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respected, as exclusively concerning the internal discipline of the vessel, in which the local authorities ought not to interfere, unless their protection is demanded, or the peace and tranquillity of the port is disturbed; the Council of State is of opinion that this distinction, indicated in the report of the Grand Judge, Minister of Justice, and conformable to usage, is the only rule proper to be adopted, in respect to this matter; and applying this doctrine to the two specific cases in which the consuls of the United States have claimed jurisdiction; considering that one of these cases was that of an assault committed in the boat of the American ship Newton, by one of the crew upon another, and the other case was that of a severe wound inflicted by the mate of the American ship Sally upon one of the seamen, for having made use of the boat without leave; is of opinion that the jurisdiction claimed by the American consuls ought to be allowed, and the French tribunals prohibited from taking cognizance of these cases."1 (a)
Exemption of public or
Whatever may be the nature and extent of the exprivate ves- emption of the public or private vessels of one State
1 Ortolan, Régles Internationales de la Mer, tome i. pp. 293-298. Appendice, Annexe H. p. 441.
(a) [See Rev. Etr. & Fr. N. S. t. ii. p. 206, for a review of Ortolan's work, by Mr. Wheaton, in which this subject is discussed. The Convention of February 23, 1853, Art. 8, between France and the United States, vide infra, adopts, as to acts of interior discipline, the principle of the French law, and submits all such matters to the consuls, to the exclusion of the local authorities.
As to whether the local authorities, in a foreign port, have a right to interfere with the condition of persons or things, on board of a merchant vessel, as established by the laws of the country to which it belongs, and especially whether they can do so when such vessel has been brought into the port by unlawful force, see the correspondence between Mr. Webster and Lord Ashburton, in the case of The Creole. Webster's Works, vol. vi. p. 303, and the note of the Attorney-General, Mr. Legaré, to Lord Ashburton, July 20, 1842. Opinions of Attorneys-General, vol. iv. p. 98. Also an article on the same case by Mr. Wheaton. Rev. Étr. et Franç. tom. ix. p. 345.
No adjustment having been made, during the negotiations of 1842, of the cases arising out of the liberation of American slaves, in the Bahama and Bermuda islands, by their respective authorities, from vessels forced in to escape shipwreck, or actually shipwrecked, they have been brought before the joint commission, now sitting in London, under the Convention of February 8, 1853, (United States Treaties, 1853-4, p. 110,) for the settlement of all claims of the subjects of Great Britain on the government of the United States, and of the citizens of the United
from the local jurisdiction in the ports of another, it is sels from evident that this exemption, whether express or implied, jurisdiction can never be construed to justify acts of hostility com- extend to mitted by such vessel, her officers, and crew, in viola- justify acts tion of the law of nations, against the security of the sion against the security State in whose ports she is received, or to exclude the of the State. local tribunals and authorities from resorting to such measures of self-defence as the security of the State may require.
This just and salutary principle was asserted by the French Court of Cassation, in 1832, in the case of the private Sardinian steam-vessel, The Carlo Alberto which, after having landed on the southern coast of France the Duchess of Berry and several of her adherents, with the view of exciting civil war in that country, put into a French port in distress. The judgment of the Court, pronounced upon the conclusions of M. Dupin ainé, Procureur-Général, reversed the decision of the inferior tribunal, releasing the prisoners taken on board the vessel, upon the following grounds:
1. That the principle of the law of nations, according to which a foreign vessel, allied or neutral, is considered as forming part of the territory of the nation to which it belongs, and consequently is entitled to the privilege of the same inviolability with the territory itself, ceases to protect a vessel which commits acts of hostility in the French territory, inconsistent with its character of ally, or neutral; as if, for example, such vessel be chartered to serve as an instrument of conspiracy against the safety of the State, and after having landed some of the persons concerned in these acts, still continues to hover near the coast, with the rest of the conspirators on board, and at last puts into port under pretext of distress.
2. That supposing such allegation of distress be founded in fact, it could not serve as a plea to exclude the jurisdiction of the local tribunals, taking cognizance of a charge of high treason
States on that of Great Britain, presented to either government for its interposition with the other, since the treaty of Ghent, of 24th of December, 1814. The American and English commissioners not being able to agree on these claims, they have been referred, according to the provisions of the treaty, to the umpire, whose decision is final. Letter of the Commissioner of the United States, Mr. Upham, September 27, 1854.]
against the persons found on board, after the vessel was com pelled to put into port by stress of weather.1
So also it has been determined by the Supreme Court emption of of the United States, that the exemption of foreign pubpublic ships from the lic ships, coming into the waters of a neutral State, from diction does the local jurisdiction, does not extend to their prize ships, or goods captured by armaments fitted out in its ports, in violation of its neutrality, and of the laws enacted to enforce that neutrality.
