my country and its flag, yet the occurrence in quick succession of four such grave acts of offensive search of our peaceful traders, after so long an interval of repose since this question was last raised in the case of the American whalers on the southern coast of Cuba, cannot but make me apprehensive that the Government of Spain, or the superior authority of Cuba, in pursuance of the discretionary power it is understood to possess, may have taken up a new line of action, and one wholly inconsistent with those relations between the two countries which both their reciprocal interests and duties require should be maintained unbroken. "It is my profound hope that such apprehensions on my part may be found to be baseless. But in view of the length of time which has elapsed since the first of these occurrences was known to the public here and in Spain, of the anxiety which the minister of state expressed to you in the matter of the telegraphic inquiries made by him of the Cuban authorities, and of the immediate report of the early cases to the admiral at Havana, which is said to have been made, I cannot but express my surprise and regret that the Spanish Government should not of itself have hastened to make some explanation of the incidents calculated to allay the anxiety of a friendly power, whose just susceptibilities as respects the safety of its commerce and the honor of its flag are so well known to the Spanish Government.

"I do not undertake, now, either a full exposition of the doctrine of this Government on the subject of the maritime jurisdiction of states over circumjacent waters, or a particular inquiry as to the diverse views, in some sense, which have been brought forward, heretofore, in the discussion between Spain and the United States on the subject of jurisdiction over Cuban waters.

"I desire, however, that the position heretofore more than once distinctly taken by this Government, in its diplomatic correspondence with Spain, shall be understood by you and firmly adhered to in any intercourse you may have in the pending situation with the Spanish minister of foreign affairs. This Government never has recognized and never will recognize any pretense or exercise of sovereignty on the part of Spain beyond the belt of a league from the Cuban coast over the commerce of this country in time of peace. This rule of the law of nations we consider too firmly established to be drawn into debate, and any dominion over the sea outside of this limit will be resisted with the same firmuess as if such dominion were asserted in mid-ocean.

"The revenue regulations of a country framed and adopted under the motive and to the end of protecting trade with its ports against smuggling and other frauds which operate upon vessels bound to such ports have, without due consideration, been allowed to play a part in the discussions between Spain and the United States on the extent of maritime dominion accorded by the law of nations which does not belong to them. In this light are to be regarded the royal decrees which it has been claimed by the Spanish Government had for more than a

hundred years established two leagues as the measure of maritime jurisdiction asserted and exercised by the Spanish Crown both in peninsular and colonial waters. Of this character, obviously, are the regulations of our revenue system in force since 1799, which not only allow but enjoin visitation of vessels bound to our ports within four leagues from land, which, in her diplomatic correspondence with this Government, Spain has much insisted on as equivalent to its own dominion as asserted off its coasts, except that our authority was exerted at twice the distance from land.

"But the distinction between dominion over the sea, carrying a right of visit and search of all vessels found within such dominion, and fiscal or revenue regulations of commerce, vessels, and cargoes engaged in trade as allowed with our ports to a reasonable range of approach to such ports, needs only to be pointed out to be fully appreciated. Every nation has full jurisdiction of commerce with itself, until by treaty stipulations it has parted with some portion of this full control. In this jurisdiction is easily included a requirement that vessels seeking our ports, in trade, shall be subject to such visitation and inspection as the exigencies of our revenue may demand, in the judgment of this Government, for the protection of the revenues and the adequate administration of the customs service. This is not dominion over the sea where these vessels are visited, but dominion over this commerce with us, its vehicles and cargoes, even while at sea. It carries no assertion of dominion, territorial and in invitum, but over voluntary trade in progress and by its own election, submissive to our regulations of it, even in its approaches to our coasts and while still outside of our territorial dominion. (This statutory provision is the subject of discussion in instructions of Mr. Fish and Mr. Evarts, given supra, § 32.)

