sufficient proof, may fairly be doubted. The French orders to their naval officers, issued in 1854, for the war with Russia, deserve notice for contemplating this point. "You shall not," say they, "visit vessels which are under the convoy of an allied or neutral ship of war, and shall confine yourselves to calling upon the commander of the convoy for a list of the ships placed under his protection, together with his written declaration that they do not belong to the enemy, and are not engaged in any illicit commerce. If, however, you have occasion to suspect that the commander of the convoy has been imposed upon [que la religion du commandant du convoi a été surprise], you must communicate your suspicions to that officer, who should proceed alone to visit the suspected vessel."

Justice of the right of convoy.

§ 192.

On the ground of justice this right cannot be defended. It is said that the commander of the convoying vessel represents the state, and the state guarantees that nothing illicit has been put on board the merchantmen. But how can the belligerent know whether a careful search was made before sailing, whether the custom-house did not lend itself to deception? It is only by comity that national vessels are allowed their important privileges; how, except by a positive and general agreement, can those privileges be still further extended, so as to limit the belligerent right of search? But on the ground of international good-will the right is capable of defence, and, so far as we can see, except where the protected fleet is far separated by a storm from its guardian,-in which case, we suppose the ordinary right of search must be resumed, can be exercised in the interests of belligerents as well as neutrals.

$193.

A novel case in international law arose, when, in 1810, Neutrals under Denmark, being at war with England, issued an ordinance, declaring to be lawful prize such neutral vessels, as had either in the Baltic or the Atlantic made

belligerent con

voy.

use of English convoy. A number of vessels from the United States, bound to Russia, had placed themselves under English protection, and on their return, were seized and condemned in Denmark, not for resistance to search, nor for the character of their traffic, but for violating an ordinance to them unknown. The arguments of our negotiator setting forth the injustice of this proceeding, are given at large in Dr. Wheaton's Elements (IV. 3, § 32, 556-566), and Mr. Manning has expressed a brief opinion on the contrary side, in favor of the Danish rule. (III. 11, p. 369.) The ships appear to have been engaged in an innocent trade, and to have dreaded the treatment they might meet with from French cruisers, but not to have sought to avoid the allies of the French, the Danes. The case was a peculiarly hard one, when they were condemned; and this Denmark admitted in 1830, by paying an indemnity to our government for the sufferers. As for the principle on which the case is to be decided, it seems to run between making use of the enemy's flag, and putting one's goods on board an armed enemy's vessel. The former is done to enjoy certain privileges, offered by a party at war, which could not otherwise be secured; the latter may be done without complicity with the intentions or conduct of the captain of the armed ship, or may be done with the design of having two strings to one's bow,of availing one's-self of force or not, as circumstances shall require. Upon the whole, the intention to screen the vessels. behind the enemy's guns, is so obvious, that the act must be pronounced to be a decided departure from the line of neutrali ty, and one which may justly entail confiscation on the offending party.

§ 194.

Search during

It is admitted by all, that within the waters which may be called the territory of nations, as within a marine league, or in creeks and bays, the vessel of a peace to execute friendly state may be boarded and searched on suspicion of being engaged in unlawful commerce, or of violating the laws concerning revenue. But further than this, on

revenue laws.

account of the ease with which a criminal may escape beyond the proper sea-line of a country, it is allowable to chase such a vessel into the high sea, and then execute the arrest and search which flight had prevented before. Furthermore, suspicion of offences against the laws taking their commencement in the neighboring waters beyond the sea-line, will authorize the detention and examination of the supposed criminal. An English statute "prohibits foreign goods to be transhipped within four leagues of the coast without payment of duties; and the act of congress of March 20, 1799, contained the same prohibition; and the exercise of jurisdiction to that distance, for the safety and protection of the revenue laws, was declared by the supreme court in Church v. Hubbard (2 Cranch, 187), to be conformable to the laws and usages of nations." (Kent, I. 31, Lect. II.)

Search on suspicion of piracy.

$195.

