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style of Grotius, but with much less selection. For example, he quotes Julius Firmicus, who says, in his astrological work, that persons having, in the schemes of their nativity, the moon increasing in the 30th degree of Taurus, fortified with a friendly aspect of Jupiter, shall possess the dominion of sea and land whithersoever they lead an army.' (De Mari Clauso, B. I. c. 14.) He nowhere grapples with the arguments by which such a vague and extensive dominion is satisfactorily shown to be repugnant to the law of nations. And in the second part, which is indeed the main object of his work, he has recourse only to proofs of usage and of positive compact, in order to show that Great Bri tain has the sovereignty of what are called the narrow seas. In this part of his argument, he is more successful, and has had more followers. In truth, it does appear, that, from her great maritime superiority over all neighbouring nations, Great Britain, from very remote ages, enjoyed a preeminence upon the seas surrounding her territory to a considerable distance; and this was naturally increased by her extensive possessions on the opposite shores. The most important documents brought to prove this, are the Ordinance al Hastings in the 2d of King John, and the Record of the dispute between Edward I. and Philip the Fair, in which deputies from several maritime states, themselves parties in the discussion, took the part of England, and admitted her claim. (Selden, B. II., & Molloy de Jur. Mar. B. I. c. 5.) The claim comprehended, at the utmost extent in which England ever stated it, the sea from Cape Finisterre to Cape Stat in Norway. France never subscribed to it. When Holland, at the beginning of Cromwell's protectorate, denied it for the first time, she was repeatedly defeated in the war which ensued, and was effectually humbled. The treaty, 1654, by a declaratory clause, fixed the utmost amount of this claim which Holland could be induced to admit. No mention is made of sovereignty even of the British sea, although Cromwell proposed that this should be generally stated; but the ceremony of striking the ensign, and lowering the topsail, is stipulated on the part of all Dutch ships. of war, and others, which shall meet any British ship of war in the British seas-eo modo quo ullis retro temporibus sub quocumque anteriore regimine + unquam observatum fuit.' (Treaty

England and the other states were neutral in the war between France and Flanders which then fubfifted, and which gave rife to the claims of all those states, except England. No decifion was given by the arbiters who were named on both fides.

This refers to the pretext on which the Dutch had refused the honour of the flag, viz. that the falute was a compliment to the king, and not due to the commonwealth.

VOL. XI. NO. 21.

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of

cluded in 1654, (Art. 15.); the latter was peremptorily refused. No article respecting search was inserted; and in the subsequent Treaty of Commerce of London, 1674, the reciprocal right of search for contraband was stipulated, but confined to merchant ships. (Art. 5.) All that Cromwell could think of asking, then, after beating the Dutch to nearly entire submission, was a right to visit ships of war in the British seas. But, beaten as they were, the Dutch could not be brought to admit so monstrous a claim;-it was immediately given up, and never afterwards renewed.

. Soon after the peace of 1654, a Dutch man of war, convoy ing a fleet of merchant ships, was met by an English man of war in the Downs. The English searched the merchantmen.; and the affair was discussed by the States under two heads, the search of ships of war,-and the search of merchantmen; the former question appearing to have been suggested by the latter, and by the presence of the Dutch man of war. The result of their deliberations, was a resolution, that the refusal to let mere chantmen be searched could not be persisted in ;' but, respecting the other point, they came to the following determination. That, in conformity with their High Mightinesses' intructions, taken in respect to the searching of ships of war, and especially those of Sept. 1627, Nov. 1648, and Dec. 1649, it is thought good, and resolved, that all captains, and other sea-officers, that are in the service of this state, or cruising on commission, shall be anew strictly commanded, told, and charged, that they shall not condescend to no commands of any foreigners at sea, much less obey the same; neither shall they anyways permit that they be searched; nor deliver, nor suffer to be taken out of their ships, any people or other things.' Punishments are then threatened to such officers as yield on this point; but they are desired to give the customary salute to English men of war, according to treaty. (Thurloc. IL 503.) So peremptory a determination on the part of a nation but just escaped from the evils of a very ruinous and unequal war, is a sufficient proof of the light in which the point at issue was viewed. It deserves the more -attention, when we consider that this had been one of the points argued in negociating the treaty of peace; and proves that the Dutch were as much resolved to resist any silent encroachment upon their rights, while in a state of alliance with their powerful neighbours, as they had been to prevent an open attack upon them at the formation of the treaty. Since that time, the subject has never been broached,-England having completely acquiesced, even while most zealous for her maritime rights in the -narrow seas, and most successful in maintaining them.

It appears most evidently, then, that all the general principles upon which the mutual rights of nations are founded, are repugnant to the pretension of searching ships of war; that all authors, even those who maintain the right of search most largely, confine their positions to the case of merchant ships; that all the various treaties which stipulate the visitation of ships, allude to merchant ships exclusively; that though, from the entire novelty of the pretension, no express opinion of jurists, or stipulation of treaties, can be found upon the point, yet, a variety of principles leading directly to the denial of the claim, are laid down by all jurists without exception, and uniformly recognized in the intercourse of civilized states; that no one principle can be found, upon which to ground the claim, and, more particularly, that the old pretensions of Great Britain regarding the narrow seas, are quite foreign to the question; and that, in the only instance in which England ever attempted to advance the claim, she confined it to the narrow seas-tried to obtain the acknowledgement solely by positive stipulation-failed completely, although placed in circumstances peculiarly favourable to the attempt and has never since, during a century and a half, renewed it. So that it would be difficult to conceive a pretension, against which the whole law of nations, as well as their practice, is more clearly and strongly opposed.