"You will observe, therefore, that the American vessels which have been interfered with thus unwarrantably were not engaged in trade with Cuba, and were in no degree subject to any surveillance or visitation of revenue regulation. The acts complained of, if, indeed, as our proofs seem to make clear, without the league accorded as territorial by the law of nations, have no support whatever from the principle of commercial regulation which I have explained. Spain had no jurisdiction over the waters in which our vessels were found; no jurisdiction over the trade in which they were engaged; and no warrant under the law of nations, to which alone these vessels in this commerce were subject, can be found for their arrest by the Spanish gunboats.

"As the offense against the rights of our commerce and the freedom our flag, which we complain of in those four instances, is substantive, it is not necessary for me now to insist upon the form and manner of these visitations and searches as elements or aggravations of this offense. It cannot, however, escape notice that each transaction has unequivocal

features of the exercise of direct sovereignty, and by mere force, as if by territorial and armed dominion over the sea which was the scene of the transactions. These were gunboats, a part of the naval power of Spain, under the threat of their armaments and by the presence of adequate armed force boarding these vessels, compelling submission; their action was neither more nor less than such as it would have been under a belligerent right on the high seas in time of war.

"In manner and form, then, as well as in substance, the power to which our commerce was obliged to succumb was not of commercial regulation or revenue inspection, or by any of the instruments employed in preventive or protective service with which commerce is familiar.

"Unless some face shall be put upon these disturbances of our peaceful and honest commerce in one of the most important thoroughfares which I cannot anticipate, this Government will look to Spain for a prompt and ready apology for their occurrence, a distinct assurance against their repetition, and such an indemnity to the owners of those several vessels as will satisfy them for the past and guarantee our commerce against renewed interruption by engaging the interest of Spain in restraint of rash or ignorant infractions, by subordinate agents of its power, of our rights upon the seas."

Mr. Evarts, Sec. of State, to Mr. Fairchild, Aug. 11, 1880. MSS. Iust., Spain,
For. Rel., 1880.

The right of search cannot be exercised in time of peace; nor is it any excuse that the search was attempted in the port of a third sovereign who makes no complaint of the outrage.

Mr. Evarts, Sec. of State, to Mr. Asta-Burnagna, Mar. 3, 1881. MSS. Notes,
Chili.

66 By the law of nations, as it is understood in this Department, the citizens or subjects of a particular country who are owners of a ship, are entitled to carry on such ship, when at sea, the flag of such country; and such flag is to be regarded by all foreign sovereigns as the badge of nationality. It is true that municipal laws exist in the United States, as in other countries, by which, for municipal purposes this rule of the law of nations is subjected to certain limitations. But it is also true that these limitations have no extraterritorial force, and that it is not within the provision of foreign sovereigns to enforce them. Whenever a wrong is done, or supposed to be done, by a foreign sovereign to a vessel owned by citizens of the United States, then the Government of the United States on being duly advised will inquire into the wrong.

"Until, however, such a question actually arises, it is not in accordance with the practice of this Department to declare how the law thus stated would be applied in such contingencies as are suggested in your communication acknowledged as above. The question, in fact, of the right of the local authorities at any particular British port to impose

the tests to which you refer, could only come before this Department on the application of ship-owners claiming to be thereby aggrieved; and until they present their case, and are heard on their own behalf, you will no doubt agree with me that it would be unsuitable for this Department to express in advance any opinion by which their case might be prejudiced."

