ships, transports, store-ships, colliers, revenue marine vessels, lighthouse tenders, and vessels temporarily or permanently employed in the service of the state for public purposes only.

Vessels of war or public vessels are under the absolute jurisdiction of their state, and no war rights of belligerents extend toward them. In foreign ports and waters they have practically an immunity from the local jurisdiction.

A vessel of war is identified by her external appearance and by the flag and pennant which should be carried. As a rule, the pennant is not allowed to be carried by other than vessels of war. The armament of a vessel of war and the military appearance of her personnel are also evidences of her character. The commission of the state held by the commanding officer of a man-of-war is conclusive as to the employment of the vessel which he commands, though as a matter of courtesy the declaration of the commanding officer as to the nature of his vessel is generally accepted.

The civil and criminal jurisdiction on the high seas over persons and things on board of the vessel of the state whose flag is carried includes foreign persons of the crew or passengers then on board, this being a similar condition with respect to these aliens as that existing on shore with regard to them when in the jurisdiction of a state.

The home state may legislate with respect to its citizens who travel in foreign vessels, but such laws cannot be enforced until they come within their territorial jurisdiction.

The right of citizens of the United States to acquire property in foreign and foreign-built ships has been held to be a national right independent of statutory laws, and such property is as much entitled to protection by the United States as any other property of a citizen. A consular officer may make record of a bill of sale in such cases and deliver to the owner a certificate which will be the certificate of nationality in place of the usual official document known as the "register" of the vessel. As vessels of this class carrying the American flag

are not registered, enrolled, or licensed, they cannot import merchandise from foreign ports into the United States or engage in the coasting-trade of the United States.

While they have the right to fly the flag of the United States, it is not required that the officers be citizens of the United States. It has been further determined as to this anomalous type of vessel, by a decision of the United States Supreme Court, that a British subject on board such a vessel comes within the jurisdiction of a United States consular court, whenever it may be reached in the case of a crime committed on board.

There are certain exceptions, in time of war, to the freedom of the high seas which are permitted under international law as agreed upon by all nations. These are war rights, and consist of the right of search and visit of neutral vessels and that of seizure of neutral vessels for the violation of blockade, unneutral service, and for the carriage of contraband of war. There is also existing the right of capture of the merchant vessel of an enemy as well as of the hostile man-of-war, or public vessel of an enemy. By the treaty made in 1890 by the participating powers in the conference of Brussels, called for the purposes of putting an end to the African slave-trade and to which the United States adhered at a later date, a right of visit and search of vessels in time of peace was agreed upon within a limited area or zone at sea on the eastern coast of Africa. The vessels, susceptible to visit and search, were to be of less than five hundred tons in dimensions and of a peculiar type and rig. The French alone refused to ratify this right of visit and search in the maritime zone thus established by treaty, but the results from this agreement seem to have been very effective in diminishing this trade.1

78. Piracy." Pirates being the common enemies of all mankind," says Wheaton, "and all nations having an equal interest in their apprehension and punishment, they may be

1 Moore's "Digest," II, pp. 948-951.

lawfully captured on the high seas by the armed vessels of any particular state and brought within its territorial jurisdiction for trial in its tribunals. . . . "1

"Piracy, under the law of nations, may be tried and punished in the courts of justice of any nation, by whomsoever and wheresoever committed; but piracy so termed and created by municipal statute can only be tried by that state within whose territorial jurisdiction and on board whose vessels the offence thus created was committed."

To constitute piracy, it is necessary, of course, that the offence be adequate in degree and that the persons concerned should have acted in defiance to lawful authority and, it may be said, in general, with a view to plunder.

By the law of nations, the proper punishment for piracy is death, but this is not mandatory upon states which do not award death as a penalty for crime. It may be said, also, that a state is not obliged to punish piracy. According to the German law, piracy committed by foreigners against foreign vessels cannot be punished by the German law courts.

Piracy has at times by municipal law, on the other hand, been given a range beyond that given by international law. In the United States the slave-trade is made by law the same offence as piracy, and the law as to piracy includes offences which would ordinarily be punished on shore by death.

To deliberately burn, cast away, or destroy any ship is piracy under the statutes of the United States, while by English law any English subject who transports slaves on the high seas or who gives aid or comfort upon the sea to the king's enemies during a war is deemed to be a pirate.

79. Right of Approach.-As an accessory to the right to seize piratical vessels or vessels violating municipal laws on the high sea, there exists what has been termed the right of a vessel of war to approach another vessel to determine her character, or, in shorter terms, the "right of approach." The

1 Wheaton, 8th ed.; Dana's ed., "Int. Law," sec. 124.

authority for the exercise of this right with us was the decision of the United States Supreme Court in the case of the Marianna Flora, in which the late Commodore Stockton was involved. The Marianna Flora was a small Portuguese vessel of war which was met upon the high seas by Captain Stockton, then commanding the U. S. S. Alligator, cruising in general search of pirates. While approaching the Marianna Flora, which resembled in appearance the type of pirates and slavers then existing, the Marianna Flora opened fire upon the Alligator on the supposition that she was a South American privateer, and a fight ensued, which resulted in the capture of the Marianna Flora and her rendition to port for trial, etc. She identified herself as a Portuguese vessel of war and claimed damages for the action of the commanding officer of the Alligator. The matter was brought before the United States Supreme Court in a personal suit; the court decided in favor of Captain Stockton upon the grounds that, first of all, "ships of war sailing under authority of their government, instructed to arrest pirates and other public offenders, may approach vessels at sea to ascertain their character."

Second, that "a ship under such circumstances is not bound to lie by and await approach, but she has no right to fire at an approaching cruiser upon a mere conjecture that she is a pirate, especially if her own conduct has invited the approach; and if this be done the cruiser may lawfully repel force by force and capture her." The third point decided was that "the rule of territorial waters is inapplicable to ships on the high seas; hence a ship cannot draw around her and appropriate so much of the ocean as she may deem necessary for her protection and prevent any nearer approach.”1

80. Papers Carried by Merchant Vessels. In general, merchant vessels are required by the municipal laws of their various states to carry all or most of the following papers: 1. A document showing the right to carry the national flag 1 "The Marianna Flora," 11, Wheaton, I.

as an evidence of nationality. This is generally known as the register.

2. The muster-roll of the crew.

3. A log-book of daily occurrences.

4. A manifest, or list of the cargo. This is not absolutely necessary, as it is a summary of the bills of lading. It generally indicates position of storage.

5. A bill of lading, which is virtually a receipt for the cargo, and should give ports of shipment and discharge and the consignees.

6. A charter party or contract between the owner of the vessel and some other party by which the vessel is hired for some certain length of time.

7. The shipping articles. The contract between the master and seamen, signed by both parties.

8. Invoices of goods, with account of the nature of the goods. 9. Bill of health. As this states to what port the ship is bound, it checks other papers.

10. Clearance, which is a certificate that permission to sail has been given.1

In discussing the question of the high seas, it may be said that a vessel violating, by means of boats or craft proceeding from and belonging to the vessel, any municipal law within the marginal waters of a state is, by the best authorities, held to be liable for such violation, even if the vessel herself is indisputably upon the high seas and outside of the marine league.

In the case of the British sealer Araunah, which was seized by Russian authority, in 1888, in the Bering Sea, it was affirmed that the crew of the vessel was carrying on operations against seals in canoes within a half of a mile from Russian territory, although the Araunah was herself outside of the maritime belt. Lord Salisbury, then British foreign minister, decided that this action in violation of Russian law warranted her seizure and confiscation.

1 Stockton's "Naval Manual," p. 99.