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American vessel the right of self-defense? The writers of authority declare it to be a principle of natural law, that the principle of self-defense exists against an assailant who mistakes the object of his attack for another whom he had the right to assail." He also discussed the consequences of admitting the claim as a matter of right, for, if a right, it had its correlative duties. (Webster, Dip. and Off. Papers, pp. 164, 165, 166, 167; Webster, The Works of, vol. 6, pp. 335, 336, 338, 339; Phillimore, On Int. Law, vol. 3, § 328; Bello, Derecho Internacional, pt. 2, cap. 8, §10; Lawrence, Visitation and Search, p. 61; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 7; Wheaton, Hist. Law of Nations, pp. 706, et seq.)

§ 5. 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 or 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." (Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 7; Kent, Com. on Am. Law, vol. 1, p. 153; Wheaton, Elem. Int. Law, Introduction, by Lawrence, p. exxiv.; The Marianna Flora, 11 Wheaton Rep., p. 42; Lawrence, Visitation and Search, p. 61.)

§6. The older continential publicists, as stated by Mr. Wheaton, do not distinguish between the right of visit, and the right of search, but discuss the general question under the terms visit and visitation, as a belligerent right, existing only in time of war. Several, however, who have written since Mr. Wheaton made the statement alluded to, have discussed the claim of Great Britain to the right of visit in time of peace, as distinguished from the general right of visitation and search in time of war. We refer particularly to the recent and able works of Massé, Ortolan, Hautefeuille, and Pistoye et Duverdy. Massé says, "Whatever may be the object of visit in time of peace, it is always an act of police which cannot be exercised by one nation over another, for this act would imply, on the part of the visitor, a soverignty incompatible with the reciprocal independence of nations (peuples.)" Ortolan distinguishes the right of ships of war to ascertain the nationality of a merchantman, (droit d'enquête du pavillon,) from the right of visitation or search,

He unites with Mr. of visitation or search. If accorded in time of

(droit de visite ou de recherche.) Signals, exchange of words, suffice with respect to the nationality of the flag, except on suspicion of piracy, when all further proceedings must be taken at the risk of the man-of-war. Wheaton in declaring that the right does not exist except in time of war. peace by special conventions between particular states, such treaty stipulations do not bind those who are not parties to them, nor do they make it a part of the law of nations. Hautefeuille discusses the British pretentions at great length. He agrees with Ortolan with respect to the right of ships of war to ascertain the nationality of a merchantman by approaching them and requiring them to hoist their flag. But beyond this simple fact of showing colors, he denies any droit d'enquete in time of peace, except in the case of suspected piracy, which in modern times very rarely occurs. Even then the visiting vessel proceeds at her peril, for if her suspicions are not verified, she becomes guilty of an illegal act toward the vessel visited. All three of these writers oppose the policy of granting this right in time of peace by treaty, as a measure most dangerous to maritime commerce; Hautefeuille, and Ortolan do not hesitate to declare that such treaties are not in general binding even upon the subjects of the states making them, for the reason that they are virtually a surrender of sovereignty. Pistoye et Duverdy regard the right of reciprocal visit (droit de visite réciproque) in time of peace for the suppression of the slave trade, as one which results only from special convention or treaty, and they refer to the treaties between France and England, of November 30th, 1831, March 22d, 1833, May 20th, 1845; the convention between France and Sweden, and Norway, May 21st, 1833; the treaty between France and Sardinia, December 8th, 1834; between France and the Two Sicilies, February 14th, 1838; France and Tuscany, November 27th, 1837; and the convention between France and Hayti, August 9th, 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. (Ortolan, Diplomatie de la Mer, liv. 3, ch. 2, § 15, Hautefeuille, Des Nations Neutres, tit. 11, ch. 2; Pistoye et Duverdy, Des Prises, tit. 1, ch. 3, sec. 2;

Massé, Droit Commercial, liv. 2, tit. 1, c. 2, § 2; De Cussy, Droit Maritime, tome 2, pp. 364, 385; Heffler, Droit International, § 168; Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 7.)

§ 7. The older English writers, and English judicial deci sions, are directly opposed to the pretentions 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 navigation 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 or 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. Phillimore, have attempted to sustain the views of Lord Aberdeen. Mr. Phillimore has argued the question at considerable length. He says, "It is quite true that the right of visit and search is 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 amicum 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 obscrved, 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 favor of the right of visitation and search in time of peace. Moreover, Mr. Phillimore is in error in saying that such a eonstruction was put by Chancellor Kent upon the passage quoted. The reference is not made by Kent, but by an anotator, 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,

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