Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1858-06-11
From the N. Y Journal of Commerce
Visitation and Search According to the Laws 80

From the n Y. Journal of Commerce
Visitation and Search According to the Laws 80
Nations.
The letter of Mr.. Cass, then Minister to Franco =.
NJ Guizot in 1912 against the Quintupe Treaty Of a.
(which letter, in connection with Essay published IN
Paris about the same time concernant e Dro,H y
Vse" and described to the source probably hoe
much influence in preventing the ratification Of tbat
treaty by the French government) and Mr. Webstor,,
letter, to Lord Ashburton, Aug 9Th, 1912, (WorIs
vol. ", page 1912 vol. VI, page 329 ard familiar
to the public They have lately been extensively cono5
by the press and the principles they set forth have not
only been re-afirmed by the present administrator
but have also met the cordial appreciation of both
Houses OF Congress in session, and of the bulk If
the American people.
But it is not alone upon the authority of these d
guished statesmen, that of government is preparn
to resist the right of visiting" vessels now caima1
by the British cruisers in the Gulf Their view 10 o
ported by uniform of practice on the mart r.
our own government from the earliest period and hy
the we'll ascertained principle of international law
Vattel of the oldest of modern writers on the law
of nations, discusses the right of searching sbins
exclusively under the title of war; nor is there word
in his volumnious treatise to justify search or visitation
in time of peace.
Kent, with his usual perspcuity lays down the nriD.
cpe which covers the whole subject, in the following
language:
No nation has any right of jurisdiction at sea ax
cept it be the persons of its own subjects in il;
own vessel and far territorial jurisdiction NAV ho
considered preserved for the vessels of nation are
in many respects considered as portion of its territory
and board protected and governed bv the
law of the country to which the vessel belongs Is
jurisdiction is confined to the ship; and no one shin has
the right to prohibit the approach of another at sen or
to draw around her line of territorial jurisdiction with
in which other is at liberty to intrude Every vessel
in time of peace, has right to consult its own safety
and convenience and to pursue its course and bust
ness, without being disturbed when it does not violate
the rights of Others" ii. Kent's Commentaries &C.
AS to the right of search, the same author says:
1t is founded upon necessity, and is strictly and ex
clusivey warrght and does not exist in time of peace
Ill CON-, 1913. The same principle is stated by all
the standard writers on the law of nations and the right
of visitation and search are always spoken of in connec
ton with each other
The African slave trade, though prohibited by the
municipal laws of most nations and declared to be pir
cy by the statutes of Great Britain and the United
States and since the treaty of 84l with Great Britain
by Austria Russia, and Prussia is not such by the gen
eral international law, and its Introduction cannot be en-
forced by the exercise of the ordinary right of visitation
and search That right does not exist in time of peace
independently Of special compact. Dodsons Admiralty
Reports, vol. ", p. 2l0 Wheaton's Reports, VOL r.
| p. &c. WheatOns international Law p. 1876.
There be pretence of special compact on the
part of the United States The right of search has ney
er been conceded by our government. Great Britain
and France by the treaties of 1881 and 1885, conceded
the mutual right of search and the five great powers did
| the same in l841 except France, which bY special
treaty with England in l845 substituted naval force
on the coast of Africa for the mutual right of search
By treaty of 1872 also provided for naval force
of not less than eighty guns the coast of Africa and
practically though not expressed in the treaty, this
substitute for the right of search conceded to England
in the Quntupe treaty by Austria Russia and Prussia
It is thus conceded las indeed all writer's on national
law have hed that the right of search unless conceded
by treaty special compact only be exercised in
time of 1t only remains to point out the authOr
ties upon which it has been held that visitation and
search are IDENTICAL
The celebrated French publcist, Ortoan in his work
on /" Diplomatic de la Mer" has examined the whole
subject deliberately, and the distinctions he draws
so precise and logical that they are worthy of being
translated. He distinguishes clearly between the right
of visitation and search rOdt de viste de reere)
and the right of inquiry to the flag, (droit den9e
du pavilion, and we translate his definitions and dis
tinctions on this subject:
"These rights differ essentially in their scope and in
the means by which they exercised
"The inquiry as to the flag has this object only that
Of recognising the nationality of the ship, in order to
render to her. from the moment she is met the
the rights growing out of that nationality.
"The object of visit is to prove aboard of ship
whose nationality is recognised certain facts in relation
to her cargo or in reference to Interior object
"The first of these rights (enquette du pdUWon) de
ponds upon the respect due to the nationality and indie
that the rights belonging to that nationality may bt
guaranteed and also means of recognising and i'm
peachng fraudulent usurpatons but the moment tn
flag as recognised the stranger arrests the inquiry an
leaves the ship to the immunity of her flag, IA tout
| Pl1ldependence de son pGUaHOn.)
1.-The exercise of the second of these rights (USite
RECHERCHE is a faint upon the nationality and the indie
pendence of reciprocal States and the offence u.s. that
stranger, after recognition of nationality, thrust him
self on board ship the high SEAS in order to sats
himself of certain facts.
Briefly, in the one case Enquiry as to the lag)
sovereignty recognises another in the other vs
or search it nvades the nationality after having cog
missed it."
These views important and forcble not only from
their logical cearnes but from the fact that they
from leading writer of nation which has steadast
refused to cOncede the right of search and visit and witt
whom, with our own countrymen the sanctity of TIN
national flag is passion.
Ortolan writes in substance with Mr.. Wheaton, ou
own celebrated pubcst and expounder of nternationa
aw-that the right of visitation and search does no
exist except in time of war; and in that he conne
the right to asceraining the nationality of the ship
whether there be any contraband articles board Sc
what Mr. Wheaton says this subject
IAN attempt appears to be made to distinguish be
tween the right of visit and the right of search Nov
we have no hesitation in affirming that this distinction
has no foundation whatever in the maratme law of ma
TONS or the usage of the Admiralty Courts of any cOu
try. We repeat, if the visitation is no
accompanied by search it is an empty mockery and
wanton interruption of the navigators voyage" Whea
tons inquiry to the right of visitation and search
"a.
What Great Britain has thought on the subject (un
the extraordinary discovery of Lord Ashburton) may
judged from the fact that during the whole course
her negotiations the suppression of the slave trade
with the United States from 1918 to 1928 she did no
avow or pretend right of visitation search on tn
high in time Of peace, for any purpose whatever
independent of special compact and the free concession