As to the right of search, the same author says:

"It is founded upon necessity, and is strictly and exclusively a war-right, and does not exist in time of peace."-Ib., p. 153.

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 connection with each other.

The African slave trade, though prohibited by the municipal laws of most nations and declared to be piracy by the statutes of Great Britain and the United States, and since the treaty of 1841 with Great Britain, by Austria, Russia and Prussia, is not such by the general international law, and its interdiction can not be enforced by the exercise of the ordinary right of visitation and search. That right does not exist in time of peace, independently of special compact. - Dodson's Admiralty Reports, vol IV, p. 210. Wheaton's Reports, vol. x, p. 66. Wheaton's International Law, p. 186.

There can be no pretence of a special compact on the part of the United States. The right of search has never been conceded by our government. Great Britain and France, by the treaties of 1831 and 1833, conceded the mutual right of search; and the five great powers did the same in 1841; except France, which, by a special treaty with England in 1845, substituted a naval force on the coast of Africa for the mutual right of search. By our treaty of 1842, we also provided for a naval force of not less than eighty guns on the coast of Africa; and practically, though not expressed in the treaty, this was a substitute for the right of search con

ceded to England in the quintuple treaty by Austria, Russia and Prussia.

It is thus conceded (as indeed all writers on national law have held) that the right of search, unless conceded by treaty or special compact, can only be exercised in time of war. It only remains to point out the authorities upon which it has been held that visitation and search are identical.

The celebrated French publicist, Ortolan, in his work on Diplomatie de la Mer, has examined the whole subject elaborately, and the distinctions he draws are so precise and logical that they are worthy of being translated. He distinguishes clearly between the right of visitation and search (droit de visite ou de recherche), and the right of enquiry as to the flag (droit d'enquette du pavillon), and we translate his definitions and distinctions on this subject:

"These rights differ essentially in their scope, and in the means by which they are exercised.

The enquiry as to the flag has this object only; that of recognizing the nationality of the ship, in order to render to her, from the moment she is met on the ocean, the rights growing out of that nationality.

The object of a visit is to prove aboard of a ship, whose nationality is recognized, certain facts in relation. to her cargo or in reference to some ulterior object.

The first of these rights (enquette du pavillon) depends upon the respect due to the nationality and independence of sovereign states; it is exercised in order that the rights belonging to that nationality may be guarantied; and also as a means of recognizing and

impeaching fraudulent usurpations; but the moment the flag is recognized, the stranger arrests the enquiry and leaves the ship to the immunity of her flag (a toute l'independence de son pavillon).

The exercise of the second of these rights (visite ou recherche) is a taint upon the nationality and the independence of reciprocal states; and the offence is, that a stranger, after a recognition of nationality, thrusts himself on board a ship on the high seas, in order to satisfy himself of certain facts.

Briefly, in the one case (inquiry as to the flag), a sovereignty recognizes another; in the other case (visit or search), it invades the nationality after having recognized it."

These views are important and forcible, not only from their logical clearness, but from the fact that they come from a leading writer of a nation which has steadfastly refused to concede the right of search and visit, and with whom, as with our own countrymen, the sanctity of the national flag is a passion.

Ortolan writes in substance with Mr. Wheaton

our

own celebrated publicist and expounder of international law that the right of visitation and search does not exist except in time of war; and in that case he confines the right to ascertaining the nationality of the ship, and whether there be any contraband articles on board. See what Mr. Wheaton says on this subject:

"An attempt appears to be made to distinguish between the right of visit and the right of search. Now we have no hesitation in affirming that this distinction has no foundation whatever in the maritime law of

* *

nations, or the usage of the admiralty courts of any country. We repeat, if the visitation is not accompanied by search, it is an empty mockery and a wanton interruption of the navigator's voyage."Wheaton's Enquiry as to the Right of Visitation and Search, p. 124.

What Great Britain has thought on the subject (until the extraordinary discovery of Lord Ashburton) may be judged from the fact that during the whole course of her negotiations on the suppression of the slave trade with the United States, from 1818 to 1824, she did not avow or pretend a right of visitation or search on the high seas in time of peace, for any purpose whatever, independent of special compact and the free concession of the powers on whose vessels the right was to be exerted.

To conclude; the whole doctrine, as established in the books and by the practice of civilized nations, is this: In time of peace you can not go behind the national flag without a special compact. Strictly speaking, indeed, there is no such thing as a right of search or visit in the time of peace; it is a wrong, an injury, an insult, to every one except the culprit; as much as if the unfortunate victim of a pick-pocket in a crowded thoroughfare should undertake to stop the great wayes of travel and search every passenger. If he lay his hand upon the guilty one, it is well; but woe to him if he stops or arrests the innocent traveler! No nation has a right to set itself up as custos morum on the high seas, or to detail its cruisers as special policemen. The claim of visit as distinguished from search is a

mere sham; for once go behind the flag, and there is no end to the inquiry; for visitation (unless an idle ceremony) is followed by search, and search by seizure, and seizure by confiscation. In a word, the whole doctrine and the only safe doctrine may be summed up in a single sentence of Ortolan, the French jurist whom we have already quoted. "Every nation has the right to exercise at sea an exclusive police over its own vessels."

PROPOSED CHANGES IN THE LAW OF

REAL ESTATE.

There are pending before the legislature at Albany some curious amendments to the laws relating to the collection of rent. They originate on the petition of the tenants of the old manor lands, and we understand are urged upon the attention of the representatives of the people with considerable vehemence. The antirenters, as they are called, have resisted in every possible form the collection, and the legal consequences of the noncollection of the rents reserved by the original owners of the lands they occupy. Protracted and armed conspiracies embracing whole counties, and the most persistent and persevering litigation, carried before the highest courts of the state, having failed to secure them the exemptions they claim, they now come before the legislature asking for a series of radical changes in the law of leases or conveyances with reservations, which may injure not only the landlords of manor lands, but the rights of others interested in real estate.