ually conceded the right of search. In the treaties made with other powers there were limits as to the time when and where the visitation for the examination of the papers may be made; and the right of detention is confined to certain cruisers specially authorized. In our case, if admitted at all, it would be equally competent for any ship-of-war, and if English ships have the right, all others possess it, to visit and detain any merchantman at any time and in any part of the ocean." (Visit and Search, 41. See Schuyler's Am. Diplom., 251, citing to same effect President Tyler's message of Dec. 8, 1841.) The same position is taken by Mr. Webster in his instructions to Mr. Everett of March 28, 1843. As to the treaty of 1842, see further supra, § 150e; 2 Halleck's Int. Law (Baker's ed.), 277. Although Mr. Webster, as has been seen, followed up the Ashburton treaty of 1842 with a vigorous declaration of the determination of the Government of the United States to admit no right of visitation in times of peace, the British ministry seemed to hold that the opposition of the United States to such visitation was relaxed. It may have been on this assumption that early in 1858 a number of small vessels of-war were sent into Cuban waters with instructions to 'search for slavers. This mission was exercised with so little delicacy and reserve, in respect to vessels of the United States sailing in those waters, that President Buchanan not only addressed a grave protest to the British Government, but sent a naval force to the Cuban waters to "protect all vessels of the United States on the high seas from search or detention by the vessels of war of any other nation." The Senate unanimously approved of these instructions (Cong. Globe, 1858-59, p. 3081, cited in 2 Curtis's Buchanan, 214), and the offensive orders were withdrawn by the British Government. Mr. Dallas having, on July 4, 1858, at a dinner of Americans in London, said: "Visit and search in regard to American vessels on the high seas in time of peace is finally ended," Lord Lyndhurst, on July 26, in the House of Lords, said in reference to this remark: "We have sur rendered no right at all, for no such right as that contended for ever existed. We have abandoned the assumption of right, and in so doing we have acted justly, prudently, and wisely. I think it is of great importance that this question should be distinctly and finally understood and settled. By no writer on international law has this right ever been asserted. There is no decision of any court of justice having jurisdiction to decide such questions in which that right has ever been admitted." On April 7, 1862, Mr. Seward, in view of the exigencies of the civil war then pending, agreed to a proposal of the British Government extending the right of visitation in such cases as a means of putting down the slave trade, and a treaty to this effect (unfortunately without duly restricting the right of visitation in such cases) was agreed to and ratified by the Senate of the United States. (See review of Mr. Seward's action in this relation in a pamphlet by the late Mr. William B. Reed). The treaty provided for mixed courts for the determination of seizures of this class. The slave trade having virtually ceased, so far as concerns this country, on the abolition of slavery, the mixed courts never went into operation. By a supplementary treaty in 1870, the duties assigned to these courts were given to the admiralty courts of the two countries respectively. (See Schuyler's Am. Diplom., 263, 264). The action of our Government giving the right of search in this particular line of cases excludes it from other cases on the principle expressio unius est exclusio alterius. It is a serious objection to the treaty that it extends this right of search to our own coast, the Keys of Florida being within thirty leagues from Point Yeacos or Mantanzas. It appears from a letter of Mr. Perry, minister at Madrid (U. S. Dip. Corr., 1862, 509), that the Spanish minister expressed surprise that the United States "after combating the principle so long," "should have yielded now a right so exceedingly liable to be abused in practice"; and this surprise may still be expressed elsewhere than in Spain. "Two essays, 'An inquiry into the validity of the British claim to a right of visitation and search of American vessels suspected to be engaged in the African slave trade,' by Mr. Wheaton, London, 1842; and Examen de la Question aujourd'hui pendante entre le Gouvernement des Etats Unis et celui de la Grande Bretagne, concernant le droit de Visite' (ascribed to Hon. Lewis Cass, then minister to France), Paris, 1842, with the letter of General Cass to M. Guizot, dated 13th Febru ary, 