specting the king's prerogative. This could not be defended. English soil, English territory, English jurisdiction, was the appropriate sphere for the operation of English law. The ocean was the sphere of the law of nations; and any merchant vessel on the high seas was, by that law, under the protection of the laws of her own nation, and might claim immunity, unless in cases in which that law allows her to be entered or visited.

If this notion of perpetual allegiance, and the consequent power of the prerogative, were the law of the world; if it formed part of the conventional code of nations, and was usually practised, like the right of visiting neutral ships, for the purpose of discovering and seizing enemy's property; then impressment might be defended as a common right, and there would be no remedy for the evil until the international code should be altered. But this was by no means the case. There was no such principle incorporated into the code of nations. The doctrine stood only as English law, not as international law; and English law could not be of force beyond English dominion. Whatever duties or relations that law creates between the sovereign and his subjects, could only be enforced within the realm, or within the proper possessions or territory of the sovereign. There might be quite as just a prerogative right to the property of subjects as to their personal services, in an exigency of the State; but no government thought of controlling, by its own laws, the property of its subjects situated abroad; much less did any government think of entering the territory of another power, for the purpose of seizing such property and appropriating it to its own use. As laws, the prerogatives of the crown of England have no obligation on persons or property domiciled or situated. abroad.

"When, therefore," says an authority not unknown or unregarded on either side of the Atlantic, "we speak of the right of a State to bind its own native subjects everywhere, we speak only of

[ But surely, on the question of the right to enter, and exercise authority on board of, a foreign vessel, to enforce a municipal demand, it is immaterial whether the demand, as it is not belligerent, be one which every nation recognizes as valid, or one which is peculiar to the nation enforcing it. It is not the validity of the demand, under municipal law or international law, that is in question, but the right to enforce it on board a foreign vessel. It is a question of territorial jurisdiction solely. And if, by the words " usually practised, like the right of visiting neutral ships," the author means, for the purpose of the argument, to assume impressment from foreign vessels to be, like the practice he refers to, a recognized right, he would seem to assume the question in dispute.] - D.

its own claim and exercise of sovereignty over them, when they return within its own territorial jurisdiction, and not of its right to compel or require obedience to such laws on the part of other nations, within their own territorial sovereignty. On the contrary, every nation has an exclusive right to regulate persons and things within its own territory, according to its sovereign will and public polity."

men-con

Impress- § 109. But impressment was subject to objections of a ment of sea- much wider range. If it could be justified in its applicatinued. tion to those who are declared to be its only objects, it still remained true that, in its exercise, it touched the political rights of other governments, and endangered the security of their own native subjects and citizens. The sovereignty of the State was concerned in maintaining its exclusive jurisdiction and possession over its merchant ships on the seas, except so far as the law of nations justifies intrusion upon that possession for special purposes; and all experience had shown that no member of a crew, wherever born, was safe against impressment when a ship was visited.

In the calm and quiet which had succeeded the late war, a condition so favorable for dispassionate consideration, England herself had evidently seen the harshness of impressment, even when exercised on seamen in her own merchant service; and she had adopted measures, calculated if not to renounce the power or to abolish the practice, yet, at least, to supersede its necessity, by other means of manning the royal navy, more compatible with justice and the rights of individuals, and far more conformable to the principles and sentiments of the age.

Under these circumstances, the government of the United States had used the occasion of the British minister's pacific mission, to review the whole subject, and to bring it to his notice and to that of his government. It had reflected on the past, pondered the condition of the present, and endeavored to anticipate, so far as it might be in its power, the probable future; and the American negotiator communicated to the British minister the following, as the result of those deliberations.

