Page images

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 Eng. land 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:

" The American Government, then, is prepared to say that the practice of impressing seamen from American vessels can not hereafter be allowed to take place. That practice is founded on principles which it does not recognise, and is invariably attended by consequences so unjust, so injurious, and of such formidable magnitude, as can not be submitted to.

“In the early disputes between the two Governments on this so long contested topic, the distinguished person to whose hands were first intrusted the seals of this department declared, that the simplest rule will be, that the vessel being American shall be evidence that the seamen on board are such.'

“ Fifty years' experience, the utter failure of many negotiations, and a careful consideration now had of the whole subject at a moment when the passions are laid, and no present interest or emergency exists to bias the judgment, have fully convinced this Government that this is not only the simplest and best, but the only rule, which can be adopted and observed, consistently with the rights and honor of the United States and the security of their citizens. That rule announces therefore, what will hereafter be the principle maintained by their Government. In every regularly documented American merchant vessel the

crew who navigate it will find their protection in the flag which is over them.

6 This announcement is not made, my lord, to revive useless recollections of the past, nor to stir the embers from fires which have been, in a great degree, smothered by many years of peace. Far otherwise. Its purpose is to extinguish those fires effectually, before new incidents arise to fan them into flame. The communication is in the spirit of peace, and for the sake of peace, and springs from a deep and conscientious conviction that high interests of both nations require that this so-long contested and controverted subject should now be finally put to rest. I persuade myself, my lord, that you will do justice to this frank and sincere avowal of motives, and that you will communi. cate your sentiments, in this respect, to your government."

Noah Webster, our distinguished countryman, in his Treatise on the Rights of Neutral Nations, forcibly illustrates our doctrines, and affirms that, “the ocean is the common highway of mankind; and that no nation can appropriate it to its own use, exclusively.” He admits that a maritime appurtenant jurisdiction to the extent of a marine league from the shore exists, but that on the high seas each nation has, in the nature of things, the same exclusive jurisdiction over its ships and the

property and persons on board, that it possesses over the persons and property of its citizens and others within its territorial limits.

“ These principles," says this learned and clear sighted civilian, "result from the very nature of society, of ownership and sovereignty. The practice, therefore, of stopping ships on the ocean, without permission of the owners, searching them, and taking out of them the enemy's goods, or turning them out of their course, so far from being a natural right of powers at war, is a direct violation of the right of property and of sorereignty." (See Dr. Webster's Miscellaneous Papers, p. 95, 96, 113, 116, 117.) This exclusive jurisdiction of every State over its ships at sea, he declares to be natural right of every nation, which no other State can abridge or modify, without its consent.Atp. 113 he correctly and strongly affirms : The right of search, unless authorized by treaty, is no other than the practice of violence, established by the arbitrary usage of tyrannical princes or states for their own convenience, but in direct opposition to morality and justice.

Though the exclusive jurisdiction of a nation over its own ships on the high seas excludes all right of foreign entry or search, as a general principle, yet an exception must be admitted. All nations have a right, and it is their duty to cap


ture piratical ships and pirates on the high seas, and to punish such criminals as the common enemies of the human race. By our law the slave trade is declared piracy, and such it must be deemed by the universal moral law. Man-steal. ing, with its murders and atrocities consequent upon it, is piracy in the eye of God. Any vessel, which gives probable cause or reasonable suspicion of piracy, or of being a slaver, might be searched by the commander of any ship of any nation. This is a necessary regulation of marine police, essential to the safety of the seas. If upon such search the suspected vessel is not found to be a pirate or slaver, she must be left unmolested to pursue her voyage. Such entry of a foreign vessel, though a mistake, when founded on probable cause, must be considered by the moral law of nations a marine trespass, that is excusable, if not justifiable. It is a case of danmum absque injuria.

Another exception must be allowed to our general principle. As a natural and necessary right of self-defence, we hold that belligerents have a right to capture any ship carrying arms, ammunition, munitions of war or soldiers to an enemy, and as a legitimate consequence we must admit a right of search limited as above as a belligerent right in all cases of probable cause or well grounded suspicion of such violation of neutrality. These

« PreviousContinue »