1842, and which was in the nature of a protest against the quintuple treaty of 20th December, 1841, are understood to have had no little influence in preventing the ratification of that treaty by the Government of France. "The publications referred to received, as it were, an official sanction from Mr. Legaré, on his assuming the seals of the State Department. In his earliest instructions he said: I avail myself of the first opportunity afforded by our new official relations, to express to you my hearty satisfaction at the part you took, with General Cass, in the discussion of the "right of search," and the manner you acquitted yourself of it. I read your pamphlet with entire assent. It is due to the civilization of the age, and the power of opinion, even over the most arbitrary Governments, that every encroachment on the rights of nations should become the subject of immediate censure and denunciation. One great object of permanent missions is to establish a censorship of this kind, and to render by means of it the appeals of the injured to the sympathies of mankind,.through diplomatic organs, at once more easy, more direct, and more effective.' (Mr. Legaré to Mr. Wheaton, June 9, 1843. State Department MSS.)" Lawrence's Wheaton (ed. 1863), 262, 263. It is said that this prerogative is essential to clear the seas of pirates. But the prerogative is an impertinent intrusion on the privacy of individuals as well as on the territory of the state whose domains are thus invaded; and the evil of sustaining such a prerogative is far greater than the evil of permitting a pirate for a few hours to carry a simulated flag. Pirates, in the present condition of the seas, have been very rarely arrested when setting up this simulation. They are now, in the few cases in which they appear, readily tracked by other means; and the fact that in some instances they are caught when carrying a false flag no more sustains the right of general search of merchant shipping than would the fact that conspirators sometimes carry false papers justify the police in seizing every business man whom they meet and searching his correspondence. In the very rare cases in which an apparent pirate is seized and searched on the high seas under a mistake, the vessel being a merchant ship, the defense must be, not prerogative, but necessity, only to be justified on the grounds on which is justified an assault made on apparent but unreal cause. (See to this effect Gessner, 12th ed., 303; Kaltenborn, Seerecht, ii, 350; Wheat., Right of Visitation, London, 1842. See to the contrary Phill., iii, 147, 148; Heffter, 164; Calvo, ii, 656. Ortolan holds that the function is to be exercised at the risk of the visiting cruiser as an extra-legal prerogative. Ortolan, iii, 258.) The It may be added that basing the right to search a vessel on the assumption of piracy is a petitio principii, equivalent to saying that the vessel is to be searched because she is a pirate, when it is for the purpose of determining whether she is a pirate that she is searched. searching, as is the case on issuing a search warrant in our ordinary criminal practice, should be at the risk of the party searching, and only on probable cause first shown, not for the purpose of inquiring whether there is probable cause. The right of British cruisers to search a foreign vessel for British sailors was claimed by the British Government prior to the war of 1812 between Great Britain and the United States. The right was not abandoned by Great Britain at Ghent, but it has never since been exercised. It is now virtually surrendered. (1 Wheat. Int. Law, 737.) "I cannot think," says Sir R. Phillimore (3 Phill., 1879, 445), "that the claim of Great Britain was founded on international law. In my opinion it was not." The right to visit and search on cer tain conditions has frequently, it should be added, been given by treaty, in which case it is determined by the limitations imposed by the contracting states. (See specifications in Gessner, 12th ed., 305.) At the same time we must remember that independent of the right of search, a ship, whether public or private, has a right to approach another on the high seas, if it can, and to hail or speak it, and require it to show its colors, the approaching ship first showing its own. (Ortolan, Rég. Int. et Dip. de la Mer, 233, &c.; Field's Int. Code, § 62.) "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 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 and 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."" 