it was carried on without opposition, and without censure. A jurist could not say that a practice thus supported was illegal, and that those engaged in it might be punished, either personally or by deprivation of property.

In this commerce, thus sanctioned by universal assent, every nation had an equal right to engage. No principle of general law was more universally acknowledged, than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which was vested in all by the consent of all, could be devested only by consent; and this trade, in which all had participated, must remain lawful to those who could not be induced to relinquish it. As no nation could prescribe a rule for others, no one could make a law of nations; and this traffic remained lawful to those whose governments had not forbidden it.

If it was consistent with the law of nations, it could not in itself be piracy. It could be made so only by statute; and the obligation of the statute could not transcend the legislative power of the State which might enact it.

If the trade was neither repugnant to the law of nations, nor piratical, it was almost superfluous to say in that court that the right of bringing in for adjudication, in time of peace, even where the vessel belonged to a nation which had prohibited the trade, could not exist. The courts of justice of no country executed the penal laws of another; and the course of policy of the American government on the subject of visitation and search, would decide any case against the captors in which that right had been exercised by an American cruiser, on the vessel of a foreign nation, not violating the municipal laws of the United States. It followed that a foreign vessel engaged in the African slave-trade, captured on the high seas in time of peace, by an American cruiser, and brought in for adjudication, would be restored to the original owners. (a) 89

(a) Wheaton's Rep. x. 66, The Antelope.

[89 Slave Trade. Visit and Search. The entire subject of the slave trade, in its international relations, may now be summed up in three principal aspects, referring to previous notes, Nos. 85, "Slave Trade as Piracy," and 86 and 88 ::

First, ITS JUDICIAL ASPECT. It has been shown in the notes of the editor (ante, notes Nos. 85 and 86), that no English court has held the slave trade to be piracy jure gentium. In The Amedie, it was only said that it was primâ facie an illegal trade

Extent of § 134. II. The judicial power of every State extends the judicial to all civil proceedings in rem, relating to real or personal

powers as to

property

within the property within the territory.

territory.

This follows, in respect to real property, as a necessary consequence of the rule relating to the application of the

was

everywhere; and, when a person claimed to have redelivered to him negroes, or the value of negroes, whom he was transporting from Africa into slavery, the burden was on him to prove that his nation permitted that trade. In the United States, there conflict in the inferior tribunals; but the Supreme Court, in The Antelope, decided that the trade was not piracy jure gentium. As to the right of search and bringing in for trial, that has, in the courts of both countries, followed the test of piracy jure gentium, and been excluded. No doubt has been suggested that the American courts have denied all right of search, unless for piracy jure gentium. That right was held to be inseparable from a right to bring in for adjudication, and could be used for no purpose for which the court had not jurisdiction, as it unquestionably had not over foreign vessels on the high seas, where neither war nor piracy was involved. It has been thought that the English courts have asserted a right of search, while they admitted that the trade was not piracy jure gentium. The examination of the cases in note No. 86, ante, shows, it is hoped, that no such right of search has been supported by those courts. There is no case to be found in which an English court of the last resort has directly decided, that, in time of peace, when there was no color of belligerent right, a British cruiser could search a foreign vessel on the ground of suspicion of being a slaver; and, in the cases of civil proceedings, as The Diana and Louis, the seizure was considered illegal. No case has been found where, either in England or the United States, a distinction has been sustained by the court between a right of visit and a right of search.

Second, IN THE OPINIONS OF STATESMEN AND JURISTS. The statesmen of America, in their diplomatic correspondence, have always contended that a state of things had not been reached which entitled all nations to treat the slave trade as piracy jure gentium. This has been the opinion of the American commentators, Wheaton, Kent, Halleck, and Woolsey. As to the right of search, our statesmen and jurists have agreed that a right of search did not exist, and that no distinction in principle existed between a right to visit and a right to search. Mr. Webster, Mr. Wheaton, Mr. Cass, Mr. Legare, Mr. Stevenson, and Mr. Seward have severally discussed this subject, in their official action, and have agreed in the reasoning, that no nation can exercise police jurisdiction over private vessels of other nations on the high seas; that such jurisdiction is limited to international questions of war or of piracy jure gentium; that the right to detain and search vessels of other nations at sea was only a means of enforcing a jurisdiction admitted, — that is, in international matters of war or of piracy jure gentium. They denied all distinction in principle between visit and search, as rights, though the two things might be very different in their effects. If the visit is for the purpose for which search is allowed,—that is, in case of war or piracy,—it is justifiable as a part of the process of investigation. A right to visit without the right to require production of papers or persons, or to make any examination, is futile, even if the purpose is to ascertain only national character, and not guilt or innocence; and any right to compel production of papers or persons, or to subject to interrogation, or to make examination of parts of a vessel, is a right of search. A right to stop a foreign vessel and visit her must carry the right to use the requisite force, if the exercise of the right is resisted. If not, it is not a right in any