The American government, then, was prepared to say that the practice of impressing seamen from American vessels could not hereafter be allowed to take place. That practice was founded on principles which it did not recognize, and was invariably attended

by consequences so unjust, so injurious, and of such formidable magnitude, as could 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 the Department of State, 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 reconsideration of the whole subject when the passions were laid, and no present interest or emergency existed to bias the judgment, had convinced the American government that this was not only the simplest and best, but the only rule which could be adopted and observed, consistently with the rights and honor of the United States, and the security of their citizens. That rule announced, therefore, what would hereafter be the principle maintained by their government. In every regularly documented American merchant vessel, the crew who navigated it would find their protection in the flag which was over them. (a) 67

(a) Wheaton's Hist. Law of Nations, 737-746. Mr. Webster's Letter to Lord Ashburton, August 8, 1842.

[67 Impressment of Seamen. — This subject has been confused by the questions which have been discussed in connection with it. One of these is the conflicting claims of Great Britain and the United States to the allegiance of the naturalized seaman, growing out of the theory of inalienable allegiance asserted by the former nation and denied by the latter. But that is not a maritime question. Great Britain makes no claim to the inalienable allegiance of a seaman which it does not make to that of all other persons. Suppose the United States had conceded the general principle, that naturalization is powerless against the claim of an original sovereign, -it would not have touched the question where and how that claim should be asserted. As has been said before (note 66), the question is one of territorial jurisdiction, and not of merits. It presents itself in the same form if the seaman has never been naturalized. The question of territorial jurisdiction has also been obscured by connecting it with the admitted belligerent right of search and capture. The right in question has nothing to do with that belligerent right. The seaman is not an enemy, or contraband; nor is the vessel in which he is serving, or on board which he is a passenger, either violating neutrality, or engaged in the enemy's service. On the contrary, the ground of the demand is, that the seaman is a subject of the capturing power, and owes it allegiance and service, which it requires him to render. The demand is the same in principle upon all other persons as upon seamen, and upon men who left their country when infants as upon actual deserters from public service. It can be enforced in profound peace as well as during a war, if enforceable at all. And it is immaterial what the immediate object of the sovereign is in demanding his subject, whether to try him as a criminal or to put him to service, and to what service, and on what grounds due. Admitting the validity of the demand, the question remains, whether it can be enforced on board the vessel of a friendly State at sea. When the proposition is brought down to its strict limits, it is found to be this, and

Consular

§ 110. The municipal laws and institutions of any jurisdiction. State may operate beyond its own territory, and within the territory of another State, by special compact between the two States.

no more: Can a State take from a merchant-vessel of a friendly State, at sea, a person on whom it has a sovereign claim, assumed to be valid? It is sufficient to state this proposition, to ensure its rejection. The truth is, the necessities of a great maritime belligerent led it to assert this claim to secure seamen for its fleets, at a time when the rules of maritime international law were not as well settled or understood as now; and when, perhaps, it was possible to cite some analogous practices occasionally enforced, and yielded to of necessity, in earlier times of still obscurer law. To make the claim less odious and more defensible on usage, it was limited to seamen who owed naval service to the State, and to times when the State was engaged in war. At last, to give it further countenance, it was disclaimed as a general right, even in such cases, and appended as an incident to the admitted belligerent right of search. In the royal declaration of 1812, on the occasion of the American war, the Prince Regent says it is not claimed that Great Britain can stop and search a foreign vessel to find and remove British seamen; but that it is claimed that, if, in the exercise of the right of belligerent search, a British seaman happens to be found on board, he may be removed. (Ann. Reg. 1813, p. 2.) It will be seen that this reduces the claim from one resting on a general principle to an exception from a principle, depending upon its incidental if not accidental quality to reverse its character into a right. To sustain it in this limited sense, a usage of nations must be shown; for no one will pretend, in this age of international law, that a belligerent cruiser, finding nothing that he can claim under laws of war, can, on closing his search and visit, take away with him all persons or things he may happen to find to which his State has a municipal claim. There is neither usage nor principle to that effect; nor would the practice now be tolerated nor probably asserted by any civilized nation. In the discussions that arose out of the case of the Trent, neither of the parties to the correspondence, and no writer on the subject, pretended that Mason and Slidell could be removed as citizens, rebels, or criminals. A right to take them out, as distinct from the arrest of the Trent, as a prize proceeding, was not claimed by the United States Government, and their release was placed on that ground. The only justification possible was one to be drawn from a probable ancient practice of taking enemies from neutral vessels; but that justification the United States declined to invoke, and no nation would probably now assert or admit it. See note 89, infrà, on Carrying Hostile Persons or Papers.

