treaty, and they 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. We know of no Continental writer who advocates or admits a right of visit, in time of peace, except in the single case of vessels suspected of piracy, i

§ 7. The older English writers, and English judicial decisions, are directly opposed to the pretensions of Lord Aberdeen, and generally agree with the Continental writers on this question. Lord Stowell, than whom no greater authority can be 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 on the high seas except that which the rights of war give to both belligerents against neutrals.' Again he says: 'No one can exercise the right of visitation and search upon the high seas, except a 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 navigagation of other countries. If the right were to exist at all, it must be universal and extend equally to all countries. If I were to proceed to consider this question further, it would be necessary for me to state 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.' But some recent British writers, and among them Mr. [now Sir R.] Phillimore, have attempted to sustain the views of Lord Aberdeen. Mr. Phillimore has argued the question at considerable length. He

1

'It is quite true that the right of visit and search is

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.

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 words of Bynkershoek are thus translated by Mr. Duponceau: But it ought to be observed that it is lawful to detain a neutral vessel, in order to ascertain, not by the flag merely, which may be fraudulently assumed, but by the documents themselves which are on board, whether she is really neutral. Not only the extract itself, but the whole chapter has reference to the belligerent right to search neutral vessels. Not a word here or elsewhere in Bynkershoek can be found in favour of the right of visitation and search in time of peace. Moreover, Mr. Phillimore is in error in saying that such a construction was put by Chancellor Kent upon the passage quoted. The reference is not made by Kent, but by an annotator, since his death. The text of Kent's commentaries, which remains unchanged, declares emphatically 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. Moreover, the note to the recent editions of his work, in which Bynkershoek is erroneously quoted, refers only to intervisitation in case of suspected piracy, and even then it is doubtful whether anything more is intended than the right of approach, as described by the Supreme Court in the case of 'Marianna Flora,' to which the note refers. Surely, Mr. Phillimore will not rest the right of visit in time of peace upon the authority of an anonymous and ambiguous note to Kent's commentaries, when the text of the same work is so emphatically against such a claim. Mr. Phillimore also refers to that part of Mr. Webster's argument drawn from the consequences resulting from the admission of the right of visitation as a right in time of peace, and pronounces it to be 'extremely weak.' Without

commentating upon the judgment thus summarily passed upon the soundness of Mr. Webster's reasoning, let us examine the grounds on which Mr. Phillimore himself bases this pretended right of visitation in time of peace. All the authorities which he has quoted have reference only to the belligerent right of visitation and search, which is not disputed. But,' he says, 'the right of visit in time of peace is a part, indeed, but a very small part of the belligerent right of visit and search.' In other words, the right of visit being 'but a very small part of a belligerent right, it may therefore be exercised in time of peace!' To justify the exercise, in time of peace, of any part of a belligerent right, no matter how 'very small' it may be, will require something more than bare assertion; but Mr. Phillimore has given no authorities whatever in support of this new and singular proposition. It is true that he also bases this right upon the same grounds as the right to visit and detain pirates; but the cases, as will be shown hereafter, are so manifestly different as to destroy all analogy of reasoning. Again, he confounds the right of visit with the right of approach, which is admitted by Mr. Webster and all American and European writers, who most strenuously deny the right of visit in time of peace. 'This right of mitigated visit in time of peace,' he says, 'is sometimes delicately described as the right of approach. It is called by the French, droit d'enquête du pavillon, as distinguished from the droit de visite ou de recherche; and it is said that this nationality of the flag may be ascertained by signals and hailing, and even when there is a suspicion of piracy, all proceedings beyond the exchange of hailing and signals must be taken at the risk of the man-of-war who visits. Whether these limitations be just or not, it is unquestionable that the visit for the purpose of ascertaining the nationality of the vessel must be exercised without the right of search, which is exclusively incident to a belligerent.' Mr. Phillimore's argument in favour of the right of visit in time of peace, drawn from the requirement of international law that every vessel must have some document proving her nationality and identity, is the same as that advanced by Lord Aberdeen, and which is referred to and answered in the foregoing extracts from the official letter of Mr. Webster.1

Phillimore, On Int. Law, vol. iii., §§ 322-326; Duponceau, Trans

§ 8. The remark of Mr. 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 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 clearly 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 admitted fact that the slave trade, 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

lation, &c., p. 110; Kent, Com. on Am. Law, vol. i. p. 153; the 'Marianna Flora,' 11 Wheaton R., 43; Coxe, Brief Examination, &., p. 26 Lawrence, On Visitation and Search, pp. 79-103; the 'Louis,' 2 Dods R., 210; the San Juan Nepomuceno,' i Hagg. R., 265.

upon suspicion of piracy, with probable cause and in good faith,' affords no just ground for any reclamations in the premises. If, then, by our laws 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 theoretical right of any maritime power, at its pleasure, to interpolate its municipal statutes into the law of nations. The slave trade is not piracy by the common law of the world, and therefore cannot be treated as piracy on the high seas, where the sanctions of international law can alone assert their right to universal recognition. The British man-of-war which detains an American vessel on suspicion of piracy is acting, according to President Tyler's view, within the scope of public law; but to assert the same right as equally applicable to the suppression of the slave trade is to found, on a municipal statute, a claim which is derivable only from the common consent of all civilised nations. It would be giving an extra-territorial effect to a municipal law, and would be a recognition of the right once assumed by Great Britain to impress her seamen from American vessels. It has been decided by the courts, both of England and America, that the slave trade is not contrary to the law of nations.'

§ 9. This discussion between the Governments of Great Britain and the United States, or more properly speaking, between Lord Aberdeen and Mr. Webster, arose out of the pretensions of British cruisers on the coast of Africa to visit American vessels suspected of being engaged in the slave trade. Neither party would admit the correctness of the rule of international law contended for by the other, but the difficulty in the particular case was amicably arranged by an agreement that each Government should maintain a specified naval force on the coast of Africa to prevent the fraudulent use of their respective flags. The discussion, however, proved that the ground taken by the United States was sustained by reason and the weight of authority. Such was the position

Riquelme, Derecho Pub. Int. lib. i. tit. ii. cap. viii.; Phillimore, On Int. Law, iii. §§ 322-326; the 'Antelope,' 10 Wheat. R., 66; the 'Diana,' 1 Dods. R., 95; the Louis,' 2 Dods. R., 238.