lex loci rei sitæ. As every thing relating to the tenure, title, and transfer of real property (immobilia) is regulated by the local law, so also the proceedings in courts of justice relating to that species of property, such as the rules of evidence and of prescription, the forms of action and pleadings, must necessarily be governed by the same law. (a)

sense worth disputing. The question, then, is on a right, forcibly if necessary, to stop and board foreign vessels, and to make some kinds of inquiries and examinations. The only defence made for the right of visit, by those who disclaim a right of search, is, that the purpose of the visit is to verify the national character of the vessel, and ascertain whether she belongs to the same nation with the cruiser, or to one with which that nation has treaties giving a right of search; in order that, if so, the cruiser may search or detain, or otherwise deal with, such vessel as the law of his country or the treaties may allow; while, if she turns out to belong to another power which has given no right of search, it will be his duty to release her, whatever the evidence of her guilt. But, apart from the consideration that visit without search, even for the limited purpose described, is futile and a mere annoyance, the ground is taken, that all visiting or detaining or searching by compulsion, exercised by a cruiser upon a vessel of another power, is a violation of right, except where there is agreement; and that the consensus gentium has extended it only to war, and crimes against all nations. A right to visit, subject to a duty to make apology and reparation in case the vessel turns out to be one not subject to visit, is not a right at all, but an admission that the visit was against right.

The British Government, in former times, have claimed and exercised a right to search vessels suspected of being slavers. No exact limits to the right were laid down or regarded, whether as confined to ascertaining nationality, or as extending to proofs of guilt or innocence. Lord Palmerston, in reply to Mr. Stevenson, Aug. 27, 1841, avowed the intention of. Great Britain to stop vessels of all nations on suspicion of being engaged in the slave trade; limiting the examination to the verifying of the national character the vessel may assume, and ascertaining whether she is "navigated according to law." That he claimed as a right. It was resisted by Mr. Stevenson, in his reply. Lord Aberdeen's rejoinder of Oct. 13, 1841, adhered to the claim of right, promising only safeguards against its abuse; and the further correspondence between Lord Aberdeen and Mr. Everett did not vary the posture of the case. The treaty of 1842 closed the discussion for the time. Art. 8 of that treaty is a stipulation for a naval force of each country "to enforce, separately and respectively, the laws, rights, and obligations of each of the two countries." It was understood that Great Britain practically waived the claim while the treaty remained in force.

In 1858, British cruisers had stopped American vessels off the island of Cuba, and made some examination, slight to be sure, as to their destination and national character. The American Government at once called the attention of Great Britain to the subject; and Lord Derby's Government took the opinion of the law-officers of the crown as to a right of visit or search, either or both, in time of peace. That opinion was decidedly that no right existed, in time of peace, to stop, visit, or search. After receiving this opinion, the British Government answered to the United States that they claimed no right either to visit or search; and, suggesting the frequent cases of the abuse of the American flag by slavers, and the safety this state of the law practically gave them, requested the American Government to suggest some mode by (a) Vide supra, § 81.

Distinc

the rule of

decision and

§ 135. A similar rule applies to all civil proceedings tion between in rem, respecting personal property (mobilia) within the the rule of territory, which must also be regulated by the local law, procedure as with this qualification, that foreign laws may furnish affecting cases in rem. the rule of decision in cases where they apply, whilst the forms of process, and rules of evidence and prescription are still

which the difficulty could be remedied. The diplomatic correspondence, however, resulted only in settling the question against the right of visit or search. In the debate which followed in the House of Lords, Lord Lyndhurst said, that England had not given up the right of visit, for there was never such a right, but had abandoned the assumption of a right that never existed. He declared, that no writer on international law asserted such a right; and no court having jurisdiction had ever sustained it. He further showed, that there was no distinction in principle, and but little in fact, between search and a visit for the purpose of verifying the national character of a vessel. Lord Malmesbury, then Secretary for Foreign Affairs, said, that England had abandoned a claim of right either to visit or search; and Lord Aberdeen said, that the question was virtually settled at the time of the treaty of 1842. (Annual Register, 1858, pp. 185–189, 191-196.) Afterwards, in 1859, on the production of the correspondence between the two governments, Lord Malmesbury admitted, that England had formerly exercised a power of search, but not founded in right and not supported by international law, when she had the only strong navy afloat; that, when France rebuilt her navy, she and the United States had objected to this exercise, and, after negotiations and practical settlements by treaties, the claim was at last abandoned. Lords Clarendon, Derby, Brougham, and Carlisle agreed that there was no right of visit: still, if the debate is correctly reported, there seems to be some confusion between the option of a cruiser, at his peril, to take his chance of a vessel turning out to have been liable to be detained by him, and the right of a cruiser to detain the vessel for the purpose of putting the test. The principle, however, is clear. If a cruiser stops a vessel in the exercise of police power, he takes the chance of her turning out to be subject to the exercise of that power by him. If she proves to be a vessel of his own nation, or of one that has conceded to him that right, he turns out to have been in the exercise of a right ab initio; and neither he nor his nation is bound to make apology or compensation, though the vessel proves innocent of the crime suspected. But, if the vessel proves not to be subject to his police power, then he turns out to have been a trespasser ab initio, whether the vessel proves innocent or guilty of the crime suspected. He is liable in that case, not for having stopped an innocent vessel, but for having stopped one not subject to his inspection. The mistake of the cruiser, however natural or honest, is not a justification. It is only an excuse, addressing itself to the consideration of the government whose vessel he has interfered with.

