time of war as resting on sound principles of public jurisprudence, and upon the institutes and practice of all great maritime powers. (e) And if, upon making the search, the vessel be found employed in contraband trade, or in carrying enemy's property or troops, or despatches, she is liable to be taken and brought in for adjudication, before a prize court.2

Neutral nations have frequently been disposed to question and resist the exercise of this right. This was particularly the case with the Baltic confederacy during the American war, and with the convention of the Baltic powers, in 1801. The right of search was denied, and the flag of the state was declared to be a substitute for all documentary and other proof, and to exclude all right of search. Those powers armed for the purpose of defending their neutral *pretensions; and England did not hesi- * 154 tate to consider it as an attempt to introduce, by force, a new code of maritime law inconsistent with her belligerent rights, and hostile to her interests, and one which would go to extinguish the right of maritime capture. The attempt was speedily frustrated and abandoned, and the right of search has, since that time, been considered incontrovertible. (a)

The whole doctrine was ably discussed in the English high court of admiralty, in the case of The Maria, (b) and it was adjudged, that the right was incontestable, and that a neutral sovereign could not, by the interposition of force, vary that right. Two powers may agree among themselves that the presence of one of their armed ships, along with their merchant ships, shall be mutually understood to imply that nothing is to be found in that convoy of merchant ships inconsistent with amity or neutrality. (c)1

(c) Vattel, b. 3, c. 7, sec. 114; Ord. de la Marine, of 1681, art. 12; Hübner, de la Saisie des Batimens Neutres; The Maria, 1 Rob. Adm. 340; The Le Louis, 2 Dod. Adm. 245; The Marianna Flora, 11 Wheaton, 42.

(a) In the convention between England and Russia, on the 17th of June, 1801, Russia admitted the belligerent right of search, even of merchant vessels navigating under convoy of a ship of war, provided it was exercised by a ship of war belonging to government.

(b) 1 Rob. Adm. 340.

(c) In the treaty of commerce between the United States and the Republic of Chili,

2 The Speech of Mr. Sumner in the United States Senate, January 9, 1862; The Rapid, Edw. Adm. 221.

1 See the Treaties with Peru, San Salvador, and Guatemala, 10 U. S. Stat.

But no belligerent power can legally be compelled, by mere force, to accept of such a pledge; and every belligerent power who is no party to the agreement has a right to insist on the only security known to the law of nations on this subject, independent of any special covenant, and that is the right of personal visitation and search, to be exercised by those who have an interest in making it. The penalty for the violent contravention of this right, is the confiscation of the property so withheld from visitation; and the infliction of this penalty is conformable to the settled practice of nations, as well as to the principles of the municipal jurisprudence of most countries in Europe. There may be cases in which the master of a neutral ship may be authorized, by the natural right of self-preservation, to defend himself against extreme violence threatened by a cruiser, grossly abusing his commission; but, except in extreme cases, a merchant vessel has no right to say for itself, and an armed vessel has no right to say for it, that it will

*

not submit to visitation or search, or be carried into a *155 proximate port for judicial inquiry. Upon these principles, a fleet of Swedish merchant ships, sailing under convoy of a Swedish ship of war, and under instructions from the Swedish government to resist, by force, the right of search claimed by British lawfully commissioned cruisers, was condemned. The resistance of the convoying ship was a resistance of the whole convoy, and justly subjected the whole to confiscation. (a)

The doctrine of the English admiralty on the right of visitation and search, and on the limitation of the right, has been recognized, in its fullest extent, by the courts of justice in this coun try. (b) The very act of sailing under the protection of a belliger

in 1832, it was agreed, that the right of visitation and search should not apply to vessels sailing under convoy. So, also, in the convention between the United States and the Peru-Bolivian Confederacy of 1838, art. 19.

(a) The Maria, 1 Rob. Adm. 340; The Elsabe, 4 Rob. Adm. 408.

(b) The Nereide, 9 Cranch, 427, 438, 443, 445, 453; The Marianna Flora, 11 Wheaton, 42. The government of the United States admits the right of visitation and search by belligerent government vessels of their private merchant vessels, for enemy's property, articles contraband of war, or men in the land or naval service of the enemy. But it does not understand the law of nations to authorize, and does not admit, the right of search for subjects or seamen. England, on the other hand, asserts the right to look for her subjects on the high seas, into whatever service they might wander, and will not renounce it. The objections to the British claim, on the ground of public law and policy, were stated with great force and clearness, in 1818, by the

ent or neutral convoy, for the purpose of resisting search, is a violation of neutrality. The Danish government asserted the same principle in its correspondence with the government of the United States, and in the royal instructions of the 10th of March, 1810, (c) and none of the powers of Europe have called in question the justice of the doctrine. (d) Confiscation is applied, by way of penalty for resistance of search, to all vessels, without any discrimination as to the national character of the vessel or cargo, and without separating the fate of the cargo from that of the ship.

