alone seems competent to judge of the special circumstances that may warrant a discretionary relaxation of its general rules. Nor, to avoid a policy upon the ship, does it seem to be necessary that she should be placed in circumstances to justify her condemnation. The transportation of contraband, as viewed by the law of nations, is universally an unlawful act; and it is for this reason that it subjects the ship to the penalty of the loss of freight. The imposition of this penalty, it seems to me, renders the voyage prohibited and illegal: and hence, if we are governed by analogy, an insurance of the ship, on such a voyage, cannot be sustained. The arguments of a sound policy lead us to the same conclusion. It is impossible to deny that a belligerent country has a real, and, in some cases, a deep interest in preventing the transportation of contraband articles to the use of the enemy. To permit the vehicle of transportation to be insured, is to encourage the act. These reasons do not apply to an insurance upon the innocent goods of an innocent shipper, which is, doubtless, valid. He was no party to the illegal transaction, had no power to prevent it, and, it must be presumed, had no knowledge of its existence. It is, however, doubtful whether the insurer is liable even to the owner of innocent goods, for a loss arising from condemnation or detention, by his own government, of the carrier-ship." These views are contested by some of the continental publicists. (Arnould, On Insurance, vol. 1, p. 740; Duer, On Insurance, vol. 1, pp. 642, 643; Bedarride, Droit Maritime, §§ 1095, et seq.)

CHAPTER XXV.

RIGHT OF VISITATION AND SEARCH.

CONTENTS.

1. General exemption of merchant vessels on the high seas-22. Right of search a belligerent right only 3. British claim of a right of visit in time of peace - 4. Denied by the United States - 5. Opinions of American publicists - 6. Of continental writers - 7. Of Lord Stowell and Mr. Phillimore -88. Distinction between pirates and slavers - 9. Great Britain finally renounces her claim of right of visit-3 10. Visitation and search in time of war- -211. English views as to extent of this right — 12. Views of American writers 13. Limitations imposed by continental publicists 14. Force may be used in the exercise of this right— 15. But must be exercised in a lawful manner -16. Penalty for contravention of this right- 17. English decision as to effect of convoy 18. Ships of war exempt from search-819. Merchant ships under their convoy 20. Treaties respecting neutral convoy - 21. Opinions of publicists 22. Neutral vessels under enemy's convoy - 23. Resistance of master on cargo - 24. Neutral property in armed enemy vessel - § 25 Documents requisite to prove neutral character- 26. Concealment of papers 27. Spoliation of papers 28. Use of false papers- § 29. Impressment of seamen from neutral vessels - 30. American rule, as defined by Webster.

§ 1. It has been stated in a preceding chapter that every merchant vessel on the high seas is regarded, in international law, as a part of the territory of the state to which it belongs. To enter into such vessel, or to interrupt its course, by a

foreign power in time of peace, or (it being neutral,) by a belligerent in time of war, "is an act of force, and is, prima facie, a wrong, a trespass, which can be justified only when done for some purpose, allowed to form a sufficient justification by the law of nations." The right of a vessel of one state to visit and search a vessel of another state on the high seas, in any case, is therefore an exception to the general rights of property, jurisdiction, equality and independence of sovereign states, and to justify such an act it must be shown that the particular case comes clearly within the exceptions to this rule which have been established by the positive law of nations, or by treaty stipulations between the parties. (Wheaton, Elem. Int. Law, pt. 4, ch. 3, § 18: Webster, Dip. and Off. Pupers, p. 143; Wildman, Int. Law, vol. 2, p. 40; Lawrence, Visitation and Search, p. 4; Hubner, Saisie de Batimens, pt. 2, ch. 3; Kluber, Droit des Gens Mod., § 293, a; Jouffroy, Droit Maritime, p. 213; Heffter, Droit International, § 167; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 7; Hautefeuille, Des Nations Neutres, tit. 11, ch. 1; The Antelope, 10 Wheaton Rep., p. 66.)

§ 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. (Ortolan, Diplomatie de la Mer., tome 2, ch. 7; Webster, Dip. and Off. Papers, p. 143; Lord Aberdeen to Mr. Everett, Dec. 20th, 1841; Webster, Works, vol. 6, pp. 329, et seq.; The Antelope, 10 Wheaton, Rep., p. 66; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 7.)

§ 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 bona 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." (Webster, Dip. and Off. Papers, pp. 163, 165; Webster, The Works of, vol. 6, pp. 335, et seq.; Phillimore, On Int. Law, vol. 3, § 326; Lawrence, Visitation and Search, p. 4; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 7.)

§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; 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, recognize 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 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 offense 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

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