"last and the 20th of July ensuing, for any of the ports of "Holland aforesaid from any port of the United States, "shall be molested or interrupted in her voyage by the "commanders of His Majesty's ships or privateers.

"And it is further ordered, that no vessels of the United "States which shall have cleared out from any port of "America previous to the 20th of July next, for any other "permitted port, and shall, during her voyage, have changed "her destination, in consequence of information of the said "Provisional Agreement, and shall be proceeding to any of "the ports of Holland aforesaid, shall be molested or inter"rupted by the commanders of any of His Majesty's ships or privateers, unless such vessel shall have been informed "of this Order on her voyage, and shall have been warned "not to proceed to any of the ports of Holland aforesaid, "and shall, notwithstanding such warning, be found attempting to proceed to any such port.

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"And it is further ordered, that after the said 9th day of "June next, no vessel of the said United States which "shall have cleared out, or be destined to any of the ports "of Holland from any other port or place not subject to "the restrictions of the said Order of the 26th of April "last, after notice of such Provisional Agreement as afore"said, shall be molested or interrupted in her voyage by "the commanders of His Majesty's ships or privateers, provided such vessel shall have so cleared out previous to "actual notice of this Order at such place of clearance, or "in default of proof of actual notice previous to the like "periods of time after the date of this order, as are fixed "for constructive notice of His Majesty's Order of the "11th of November, 1807, by the Orders of the 25th of "November, 1807, and of the 18th of May, 1808, at "certain places and latitudes therein mentioned, unless "such vessel shall have been informed of this Order on her "voyage, and warned by any of His Majesty's ships or privateers not to proceed to any port of Holland, and shall, notwithstanding such warning, attempt to proceed "to any such port.

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"And His Majesty is pleased further to order, and it is hereby ordered, that the said several Orders of the 7th of January and 11th of November, 1807, as altered by the "said order of the 26th of April last, shall also be suspended, so far as is necessary for the protection of vessels "of the said United States which shall clear out to any ports not declared to be under the restriction of Blockade "from any port of Holland between the 9th day of June "and the 1st day of July next: Provided always, that "nothing that is contained in the present Order shall "extend, or be construed to extend, to protect any vessels or their cargoes that may be liable to condemnation or "detention for any other cause than the violation of the "aforesaid Orders of the 7th of January and the 11th of November, 1807, as altered by the said Order of the 26th "of April last.

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"Provided also, that nothing in this Order contained shall "extend, or be construed to extend, to protect any vessel "which shall attempt to enter any port actually blockaded "by any of His Majesty's ships of war.

"And the Right Honourable the Lords Commissioners of "His Majesty's Treasury, His Majesty's Principal Secre"taries of State, the Lords Commissioners of the Admiralty, " and the Judge of the High Court of Admiralty, and the Judges of the Court of Vice-Admiralty, are to give the necessary directions herein as to them may respectively appertain.

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"STEPHEN COTTRELL " (s).

The only defence of these Orders by Lord Stowell is, it has been seen, that they were retaliatory. Why this defence appears to the writer of these pages unsatisfactory and insufficient, has been already stated (t). The Decrees and the Orders violated International Law.

(8) Annual Register, 1809, pp. 763-5.

(t) Vide antè, pp. 310–312.

CHAPTER III.

RIGHT OF VISIT AND SEARCH.

CCCXXII. THE next limitation of the general rights of the Neutral is that which flows from his duty to submit to the Rights of Visit and Search on the part of the Belligerent (a).

This important subject will, perhaps, be most conveniently discussed by considering:-

1. When the Right of Visit and Search may be exercised. 2. Where it may be exercised.

3. By what kind of force.

4. How it must be exercised.

5. Upon what kind of property.

6. What are the consequences to the Neutral of offering resistance, with or without Convoy, to the exercise of this belligerent right.

7. A reference to the principal Treaties which have affirmed, modified, or taken away, between the contracting parties, this right.