prize goods violation of the neutrality of the country into
Such was their judgment in the case of the Spanish which they ship Santissima Trinidad, from which the cargo had been taken out, on the high seas, by armed vessels commissioned by the United Provinces of the Rio de la Plata, and fitted out in the ports of the United States in violation of their neutrality. The tacit permission, in virtue of which the ships of war of a friendly power are exempt from the jurisdiction of the country, cannot be so interpreted as to authorize them to violate the rights of sovereignty of the State, by committing acts of hostility against other nations, with an armament supplied in the ports, where they seek an asylum. In conformity with this principle, the court ordered restitution of the goods claimed by the Spanish owners, as wrongfully taken from them.2
§ 10. Jurisdiction of the State
4. Both the public and private vessels of every nation, on the high seas, and out of the territorial limits of any over its pub- other State, are subject to the jurisdiction of the State lic and pri
vate vessels to which they belong.
on the high
Vattel says that the domain of a nation extends to all its just possessions; and by its possessions we are not to understand its territory only, but all the rights (droits) it enjoys. And he also considers the vessels of a nation on the high seas as portions of its territory. Grotius holds that sovereignty may be acquired over a portion of the sea, ratione personarum, ut si classis qui maritimus est exercitus, aliquo in loco
1 Sirey, Recueil général de Jurisprudence, tome xxxii. Partie I. p. 578. M. Dupin ainé has published his learned and eloquent pleading in this memorable case, in his Collection des Réquisitoires, tome i. p. 447.
2 Wheaton's Rep. vol. vii. p. 352. The Santissima Trinidad.
maris se habeat. But, as one of his commentators, Rutherforth has observed, though there can be no doubt about the jurisdiction of a nation over the persons which compose its fleets when they are out at sea, it does not follow that the nation has jurisdiction over any portion of the ocean itself. It is not a permanent property which it acquires, but a mere temporary right of occupancy in a place which is common to all mankind, to be successively used by all as they have occasion.'
This jurisdiction which the nation has over its public and private vessels on the high seas, is exclusive only so far as respects offences against its own municipal laws. Piracy and other offences against the law of nations, being crimes not against any particular State, but against all mankind, may be punished in the competent tribunal of any country where the offender may be found, or into which he may be carried, although committed on board a foreign vessel on the high seas.2
Though these offences may be tried in the competent court of any nation having, by lawful means, the custody of the offenders, yet the right of visitation and search does not exist in time of peace. This right cannot be employed for the purpose of executing upon foreign vessels and persons on the high seas the prohibition of a traffic, which is neither piratical nor contrary to the law of nations, (such, for example, as the slave trade,) unless the visitation and search be expressly permitted by international compact.3
Every State has an incontestable right to the service of all its members in the national defence, but it can give effect to this right only by lawful means. Its right to reclaim the military service of its citizens can be exercised only within its own territory, or in some place not subject to the jurisdiction of any other nation. The ocean is such a place, and any State may unquestionably there exercise, on board its own vessels, its right of compelling the military or naval services of its subjects. But whether it may
1 Vattel, liv. i. ch. 19, § 216, liv. ii. ch. 7, § 80. Grotius, de Jur. Bel. ac. Pac. lib. ii. cap. iii. § 13. Rutherforth's Inst. vol. ii. b. 2, ch. 9, §§ 8, 19.
2 Sir L. Jenkin's Works, vol. i. p. 714.
3 Dodson's Adm. Rep. vol. ii. p. 238. The Louis. Wheaton's Rep. vol. x. pp. 122, 123. The Antelope. Wheat. Rep. vol. xi. pp. 39, 40, The Marianna Flora, et vide infra, § 15.
exercise the same right in respect to the vessels of other nations, is a question of more difficulty.
In respect to public commissioned vessels belonging to the State, their entire immunity from every species and purpose of search is generally conceded. As to private vessels belonging to the subjects of a foreign nation, the right to search them on the high seas, for deserters and other persons liable to military and naval service, has been uniformly asserted by Great Britain, and as constantly denied by the United States. This litigation between the two nations, who by the identity of their origin and language are the most deeply interested in the question, formed one of the principal objects of the late war between them. It is to be hoped that the sources of this controversy may be dried up by the substitution of a registry of seamen, and a system of voluntary enlistment with limited service, for the odious practice of impressment which has hitherto prevailed in the British navy, and which can never be extended, even to the private ships of a foreign nation, without provoking hostilities on the part of any maritime State capable of resisting such a pretension.1
The subject was incidentally passed in review, though not directly treated of, in the negotiations which terminated in the treaty of Washington, 1842, between the United States and Great Britain. In a letter addressed by the American negotiator to the British plenipotentiary on the 8th August, 1842, it was stated that no cause had produced, to so great an extent, and for so long a period, disturbing and irritating influences on the political relations of the United States and England, as the impressment of seamen by the British cruisers from American merchant vessels.
From the commencement of the French revolution to the breaking out of the war between the two countries in 1812, hardly a year elapsed without loud complaint and earnest remonstrance. A deep feeling of opposition to the right claimed, and to the practice exercised under it, and not unfrequently exercised without the least regard to what justice and humanity would have dictated, even if the right itself had been ad
1 Edinburgh Review, vol. xi. art. 1. Mr. Canning's Letter to Mr. Monroe, September 23, 1807. American State Papers, vol. vi. p. 103.