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tral nation fits out many fhips of war, and escorts all its trading veffels with them, we have a right to conclude, that he is deviating from her neutrality. If her trade has been exposed to injuries, redrefs might have been fought by negotiation; and certainly it would be incumbent on her to fhow, in the course of this negotiation, either that the old rule had been abused, or that fome new one should be fubftituted in its place. The prefence of the convoy gives scarcely any better fecurity to the belligerent, than the mere existence of the general law against contraband, while it exposes the neutrality of the parties to new risks of being deftroyed. The article in the Ruffian Treaty which referves the right of fearch, prescribes a vifit to the convoy fhip; but this is a conceflion to the neutral, to preclude, except in certain cafes, any further fearch. In this vifit, the papers relating to the merchant fhips are the only fubjects of inquiry. (See Ruffian Treaty, June 1801, Art. IV.)

If we examine the authorities themselves, we fhall find reason to be fatisfied, that the learned perfons who maintained the argument for the belligerents, were guilty of no overfight in omitting to fupport their pofitions by afferting the right now claimed.

Wherever the right of fearch is mentioned, either by writers on the law of nations, or in treaties, merchant-fhips are expressly fpecified. For the most part, this defcription is repeated every time the thing is mentioned; but it is always given fo often, as to leave no doubt whatever, that it is understood, where by accident, or for the fake of brevity, it may have been omitted; or this is rendered equally clear, by the mention of owners, fubjects, &c. See Confelato del Mare, cap. 273.-Treaty of Whitehall, 1661, Art. 12.-Treaty of Copenhagen, 1670, Art. 20.-Treaty of Breda, 1667, Art. 19.-Treaty of Utrecht, 1713, Art. 24.; of Commerce with France, 1786, Art. 26. & feqq.-Treaty with America, 1795, Art. 17. 18. 19.; and all others, where the right of fearch is mentioned.-Vattell, liv. 3. chap. 7. § 113. & 114.—Martens, Effai concernant les armateurs, c. 2. § 20.-Hubner, de la faifie des Batiments Neutres, Voi. I. part. 1. chap. 8. § 7.-Whitelock's Mem. p. 634.-Molloy de Jure Mar. Book 1. chap. 5.

The pretension of visiting ships of war, has never been brought forward, so far as we know, except accidentally in the two cases which shall presently be mentioned; and in these it was given up, before time had been allowed for discussing the subject. This is the reason why no direct authority can be found upon the point in writers on the law of nations, and no stipulation respecting it in treaties. But all the general principles which are recog nized, both by authors and negotiators, most uniformly and positively exclude such a pretension.

It is unnecessary to prove, that the territory of an independent state is inviolable, and that no other state has a right to enter it without permission. Vattell lays down this principle as follows. Non seulement on ne doit point usurper le territoire d'autrui, il faut encore le respecter et s'abstenir de tout acte contraire aux droits du souverain; car une nation etrangere ne peut s'y attribuer aucun droit."" On ne peut donc, (he infers), sans faire injure à l'etat entrer à main armée dans son territoire pour y poursuivre un coupable et l'enlever. '-Liv. 2. chap. 7. §93.; see also § 64 & 79. All other writers, without exception, agree in this; and it is a common stipulation in treaties of peace,-not that one party shall refrain from pursuing criminals into the territories of the other, for this would be superfluous,-nor that one party shall have the right to pursue criminals in the other's territory, for this never was granted in any one instance, but that the parties shall themselves mutually give up the persons of certain criminals who may take refuge in their territories; both the contracting parties thereby admitting, that the state from which the criminal escapes has no other means whatever of recovering him, and that he is under the power of the state alone into whose territory he has fled.

