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exclusive right to the Bristol Channel between Ireland and Great Britain, and to the channel between Scotland and Ireland. But Perels, in the able work already referred to,2 says, after repeating this statement, that this supposed supremacy is incontested only among English publicists, and is elsewhere denied. To the same general effect writes President Woolsey. Great Britain, also, has "immemorially claimed and exercised exclusive property and jurisdiction," says Sir R. Phillimore, "over the bays or portions of the sea cut off by lines drawn from one promontory to another, and called the King's Chambers. In time of war, at least, the Solent, or the portion of the sea which flows between the Isle of Wight and the mainland, might, I think, be justly asserted to belong, as completely as the soil of the adjacent shores, to Great Britain." Chancellor Kent, in discussing the above questions, maintains that, "considering the great extent of the line of the American coast, we have a right to claim, for fiscal and defensive regulations, a liberal extension of maritime jurisdiction; and it would not be unreasonable," he further argues, to assume, for domestic purposes connected with our safety and welfare, the control of the waters on our coasts, though included within lines stretching from quite distant headlands, as, for instance, from Cape Ann to Cape Cod, and from Nau tucket to Montauk Point, and from that point to the capes of Delaware, and from the south cape of Florida to the Mississippi. . . It ought, at least, to be insisted, that the extent of the neutral immunity should correspond with the claims maintained by Great Britain around her own territory, and that no belligerent right should be exercised within the chambers formed by headlands, or anywhere at sea within the distance of four leagues, or from a right line from one headland to another.'" But this extension of maritime jurisdiction for domestic purposes connected with our safety and welfare" over the "waters on our coasts," "though included

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Op. cit., i. § 189.

2 Perels, § 5, p. 40.

3 Int. Law, § 56.

4 Phill., ut sup., i. 285.

5 On this question may be studied the arguments delivered in 1877 before the Halifax commissioners under the treaty of Washington.

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within lines stretching from quite distant headlands," is thus commented on by Dr. Woolsey: "Such broad claims have not, it is believed, been much urged, and they are out of character for a nation that has ever asserted the freedom of doubtful waters, as well as contrary to the spirit of the more recent times." It would seem more proper to adopt the test of cannon shot heretofore given, and that of capacity to smuggle by ship's boats, as already stated; and to say that a nation should have such police jurisdiction as may be necessary for the purpose of warding off attack from marauders and smugglers, and for the purpose of precluding annoyance to the shore from naval conflicts by belligerent cruisers. This virtually coincides with the test of defensibility from the shore, which would, in case of waters whose headlands belong to the same sovereign, exclude all bays more than eighteen miles in diameter, assuming the range of cannon-shot to be nine miles. But this should be made to yield to usage. If a particular nation has exercised dominion over a bay, and this has been acquiesced in by other nations, then the bay is to be regarded as belonging to such nation.3

X. RIGHT OF SEARCH AND CONDEMNATION.

Right of search not

to be con

ceded in

peace.

194. The right of a war ship to compulsorily visit and search a merchant ship may be viewed (1) as a right to be exercised in peace; (2) as a right to be exercised in war. As a right to be exercised in peace it cannot be conceded without placing the control of the high seas in the hands of the state which has a preponderance of naval power. If the right can be exercised in one case, it can be exercised in all cases, and the position that the flag of a nation protects its shipping from intrusion would be set at naught. There is no merchant ship, if this right be conceded, that would not be liable to be stopped on the high seas and subjected to the annoyance and damage of having its papers searched by an armed cruiser; and not only would the

Woolsey's Int. Law, § 56.

2 Supra, §§ 186 et seq.

3 See arguments of Lord Blackburn in Direct. U. S. Cable Co. v. Anglo-Am.

Tel. Co., L. R. 2 Ap. Ca. 419, cited
Phill., op. cit., 290.

As to the policy of the United States in this respect, see infra, § 242.

[CHAP. IV. commerce of states which do not maintain a large navy be at the mercy of the power whose navy rules the seas, but innumerable provocations to war would be given. It is said that this prerogative is essential to clear the seas of pirates. But the prerogative is an impertinent intrusion on the privacy of individuals as well as on the territory of the state whose domains are thus invaded; and the evil of sustaining such a prerogative is far greater than the evil of permitting a pirate for a few hours to carry a simulated flag. Pirates, in the present condition of the seas, have been very rarely arrested when setting up this simulation. They are now, in the few cases in which they appear, readily tracked by other means; and the fact that in some instances they are caught when carrying a false flag no more sustains the right of general search of merchant shipping than would the fact that conspirators sometimes carry false papers justify the police in seizing every business man whom they meet and searching his correspondence. In the very rare cases in which an apparent pirate is seized and searched on the high seas under a mistake, the vessel being a merchant ship, the defence must be, not prerogative, but necessity, only to be justified on the grounds on which is justified an assault made on apparent, but unreal cause.It may be added that basing the right to search a vessel on the assumption of piracy is a petitio principii, equivalent to saying that the vessel is to be searched because she is a pirate, when it is for the purpose of determining whether she is a pirate, that she is searched. The searching, as is the case on issuing a search warrant in an ordinary criminal practice, should be at the risk of the party searching, and only on probable cause first shown; not for the purpose of inquiring whether there is probable cause.2-The right of British cruisers to search a foreign vessel for British sailors was claimed by the British government prior to the war of 1812 between

1 See to this effect Gessner, 12th ed., 303; Kaltenborn, Seerecht, ii. p. 350; Wheaton, Right of Visitation, London, 1842; see to the contrary Phillimore iii. pp. 147-8; Heffter, 164; Calvo, ii. p. 656. Ortolan holds that the func

tion is to be exercised at the risk of the visiting cruiser as an extra-legal prerogative. Ortolan, iii. 258.

