and subjects of other nations from entering territorial waters for the purpose of capturing such animals. ANALOGOUS QUESTIONS. Upon analogous questions similar principles have been generally maintained and recognized. RIGHT OF SEARCH ON HIGH SEAS. Thus, with reference to the right to search neutral vessels on the high seas-In 1804, during the war with France, Great Britain claimed to search neutral vessels on the high seas, and to seize her own subjects when found serving under a neutral flag. Mr. Madison to The position taken on this subject by the United States Mr. Monroe, Janwas not only in opposition to such a right, but that country uary 5, 1804, insisted that in no case did the sovereignty of any nation American State Papers, Foreign extend beyond its own dominious and its own vessels on Relations, vol. ii. the high seas. SLAVE TRADE. A similar view has been adopted by all nations in relation to the Slave Trade. Although it cannot properly be argued that the taking of seals in any manner whatever is comparable with the immorality or injustice attaching to the Slave Trade, yet, even in the case of vessels engaged in that trade, the rights of nations have not been allowed to be overruled on such pleas. Upon this point legal authorities both in the United States and in Great Britain are quite clear. CASE OF "LE LOUIS" ENGAGED IN SLAVE TRADE AND SEIZED. p. 730. 1816. See Dod 210. In 1816 a French vessel ("Le Louis") sailing from Mar-Le Louis." tinique, destined on a voyage to the coast of Africa and son's Admiralty back, was captured 10 or 12 leagues to the southward of Cases, vol. ii, p, Cape Mesurada, by the "Queen Charlotte" cutter, and carried to Sierra Leone. She was proceeded against in the Vice-Admiralty Court of that colony. 154 It was alleged that the vessel was fitted out for the purpose of carrying on the African Slave Trade, after that trade had been abolished by the internal laws of France, and by the Treaty between Great Britain and France. The King's Advocate admitted the proposition to be true generally that the right of visitation and to search does not exist in time of peace, but denied it be so universally. Occasions, he argued, may and must arise, at a period when no hostilities exist, in which an exercise of this power would be justifiable. The rule of law could not be maintained as a universal proposition, but was subject to exceptions, and within those exceptions must be included the present transaction, which was a transgression, not only of municipal law, but likewise of the general law of nations. In whatever light the Slave Trade might have been viewed in former times, it must no longer be deemed within the protection of the law of nations. Since the Declaration of the Congress of Vienna, that the Slave Trade was repugnant to the principles of humanity and of universal morality, traffic in slaves must be considered a crime, and it was the right and duty of every nation to prevent the commission of crime. On the whole, he submitted that the "Le Louis," having been engaged in a traffic prohibited by the laws of her own country, and contrary to the general laws of humanity and justice, ought not to be restored to the claimant. LORD STOWELL'S JUDGMENT. SEIZURE NOT JUSTIFIED. Sir William Scott, afterwards Lord Stowell, in the British High Court of Admiralty, held, however, that trading in slaves was not a crime by universal law of nations. He observed: Neither this Court nor any other can carry its private apprehensions, independent of law, into its public judgments on the quality of actions. It must conform to the judgment of the law upon that subject; and acting as a Court in the administration of law, it can not attribute criminality to an act where the law imputes none. It must look to the legal standard of morality; and upon a question of this nature, that standard must be found in the law of nations as fixed and evidenced by general and ancient and admitted practice, by Treaties and by the general tenour of the laws and ordinances and the formal transactions of civilized States. Much stress is laid upon a solemn declaration of very eminent persons assembled in Congress, whose rank, high as it is, is by no means the most respectable foundation of the weight of their opinion that this traffic is contrary to all religion and morality. Great as the reverence due to such authorities may be, they can not I think be admitted to have the force of overruling the established course of the general law of nations. Dodson's 155 Admiralty Cases, vol. ii, p. 252. Ibid., p. 256. It is next said that every country has a right to enforce its own navigation laws; and so it certainly has, so far as it does not interfere with the rights of others. But it has no right, in consequence, to visit and search all the apparent vessels of other countries on the high seas. * * * * * It is said, and with just concern, that if not permitted in time of peace it will be extremely difficult to suppress the Traffic. It will be so, and no man can deny that the suppression, however desirable, and however sought, is attended with enormous difficulties; difficulties which have baffled the most zealous endeavours for many years. To every man it must have been evident