to stop the progress of the voyage, to examine papers, to decide on their regularity and authenticity, and to make inquisition on board for enemy's property, and into the business which the vessel is engaged in. In other words, it describes the entire right of belligerent visitation and search. Such a right is justly disclaimed by the British Government, in time of peace. They, nevertheless, insist on a right which they denominate a right of visit, and by that word describe the claim which they assert.' Mr. Webster thus describes the views of the United States on the means which a vessel of war may use in time of peace, to ascertain the character of any other vessel on the high seas. 'As we understand the general and settled rules of public law, in respect to ships of war sailing under the authority of their. Government, "to arrest pirates and other public offenders," there is no reason why they may not approach any vessel descried at sea, for the purpose of ascertaining their real characters. Such a right of approach seems indispensable for the fair and discreet exercise of their authority; and the use of it cannot be justly deemed indicative of any design to insult or injure those they approach, or to impede them in their lawful commerce. On the other hand, it is clear that no ship is, under such circumstances, bound to lie by, or wait the approach of any other ship. She is at full liberty to pursue her voyage, in her own way, and to use all necessary precautions to avoid any suspected sinister enterprise or hostile attack. Her right to the free use of the ocean is as perfect as that of any other

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ship. An entire equality is presumed to exist. She has a right to consult her own safety, but, at the same time, she must take care not to violate the rights of others. She may use any precautions dictated by the prudence or fears of her officers, either as to delay, or the progress or course of her voyage, but she is not at liberty to inflict injuries upon other innocent parties, simply because of her conjectural dangers. But if the vessel thus approached attempts to avoid the vessel approaching, or does not comply with her commander's order to send him her papers for his inspection, nor consent to be visited or detained, what is next to be done? Is force to be used? And if force be used, may that force be lawfully repelled? Suppose that force be met by force, gun returned for gun, and the commander of the cruiser, or one of his seamen, be killed, what description of offence will have been committed? It may be said, in behalf of the commander of the cruiser, that he mistook the vessel for a vessel of England, Brazil, or Portugal; but does this mistake of his take away from the American vessel the right of self-defence? The writers of authority declare it to be a principle of natural law, that the principle of selfdefence exists against an assailant who mistakes the object of his attack for another whom he had the right to assail.' He also discussed the consequences of admitting the claim as a matter of right, for, if a right, it had its correlative duties

§ 5. The views of Mr. Webster on this question are fully sustained by the best writers on public law in America and Europe. Chancellor Kent says most emphatically that the right of visitation and search 'is strictly and exclusively a war right, and does not rightfully exist in time of peace, unless conceded by treaty.' He, however, concedes the right of approach (as described by the Supreme Court of the United States in the 'Marianna Flora') for the sole purpose of ascertaining the real national character of the vessel sailing under suspicious circumstances.' With respect to the right of visit in time of peace, claimed by the English government, Mr. Wheaton defied the British Admiralty lawyers to show a

1 Webster, Dip. and Off. Papers, pp. 164, 165, 166, 167; Webster, Works, vol. vi. pp. 335, 336, 338, 339; Bello, Derecho Internacional, pt. ii. cap. viii. § 10; Wheaton, Hist. Law of Nations, pp. 706 et seq.

single passage of any institutional writer on public law, or the judgment of any court by which that law is administered, either in Europe or America, which will justify the exercise of such a right on the high seas in time of peace.' *** 'The distinction 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.' 1

§ 6. The older Continental publicists, as stated by Mr. Wheaton, do not distinguish between the right of visit, and the right of search, but discuss the general question under the terms visit and visitation, as a belligerent right, existing

1 Kent, Com. on Am. Law, vol. i. p. 153; Wheaton, Elem. Int. Law. Introduction, by Lawrence, p. cxxiv. ; the Marianna Flora,' 11 Wheaton R., 42.

only in time of war. Several, however, who have written since Mr. Wheaton made the statement 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 recent and 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). Signals, 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 unites with Mr. Wheaton in declaring that the right of visitation or search does not exist except in time of war. If accorded in 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 pretensions 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 them and requiring them to hoist their 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

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