This right of search is confined to private merchant vessels, and does not apply to public ships of war. Their immunity from the exercise of any civil or criminal jurisdiction but that of the sovereign power to which they belong, is uniformly asserted, claimed, and conceded. A contrary doctrine is not to be found in any jurist or writer on the law of nations, or admitted * 156 in any treaty; and every act to the contrary has been promptly met and condemned. (a)

*

American Minister in London to Lord Castlereagh. Rush's Memoranda, pp. 181-193, 279-283. The claim of Great Britain to the right of search, on the high seas, of neutral vessels, for deserters and other persons liable to military and naval service, has been a question of animated discussion between that government and the United States. It was one principal cause of the war of 1812, and remains unsettled to this day. In the discussions in 1842, between Lord Ashburton and Mr. Webster, relative to the boundary line of the State of Maine, the American Minister incidentally discussed the subject, and intimated that the rule hereafter to be insisted on would be, that every regularly documented American merchant vessel was evidence that the seamen on board were American, and would find protection under the American flag. (c) 4 Hall's Law Journal, 263; Letters of Count Rosenkrantz to Mr. Erving, 28th and 30th June, and 9th July, 1811.

(d) The Austrian ordinance of neutrality of August 7th, 1803, enjoined it upon all their vessels to submit to visitation on the high seas, and not to make any difficulty as to the production of the documentary proofs of property.

(a) Thurlow's State Papers, vol. ii. p. 503; Casaregis's Discourses, 136; Mr. Canning's Letter to Mr. Monroe, August 3d, 1807; Edinburgh Review for. October, 1807, art. 1. In the case of Prins Frederik, 2 Dod. Adm. 451, the question was raised, and learnedly discussed, whether a public armed ship, belonging to the King of the Netherlands, was liable to civil or criminal process in a British port. She was brought in, by assistance, in distress, and salvage was claimed, and the ship was arrested upon that claim, and a plea to the jurisdiction interposed. The question went off by arrangement, and was not decided, though the immunity of such vessels from all private claims was forcibly urged, on grounds of general policy and the usage of nations. And in this country, in the case of The Schooner Exchange v. M'Faddon, 7 Cranch, 116, it was decided after great discussion, that a public vessel of war of a foreign sovereign, at peace with the United States, coming into their ports, and demeaning herself in a friendly manner, was exempt from the jurisdiction of the

VOL. I.

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The exercise of the right of visitation and search must be conducted with due care and regard to the rights and safety of the

country. L'Invincible, 1 Wheaton, 238, 252, S. P. In that interesting case, The Schooner Exchange, it was shown, that the exemption of a public ship in port from the local jurisdiction was not founded on the absolute right of another sovereign to such an exemption, but upon principles of public comity and convenience, and arose from the presumed consent of nations; that consent might be withdrawn, upon notice, without just offence; and if a foreign ship, after such notice, comes into the port, she becomes amenable to the local laws in the same manner as other vessels; and though a public ship and her armament might be excepted, the prize property which she brings into port is subject to the local jurisdiction, for the purpose of examination and inquiry, and, in a proper case, for restitution. It has been asserted, on the part of the executive authority of the United States, that a writ of habeas corpus may be lawfully awarded, to bring up a subject illegally detained on board a foreign ship of war in our waters. Opinion of the Attorney-General of the United States, June 24, 1794. (Opinions of the Attorneys-General, vol. i. 47.) So, also, it was the official opinion of the Attorney-General of the United States, in 1799, that it was lawful to serve civil or criminal process upon a person on board a foreign ship of war lying within a harbor of the United States. Ib. vol. i. 55-57. These opinions do not apply, of course, to any process against the ship itself. Mr. Webster, the American Secretary of State, in his diplomatic letter to Lord Ashburton, the British Minister, at Washington, of the date of August 1st, 1842, contended, that if a vessel be driven by stress of weather, or other necessity, or carried by unlawful force, into a British port, even if it be a prohibited or blockaded port, that necessity exempted the vessel from all penalty and all hazard that a vessel on the high seas is regarded as part of the territory of the nation to which she belongs, and subject to its exclusive jurisdiction; and if it be forced by such necessity into a foreign port, her immunities continue by the comity and practice of nations that the jurisdiction continues, though the vessel be at anchor, in the foreign port; so that if a murder be committed on board a vessel in a foreign port, by one of the crew, or a passenger, on another of the crew, or a passenger, the offence is cognizable by the courts of the nation to which the vessel belongs; that the vessel, while water-borne in foreign places, was, for the general purpose of governing and regulating the rights, duties, and obligations of those on board, considered as part of the territory to which she belonged, and that local laws did not affect existing relations between persons on board. He further stated that, by the comity and practice of nations, merchant vessels going voluntarily into a foreign port for trade, retain on board, for their protection and government, the jurisdiction and laws of their own country. These immunities were presumed to exist as a part of civilization, and to be allowed until expressly retracted. This presumption is deemed to be part of the voluntary and adopted law of nations. The case of a vessel forced by necessity into a foreign port, placed the claim for exemption from interference on higher principles and stronger courtesy. If the vessel has slaves on board, the foreign government has no right to enter on board and interfere with that relation. It was admitted, however, that the exemption from the local jurisdiction could not be claimed for unlawful acts done, and contracts made,