that without a general and sincere concurrence of all the maritime States, in the principle and in the proper modes of pursuing it, comparatively but little of positive good could be acquired; so far at least, as the interests of the victims of this commerce were concerned in it; and to every man who looks to the rival claims of these States, to their established habits of trade, to their real or pretended wants, to their different modes of thinking, and to their real mode of acting upon this particular subject, it must be equally evident that such a concurrence was matter of very difficult attainment. But the difficulty of the attainment will not legalize measures that are otherwise illegal. To press forward to a great principle by breaking through every other great principle that stands in the way of its establishment; to force the way to the liberation of Africa by trampling on the independence of other States in Europe; in short, to procure an eminent good by means that are unlawful; is as little consonant to private morality as to public justice. Obtain the concurrence of other nations, if you can by application, by remonstrance, by example, by every peaceable instrument which man can employ to attract the consent of man. But a nation is not justified in assuming rights that do not belong to her, merely because she means to apply them to a laudable purpose; nor in setting out upon a moral crusade of converting other nations by acts of unlawful force. Nor is it to be argued that because other nations approve the ultimate purpose, they must, therefore submit to every measure which any one State or its subjects may inconsiderately adopt for its attainment. In accordance with this view of the law, the Judgment of the Vice-Admiralty Court of Sierra Leone, condemning the French ship for being employed in the Slave Trade and for forcibly resisting the search of the King of England's cruizers, was reversed. CASE 66 STATES SUPREME COURT TO OF THE ANTELOPE"-UNITED port, vol. 10, p. The decision of the Supreme Court of the United States Wheaton, Rein the case of the "Antelope" is to the same effect. There 66. Chief Justice Marshall delivered the opinion of the Court, holding that the Slave Trade, though contrary to the law of nature, was not in conflict with the law of nations: 122. 156 No principle of general law is more universally acknowledged Wheaton, Rethan the perfect equality of nations. Russia and Geneva have port, vol. 10, p. 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 is vested in all by the consent of all, can be devested only by consent; and this trade, in which all have participated, must remain lawful to those who can not be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it. If it is consistent with the law of nations, it can not in itself be piracy. It can be made so only by statute; and the obligation of the statute can not transcend the legislative power of the state which may enact it. If it be neither repugnant to the law of nations, nor piracy, it is almost superfluous to say in this Court, that the right of bringing in for adjudication in time of peace, even where the vessel belongs to a nation which has prohibited the trade, can not exist. The Courts of no country execute the penal laws of another, and the course of the American government on the subject of visitation and search, would decide any case in which that right had been exercised by an American cruizer, on the vessel of a foreign nation, not violating our municipal laws, against the captors. It follows, that a foreign vessel engaged in the African slave trade, captured on the high seas in time of peace, by an American cruizer, and brought in for adjudication, would be restored. MR. DANA. ternational Law," The subject is fully discussed in Mr. Dana's note No. 108 Wheaton, "Into Wheaton's International Law (p. 258), where it is said of 8th edition, by Chief Justice Marshall, in Church versus Hubbart, 2 Mr. Dana, 1866, Cranch, 187: p. 359. It is true, that Chief Justice Marshall admitted the right of a nation to secure itself against intended violations of its laws, by seizures made within reasonable limits, as to which, he said, nations must exercise comity and concession, and the exact extent of which was not settled; and, in the case before the court, the 4 leagues were not treated as rendering the seizure illegal. This remark must now be treated as an unwarranted admission. It may be said that the principle is settled, that municipal seizures can not be made, for any Ibid., p. 260. purpose, beyond territorial waters. It is also settled that the limit of these waters is, in the absence of treaty, the marine league or the cannon shot. It can not now be successfully maintained, either that municipal visits and search may be made beyond the territorial waters State Papers, by Hertalet vol xxxii, p. 575. for special purposes, or that there are different bounds of that territory for different objects. But, as the line of territorial waters, if not fixed, is dependent on the unsettled range of artillery fire, and, if fixed, must be by an arbitrary measure, the courts, in the earlier 157 cases were not strict as to standards of distance, where no foreign Powers intervened