That the same principle of inviolability applies fully to the ships of a nation, and that these floating citadels are as much a part of the territory as if they were castles on the dry land, is another position equally incontestable. In what particular, at all essential to the argument, do those vessels differ from forts? They are the public property; held by men in the public service, and under martial law. Moreover, the supreme power of the state resides in them; the sovereign is represented in them, and every thing done by them is done in his name. Accordingly, we find that those vessels of war are held by writers on public law to carry with them an extension of the territorial rights of the state. Vattell says expressly, that the territory of a nation comprehends every part of its just and lawful possessions; and he adds, Et par ses possessions il ne faut pas seulement entendre ses terres, mais tous les droits dont elle jouit. (II. 7. § 80.) In another part of his work, indeed, speaking of the status of children born at sea, he lays it down, that if they are born in a vessel belonging to any country, ils peuvent être reputés nés dans le territoire; car il est naturel de considerer les vaisseaux de la nation comme des portions de son territoire, surtout quand ils voguent sur une mer libre, puisque l'etat conserve sa jurisdiction dans ces vaisseaux. '-(Liv. I. chap. 19. § 216.) But, if this means any thing more, in so far as it applies to merchant ships, than that they are parts of the territory of the

country,

country, to the effect of rendering the children born on board natives of the country, it is inconsistent with the admission made by Vattell in another chapter, that merchant ships may be searched, unless, indeed, we are to admit, that although those vessels are parts of the territory, yet the general convenience of nations has established the right of violating them, for the reasons formerly stated. Vattell further lays it down, that children born at the army, or at the residence of an ambassador, are in the same predicament; car un citoyen absent pour le service de l'etat, et qui demeure dans sa dependance et sous sa jurisdiction, ne peut être consideré comme etant sorti du territoire. '—Ibid. § 217.

But the authority of Grotius is, in every respect, better entitled to regard than that of the above mentioned writer, whom, indeed, we have only quoted, because it is the custom to appeal to him on all occasions, and because he is exceedingly favourable to the claims of belligerents. Grotius lays it clearly down, that sovereignty over a portion of the sea (imperium in maris portionem) may be acquired, like other sovereignties, in two waysratione personarum, et ratione territorii; ratione personarum, ut si classis, qui maritimus est exercitus, aliquo in loco maris se habeat; ratione territorii, quatenus ex terra cogi possunt qui in proxima maris parte versantur, nec minus quam si in ipsâ terrâ reperirentur.'-(De Jur. Bel. & Pac. Lib. II. cap. 3. § 13.) Here, then, we find, that the sea, upon which a ship of war lies, is as much under the dominion, and part of the territory of the nation to which that ship belongs, as the sea under the guns of one of its forts, or within gunshot of its shores. The vessel,' says Grotius, occupies the sea for its sovereign, in the same manner as an army does the land on which it encamps.' If an Austrian army is marching through Prussian Poland to attack the French, and a Russian army encamps near it, on its march towards Turkey; should we not reckon it an act of direct hostility, were a detachment of the former to enter the camp of the latter forcibly, in order to search it for deserters? An English and American ship of war meeting on the sea, which is common to both, are exactly in this relative situation. Classis maritimus est exercitus-says Grotius. If the presence of the ship of war converts the neighbouring sea into national territory, much more is the ship itself to be viewed in that light.

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There are several analogical cases in the law of nations, which add great weight to this doctrine, as applied to the inviolability of ships of war. It may be enough to mention the rights of ambassadors. The inviolability of their houses and persons has long been admitted in its fullest extent by all jurists, and by the prac tice of all civilized nations without exception. They cannot be

arrested

arrested for crimes; nor can they, or their suite, be affected, either in their persons or goods, for debts. They are not held to be within the jurisdiction of the country in which they reside; and all attempts to touch them, even by the modes which the law of the land prescribes, are offences against the law of nations.-Vattell, liv. iv. chap. 7. & 8.-Grotius, De Jur. Bel. & Pac. xviii. 4. 4.-See, too, the English stat. 7. Anne, c. 12., which is only declaratory of the law of nations.-Now, there is no one reason for the inviolability of ambassadors, which does not apply to national ships. Whether we deduce that inviolability from respect due to the representative of a sovereign, from the presumption that the sovereign never intended to submit his minister to a foreign jurisdiction,-from the necessity of entire independence to the transaction of the business committed to him,-or from the risk in which a contrary doctrine would involve the mutual good understanding of nations ;-it is clear, that all these topics apply to the case of ships of war, and several of them with much greater force.