Mr. Bayard, Sec. of State, to Sir L. West, Apr. 9, 1886. MSS. Notes, Gr. Brit. "Mr. Machado's claim, as will be seen from this review, has two distinct relations. The first is for the affront to the flag of the United States which his two vessels bore. No foreign sovereign had then the right in time of peace to visit and search a vessel bearing that flag, unless in the single instance of piracy shown beyond reasonable doubt. At the very time Mr. Machado's vessels were thus arrested, Great Britain had been urging on us to give her this privilege in respect to American ships supposed to be slavers; but this proposition was peremptorily repelled. This very fact made the arrest in these particular cases an outrage which this Government was bound to resent. It is true that in 1862, under peculiar circumstances, a treaty with Great Britain granting this right on the basis of reciprocity was duly ratified and proclaimed; but this treaty has, in consequence of the cessation of the slave trade, practically ceased to operate; and visitation and search, in time of peace, of American vessels by British cruisers, except on the ground of piracy, was in 1854 and 1857, and still is, regarded by us as an offense requiring apology and indemnity. It is due to the British Government to say that, when called upon for an explanation, it expressed its regrets at the occurrences in question, tendered an apology, punished the offending officer, and agreed to pay such compensation to Mr. Machado as would, under the circumstances, be suitable. That Government then offered to arbitrate, as has been seen, in case of inability to agree upon the amount of damages."

Mr. Bayard, Sec. of State, to Messrs. Sawyer and Spooner, Apr. 19, 1886. MSS.
Dom. Let.

"What is this right of search? Is it a substantive and independent right wantonly, and in the pride of power, to vex and harass neutral commerce, because there is a capacity to do so; or to indulge the idle and mischievous curiosity of looking into neutral trade; or the assumption of a right to control it? If it be such a substantive and independ ent right, it would be better that cargoes should be inspected in port before the sailing of the vessel, or that belligerent licenses should be procured. But this is not its character." The right of search "has been truly denominated a right growing out of and ancillary to the greater right of capture. Where this greater right may be legally exercised without search, the right of search can never rise or come into question."

Marshall, C. J. The Nereide, 9 Cranch, 406.

Ships-of-war sailing under the authority of their Government, instructed to arrest pirates and other public offenders, may approach vessels at sea to ascertain their character.

A ship under such circumstances is not bound to lie by and await approach, but she has no right to fire at an approaching cruiser upon a mere conjecture that she is a pirate, especially if her own conduct has invited the approach; and, if this be done, the cruiser may lawfully repel force by force and capture her.

The Marianna Flora, 11 Wheat., 1.

The commander of a cruiser having fairly exercised his discretion, in judging whether an attack on him was piratical, cannot be held responsible in damages for having come to a conclusion which subsequent judicial investigation shows to have been incorrect.

Ibid.

A public vessel of the United States has the right, on the high seas, to detain a merchant vessel of the United States until the Government can act upon the matter, where there is just cause to believe that such merchant vessel is engaged in a trade forbidden by act of Congress.

3 Op., 405, Grundy, 1839.

The brig Thomas, of Havana, sailing under the American flag, was seized by a public vessel of the United States in the port of Havana, on suspicion of being engaged in the slave trade. A correspondence ensued between the captain-general of Cuba and the United States consul at Havana, who advised the seizure, which terminated in a friendly disposition of the question whether the seizure was a violation of the jurisdictional rights of Spain; and upon this point no opinion was given by the Attorney-General. But it was held that as to the captain of the Thomas and his vessel the seizure was not wrongful.

Ibid.

The opinion of Attorney-General Williams, Dec. 17, 1873, on the Virginius case (14 Op., 340) is given in a prior page of this section.

Lord Aberdeen having maintained in 1841 that American vessels on the high seas were not visited as American vessels, but as vessels of nations with whom Great Britain had treaties, but who fraudulently carried American colors, Mr. Wheaton (Inquiry, 143) replied that “neither is the neutral vessel visited in time of war, as neutral, but she is ever visited and captured and detained and carried in for adjudication, as being suspected to be an enemy, either literally such, or as having forfeited her neutral character by violating her neutral duties."

See as approving Mr. Wheaton's views, Mr. Legaré, Sec. of State, June 9, 1843.
MSS. Inst., Prussia.

On the assumption of the British Government that by the law of nations a search to determine as to the fraudulency of a flag is admissible, Mr. Lawrence thus speaks: "If the proposition of the British Government was tenable, we were in much worse position than if we had act