in the causes. In later times, it is safe to infer that judicial as well as political tribunals will insist on one line of marine territorial jurisdiction for the exercise of force on foreign vessels, in time of peace, for all purposes alike. PRESIDENT TYLER. It is an axiom of international maritime law that such action is only admissible in the case of piracy or in pursuance of special international agreement. This principle has been universally admitted by jurists, and was very distinctly laid down by President Tyler in his Special Message to Congress, dated the 27th February, 1843, when, after acknowledging the right to detain and search a vessel on suspicion of piracy, he goes on to say: With this single exception, no nation has, in time of peace, any authority to detain the ships of another upon the high seas, on any pretext whatever, outside the territorial jurisdiction. ARTICLE VII. CONSIDERATION OF REGULATIONS POSTPONED. Great Britain maintains, in the light of the facts and arguments which have been adduced on the points included in the VIth Article of the Treaty, that her concurrence is necessary to the establishment of any Regulations which limit or control the rights of British subjects to exercise their right of the pursuit and capture of seals in the nonterritorial waters of Behring Sea. The further consideration of any proposed Regulations, and of the evidence. proper to be considered by the Tribunal in connection therewith, must of necessity be for the present postponed. The following are the propositions of law and fact which, it is maintained on behalf of Great Britain, have been established in the foregoing Case: 1. The sea now known as Behring Sea is an open sea, free to the vessels of all nations, and the right of all nations to navigate and fish in the waters of Behring Sea, other than the territorial waters thereof, is a natural right. 2. No assertion of jurisdiction by Russia, the United States, or any other nation could limit or restrict the right of all nations to the free use of the open sea for navigation or fishing. 3. At no time prior to the Treaty of the 30th March, 1867, did Russia possess any exclusive jurisdiction in the nonterritorial waters of the sea now known as Behring Sea. 4. At no time prior to the said cession did Russia assert or exercise any exclusive rights in the seal fisheries in the non-territorial waters of the sea now known as Behring Sea. 5. The attempt by Russia in the year 1821 to restrict the freedom of navigation and fishing by the subjects of other nations than Russia in the non-territorial waters of Behring Sea was immediately and effectually resisted by Great Britain and the United States of America. 6. The claims of Russia to limit and interfere with the rights of navigation and fishing by other nations in the waters of Behring Sea, other than the territorial waters thereof, were never recognized or conceded by Great Britain. 7. The protests raised and the objections taken by Great Britain to the claims of Russia to limit such free right of navigation and fishing were acquiesced in by Russia; and no attempt was ever made by Russia to again assert 159 or enforce any such supposed right to exclude or limit the rights of other nations to navigate or fish in the waters of the sea now known as Behring Sea, other than the territorial waters thereof. 8. The assertion of rights by Russia in the year 1821, and her ineffectual attempt to limit the rights of navigation and fishing, was inoperative and had no effect upon the rights of other nations. 9. The body of water now known as the Behring Sea was included in the phrase "Pacific Ocean," as used in the Treaty of 1825 between Great Britain and Russia. 10. From the year 1824 down to 1886 the vessels of Great Britain have continuously, and without interruption or interference, exercised the rights of navigation and fishing in the waters of Behring Sea other than the territorial waters thereof. 11. The right of all nations to navigate and fish in the waters of Behring Sea, other than the territorial waters thereof, have been repeatedly recognized and admitted both by Russia and by the United States of America. 12. Whatever territorial rights passed to the United States under and by virtue of the Treaty of the 30th March, 1867, Russia had not the right to transmit, and the United States did not acquire, any jurisdiction over or rights in the seal fisheries in any part of the sea now known as Behring Sea, other than in the territorial waters thereof. 13. The Treaty of Cession of the 30th March, 1867, did not convey anything more than ordinary territorial dominion. 14. From the acquisition of Alaska by the United States in 1867 down to the year 1886, no attempt was made by the United States to assert or exercise any right to limit or interfere with the right of Great Britain, or of any other nation, to navigate and fish in the waters of Behring Sea other than the territorial waters. 160 15. The sole right of the United States in respect of the protection of seals is that incident to terri torial possession, including the right to prevent the subjects of other nations from entering upon land belonging to the United States, or the territorial waters thereof, so |