What has been said heretofore by unofficial writers is of less consequence, now that nations themselves have taken the matter in hand and settled it. It is of historical interest, however, to record that Hautefeuille (Droits des Nat. Neutr. tom. iii. p. 471-487), Massé (Droit Comm. i. 291), Ortolan (Règl. Intern. i. 242, 258–262), and De Cussy (Droit Marit. ii. 385) agree with Wheaton, that neither visit nor search can be exercised in time of peace; and such seems to be the opinion of Riquelme (i. 236), Heffter (europ. Völkr. § 168), and De Pistoye et Duverdy (Traité des Prises, tit. i. ch. 3, § 2). Dr. Twiss, in his opinion furnished to the Italian Government, March 22, 1858, in the case of The Cagliari, says that, in time of peace, no apprehension of a violation of municipal law gives a cruiser a right to detain and visit a vessel at

governed by the lex fori.90 Thus the lex domicilii forms the law in respect to a testament of personal property or succession ab intestato, if the will is made, or the party on whom the succession devolves resides, in a foreign country; whilst at the same time the lex fori of the State in whose tribunals the suit is pending determines the forms of process and the rules of evidence and prescription.

sea. Kent, in the text of his Commentaries, does not notice a distinction between visit and search; but, in a note to page 153 (a) in later editions, a right of approach or intervisitation of vessels at sea, to ascertain nationality, seems to be admitted. Dr. Phillimore (iii. 420-424) defends the distinction, and cites the note to Kent with approbation. At the same time, he seems to think the question is, whether a British cruiser may stop and visit a vessel under an American flag; and that the United States have denied such a right (p. 421). But the carrying American flags or papers is a fact as to which nothing can be predicated affecting a right to visit. If the vessel was American, she was exempt; if not, the American Government claims no interest, although she carried its flag. If an officer is required by his warrant to arrest John Doe, charged with a crime, and stops a man wearing the dress and using the name of Richard Roe, and compels him to submit to reasonable examinations of his person and papers to ascertain, not his guilt or innocence, but whether he is John Doe, then, if he turns out to be John Doe, Richard Roe has no cause of complaint; but, if he proves to be Richard Roe, the officer is a trespasser, though acting in good faith. This analogy may serve to clear up the mist that seems to cover the subject as it has been viewed by some writers. Halleck (Intern. Law, 597-605) carefully examines the subject, and declares that no continental writer has recognized the distinction between visit and search as rights, in time of peace; denies the accuracy of the reasoning of Dr. Phillimore; and suggests that the note to Kent contradicts the text, and rests on the authority of the annotator, and not of Kent himself. It is needless to say that Mr. Wheaton, in his diplomatic correspondence as well as in his tracts and commentaries, has always denied the distinction, in principle as well as on authority. Dr. Woolsey (§ 196) agrees, that neither visit nor search can be made, as a right, to ascertain national character; but offers a suggestion (§ 201), that such inquiry as is necessary to ascertain nationality might well be granted by nations.

Third, CONVENTIONS AND PRACTICE OF NATIONS. The details of the treaties on this point are given in note 85, ante, "Slave Trade as Piracy." The summary may be stated thus: Nations do not agree that the slave trade is piracy. When treated as such, it is under municipal law, or between two or more nations by virtue of treaties confessedly in addition to the law of nations. No treaties distinguish between a right of visit and a right of search. Where nations have conceded to the cruisers of each other any reciprocal right in time of peace over vessels of each other, whether generally or within geographical limits, the right conceded has been a right to make such detention and examination as is reasonable for the ascertainment both of national character and of guilt or innocence; and they usually either provide for trial by mixed tribunals, or require the persons found on board to be sent for trial to the nation to which they belonged.] — D.

[90 Savigny (System, viii. §§ 366–7) contends for the lex loci rei sitæ in mobilia, as well as immobilia, as the most reasonable and convenient. Woolsey (Introd. § 71) seems to lean to that opinion, to which he says the German publicists also incline.] — D.