English writers, of late, have either been silent on the right of impressment, or have stated it in restricted terms, attached to no principle or usage, or have repudiated it. The claim was defended, in the last generation, in an article in the Edinburgh Review, xi. 22, as to which Professor Bernard says, "The reviewer confounds a belligerent right, permitted by international law to be exercised over a neutral ship, with a claim to enforce English municipal law on board a foreign ship, which international law no more allows in time of war than in time of peace." Notes on the Trent Case, 70. An article in the same Review, of January, 1862, admits that the right was municipal and not under the law of nations, and indirectly abandons it. A writer in the Quarterly Review, of January, 1862, says, "We imputed to the ships in which those sailors might be found no breach of neutrality, and consequently we had no right to take them before a prize court; and therefore, if the right was to be exercised, it was necessary that it should be exercised by our naval officers.

Such are the treaties by which the consuls and other commercial agents of one nation are authorized to exercise, over their own countrymen, a jurisdiction within the territory of the State where they reside. The nature and extent of this peculiar jurisdiction depend upon the stipulations of the treaties between the two States. Among Christian nations it is generally confined to the decision of controversies in civil cases, arising between the merchants, seamen, and other subjects of the State, in foreign countries; to the registering of wills, contracts, and other instruments executed in presence of the consul; and to the administration of the estates of their fellow-subjects, deceased within the territorial limits of the consulate. The resident consuls of the Christian powers in Turkey, the Barbary States, and other Mohammedan countries, exercise both civil and criminal jurisdiction over their countrymen, to the exclusion of the local magistrates and tribunals. This jurisdiction is ordinarily subject, in civil cases, to an appeal to the superior tribunals of their own country. The criminal jurisdiction is usually limited to the infliction of pecuniary penalties; and, in offences of a higher grade, the functions of the consul are similar to those of a police magistrate, or juge d'instruction. He collects the documentary and other proofs, and sends them, together with the prisoner, home to his own country for trial.(a)

... But we do not undertake to justify our acts half a century ago. The law of impressment has been abolished; and it is very certain, that, during the last fifty years, nothing of the kind has been attempted, or even imagined, by England. The law of nations is deduced from the actual practice of nations; and, as during our last war (though sorely in need of sailors) we did not revive our claim to take our sailors out of American ships, the claim must be held to have been conclusively abandoned." Phillimore dismisses the subject with a single, unintelligible remark, — that "the right to look for subjects on the high seas," and to "search neutral vessels for deserters and other persons liable to military or naval service, ought to be confined in its exercise to merchant vessels." Intern. Law, § 335. Mr. Webster, in 1842, closed the correspondence with Lord Ashburton on the subject, by the declaration that "the American Government is prepared to say that the practice of impressing seamen from American vessels cannot hereafter be allowed to take place." Webster's Works, vi. 325. It was, indeed, high time that the subject should be put beyond the pale of juridical or diplomatic discussion.

For the diplomatic history of this subject, see Wait's American State-Papers, vi. 323, 368. Rush's Residence in London, 432. Mr. Madison to Mr. Rose, March 1, 1808. Parliamentary Papers, 1809, 29. Mr. Adams to Mr. Rush, July 28, 1823. Sen. Doc. 18th Cong. 2d Sess. Mr. Gallatin to Mr. Clay, July 28, 1827. Mr. Clay to Mr. Barbour, June 13, 1828. Ex. Doc. 111, 33d Cong. 1st Sess. Mr. Seward to Lord Lyons, Dec. 26, 1861.]—D.

(a) De Steck, Essai sur les Consuls, sect. vii. § 30-40. Pardessus, Droit Com