« PreviousContinue »
assumption of municipal jurisdiction over the SeaS. By this imperial decree of Milan, and by the Berlin decree, (a copy of which is given in the section on belligerent rights,) Napoleon fully equaled the British orders in council and act of Parliament in injustice and unfounded pretension, by making municipal law for neutrals on the high seas, and subjecting them to capture for disobedience, and by forbidding all commercial intercourse and correspondence with the British Islands. By the Berlin decree he violated all private rights by way of retaliation, while he held that by sea and land private property ought to go free. By the Milan decree all neutral ships were declared good prize for being forcibly searched by a British man of war, or for being coerced to enter a British port and pay tribute. It asserts the monstrous principle that a neutral ship partially robbed by the British, should for that reason be seized and confiscated by the French and their allies. These bold and reckless assumptions of municipal jurisdiction over neutrals on the high seas fall within the same condemnation which we have bestowed upon the illegal and unjust British orders in council and act of Parliament, and upon the yet more infamous and inhuman practice of impress
ment of seaman from neutral ships. It was truly *
a lawless system of piracy. Public opinion in all enlightened nations, the fundamental declaration on which the Holy Alliance was based, the Gospel and the moral law of nations reprobate these atrocious pretensions to municipal authority over the high seas on the part of France as well as Britain.
SECTION FOURTEENTH. RIGHT OF SEARCH AND MIA- RINE MONOPOLY.
The right of search or visitation is another mode by which Britain has sought to push her maritime jurisdiction beyond the three league line of demarkation, which we have shown to be the true boundary of a nation's internal or municipal jurisdiction. This pretension of Britain, under plea of a belligerent right, has no foundation in right reason or the moral law of nations. A neighbor may call at my house for inquiry or civility, and so one ship may speak or visit another in courtesy. It is not a right to visit, it is a visit. This is the view put forth by Albericus Gentilis, a learned and able Italian professor of civil law at Oxford in 15S2, called by Sir James Mackintosh the forerunner of Grotius. By some he is esteemed the Father of the Law of Nations. Gentilis maintaining for England the freedom of the Mediterranean sea,
in speaking of an attack of a Tuscan ship of war o
upon an English merchantman for forcibly resisting the right of search, and of the taking of the English ship, and of her confiscation by the Florentine Judges, says, the Tuscan object was unlawful. For, says he, “the object of the Tuscans was to search our ship.” “The deed of the Tuscans was unlawful, if a huntsman can not lawfully enter another man's farm without the owner's permission.” (See 11 Wheaton's Reports, 17 and 18.) Grotius, like Gentilis, in his Mare Liberum, maintained the freedom of the seas, and he denied the municipal right of any nation over them. Azumi maintains the same doctrine. All vessels on the high seas are considered, and justly so, as an expansion of the territory of the nation under whose flag they sail. No foreign nation has a right to send her soldiers to search our houses or our ships in port, and of course she has no such right to enter by force, or visit without leave of the commander, any American ship on the high seas, for American ships are the floating American territory attached to and appurtemant to the soil of freedom, and bearing her adventurous sons. This is the view of this subject which our government has long labored to establish. Daniel Webster, Secretary of State of the United States, an eminent lawyer and civilian, in August, 1842, in a letter to Lord Ashburton, the British - 13% o
Envoy Extraordinary, thus speaks of this subject: “England asserts the right of impressing British subjects, in time of war, out of neutral merchant vessels, and of deciding by her visiting officers, who, among the crews of such merchant vessels, are British subjects. She asserts this as a legal exercise of the prerogative of the crown; which prerogative is alleged to be founded on the English law of the perpetual and indissoluble allegiance of the subject, and his obligation, under all circumstances, and for his whole life, to render military service to the crown whenever required. “This statement, made in the words of eminent British jurists, shows, at once, that the English claim is far broader than the basis or platform on which it is raised. The law relied on is English law; the obligations insisted on are obligations existing between the crown of England and its subjects. This law and these obligations, it is admitted, may be such as England may choose they shall be. But then they must be confined to the parties. Impressment of seamen, out of and beyond English territory, and from on board the ships of other nations, is an interference with the rights of other nations; is further, therefore, than English prerogative can legally extend ; and nothing but an attempt to enforce the peculiar law of England beyond the dominions and jurisdiction of
the crown. The claim asserts an extra-territorial authority for the law of British prerogative, and assumes to exercise this extra-territorial authority, to the manifest injury and annoyance of the citizens and subjects of other States, on board their own vessels or the high seas. “Every merchant vessel on the seas is rightfully considered as a part of the territory of the country to which it belongs. The entry, therefore, into such vessel, being neutral, by a belligerent, is an act of force, and is, prima facie, a wrong, a trespass, which can be justified only when done for some purpose, allowed to form a sufficient justification by the law of nations. But a British cruiser enters an American merchant vessel in order to take therefrom supposed British subjects; offering no justification therefor, under the law of nations, but claiming the right under the law of England respecting the King's prerogative. This cannot be defended. English soil, English territory, English jurisdiction, is the appropriate sphere for the operation of English law. The ocean is the sphere of the law of nations; and any merchant vessel on the seas is, by that law, under the protection of the laws of her own nation, and may claim immunity, unless in cases in which that law allows her to be entered or visited.” Again Mr. Webster says: