that, in fact, pirates were no longer formidable, and that piracy was rare.

It can scarcely be denied that this argument, whatever may be thought of those which preceded it, was extremely weak. And it is difficult to see why the penalty of costs and damages should not operate as a sufficient check upon the possible abuse incident to the inquiry of ascertaining the national character of the suspected vessel (o).

(0) Ibid.

The Antelope, 10 Wheaton's (Amer.) Rep. p. 66.

The dispute was closed by the Treaty of Washington, or Ashburton Treaty, of 1842. "The parties mutually stipulate that each shall prepare, equip, and maintain in service on the coast of Africa a sufficient and adequate squadron, or naval force of vessels, of suitable numbers and descriptions, to carry in all not less than eighty guns, to enforce, separately and respectively, the laws, rights, and obligations of each of the two countries for the suppression of the SlaveTrade; the said squadrons to be independent of each other, but the two Governments stipulating nevertheless to give such orders to the officers commanding their respective forces as shall enable them most effectually to act in concert and co-operation, upon mutual consultation, as exigencies may arise, for the attainment of the true object of this Article; copies of all such orders to be communicated by each Government to the other respectively.-Treaty between Great Britain and the United States, dated Washington, 9th Aug. 1842; Hertslett's Treaties, vol. iii. p. 853.

This Treaty granted no right of search, and no mixed tribunals. "But" (Mr. Dana observes, from whom I borrow what follows)," the subject is now practically settled between the two nations by the Treaty of 7th April, 1862, negotiated by Mr. Seward and Lord Lyons.

"The chief provisions of this treaty are as follows:-The right to detain, search, seize, and send in for adjudication, is confined to cruisers of either Power, expressly authorised for that purpose; and is to be exercised only over merchant vessels, and only within a distance of two hundred and twenty miles from the coast of Africa, and to the southward of thirty-two degrees north latitude, and within thirty leagues from the Island of Cuba, and never within the territorial waters of either contracting power. The right to visit is to be exercised where there is reasonable ground' to suspect a vessel of having been fitted out for, or engaged in, the trade. The only slavetrade referred to is the 'slave-trade upon the coast of Africa,' or the 'African slave-trade.'

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It is the language of the Prize Court of the North American United States that, "Upon the ocean, 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 or exclusive pre"rogative there. Every ship sails there with the unques"tionable right of pursuing her own lawful business without interruption; but, whatever may be that business, she is "bound to pursue it in such a manner as not to violate the rights of others. The general maxim in such cases is, "sic utere tuo, ut non alienum lædas.

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"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.

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"This doctrine appears to us novel, and is not supported

"To secure responsibility and freedom from vexation, special provisions are made as to exhibiting written authority, with names of the cruiser and her commander; entries on log-books; requiring the boarding-officers and commanders of authorised cruisers to be of a certain rank in the Navy; providing exchange of notifications between the two Powers of the names of vessels, and commanders employed, and as to the course to be pursued in case of convoy, &c.; and stipulations that each Power will make indemnification for losses to vessels arbitrarily and illegally detained. As to what shall constitute reasonable suspicion, certain articles or arrangements found on board are specified as authorising a bringing in for adjudication, and as affording protection against claims for damages, and as primâ facie evidence of being in the trade, and as authorising condemnation of the vessel, unless clear and incontrovertible evidence is adduced that they were engaged in legal business. Mixed tribunals are constituted for adjudication upon the vessels, but persons are to be sent home to their respective jurisdictions to be tried. Vessels condemned by the tribunals are to be broken up, unless either Government takes them for its navy, at an appraisement; and the negroes found on board are to be delivered to the States whose cruiser made the capture, and to be by that State set free."-(U. S. Laws, xii. 279; Dana's Wheaton's Int. Law, p. 203.)

