« PreviousContinue »
Great Britain has heretofore demanded that the right, for this purpose, should apply indiscriminately to all vessels. This right was resisted by Holland in 1653, and although that nation was beaten by the English in the hostilities ensuing, yet she never submitted to this claim by Great Britain in the terms of any subsequent pacification.
This claim, too, on the part of Great Britain, gave rise to a serious collision between that country and the United States, early in the present century, which resulted in open hostilities in 1812, the occasion and the history of which are familial- to the intelligent reader. >
Upon the return of peace, the treaty which was entered into at Ghent, did not include a settlement of this question. At a subsequent period, in 1818, negotiations upon the subject were resumed, and the question, not only of impressment, but of blockade, contraband, trade with the colonies of a belligerent, prize courts, letters of marque, and all the great questions involving the great interests of commerce in time of war, were elaborately discussed, for the purpose of being defined and settled by conventional stipulations.
By the 4th article of the proposed treaty Great Britain was to surrender all claim of right to impressment on the high seas, and it was agreed between the negotiators that formal lists of American and British seamen should be made, and that they should determine the rights of nationality in any disputed case. But on the part of Great Britain it was desired that all seamen who were to be considered citizens of the United States should be naturalized before the signature of the treaty; while on the part of the United States, it was desired that the limitation should extend to the ratification of the treaty, and upon this trivial difference the negotiations of 1818 terminated.1
In the discussions between. the United States and Great Britain, in 1842, growing out of the differences relative to the north-eastern boundary of the United States, dividing the state of Maine from the British possessions, and which resulted in the Ashburton treaty, Mr. Webster on the part of the United States government, declared, that the rule as to the right of search, hereafter to be insisted upon, would be," that every regularly documented American merchant vessel, would be evidence that the seamen on board were American, and would find their protection in the flag that was over them."
Although the right of search is obviously and Rteht °? essentially a belligerent right, there being no power of the supwhatever in government vessels to search merchant- siavt'trade.41 men in time of peace, yet such a power or privilege, like any other, may be mutually conceded, by treaty between nations. "We accordingly find that such privilege has been in this manner accorded and established in the single case of searching vessels navigating in certain latitudes to ascertain if they have any slaves on board.
Treaty stipulations to this effect were entered into between Great Britain and Portugal in July,
1 Vide Mr. Rush's Narrative of a Residence at the Court of London, p. 376.
1817; between Great Britain and Spain in September, 1817; between Great Britain and the Netherlands in May, 1818; and between Great Britain and Sweden in 1824.
By such mutual concessions, national pride and national jealousy were alike sacrificed in the great cause of humanity; and this, on the part of Great Britain especially, was indeed, no inconsiderable sacrifice—fully justifying the noble sentiments expressed upon the occasion by Sir James Mackintosh:
"For myself, I feel a pride in the British flag being, for this object alone, subjected to search by foreign ships. It has now risen to loftier honor by bending to the cause of justice and humanity. That which has braved the mighty, now lowers itself to the feeble and defenceless, to those, who, far from being able to make us any return, will never hear of what we have done for them, and are probably ignorant of our name."1
Neutral terri- One topic only remains for consideration, emDy^bemge?16 braced within the general subject of this chapter— and that is, the immunity of neutral territory from the violence of belligerents.
It is a well-established principle in the law of nations, that no hostile operations can be conducted or committed in a neutral territory. This immunity extends not only to the actual territory, but the entire neutral jurisdiction, which includes the ports; harbors, and bays of a neutral state, and such distance from the shore as the custom of
1 Mackintosh's Life, by his Son, vol. II., 393, C94.
nations admits or establishes as within jurisdictional limits—a marine league being the distance usually so considered.
It follows, therefore, that if captures are made by Captures ffle
, ... .' . i • i *t gal made with
belligerent parties anywhere within such neutral in neutral jurjurisdiction, they are illegal and void, and restitu-lsdlctl0ntion of the captured property must be ordered on behalf of the owner or claimant. This doctrine is asserted by all the great writers upon the law of nations, with but one exception, that of Bynkershoek, who, while admitting the general validity of the rule of immunity, contends that an exception or qualification exists in the case of a vessel that has been chased by a cruiser within neutral jurisdiction, and has been captured there dura fervet opus, if such capture can be made without injury to the neutral power. But this exception seems never to have been recognized or acted upon; on the contrary, the immunity has been uniformly held to be absolute, without any exception whatever.1
So vigorous, indeed, has been the enforcement of this rule, that prizes made by vessels cruising off and on or near a neutral port, have been ordered to be restored by the British courts of admiralty; and many neutral states have adopted regulations whereby a belligerent vessel is not allowed to leave their ports within twenty-four hours after the departure of another belligerent vessel from the same port.
But though captures may not be made within Neutral states neutral jurisdiction, yet, being made outside, and reieasTrcp^0
1 Bynkershoek, Qu. Jur. Pub., Lib. I., c. viii.; vide Jefferson Correspondence, vol. III., page 243 et seq.
tures brought brought into neutral ports, no power of restitution ports by belli- or release exists on the part of the neutral, except gerents. where some treaty intervenes, or the capture has been made in violation of its own neutrality laws and regulations.
Formerly captors were not allowed to carry their prizes into neutral ports; now, however, the custom and practice of nations is altogether otherwise, and it is the invariable opinion, even of such as are most jealous of neutral rights and privileges, that a neutral state has no power to interfere with prizes brought into her ports, with the exception specified. , In a great number of instances, however, treaty stipulations have intervened, and changed the rule of non-interference.
As early as the year 1406 such a treaty was made between Henry IV. and the Duke of Burgundy.
The United States government has a treaty stip ulation, modifying the rule of non-interference, so far only as to prohibit the sale of prizes taken by belligerents at war with either party in their ports, with France, in 1778; and again in 1800, a treaty between the United States and the United Provinces, made in 1782, allows to each party the right to sell any prizes brought by it into the ports of the other.
No treaty stipulation upon the subject exists between the United States and Great Britain.