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 favor 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. (Wheaton, Elem. Int. Law, pt. 2, eh. 2, § 15; Phillimore, On Int. Law, vol. 3, §§ 322-326; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 14; Duponceau, Translation, etc., p. 110; Kent. Com. on Am. Law, vol. 1, p. 153; Wheaton, On the Right of Search, pp. 153, 154; The Marianna Flora, 11 Wheaton Rep., p. 43; Coxe, Brief Examination, etc., p. 26; Lawrence, On Visitation and Search, pp. 79-103; The Louis, 2 Dodson Rep., p. 210; The San Juan Nepomuceno, 1 Haggard Rep., p. 265.)

§ 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 27th, 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 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 catagory

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 publicits, 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 civilized 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. (Riquelme, Derecho Pub. Int., lib. 1, tit. 2, cap. 8; Phillimore, On Int. Law, vol. 3, §§ 322326; Lawrence, On Visitation and Search, pp. 21, et seq.; Wheaton, Elem. Int. Law, pt. 2, ch. 2, § 15; Pistoye et Duverdy, Traité des Prises, tit. 1, ch. 2; The Antelope, 10 Wheaton Rep., p. 66; The Diana, 1 Dodson Rep., p. 95; The Louis, 2 Dodson Rep., p. 238.)

§ 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 of this question until 1858, when the operations of British cruisers in visiting American vessels, in the gulf of Mexico, suspected of being engaged in the slave trade, brought about a direct issue between the two governments. The United States regarded such visits as a violation of their flags, and protested against the acts of these cruisers. Before acting upon this direct issue the British ministry referred the question to the law officers of the crown, and the answer to this reference was, as predicted by Mr. Webster and Mr. Wheaton, that no authority could be found to support the pretentions of Lord Aberdeen; and the right of visit in time of peace, as distinguished from the belligerent right of visitation and search, was then distinctly and unequivocally disavowed by the British government. The Earl of Malmesbury, minister of foreign affairs, announced in the house of lords, on the 26th of July, 1858, that, on receiving the unanimous opinion of the law officers of the crown, "her majesty's government at once acted, and we frankly confessed that we had no legal claim to the right of visit and of search which has hitherto been assumed. Her majesty's government have therefore abandoned both these claims." Lord Lyndhurst, on the same occasion, in answer to the charge that the government had surrendered a most valuable and important right, said, "we have surrendered no right at all; for, in point of fact, no such right as that contended for has ever existed. We have, my lords, abandoned that assumption of right, and, in doing so, I think that we have acted justly, prudently, and wisely." After quoting several authorities, he continues, "your lordship will perceive that both on this side of the water, and in America, the highest authorities on the subject have pronounced against any such supposed right. For myself, I I have never been able to discover any principle of law or of reason upon which such a right could rest." * Again, "I will refer now only to the principle on which the question itself rests. What is the rule in respect to the high seas, and to the navigation on the high seas? All nations are equal on the high seas. Whether they be the most powerful or the weakest, their vessels on the high seas are placed upon a perfect footing of equality. What is the

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position of a merchant ship upon the high seas? Why, it is part of the dominion of the country to which it belongs. What right has one nation, then, to interfere with another when their rights on the high seas are coequal? What right has one nation to interrupt or to interfere with the navigation of another nation? Why, the principle is so clear and so distinct that it will not admit of the smallest doubt." * "Having stated this principle, the next question which arises is this: How are those difficulties to be met which arise out of frauds practised on the high seas? It may be said that the flag of America may be assumed by another power to cover the basest of purposes. But how can that affect the right? How can the conduct of a third power affect any right existing on the part of the United States? By our treaty with Spain we have, no doubt, the right to visit and search Spanish vessels with the view to the suppression of the slave trade. But how can the treaty between Spain and us affect the rights of America? Why, common reason is decisive on the subject. Well, but what other course can we take? I say that the course is quite clear and plain. If one of our cruisers see a vessel with the American flag, and has reason to believe it is assumed, he must examine and inquire into the facts as well as he can. If he ascertains, to the best of his judgment, that the vessel has no right to use the American flag, he may certainly visit and examine her papers, and if he finds his suspicions correct, he may deal with the vessel in a manner justified by the particular relation existing between England and that country to which the vessel belongs. America, in such a case, would have no right to interfere. The matter would simply be one between an English cruiser and the particular vessel seized. But, on the other hand, if it should turn out that the vessel after all was an American one, that was perfectly justified in using the flag suspected, our situation is this, that we should immediately apologize for the act that was committed, and make the most ample reparation for the injury that was committed." The foregoing remarks of Lord Lyndhurst were adopted by the British minister of foreign affairs as expressive of the opinions of his government. (Lawrence, On Visitation and Search, pp. 181, et seq.; Monthly Law Reporter, vol. 21, p.