CCCXXIII. First, as to when this Right may be exercised. Even in time of peace it is not lawful for a vessel to sail upon the high seas without any papers on board indicating the nation to which she belongs. Pirates, hostes humani generis, always seizable by everybody, and justici

(a)" According to every known principle of reason, the establishment of any rule of law necessarily implies that the party interested in its observance shall have some means of ascertaining the fact of its violation."-Letters of Sulpicius (IV.) (Lord Grenville).

able everywhere, sail the seas in time of peace. The lawful merchant, on this as well as other accounts, is bound by the general principles of International Law to be furnished with documents proving her nationality and her identity (b). This appears to be an uncontroverted axiom of International Jurisprudence; nevertheless, it is evident that two important consequences flow from it.

1. That a vessel may, under extraordinary circumstances of grave suspicion, be visited in time of peace upon the high seas; for how otherwise could it be ascertained whether or no she carried the proper papers on board? Or for what purpose, if she may not be visited, is she to carry them? (c).

2. It follows that the high seas are not, as is sometimes contended, a place in which no inquiry whatever, in any circumstances, can be exercised by the ships of one State into those of another; though the maintenance of this extreme proposition is necessary to sustain the maxim already so much discussed, that "free ships make free goods."

CCCXXIV. It is quite true that the Right of Visit and Search is a strictly belligerent right (d). 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.

When Bynkershoek argues for the Right of Search in time of war, he points out the necessity of it in these words:

(b) "Un des principes du droit des gens est, que tout navire doit être muni de pièces de bord, qui permettent de constater son identité, et de reconnaître sa nationalité. Tout navire neutre qui, en temps de paix, navigue armé, sans pièces de bord, s'expose à être traité comme pirate."”—De Pistoye et Duverdy, Traité des Prises, t. i. p. 416.

(c) "Nous avons dit que le pavillon avait cessé d'être une marque certaine de la nationalité des navires; que tous, marchands et de guerres, ils se permettaient d'arborer des couleurs mensongères."De Hautefeuille, t. iii. p. 438.

(d) Le Louis, 2 Dodson's Adm. Rep. p. 210.

La Jeune Eugénie, 2 Mason's (Amer.) Rep. p. 409, and cited in the Antelope, 10 Wheaton's (Amer.) Rep. p. 66.

"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" (e).

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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 (f).

CCCXXV. Whatever may be the correct opinion with respect to the Right of Visit in time of peace, the right, in time of war, to visit, to search, and to detain for search, is a belligerent right which cannot be drawn into question (g); it is a right which a Belligerent may exercise over every vessel, not being a ship of war, or, as it is sometimes called, a public vessel, that he meets with on the ocean (h); an opinion which I am glad to find supported by Heffters. This right is so rooted in the law and practice of nations, that great institutional writers rather refer to it as acknowledged than vindicate its existence (i).

(e) Q. J. P. c. xiv.

She must at least have a register on board, though that may be sufficient.-1 Paine's (Amer.) Rep. p. 594; 1 Kent's Comment. p. 161 (158), n. (c.)

(f) 1 Commentaries, n. 6 to p. 153.

(g) Merlin, Rép. t. xiii. p. 115.

Le Louis, 2 Dodson's Adm. Rep. p. 244.

The Anna Maria, 2 Wheaton's (Amer.) Rep. p. 332.

(h) "Im Uebrigen kann selbst die Maxime, 'Frei Schiff frei Gut,' das Recht der Untersuchung zu Gunsten der Neutralen nicht ausschliessen, da wenigstens immer eine Nachfrage und Nachsuchung nach Contrebande, desgleichen nach der Nationalität des Schiffes, vergönnt werden muss."-Heffters, p. 296, § 169.

(i) Bynkershoek, Q. J. P. l. i. c. xiv. Valin, Ordonn. 1. iii. t. ix. art. xii. Vattel, 1. iii. c. vii. s. 114.

De Martens, viii. c. 7. s. 321.

Kent, Comm. i. pp. 153-4-5.

Heffters, p. 294. s. 167.