2 Halleck's Int. Law (Baker's ed.), 270, 271. In 2 Halleck's Int. Law (Baker's ed.), 273, 274, it is shown that Sir R. Phillimore's assertion that "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," is founded on a misconception of the words of Bynkershoek and Kent, to which it appeals. See also Edinburgh Rev. for Oct., 1807, vol. xi, 14. "When Mr. Wilberforce, in 1818, suggested such a concession of the right of search for slavers to Mr. J. Q. Adams, the answer was: 'My countrymen will never assent to such an arrangement.' A convention to this effect, signed by Mr. Rush and Sir Stratford Canning, was amended by the United States Senate so as to be inapplicable to the American coasts, and was then rejected by England. General Jackson, in 1834, through the then Secretary of State, informed Sir Charles Vaughan, the English minister, that the United States were resolved never to be a party to any convention on this subject.' Mr. Webster, in a dispatch to General Cass, declared, in terms the most solemn, that our Government would not concur in measures which, for whatever benevolent purposes they may be adopted, or with whatever care or moderation they may be exercised, have a tendency to place the police of the seas in the hands of a single power.' (See Lawrence's Right of Visitation and Search, 94-117; Diplomatic Hist. of the War, 1884, 13, 52, 419.) And Mr. Webster, when Secretary of State in 1851, said: 'I cannot bring myself to believe that those Governments (England and France), or either of them, would dare to search an American merchantman on the high seas to ascertain whether individuals may be on board bound to Cuba, and with hostile purposes.' (Priv. Corr., 477.)" Whart. Com. Am. Law, § 194. For a discussion of the negotiations between Great Britain and the United States in relation to the slave trade and the right of visit, see 1 Phill. Int. Law (3d, ed.), 414; 3 ibid., 525, 542. As to the mode of summoning a neutral to undergo visitation, see the case of the Marianna Flora, 11 Wheat., 1; discussed in 3 Phill. Int. Law ( 3d ed.) 538. IV. ACTION OF PRIZE COURT MAY BE ESSENTIAL. § 328. "By the well-settled principles of national law it is made the duty of the captor to place an adequate force on board of the captured vessel, and if from mistaken reliance upon the sufficiency of that force, or from misplaced confidence, he fails in that object, the omission is considered to be at his own peril. "It appears to be equally well settled that capture alone does not transfer any right of property in the vessel or cargo to the captors, the title remaining unchanged until a regular sentence of condemnation has been pronounced by some court of competent jurisdiction. * "The points involved, when considered with reference to the powers and functions of the different branches of this Government, are, besides, within the cognizance of the judicial department; and tribunals are instituted in which they may be fairly investigated. To these tribunals exclusively belongs the right of deciding between different claimants who may choose to litigate their rights before them. The Executive may, it is true, order property to be restored to the rightful undisputed owner, in cases where the United States alone have, under their revenue laws, put in a claim for forfeiture; but it is not held to be within his constitutional power to take from the possession of an individual, property of which he was once admitted to be the rightful owner, to which he still lays claim, and his title to which has not been divested by the judgment of a court." Mr. Vail, Acting Sec. of State, to Mr. Pontois, Oct. 19, 1838. MSS. Notes, "After a Mexican privateer has captured an American vessel, the property cannot be transferred until after it shall have been condemned by a court of admiralty; and the question of prize or no prize belongs exclusively to the courts of the captor. These principles of public law are incontestable. At the time the Mexican Government issued these commissions, they knew perfectly well that the prizes of their privateers could not be brought within Mexican ports for condemnation. Aware of this impossibility, they have attempted to overcome it in their prize regulations, by conferring on their consuls in foreign ports, the power, in effect of condemning prizes taken by their privateers. But no prin ciple of public law is settled on surer foundations than that 'neutraports are not intended to be auxiliary to the operations of the parties at war; and the law of nations has very wisely ordained that a prize court of a belligerent captor cannot exercise jurisdiction in a neutral country. All such assumed authorities are unlawful, and their acts are void.' I quote from the language of Chancellor (then Chief-Justice) Kent, in delivering the opinion of the court in the case of Wheelwright v. Depeyster, 1 Johnston's Rep., 481; and the authorities cited by |