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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 appropria❝tion, and has never been successfully 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 ad"mitting 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. In respect to ships of war sailing, "as in the present case, under the authority of their Govern"ment, to arrest pirates and other public offenders, there is no reason why they may not approach any vessels descried "at sea, for the purpose of ascertaining their real characters. "Such a right 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 66 commerce. On the other hand, it is as clear that no ship "is, under any such circumstances, bound to lie by or wait "the approach of any other ship. She is at full liberty to 66 pursue her Voyage in her own way, and to use all necessary precautions to avoid any suspected sinister enterprise, "or hostile attack. 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 conjectural dangers. These

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principles seem to us the natural result of the common "duties and rights of nations navigating the ocean in time "of peace. Such a state of things carries with it very "different obligations and responsibilities from those which "belong to public war, and is not to be confounded with "it" (p).

The law is perhaps as clearly stated as the nature of the case will admit by Mr. Chancellor Kent (q), when he says, "The inter-visitation of ships at sea is a branch of the law "of self-defence, and is, in point of fact, practised by the public vessels of all nations, including those of the United "States, when the piratical character of a vessel is sus"pected. The Right of Visit is conceded for the sole purpose of ascertaining the real national character of the "vessel sailing under suspicious circumstances, and is wholly "distinct from the Right of Search. It has been termed by the Supreme Court of the United States the right of approach for that purpose (r); and it is considered to be "well warranted by the principles of public law and the "usage of nations" (s).

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CCCXXVII. Secondly, as to where this right may be exercised.

This question may be considered affirmatively and negatively (t). Affirmatively it may be exercised, 1st, in the Belligerent's own waters; 2ndly, in those of his enemy; and 3rdly, upon the high seas. Negatively, it may not be exercised in the ports, harbours, or territorial waters of a Neutral.

The law as to this subject has been already dwelt upon at length in a former part of this work (u).

(p) The Marianna Flora, 11 Wheaton's (Amer.) Rep. pp. 42-4. (9) 1 Comment. p. 154 (153), note (6).

(r) The Marianna Flora, 11 Wheaton's (Amer.) Rep. p. 43. (s) Bynkershoek, Q. J. P. 1. i. c. cxiv.

(t) Merlin, Rép. t. xiii. p. 111.

(u) Vide antè, vol. i. pt. iii. cc. vi. vii.

CCCXXVIII. A delicate question sometimes arises as to the right and duty of a Neutral State with respect to prizes made by Belligerents in violation of Neutrality. The Prize Courts of the United States of North America appear to have laid down sound rules of International Law upon this subject. They rightly hold, that whenever a capture is made by a Belligerent in violation of Neutral rights, if the prize come voluntarily within the jurisdiction of the Neutral, it should be restored to its original owner. But this jurisdiction in such cases does not extend beyond the authority to decree restitution of the specific property, with the costs and expenses incurred by the legal proceeding. The Neutral, it is truly said by the North American Courts, must entirely disclaim any right to inflict damages; and it is no part of the duty of a neutral nation to interpose, upon the mere footing of the Law of Nations, to settle all the rights and wrongs which may grow out of a capture between Belligerents. Strictly speaking, there can be no such thing as a marine tort between the Belligerents. Each has an undoubted right to exercise all the rights of war against the other; and it cannot be a matter of judicial complaint, that they are exercised with severity, even if the parties do go beyond those rules which the customary laws of war justify. At least, they have never been deemed to be within the cognizance of the prize tribunals of neutral nations. The captors are amenable to their own Government exclusively for any excess or irregularity in their proceedings; and a neutral nation ought no otherwise to interfere, than to prevent captors from obtaining any unjust advantage by a violation of neutral jurisdiction. Neutral nations may, indeed, inflict pecuniary or other penalties on the parties for any such violation; but this must be professedly in vindication of their own rights, and not by way of compensation to the captured. When called upon by either of the Belligerents to act in such cases, all that justice seems to require is, that the neutral nation should fairly execute its own laws, and give no asylum to the property