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Now, the practice of searching ships of war for deserters, is one from which scarcely the smallest benefit could be derived, if exercised with the most unsparing vigilance. If the two or three ships of war in the American service were wholly manned with British deserters, we might lose a few hundred seamen. ven this is not a necessary loss; for an application to the Government of the United States would certainly procure a regulation among their officers for enforcing the surrender of the greater part of the deserters; and the difference between the number of men lost in spite of such regulations, and the number lost in spite of our own actual search, would amount to a mere triflecertainly not to any thing like fifty men in a year. It must therefore be regarded as exceedingly fortunate for this country, that the claim of searching is found to be utterly untenable. Had it been sanctioned by the law of nations, there would have been some reason for maintaining it, even at a considerable risk. It would have been a national right, of an invidious nature towards a friendly power-of no sort of intrinsic value--the abandonment of which might look like giving up a point of honour -the exercise of which was worth nothing-- and the assertion of which might lead to war. It should be matter of congratulation, that so useless a pretension is found to be an unjust one.

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To wave it, can no longer be injurious to our dignity; to stickle for it, can alone hurt our honour; and one barren, unprofitable ground of dissension is thus removed from between two nations, mutually interested in remaining always friends.

We now come to the right claimed, of searching private vessels for deserters. Some of the principles which were incidentally explained in discussing the first point, seem sufficient for the deci sion of this also. It was proved that a merchant ship is, in every respect, differently situated from a ship of war; and that no reason can be offered why it should not be subject to visitation, if suspected of carrying contraband. If a government pretends to be responsible for the conduct of each individual trader within its territory, we know that it is engaging to fulfil an impossible condition; and we are entitled to conclude, that it means to mock, or to deceive us. The method of searching seems the only way of preventing or detecting the unfair dealings of neutral merchants. When confined to national ships,* it unites a degree of security to the rights of the belligerent, with an attention to the convenience of the neutral, which no other contrivance could possibly secure. Now, there seems to be no good reason for excepting the case of deserters from this right. If the crew be longing to an English man of war escape on board of American merchantmen, it is difficult to discover why they should not be pursued there, and brought back by their lawful commanders. It is preposterous to call each merchant ship a portion of the territory of the state, because the jurisdiction of the state extends to the persons on board of it. The same jurisdiction extends to the subjects of the state, though, by any accident, they should be swimming at a distance from the vessel. An Englishman who should commit murder in this situation on the high seas, would be tried at the Admiralty sessions; and yet he was on no part of the English territory. An English vessel, too, in a foreign port, is held to be foreign territory. If, then, deserters are pursued into a merchant ship on the high seas, they are only pursued on common ground; and no violation of territory takes place, any more than if they were picked up swimming at sea in their attempt to escape.

We have already shown, that all the reasons, derived from mutual convenience, are in favour of giving the belligerents the reinedy of search for contraband in neutral merchant vessels. The same reasons apply almost as clearly to a search for deserters. There is only one circumstance, indeed, which can be supposed to distinguish the two cases. It is not so easy to determine which

*This was done in the Ruffian treaty 1801; and Lord Grenville expreffed his approbation in his celebrated speech upon that occafion.

which of the crew visited are deserters, and to seize them alone, as it is to determine that there are contraband goods, or hostile property on board, and to bring the vessel in for condemnation, The danger is certainly somewhat greater of our cruizers seizing American seamen, instead of British, than of their stopping vessels laden with neutral or innocent cargoes, instead of vessels pursuing an illegal voyage. But though this may render the adjustment of the mode in which our right of search shall be exercised a little more nice, it does not amount to such a difficulty as will invalidate our title to use that remedy. Suppose the right of searching were strictly confined to national ships; that no seaman were liable to be impressed who could prove, by unsuspicious documents, his having been out of England a certain number of years in proportion to his age; that the master of the American vessel, upon affidavit, supported by two sureties residing in England, that an American born subject had been taken from his crew, should have a right to obtain his surrender, for the purpose of bringing an action against the English captain in a court of common law, where he might obtain exemplary damages :Suppose, further, that every American merchant vessel were declared seizable, of which above a certain proportion of the crew should be British subjects who had left their country within a certain period of their lives, and that the cruizers visiting had the option, in all cases, either of seizing the men, or of suing the master and two English sureties, in an English court of common law, for penalty upon a bond entered into once every year, and always kept among the ship's papers, obliging him not to sail with any British seaman as above described;-it appears that sufficient checks would be imposed both upon the English cruizers and the American traders. The owners of the ships would find sureties among their mercantile correspondents in England, and would be forced to use some circumspection in hiring their crews. They would probably be satisfied with the power of ap plying for redress to an English court of common law, greatly as they are inclined to distrust our prize tribunals; and indeed, were the present fears of the abuse of the right of search realiz ed, a single verdict obtained against a captain in the navy for im❤ pressing an American, would have the full effect of checking the evil. Some such method as we have sketched, of loading both parties with a considerable risk in the conduct of the business--of making each act at his peril-might be arranged without much difficulty, and check the desertion of our seamen, while it secur◄ ed the American traders from vexatious detention.

We have now been stating the right of search, and the mode of exercising it, as high as possible; that is to say, the right, as fully

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