local tribunals, taking cognizance of a charge of high treason against the persons found on board, after the vessel was compelled to put into port by stress of weather. (a)

The ex

emption of public ships from the

local juris

§ 105. So also it has been determined by the Supreme Court of the United States, that the exemption of foreign public ships, coming into the waters of a neutral State, diction does from 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.

not extend

to their

prize goods violation of

taken in

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 are brought. 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. (a) 63

(a) Sirey, Recueil Général de Jurisprudence, tom. xxxii. partie i. p. 578. M. Dupin, ainé, has published his learned and eloquent pleading in this memorable case, in his Collection des Réquisitoires, tom. i. p. 447.

(a) Wheaton's Rep. vii. 352, The Santissima Trinidad.

[68 It may be considered as established law, now, that the public vessels of a foreign State, coming within the jurisdiction of a friendly State, are exempt from all forms of process in private suits. Nor will such ships be seized, or in any way interfered with, by judicial proceedings in the name and by authority of the State, to punish violations of public laws. In such cases, the offended State will appeal directly to the other sovereign. Any proceeding against a foreign public ship would be regarded as an unfriendly if not hostile act, in the present state of the law of nations. Prizes made by a foreign vessel of war in violation of territorial rights, or when the capturing vessel had been fitted out in violation of neutrality, have been seized in admiralty on proceedings for restitution; but that is on the ground that the prizes were not vessels of war of the capturing State. If they shall have become such by actual transfer to that sovereign, and by an actual and bonâ fide setting-forth and commissioning as public vessels, they will not be so proceeded against by a municipal tribunal, but will have the immunity of public vessels. The Exchange, Cranch, vii. 116. See note 49, infrà, on Neutrality or Foreign-Enlistment Acts. It has recently been decided by the Supreme Court of Massachusetts, that a citizen having a lien upon a vessel, which would have been enforceable had the vessel been private

§ 106. Both the public and private vessels of every nation, on the high seas, and out of the territorial limits of any other State, are subject to the jurisdiction of the State to which they belong.

Juristhe State over its pub

diction of

lic and private vessels on the high

Vattel says that the domain of a nation extends to all seas. 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. (a) 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 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 who 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. (b)

property, cannot proceed against her, if, after the lien attached, she became the property of the United States, and was held by the government as one of the instrustrumentalities by which it discharged its public duties. (See note 61, supra.) In the case before the court, the vessel was fitted out for a lightship, but, at the time of the suit, had not been put upon her station, and was still lying in a private dock. Briggs v. The Lightships, Allen's Rep. xi. In the opinion, the court says, "The exemption of a public ship of war of a foreign government from the jurisdiction of our courts depends rather upon its public than upon its military character." It seems now established, both in England and America, that no vessel or other property used by the government for public purposes, whether those purposes be military, fiscal, or of police, are subject to judicial proceedings, without the consent of the government, whether to enforce a lien, or an open claim, whatever be the nature of the demand. Buchanan . Alexander, Howard, iv. 20. Harris v. Dennie, Peters, iii. 292; The South Carolina, Bee, 422. The Lord Hobart, Dodson, ii. 103. The Comus, cited in Dodson, ii. 464. The Marquis of Huntley, Haggard, iii. 247. The Merchant, Marvin on Salvage, § 122. The Thomas A. Scott, Law Times, N.s. x. 726. The Athol, W. Rob. i. 879. The Birkenhead, Notes of Cases, vi. 365. The Resolute, Law Times, xxxiii. 80. Rogers v. Ragendro Dutt, Moore, P. C. xiii. 236. The Swallow, Swabey, i. 30. The Inflexible, Ib. 32. United States v. Barney, Hall's Law Journal, iii. 128. Osborn v. Bank of U. States, Wheaton's Rep. ix. 870. If this general rule of immunity is to be considered as established in municipal law in favor of the State, it may well be presumed that nations will be prepared to extend its benefits, on like principles, to the public property of friendly States.] — D.

(a) Vattel, liv. i. ch. 19, § 216, liv. ii. ch. 7, § 80.

(b) Grotius, de Jur. Bel. ac Pac. lib. ii. cap. iii. § 13. Rutherforth's Inst. vol. ii. b. ii. ch. 9, §§ 8, 19.

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. (c) 64

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. (d) 65

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 exercise the same right in respect to the vessels of other nations, is a question of more difficulty.

§ 107. 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

(c) Sir L. Jenkin's Works, i. 714.

[64 See note 83, infrà, on Piracy.]—D.

(d) The Louis, Dodson's Adm. Rep. ii. 238. The Antelope, Wheaton's Rep. x. 122, 123. The Marianna Flora, Wheaton's Rep. xi. 39, 40; et vide infrà, § 120 et seq. [65 See note 85, infrà, on the Slave Trade.]-D.

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. (a)

men.

§ 108. The subject was incidentally passed in review, Impressthough not directly treated of, in the negotiations which ment of seaterminated 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 admitted, took possession of the public mind of America; and this feeling, it was well known, co-operated with other causes to produce the state of hostilities which ensued. At different periods, both before and since the war, negotiations had taken place between the two governments, with the hope of finding some means of quieting these complaints. Sometimes the effectual abolition of the practice had been requested and treated of; at other times, its temporary suspension; and, at other times, again, the limitation of its exercise and some security against its enormous abuses.

A common destiny had attended these efforts: they had all failed. The question stood at that moment where it stood fifty years ago. The nearest approach to a settlement was a conven

(a) Edinburgh Review, xi. art. 1. Mr. Canning's Letter to Mr. Monroe, September 23, 1807. American State-Papers, vi. 103.

tion, proposed in 1803, and which had come to the point of signature, when it was broken off in consequence of the British government insisting that the "Narrow Seas" should be expressly excepted out of the sphere over which the contemplated stipulations against impressment should extend. The American minister, Mr. King, regarded this exception as quite inadmissible, and chose rather to abandon the negotiation than to acquiesce in the doctrine which it proposed to establish.

England asserted the right of impressing British subjects. She asserted this as a legal exercise of the prerogative of the crown; which prerogative was 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, showed at once that the English claim was far broader than the basis on which it was raised. The law relied on was English law; the obligations insisted on were obligations between the crown of England and its subjects. This law and these obligations, it was admitted, might be such as England chose they should be. But then they must be confined to the parties. Impressment of seamen, out of and beyond the English territory, and from on board the ships of other nations, was an interference with the rights of other nations; it went, therefore, further than English prerogative could legally extend; and was nothing but an attempt to enforce the peculiar law of England beyond the dominions and jurisdiction of the crown. The claim asserted an extra-territorial authority for the law of British prerogative, and assumed to exercise this extra-territorial authority, to the manifest injury of the citizens and subjects of other States, on board their own vessels, on the high seas.

Every merchant vessel on those seas was rightfully considered as part of the territory of the country to which it belonged. The entry, therefore, into such vessel, by a belligerent power, was an act of force, and was prima facie a wrong, a trespass, which could 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 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 re