That kind of right of search, which we have just considered, is an accident of sovereignty in a state of peace, but is confined in its exercise to a small range of the sea. The right of search on suspicion of piracy, however, is a war-right, and may be exercised by public vessels anywhere except in the waters of another state, because pirates are enemies of the human race, at war with all mankind. The supreme court of the United States has decided that ships of war acting under the authority of government to arrest pirates and other public offenders, may "approach any vessels descried at sea for the purpose of ascertaining their real character."* And thus even public vessels, suspected of piracy, may be called to account upon the ocean. Whether the detention of a vessel unjustly suspected of piracy may not be a ground for a claim of damages may be made a question.

* Case of the Marianna Flora, 11 Wheaton, 43.

$196.

of being slavers

As the slave-trade is not as yet piracy by the law of nations, but only by the municipal and conventional law Search of foreign of certain nations (§ 138), no state can authorize vessels suspected its cruisers to detain and visit vessels of other states unauthorized, on suspicion of their being concerned in this traffic, because the right of detention and visit is a war-right. Every state may, to carry out its laws and the laws of humanity, detain and search its own vessels in peace also, but if, in so doing, mistakes are committed, the commander of the searching vessel is responsible, and damages may be demanded.

S 197.

treaties between

tions of Europe,

Such right, however, of reciprocal detention and visitation upon suspicion of being engaged in the slavetrade has been conceded by a considerable number but conceded by of treaties between the principal powers of Europe. most of the na Previous to the downfall of Bonaparte there had been a falling off of the traffic in slaves; for Great Britain, who had prohibited her own citizens from the traffic, prevented also her enemies from engaging in it by her command of the seas; it had, moreover, long been forbidden under heavy penalties by the United States; and there were then on this side of the water few motives for engaging in so dangerous an employment. At the peace, although the sentiment of Europe was expressed against the slave-trade, the nations most interested in resuming it, France, Spain and Portugal, refused to give it up at once, alleging that their colonies needed to be replenished with slave-laborers, while those of England were fully stocked. The first concession of the right of search is to be found in the treaty between Portugal and Eng- as England and land made July 28, 1817,-which, however, re- Portugal in 1817. lated only to the trade north of the equator; for the slave-trade of Portugal within the regions of western Africa, to the south of the equator, continued long after this to be carried on with great vigor. By this treaty, ships of war of each of the nations

Treaty of Madrid, 1817.

Other treaties in 1818, 1824.

might visit merchant vessels of both, if suspected of having slaves on board, acquired by illicit traffic. By the treaty of Madrid, of the same year, Great Britain obtained from Spain, for the sum of four hundred thousand pounds, the immediate abolition of the trade, north of the equator, its entire abolition after 1820, and the concession of the same mutual right of search, which the treaty with Portugal had just established. The precedent was followed by a treaty of Great Britain with the Netherlands, in 1818, which also contemplated the establishment of a mixed commission to decide upon the cases of vessels seized on suspicion of slave-trading. Stipulations somewhat similar were made between Sweden and Great Britain in 1824. In 1831 and 1833, conventions between France and Great Britain included one more power in arrangements 1831, 1833, between for mutual search. But the right of search was only admissible on the western coast of Africa from Cape Verd (15° North Lat.) to the tenth degree of south latitude, and to the thirteenth degree of west longitude from the meridian of Paris, and also around Madagascar, Cuba, and Porto Rico, as well as on the coast of Brazil to the distance into the sea of twenty leagues. It was agreed, however, that suspected vessels, escaping beyond this range of twenty leagues, might be detained and visited if kept in sight. As to steps subsequent to capture no mixed commission was allowed, but the captured vessel was to be tried in the country to whose jurisdiction it belonged, and by its courts.

Conventions in

France and

G. Britain.

Quintuple treaty

of 1841.

By the quintuple treaty of December 20, 1841, to which Great Britain, Austria, Prussia, Russia, and France, were parties, all these powers, excepting the latter, conceded to one another the mutual right of search within very wide zones of ocean between Africa and America, and on the eastern side of Africa across the Indian ocean. France, however, owing to popular clamor, and the dislike entertained by almost the entire chamber of deputies toward the right of search, withheld her ratification and adhered to her arrangements of 1831 and 1833, above spoken of, until the