But 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 territory, and as such inviolable in auy circumstances what ever ; 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 declare by express stipulation in their treaties with one another that the prize courts in each shall exercise a jurisdiction according to the recognised principles of public law in questions arising with regard to captures at sea, the language 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 bad 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 stipula tions 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. From this time, for more than a century and a half, the principle of the immunity of ships of war from visitation and search warn acquiesced in by the practice of our own and every other country, her is it knee n 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 Pitoeicansj, while soma extreme partisans on the one side contended that even merchant chi 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 llritish service. An actual enforcement of the new doctrine occurred in an attack made, on the 23r1 of June, 1807, by the British ship of war, Leopard, upon the American frigate Chesapeake, lying off the Capes of Virginia. 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, Immediately struck her flag. Four men were carried off, and the American ship was then left. The American minister in London was directed to demand satisfaction of the British government. Nev. elation, were continued for a long time without any result; the of iir 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 frauglit with danger, and it was urged that it should on that account be dispensed with and abolished. In the end war broke out between the two couutries 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 peaco 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. This question was again incidentally raised between England and America in 1842. 1n the discussion which then took place between Lord Ashburton and Mr. Webster relative to the boundary line of the state of Maine, the American minister intimated that the rule hereafter to be insisted upon would be that every regularly documented American vessel would be evidence that the seamen on board were American, and would find their protection in the flag that was over them ; and again in 1854, when, after the issuing of the declaration by the Queen of England (on the 28th March), it was supposed to be her Majesty's intention to relax the right of search, the Attorney-Geueral stated in answer to a question in the House of Commons (30th March), " That it never was intended to give up, nor did the declaration give up, the right of searching neutral vessels. It was impossible to give
up that right, and this country still maintains its right to search and seize vessels which carry enemy's despatches. or articles contra band of war." But whilst England thus reserved to itself this right, she waived its exercise during the war, and on the termination of hostilities, concurred with France, Austria, Russia, Prusaia, Sardinia, and Turkey, in establishing the principle•that "free ships make free goods." The maritime declaration appended to the Treaty of Paris compriks among others the following points: 1. The neutral flag covers enemy's goods, with the exception of con traband of war.
2. Neutral goods, except contraband of war,are not liable to capture under the enemy's flag.
The United States, however, refused to concur in this declaration, unless it was further conceded that enemy's goods on board enemy's mer chant ships should be allowed the same exemption as on board neutrals.
At present therefore it appears that the right of scorch, abolished so far as relates to enemy's property on board neutral ships by the Treaty of Paris, subsists as to the other points in respect of which it was formerly exercised, namely, the carriage of troops, hostile despatches. and contraband of war. (Arnold on 'Marine Insurance,' vol. i. p. 673.) The right of visitation and search, however, is by no means neces sarily confined to a time of war. Its exercise has always been admitted to be equally allowed by international law in time of peace, though it may not commonly have then been so frequently thought to bo 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 nut of actual hostilities in 1812, may oriee 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, aro those relating to the trading rights of neutrals ; but even of these some remain. Of late yearn, 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 roost of the great maritime states. The right of visitation and search, however its exercise may be regulated, seems to afford the only means of ascertaining whether or no a vessel has got alavee on boanl ; but it is evident that any lower opposed, for whatever reason, to the exercise of that right may, even while declaring the slave trade to be illegal, refuse to allow that illsgality to be made an excuse for the visitation of suspected ships bear iug 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 iudeed for any other legitimate object ; but other nations, jealous of our predominant maritime power, have, not perhaps very unnaturally, been extremely reluctant to concede it in this particular case. Probably the best illustration of these remarks is afforded by the Ashburton Treaty, and the attitude of American publicists with reference to it. By the 8th article of that treaty, each party was to maintain a separate squadron on the coast of Africa for five years, and the ernisers of the respective nations were to detain all vessels under American colours equipped for, and engaged in, the slave trade; that if proved to be American pro perty they should be delivered to an American cruiser; and if proved to be Spanish, Portuguese, Brazilian, or English property, to an English cruiser. In the President's message (August 11, 1842), and in the discussions in the American House of Representatives, it was maintained, or attempted to be maintained, that the 8th article was a substitute for visitation and search ; but Sir IL Peel emphatically declared that in acting upon the treaty England had not abandoned her claim to the right of visitation ; and Lord Aberdeen's despatch, re-affirming the British doctrines on this the deter mination of England not to depart from the principles she had con stantly asserted. Upon this treaty, the debates in the British Houses of Parliament, the expressed opinion of the British Government, and the instructions to its cruisers, considerable discussions have been raised, and attempts have been made by American writers (among whom Mr. W. B. Laurence's recent treatise on Visitation and Search' deserves special notice) to show that the doctrines of England are unwarranted by law, dangerous to the welfare of other countries, and intended solely to promote the attainment of universal dominion under the guise of humanity; that the time has come when such doctrines must be energetically opposed, and that if they can be supported by an appeal to the language of treaties, then it is the duty of the States of the Union to insist upon the discontinuance of those treaties.
Sono further remarks on this subject are briefly made under the article SLAVE, SLAVEItY.