A consequence, of peculiar absurdity, and repugnant to every principle which jurists have laid down, would follow from admitting the right of nations to search each other's ships. If the search of a neutral vessel leads to the discovery of contraband; or, if it is resisted, when it is the right of the belligerent vessel, -then the former is detained, and brought into port for coudemnation. But can it be maintained that a court of admiralty is to sit in judgment upon the mutual claims of sovereign states? The captor, indeed, may acknowledge its jurisdiction; but can a foreign and independent sovereign be required to do so? All jurists agree that there is no human court in which the disputes of nations can be tried; that every power is the sole judge of its own cause; and that, if aggrieved, it has but one remedy, viz. war. To prove this by quotations, would be endless.-In the case of private ships, the law of nations is explicit. The prize courts of the captor's country judge, according to that law, the questions which arise between the parties; and it is a usual thing to declare, by express stipulation, that this jurisdiction shall be exercised. (See c. 9. Treaty of Paris, 1763, Art. 16., and of Versailles, 1783, Art. 21. and Treaty of Com. 1786, Art. 32. 33. 34. & 35.) But no treaty ever alluded to such a jurisdiction over ships of war detained and brought into port. In the case of private ships, the jurisdiction thus constituted by the law of nations, and recognized by treaties, is an arrangement generally convenient, and called for by the right of search, upon which it is a necessary check. The total silence of all authorities and treaties respecting such a jurisdiction in the case of national ships,

and

and its direct repugnance to the general principles laid down, without any such exception, by all writers, is the clearest proof, that the right of search and detention is equally inapplicable to the case of national ships. If this right existed by the law of nations, the only conceivable mode of legally controuling its exercise would not be so entirely repugnant to the principles of that

law.

But some thoughtless persons have maintained, that Great Britain has a right to search ships of war, in virtue of her naval supremacy; and they have attempted to connect this pretension. with the old claim of a sovereignty over the sea. We shall therefore briefly advert to that question.

The doctrine, that the sea may be appropriated by a people beyond the portion of it immediately adjoining to their territory, and commanded by that territory, has been denied by the buĺk of authorities on the principles of the law of nations. Grotius scarcely admits more than the possibility of appropriating the waters immediately contiguous; though he adduces a number of quotations from ancient authors (after his usual manner) which shew only, that such an idea, at some time, had entered somebody's head, the common defect of his mode of treating a subject. For example, he quotes the passage where Virgil says of the Romans, Qui mare, qui terras omni ditione tenerent,' and the complimentary verses of Oppian to the emperor, telling him that the sea rolled under his laws.' (De Jur. Bel. & Pac. II. 3. 8-13.) But he never dreamt of any thing more than a limited portion being claimed; and he uniformly speaks of pars, or portio, maris, "-always confining his view to the effects of the neighbouring land in giving a sovereignty of this sort. Puffendorff lays it down, that in a narrow sea, this dominion belongs to the sovereigns of the surrounding land, and regulates the distribution of it, where there are several such sovereigns, by the same rules which are applicable to neighbouring proprietors on a lake or river, supposing that no compact has been made in favour of one by the rest, as is pretended, he says, by Great Britain. But he expresses himself with a sort of indignation at the idea, that the main ocean can ever be appropriated. Nullus probabilis prætextus,' he says, adferri potest, quare unus aliquis populus in totum oceanum dominium velit prætendere, cum hoc effectû ut cæteros omnes a navigatione ejusdem velit arcere.' The whole passage is very eloquent, as well as judicious and satisfactory. (De Jur. Nat. & Gent. Lib. IV. cap. 5. §7.) Selden devotes the first book of his celebrated treatise, to the proposition, that the sea may be made property; which he attempts to show, by collecting a multitude of quotations from ancient authors, in the

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