Rut it is now universally admitted that the right of visitation and search cannot be exercised upon a ship of war, or public or national vessel, itself; and this is the second limitation of the right. It is strange that there should ever have been any doubt or dispute upon this point. A ship of war has always been looked upon as in a manner part of the national terri tory, and as such inviolable in any cir cumstances whatever; the act of entering it in search either of contraband goods or of deserters must be considered as an act of the same character with that of pursuing a smuggler or fugitive across the frontier of the state without permission of the sovereign authority, a thing the right of doing which has never been claimed. Accordingly, although it has been a common thing for nations to de clare by express stipulation in their treaties with one another that the prize courts in each shall exercise a jurisdic tion according to the recognised prin ciples of public law in questions arising with regard to captures at sea, the lan guage used has always implied that the captures are to be merchant or private vessels : of the concession by one power to another of the right of adjudicating upon its ships of war detained or brought into port not a trace is to be found in any such treaty. Yet an opposite doctrine has been both maintained in argument, and attempted to be carried into effect. In 1653, when, after the disasters of the war with England that had broken out in the preceding year, the Dutch were reduced to such a state as to make them anxious for peace upon almost any terms, the English government demanded as one of the stipulations of the proposed treaty that all Dutch vessels, both of war and others, should submit to be visited, if thereto required. But, humbled as the Dutch were, they peremptorily refused to agree to any such stipulation ; and the treaty was concluded in 1654 without it. Very soon after this peace, the States General were again led to take the whole subject of the visitation and search of ships at sea into their consideration by the circumstance of one of their men-of war, convoying a fleet of merchant ships, having been met by an English man-of war in the Downs, when the merchant men were subjected to search. The first question that arose was, whether even such an exercise of the right of search was legal in the presence of the convoy ; and upon this question the States deter mined that "the refusal to let merchant men he searched could not be persisted iu." At the same time, however, they took occasion to make the following de claration :—" That, in conformity with their High Mightinesses' instructions taken in respect to the searching of ships of war, and especially those of September, 1627, November, 1648, and December, 1649, it is thought good, and resolved, that all captains and other sea officers that are in the service of this state, or cruising on commission, shall be anew strictly commanded, told, and charged that they shall not condescend to no commands of any foreigners at sea, much less obey the same; neither shall they any ways permit that they be searched ; nor deliver, nor suffer to be taken out of their ships, any people or other things." From this time for more than a century and a half, the principle of the immunity of ships of war from visitation and search was acquiesced in by the practice of our own and of every other country, nor is it known to have been contested even in speculation. But at length, in the course of the controversy that arose respecting the rights of neutrals out of the Berlin and Milan decrees of the French emperor and our own Orders in Council, in 1806 and 1807 [BLOCKADE], while some ex treme partisans on the one side contended that even merchant ships were not liable to search when under the convoy of a man-of-war, others on the opposite side revived the old pretension of the English republican government of 1653, and maintained our right of visiting and searching the ships of war themselves of neutral states whenever we should think proper. The practical application of the principle that was now especially called for was the visitation of the ships of war of the United States of America for the purpose of recovering seamen alleged to be subjects of this country and deserters from the British service. The pretension thus set up was ably discussed, and its unwarrantable character clearly demon strated, in an article published in the Edinburgh Review' for October, 1807, pp. 9-22 ; but before this paper appeared an actual enforcement of the new doctrine had occurred in an attack made, on the 23rd of June, by the British ship of war, Leopard, upon the American frigate Chesapeake, lying off the Capes of Vir ginia. On the refusal of the American
captain to permit his ship to be visited, the Leopard fired into the Chesapeake, which, being unprepared for action, im mediately struck her flag. Four men were carried off, and the American ship was then left. A late American writer has, not in too strong language, described this act as " an exertion of power which was beyond all patient endurance, and which electrified the nation to its remotest extremities" (Tucker's Life of ii. 258). President Jefferson immediately issued a proclamation interdicting all armed British vessels from the harbours and waters of the United States, and for bidding all supplies to them, and all intercourse with them. The American minister in London was also directed tc demand satisfaction of the British govern ment. The conduct of the captain of the Leopard was not attempted to be de fended by the ministry here ; on the contrary, its illegality was at once ad mitted, at least by implication ; but Mr. Canning, then Secretary of State for Foreign Affairs, insisted that, inasmuch as the United States had taken measures of retaliation into their own hands, Great Britain might take those measures into account in the estimate of reparation ; and he inquired whether the President's pro clamation would be withdrawn on the king disavowing the act of Captain Humphreys of the Leopard, and of Ad miral Berkeley, his commanding officer, who had directed it. The proclamation was justified by the American govern ment as a measure of precaution, and not of retaliation. Negotiations were continued for a long time without any result; the affair of the Chesapeake soon became mixed and complicated with other incidents, giving rise to new claims and counterclaims ; at last the American government took its stand on new ground, objecting to the search not only of ships of war but even of merchant vessels for deserters ; it was not denied that the search of merchantmen was sanctioned by the law of nations, but the exercise of the right was denounced as necessarily irritating and fraught with danger, and it was urged that it should on that ac count be dispensed with and abolished. In the end war broke out between the two countries in the summer of 1812; but even that did not settle any of the questions that had arisen between them in connection with the right of search. The treaty of peace signed at Ghent on the 24th of December, 1814, contained no stipulation on that subject, which was now supposed to have lost its practical importance for the present by the cessa tion of the general war which had occa sioned all the late difficulties respecting the treatment of neutral states.
The right of visitation and search, how ever, is by no means necessarily confined to a time of war. Its exercise has always been admitted to be equally allowed by in ternational law in time of peace, though it may not commonly have then been so fre quently thought to be called for. The very question of the seizure by one country of its subjects serving in the mercantile navy of another, which was one of the main subjects of dispute between England and America before the breaking out of actual hostilities in 1812, may arise in a time of peace as well as in a time of war, though its importance no doubt is less in the former than in the latter. The chief questions connected with the right of search, the number of which is greatly reduced in a time of general peace, are those relating to the trading rights of neutrals ; but even of these some remain. Of late years, however, the right of search has become principally important in reference to the trade in slaves, which has now been declared to be illegal by most of the great maritime states. The right of visitation and search, however its exercice may be regulated, seems to afford the only means of ascer taining whether or no a vessel has got slaves on board ; but it is evident that any power opposed, for whatever reason, to the exercise of that right may, even while declaring the slave trade to be illegal, refuse to allow that illegality to be made an excuse for the visitation of suspected ships bearing its flag. It is only by express stipulation that the free exercise of the right can be established. England, which has all along been fore most in the attempt to suppress the slave trade, has never objected to the exercise of the right of search for this, or in deed for any other legitimate object ; but other nations, jealous of our predo minant maritime power, have, not per haps very unnaturally, been extremely reluctant to concede it in this particular case. Some further remarks ou this sub ject are briefly made under the article SLAVE, SLAVERY, farther on in this work.