$106. Jurisdiction of the State and private Such was their judgment in the case of the Spanish 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 (i). 3. Both the public and private vessels of every nation, over its public on the high seas, and out of the territorial limits of any vessels on the other State, are subject to the jurisdiction of the State to which they belong (k). high seas. 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 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 (1). (i) The Santissima Trinidad, 7 Wheaton, 352. (k) [R. v. Anderson, L. R. 1 C. C. R. 161; R. v. Dudley, 14 Q. B. D. 273.] (7) Vattel, liv. i. ch. 19, § 216, liv. ii. ch. 7, 80. Grotius, de Jur. Bel. ac. 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 (m). 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 (n). 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. of seamen by § 107. In respect to public commissioned vessels belonging to Impressment the State, their entire immunity from every species and England. purpose of search is generally conceded. As to private vessels belonging to the subjects of a foreign nation, the Pac. lib. ii. cap. iii. § 13. Rutherforth's Inst. vol. ii. b. 2, ch. 9, §§ 8, 19. P. 714. (n) The Louis, 2 Dods. Ad. 238; The Marianna Flora, 9 Wheaton, 39; The Antelope, 10 Wheaton, 122; et vide infra, § 120 et seq. § 108. Discussions on this point. 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 (0). 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 admitted, took possession of the public mind of America; and this feeling, it (0) Edinburgh Review, vol. xi. art 1. Mr. Canning's Letter to Mr. Monroe, September 23, 1807. American State 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 convention, 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 extraterritorial 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, primá 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 respecting 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 |