206 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 



riglits, and it is said, and said upon excellent autliority frequently, that 

 tlie right of search is conliued to a time of war. It is remarked by 

 Mr. Justice Story in one of the cases that have been referred to; it is 

 remarked by other writers and judges which have been cited in the 

 course of this discussion that the right of search is a war right. 



The President. — Except where it is conceded by special conven- 

 tion. 



Mr. Phelps. — Yes, where it is exercised as a right independent of 

 Treaty. Why is it a war right? Is the right of self-defence against 

 neutrals any greater iu time of war than in time of peace 1 Nobody 

 could claim that. It is a war right because the necessity for it priu- 

 ci]\ally arises in time of war, because the cases are very rare indeed 

 when in time of peace it can be regarded as necessary or reasonable to 

 overhaul the vessel of a friendly nation and subject it to a search. 



But suppose it became necessary, is there any ]>rinciple upon which it 

 can be denied in time of peace if you establish the necessity? In point 

 of fact it has been affirmed and has been conceded by very high authority 

 in time of peace but under another name. In a remarkable instance that 

 is referred to in the United States Argument, where the discussion arose 

 between Lord Aberdeen, who was then Minister of Foreign Alfairs, and 

 Mr. Webster, who was the Secretary of State of the United States — a 

 certain right of visitation was assertedby Great Britain in time of peace, 

 enough to answer the necessity of the case, and it was objected to by the 

 United States. "Why", says Lord Aberdeen, "this is not the right of 

 search. We are not claiming the right of search. We are claiming the 

 right of visitation." If he was defining the term according to its techni- 

 cal meaning, as recognized by Courts of Justice in maritime cases, he 

 was right. The right of search goes further. He pointed out that it 

 was only the right Avhich was made necessary in time of peace, and did 

 not amount to the right of search. Mr. Webster, on the other hand was 

 obliged to concede — he was the last man that could successfully argue 

 the wrong side of a question, and one of the last men that had any dis- 

 l)osition to do it — he was compelled to concede to Lord Aberdeen that 

 to that extent the right existed, but he says it is after all the right of 

 search; and in that he also was right. You are only modifying, redu- 

 cing, the extent of the exercise of this right, because the extent of it is so 

 much less in time of peace than in time of war. I read from page 162 

 of our Argument where the extracts are; the whole of it is here. This 

 is taken from Mr. Webster's works. My friends, I believe, have referred 

 to the same correspondence from the British of&cial sources. Lord 

 Aberdeen says: 



That it— 



(that is the British Government) 



still maintains, and would exercise when necessary its own risht to ascertain the 

 genuineness of any Hag which a suspected vessel mi<i;bt bear: that if in the exercise 

 of this right, eitlier from involuntary error or in spite of every precaution, loss or 

 injury should be sustained, a prompt reparation would he afforded, but that it should 

 entertain for a single instant the notion of abandoning the right itself would be 

 C{int<i impossible. 



That is the position of Great Britain in regard to the right of visita- 

 tion iu time of peace — enough, at least, to ascertain the truenatioiiality 

 of the vessel. 



Mr. Webster denies that right in that case upon the ground that it is 

 not necessary, but what does he say about the general rule? 



