Exemption of public or private

the local

does not

§ 104. Whatever may be the nature and extent of the exemption of the public or private vessels of one State from the local jurisdiction in the ports of another, it is vessels from evident that this exemption, whether express or im- jurisdiction plied, can never be construed to justify acts of hostility extend to committed by such vessel, her officers, and crew, in vio- of aggres lation of the law of nations, against the security of sion against the State in whose ports she is received, or to exclude of the State. the local tribunals and authorities' from resorting to such measures of self-defence as the security of the State may require.

justify acts

the security

This just and salutary principle was asserted by the French Court of Cassation, in 1832, in the case of the private Sardinian

violate any law, will claim, and there will be claimed for them, protection and security, freedom from molestation and from all interference with the character or condition of persons or things on board. In the opinion of the government of the United States, such vessels, so driven and so detained by necessity in a friendly port, ought to be regarded as still pursuing their original voyage, and turned out of their direct course by disaster or by wrongful violence; that they ought to receive all assistance necessary to enable them to resume that direct course; and that interference and molestation by the local authorities, where the whole voyage is lawful both in act and intent, is ground for just and grave complaint." Webster's Works, vi. 303-318.

Mr. Wheaton wrote an article upon this subject in the Revue Française et Etrangère, ix. 345, in which he took the ground, that the Creole never passed under British jurisdiction so as to affect the legal relations of persons and things on board, or to give the British Government such jurisdiction over the persons on board as to make the case one of extradition; and that the master, with such aid as he could obtain from the Consul or otherwise, was entitled not only to carry to the United States all the persons on board, whether held as slaves or criminals, without molestation from the authorities, but to receive the assistance of those authorities to regain and hold possession of his vessel.

The United States Government demanded the restoration of the slaves, which was refused by the British Government, on the ground, that, being in fact at liberty within the British dominions, they could not be seized there when charged with no crime against British law, and while there was no treaty of extradition. This case was then submitted, as a private claim for pecuniary indemnity, to the Commission under the convention of Feb. 8, 1853. The commissioners being unable to agree, it was, by the terms of the convention, referred to an umpire, Mr. Joshua Bates, of London. In deciding the case, Mr. Bates stated two propositions of law, — First, That, as the slaves were perfectly quiet, and on board an American ship under the command of the captain, the authorities should have seen that the captain was protected in his rights over them.

Second, That "the municipal law of England cannot authorize a magistrate to violate the law of nations, by invading with an armed force the vessel of a friendly nation that has committed no offence, and forcibly dissolving the relations which, by the laws of his country, the master is bound to preserve and enforce on board."

There would seem to be no doubt of the latter proposition; but the facts which Mr.

steam-vessel, The Carlo Alberto, which, after having landed on the southern coast of France the Duchess of Berry and several of her adherents with the view of exciting civil war in that country, put into a French port in distress. The judgment of the Court, pronounced upon the conclusions of M. Dupin, ainé, Procureur-Général, reversed the decision of the inferior tribunal releasing the prisoners taken on board the vessel, upon the following grounds:

1. That the principle of the law of nations according to which a foreign vessel, allied or neutral, is considered as forming part of the territory of the nation to which it belongs, and consequently is entitled to the privilege of the same inviolability with the territory itself, ceases to protect a vessel which commits acts of hostility in the French territory, inconsistent with its character of ally, or neutral; as if, for example, such vessel be chartered to serve as an instrument of conspiracy against the safety of the State, and after having landed some of the persons concerned in these acts, still continues to hover near the coast, with the rest of the conspirators on board, and at last puts into port under pretext of distress.

2. That supposing such allegation of distress be founded in fact, it could not serve as a plea to exclude the jurisdiction of the Bates considered to be proved were hardly sufficient for its application. At the same time, they made a stronger case than was necessary for the first proposition. Although there was no "invading with an armed force, and forcibly dissolving the relations," the authorities still not only gave no aid to the master, but officially announced to the negroes that they were free to go or stay on board, and this while there were private boats alongside ready to take them off, in which were men apparently ready to resist the use of force by the master to retake them. As to the former proposition of Mr. Bates, I do not find a course of precedents acted upon or acquiesced in by nations; and it seems open to speculation. It may be conceded, as a general statement, that local authorities ought to give active aid to a master in defending and enforcing, against the inmates of his vessel, the rights with which his own nation has intrusted him, if these rights are of a character generally recognized among all nations, and not prohibited by the law of the place. But it may well admit of doubt, whether the local authorities must give active aid to the master against persons on board his vessel who are doing no more than peacefully and quietly dissolving, or refusing to recognize, a relation which exists only by force of the law of the nation to which the vessel belongs, if the law is peculiar to that nation, and one which the law of the other country regards as against common right and public morals. The local authorities might not interfere to dissolve such relations, where the peace of the port or the public morals are not put in peril; but they might, it would seem, decline to lend force to compel their continuance. The most tenable ground for Mr. Bates's decision is, that the facts, as he found them, showed an active and officious, though not forcible, intervention by the authorities to encourage the negroes in leaving the vessel, and to discourage the master from using such means as he had to prevent it.]-D.

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.

[63 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

diction of

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

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 v. 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. 379. 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. [35 See note 85, infrà, on the Slave Trade.] -D.