property and persons on board, that it possesses over the persons and property of its citizens and others within its territorial limits. "These principles,” says this learned and clear sighted civilian, "result from the very nature of society, of ownership and sovereignty. The practice, therefore, of stopping ships on the ocean, without permission of the owners, searching them, and taking out of them the enemy's goods, or turning them out of their course, so far from being a natural right of powers at war, is a direct violation of the right of property and of sovereignty." (See Dr. Webster's Miscellaneous Papers, p. 95, 96, 113, 116, 117.) This exclusive jurisdiction of every State over its ships at sea, he declares to be " natural right of every nation, which no other State can abridge or modify, without its consent." At p. 113 he correctly and strongly affirms: "The right of search, unless authorized by treaty, is no other than the practice of violence, established by the arbitrary usage of tyrannical princes or states for their own convenience, but in direct opposition to morality and justice.

2.9

a

Though the exclusive jurisdiction of a nation over its own ships on the high seas excludes all right of foreign entry or search, as a general principle, yet an exception must be admitted. All nations have a right, and it is their duty to cap

ture piratical ships and pirates on the high seas, and to punish such criminals as the commor enemies of the human race. By our law the slave trade is declared piracy, and such it must be deemed by the universal moral law. Man-stealing, with its murders and atrocities consequent upon it, is piracy in the eye of God. Any vessel, which gives probable cause or reasonable suspicion of piracy, or of being a slaver, might be searched by the commander of any ship of any nation. This is a necessary regulation of marine police, essential to the safety of the seas. If upon such search the suspected vessel is not found to be a pirate or slaver, she must be left unmolested to pursue her voyage. Such entry of a foreign vessel, though a mistake, when founded on probable cause, must be considered by the moral law of nations a marine trespass, that is excusable, if not justifiable. It is a case of danmum absque injuria.

Another exception must be allowed to our general principle. As a natural and necessary right of self-defence, we hold that belligerents have a right to capture any ship carrying arms, ammunition, munitions of war or soldiers to an enemy, and as a legitimate consequence we must admit a right of search limited as above as a belligerent right in all cases of probable cause or well grounded suspicion of such violation of neutrality. These

are the only exceptions to our general principle which sound ethics suggest, or which the moral law of nations allows.

President Madison lays down these principles in a Message to Congress of May 25th, 1813. He says: "It is obvious that no visit or search, or use of force for any purpose, on board the vessels of one independent power on the high seas, can, in war or peace, be sanctioned by the laws of another power."

The doctrine of the freedom of the seas was maintained to the same extent by President Madison in 1813, in giving his instructions, through Mr. Monroe, Secretary of State, to the American Plenipotentiaries for settling the terms of peace with Great Britain. In that document the President states that, "Impressment of our seamen and illegal blockades, as exemplified more particularly in the orders in council, were the principal causes of the war." Alluding to the British pretence of seeking for their subjects, the President declares expatriation "a natural right," and he says, "the great object, which we have to secure, in regard to impressment, is, "that our flag shall protect the crew."

Again he says, "that the practice is utterly repugnant to the law of nations, that it is supported by no treaty with any nation; and that a submission to it by the United States would be the abandon

ment in favor of Great Britain, of all claim to neutral rights and of all other rights on the ocean." Again speaking of the basis of the pretended British right of search, the President well says: "Allegiance is a political relation between a sovereign and his people; it is the obligation which binds the latter in return for the protection which they receive. These reciprocal duties have the same limit, they are confined to the dominions of the sovereign, beyond which he has no right, can afford no protection, and can of course claim no alle. giance. A citizen or subject of one power entering the dominions of another, owes allegiance to the latter in return for the protection which he receives. Whether a sovereign has a right to claim the service of such of his subjects as have left his own dominion, is a question respecting which also a difference of opinion may exist. It is certain that no sovereign has a right to pursue his subjects into the territories of another; be the motive what it may, such an entry without the consent of the other power, would be a violation of its territory and an act of hostility. Offenders, even conspirators, cannot be pursued by one power into the territory of another, nor are they delivered up by the latter, except in compliance with treaties or by favor. That the vessels of a nation are considered a part of its territory, with

the exception of the belligerent right only, is a principle too well established to be brought into discussion. Each State has exclusive jurisdiction over its own vessels; its laws govern in them, and offences against those laws are punishable by its tribunals only. The flag of a nation protects every thing sailing under it in time of peace, and in time of war likewise, with the exception of the belli. gerent rights, growing out of the war. An entry

on board the vessels of one power by the cruisers of another, in any other case, and the exercise of any other authority over them, is a violation of right, and an act of hostility."

In 1804 President Jefferson, in a letter of his Secretary of State to James Monroe, our Minister at London, lays down the principle that "a neutral flag, on the high seas," is "a safeguard to those sailing under it."

In 1823 President Monroe's instructions, given through Mr. Secretary Adams, fully assert as above quoted the freedom of the seas, and that no foreign vessel in peace or war has jurisdiction over any American vessel. President Madison in a message to Congress in May 1813, denies the existence of any belligerent right of visit or search of neutral vessels..

The flag covers the ship, its cargo, and all on board, according to the dictates of reason and equity. This principle was adopted in our treaty