1 If no express convention refuse to the public ships of belligerents the privileges of asylum in our waters, they and their prizes, while lying inoffensively in any harbor of the United States, are exempt from the local jurisdiction. Opinions of the AttorneysGeneral, vol. vii. p. 122. (18 Law Rep. 241.)

vessels. (b) If the neutral has acted with candor and good faith, and the inquiry has been wrongfully pursued, the belligerent

on board the vessel so placed. See supra, pp. 98, 116, n. and infra, p. 362. The act of Congress giving jurisdiction in cases of felony, committed in a foreign port, as in the case stated by Mr. Webster, assumes, and impliedly admits, a concurrent jurisdiction in the courts of the territory where the vessel was at the time. Lord Ashburton, in his reply of the 6th of August, declined the discussion of the question of immunity in harbor, on general principles, and said, that Mr. Webster had advanced some propositions which rather surprised and startled him, though he did not pretend to judge of them. He admitted, that in the case of American vessels, driven by necessity into a British port, there ought not to be any officious interference with them, nor any further inquisition into the state of persons or things on board than might be indispensa ble to enforce the observance of the municipal laws of the country, and the proper regulations of its harbors and waters. The principles of national law, stated in the diplomatic correspondence above referred to, were judicially recognized by the Supreme Court of Louisiana, in the case of McCargo v. New Orleans Ins. Company, 10 Robinson's R. 202, 316. It was there declared to be a true exposition of the law of nations, that a vessel on the high seas, in time of peace, engaged in a lawful voyage, was under the exclusive jurisdiction of the state to which her flag belongs; and that if forced by necessity into a port of a friendly power, she loses none of the rights appertaining to her on the high seas; but herself and cargo, and the persons on board, with their property, and all the rights incident to their personal relations, as established by the laws of the state to which they belong, were placed under the protection which the law of nations extends to the unfortunate under such circumstances. Although the jurisdiction of the nation over the vessel belonging to it be not wholly exclusive, and though, for any unlawful acts committed, while in such a situation, by the master, crew, or owners, she or they may be responsible to the laws of the place, yet the local laws do not supersede the laws of the country to which the vessel belongs, so far as relates to the rights, duties, and obligations of those on board; and that whatever might be the state of the foreign law in relation to slavery, it did not operate on board the vessel so forced by necessity into the foreign port, and before a voluntary landing of the slaves on board, to dissolve the relation of master and slave.

Two cases, in which this interesting subject was discussed, are cited from Ortolan, Règles Internationales de la Mer, tom. i. in Wheaton's Elements, 3d ed. pp. 152 – 154, in which it was decided by the council of state, in 1806, in the French courts, that foreign private vessels in French ports, for the purpose of trade, were exempted from the local jurisdiction, as to acts of mere international discipline of the vessel, and even as to crimes and offences committed by a person forming a part of its officers and crew, against another person belonging to the same, when the peace of the port is not disturbed. But the local jurisdiction is properly asserted as to crimes committed on board the vessel against persons not forming part of its officers and crew, or by any

(b) The Anna Maria, 2 Wheaton, 327. The right of visitation and search is sometimes laid under special restrictions, by convention between maritime states. See, for instance, art. 17 of the convention of navigation and commerce between the United States and the Peru-Bolivian Confederation, May, 1838.1

1 Treaties made by the United States with Guatemala, March 3d, 1849, and with Peru, July 25th, 1851, embody most of the liberal provisions for international privileges,