See infra, § 200. As to neutral rights, see infra, § 236.

Great Britain and the United States. The right was not abandoned by Great Britain at Ghent, but it has never since been exercised. It is now virtually surrendered.1 "I cannot think," says Sir R. Phillimore, "that the claim of Great Britain was founded on international law. In my opinion it was not."-The right to visit and search on certain conditions has frequently, it should be added, been given by treaty, in which case it is determined by the limitations imposed by the contracting states.3-Independent of the right of search, a ship, whether public or private, has a right to approach another on the high seas, if it can, and to hail or speak it, and require it to show its colors; the approaching ship first showing its own.'

See correspondence between Lord Ashburton and Mr. Webster-Wheat. Hist. Int. Law, 737.

2 Phill., op. cit. (1879), 445.

3 See Specifications in Gessner, 12th ed., 305; and see infra, § 242.

♦ Ortolan, Rég. Int. et Dip. de la Mer, 233, etc., Field's Int. Code, § 62. By the slave trade treaty of May 20, 1862, between the United States and Great Britain, the right of police search for ten years was granted to Great Britain over the whole coast of Cuba, to a distance of thirty leagues from shore. This concession made by Mr. Seward probably without considering the consequences, not only recognized a right of search in times of peace, but extended this right to our own coast, the Keys of Florida being within thirty leagues from Point Yeacos or Mantanzas. It appears from a letter of Mr. Perry, minister at Madrid (U. S. Diplom. Cor., 1862, p. 509), that the Spanish minister expressed surprise that the United States, "after combating the principle so long," "should have yielded now a right so exceedingly liable to be abused in practice;" and this surprise may still be expressed elsewhere than in Spain.

There is now no question that this concession was as hasty as it was illjudged; but if it be pressed as proof of the abandonment of opposition to the right of search by the United States, the following replies may be made:—

(1) The treaty was the result of a proposal made by Mr. Seward at the height of the late civil war, shortly after the Trent complication, and, being on its face limited to ten years, may be regarded as part of a system of provisional settlement with Great Britain of the disputes arising from the civil war. The very fact of its temporary character precludes it from being an authority after the period prescribed by its own limitations.

(2) After the period so designated has been reached, we fall back on an unbroken line of authorities to the effect that the concession of this right to Great Britain is incompatible with our traditions and our interests.

When Mr. Wilberforce, in 1818, suggested such a concession to Mr. J. Q. Adams, the answer was: "my countrymen will never assent to such an arrangement." A convention to this effect signed by Mr. Rush and Sir

§ 195.

Otherwise

as to belligerents

during war.

What has just been said refers exclusively to the right of search during peace. The right, on the other hand, of a belligerent cruiser, in times of war, to visit and search neutral merchantmen for goods contraband of war, is conceded on all sides, oppres sive as is this right to neutrals, and undue as is the advantage it may give to the belligerent with superior naval power.1 § 195 b. The right must be regarded as limited as follows:(1) No neutral ship should be searched on its way between two neutral ports.

Search in

war.

(2) The right can only be exercised by a bellige rent while war is actually raging.

(3) It cannot be exercised within the territorial waters of a neutral state.

(4) It must be exercised by the commanding officer of the

Stratford Canning was amended by the United States Senate, so as to be inapplicable to the American coasts, and was then rejected by England. General Jackson, in 1834, through the then secretary of state, informed Sir Charles Vaughan, the English minister, that "the United States were resolved never to be a party to any convention on this subject." Mr. Webster, in a despatch to General Cass, declared, in terms the most solemn, that our government would not "concur in measures which, for whatever benevolent purposes they may be adopted, or with whatever care or moderation they may be exercised, have a tendency to place the police of the seas in the hands of a single power." See Lawrence's Right of Visitation and Search, 94-117; Diplomatic Hist. of the War, 1884, pp. 13, 52, 419. And Mr. Webster, when secretary of state in 1851, said: "I cannot bring myself to believe that those governments (England and France), or either of them, would dare to search an American merchantman on the high seas, to ascertain whether individuals may be on board bound

to Cuba, and with hostile purposes." Priv. Cor., p. 477.

1 See Heffter, § 168; Bluntschli, § 819; Phillmore, iii. § 325; Perels, § 53. In the Trent case, the right of a belligerent to arrest and remove from a neutral ship diplomatic agents sent by the opposing belligerent to the state to which the agents were sent, came into question. See infra, § 228; supra, § 165.

Mr. Hall sums up the duties of a captor as follows (p. 652):—

(1) He must conduct his visit and capture with as much regard for persons and for the safety of property as the necessities of the case may allow.

(2) He must bring in the captured property for adjudication, and use all reasonable speed in doing so. "Destruction involves compensation." The Zee Star, 4 Rob. Ad. 71; The Leucade, Spinks, 217.

(3) The captor, in bringing in the vessel, must use due care, and is liable for damages his want of care causes. As to general policy in respect to search, see infra, §§ 242 et seq.

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