562

IMPRESSMENT OF SEAMEN; WAR OF 1812.

In the former part of the present century, the British Government, in asserting its belligerent right to search, pushed its pretensions even to the extent of impressing from American neutral ships sailors claimed as British subjects, and owing allegiance to the British crown. This claim, doggedly persisted in, ultimately became an efficient cause, if not really the causa causans of the War

of 1812.

But the United States, without committing itself to others by entering into entangling alliances either for offense or defense, has, from the days of Washington, pursued one uniform course of policy. Her sympathies were doubtless on the side of the Baltic Powers, yet her support of the first "armed neutrality" of those Powers, was guarded and qualified. The British pretensions to search, she firmly and constantly renounced and rejected; in 1812, going to war and fighting, to controvert the British claim to search for impressment, and to maintain her avowed principles and known practice. At length, in the career of peace, and to perpetuate that state, by removing amicably through negotiation all disturbing causes leading to war, the United States has entered into new treaty stipulations with Prussia, England, and other European states, as is believed, in reference to naturalization or citizenship.

And now, should the American proposition to discontinue or abolish the practice of making maritime capture of private property, at any future period be acceded to by the high contracting parties to the Paris Convention, and thus become incorporated into the international code by the assent, and originally at the instance of the United States, it would, indeed, be a consummation devoutly to be wished, in mitigating the evils of

AMERICAN DOCTRINE ASSERTED.

563

war; at the same time, it would be an appropriate public recognition by all the Powers of the constant and undeviating adherence of this country to her avowed convictions of policy, principle, and practice, whether acting as belligerents, or looking on as neutrals, ever since the neutral Proclamation of Washington in 1793.

At the present period, the original American doctrine, to which the United States have firmly adhered, is generally acquiesced in by most of the leading powers and commercial nations of Europe.

In diplomacy, several occasions have occurred for its frank and manly vindication. In the beginning of the present century, Rufus King, in 1841, Andrew Stevenson, and in 1843, Edward Everett (when Daniel Webster was American Secretary of State), severally set forth and defended, in their public stations, the true American doctrine, now generally accepted and established.

In law, this right of search, as claimed to the extent of impressment of seamen, has ever been doubted and denied. The American protest against this pretension has been of long standing, and constantly urged.

By the American authorities, usually referred to, the Nereide (9 Cr. 427) and the Marianna Flora (11 Wheat. 42), it appears that courts, jurists, statesmen, and publicists all agree in upholding the right of search by visitation or detention to a reasonable and qualified extent, for the purpose of ascertaining the nationality of an intercepted vessel, and the good faith of a neutral owner

or master.

With certain restrictions, the right of approach, visit, search and detention is a proper principle and inoffensive practice. It is a preventive measure for securing the rights of belligerents, either bello imminente or bello

564

SEARCH NOT EXTENDED TO PUBLIC SHIPS.

flagrante, against unneutral acts or conduct, and mala fides. It is an absolutely necessary, and an exclusively war right, which cannot be lawfully exercised in time of peace, unless it be in pursuance of some existing neutral stipulation by treaty or otherwise. There are clauses in treaties, in modern times, which tolerate and permit the exercise of the right of search to a qualified extent among neutrals. So also, treaty stipulations may exempt merchant vessels, while under convoy, from visit and search, the convoying ship vouching for their observance of good faith, and the absence of all fraud. The general limitation is, that search may extend to merchant ships, but not to men-of-war.

On the highway of nations, approach may be harmless; visit excusable; search justifiable; and detention obligatory. The first may be for information merely; the second, for further inquiry; the third, to allay awakened suspicion; and the last, to settle legal title to prize by making capture.

Though all may differ in degree, yet each right either includes the others or presupposes their existence; for you cannot detain without approach, visit, and search; and vice versa, without the preliminary rights of approach and visit, search would be useless; and without that of detention, it would be practically inoperative.

Some states and jurists differ as to the relative signification of these several rights; the French term visite, is synonymous for the English phrase "visitation and search;" but Hautefeuille, Ortolan, Massé, and other French publicists, make a distinction between visite and recherche.

Referring to one other authority, the Antelope, (10 Wheat. 119,) the result, in the American sense, would

POSITION OF BALTIC POWERS, NOT MAINTAINED.

565

seem to be, that the rights of approach, visit, search, and detention, are admissible by the law of nations, and so recognized in time of war. Hence, since the decision. of the Maria and other cases referred to, the belligerent right to intercept, on the high seas, a neutral vessel, in order to make inquiry, examine papers, learn her national character, mercantile employment, or destination, is undoubted; more particularly if such vessel be in the vicinity of an interdicted or invested port. Therefore, a corresponding duty is devolved upon belligerent cruisers, wherever stationed or cruising, to enforce this right. This is required by a national necessity, and the law of self-preservation, to prevent the transportation of supplies and war materials to an adverse belligerent; which, if not prevented from reaching such hostile destination, would materially contribute to the aid and comfort of such adverse belligerent, through the agency of a fraudulent neutral.

Whenever neutral vessels are intercepted, and upon search, are discovered to have been laden with contraband goods, or engaged in carrying hostile dispatches, troops, naval, military or other officers, such vessels may be rightfully seized and sent into port for adjudication by the proper prize tribunals.

Although in 1780 and subsequently, the Baltic Powers assumed a defiant position, and even armed in defense of this assumption, yet their pretensions were resisted in England, where the course pursued by these allies was looked upon as an attempt to interpolate, by force, a novel doctrine into the code of maritime international law. But the attempt failing, the general right of search has been deemed in Great Britain incontrovertible. See in the Maria (supra), the condemnation of an

566

CONVOYED SWEDISH FLEET CONDEMNED.

entire fleet of convoyed Swedish merchant ships, instructed to resist search. With the qualifications indicated in the preceding pages, the same right is admitted in the American courts.

This decision may be supposed to have effectually disposed of the pretensions of the combined Baltic Powers to assert the Russian doctrine as advanced, that "free ships make free goods," and which those powers endeavored to enforce by what is usually understood as the "armed neutrality" of the Northern Powers.

NEUTRALITY.

THE principal grounds, recognized by international law, for exercising the full belligerent right of capture are three, namely: 1. breach of blockade; 2. carrying enemy property; and 3. transporting contraband goods to an enemy port. With the advent of war, all legal commercial traffic and intercourse of belligerents ceases. There cannot be a war for arms and a peace for trade; a war for arms is the same upon commerce, and a cessation of hostilities restores trade.

Neutrals, however, may pursue their accustomed trade, provided they violate or contravene no belligerent right. There are several rights of belligerents which general neutrals are bound to respect. They must not enter blockaded ports; they must not transport contraband goods to either belligerent; and they must not resist the belligerent right of search, and reasonable detention for search. Though stated negatively, these are positive neutral duties which must be invariably observed by all neutral states, desiring and disposed to preserve amicable relations with either or both parties engaged in carrying on war.