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Reports, 2Io)–(Madrazo v. Willis, 3 B. and Ald. 354.) And Stowell differed from Story in this point. But the important point to be observed is that all concurred in desiring that the slave trade should be declared piracy, for the reason that then, and not until then, would the vessel of any nation have a right to stop, search, and capture the vessels of another for being concerned in the traffic. Thus Story wrote to Lord Stowell:—
“Nothing effectual can be done except by the general co-operation of all nations declaring it piracy punishable by all ; and so giving a limited right of search to all lawful cruisers to examine and capture all vessels found in places or latitudes where the trade is carried on. (Story's Life,
vol. i., 357.)" That is, as the whole letter plainly implies, piracy alone could, in a state of peace, justify the exercise of such a right, and piracy in this sense means piracy by international law, and that any new species of piracy could only be created by the general consent of nations. Hence it was that Lord Brougham, echoing the words of Story, was always demanding that the slave trade should be declared piracy. But the difficulty was that this could only be done by the general consent of all nations. In 1837, on the occasion of the rebellion in Canada, the question received a practical illustration. The American “sympathisers” mustered strongly on the frontiers, and had their head quarters on an island within the British territory. Of this island a body of armed Americans took possession, made it a dépot of arms, and planted a gun on it, with which they cannonaded the British side, only 600 yards distant. They drew their supplies from the American shore by means of a small steamer called the Caroline, which plied between the island and the opposite shore. The British Commander resolved to destroy her, and sent a party across the river for the purpose. She was moored on the American side, and therefore the assailants had to go on American territory; a conflict ensued, in which some of the Americans were slain, the ship was captured, and on all board taken out, and then she was set on fire and burnt. It was considered by us that this act was was justified, because the vessel was engaged in warfare against us; but the Americans raised a great outcry on account of the violation of their territory, which was with difficulty allayed, and ouly when it was understood that the men had not been injured or even captured, and that the vessel was actually engaged in the warfare which was going on. The President of the United States issued a proclamation in which he was careful to point out that the spnmpathisers would render themselves amenable to capture and punishment under the laws of the United States. - “Whereas, in consequence of civil war in Canada, arms and ammunition have been obtained by the insurgents in the United States; and a force consisting in part, at least, of citizens of the United States have been actually congregated at Mary Island, and are still in arms, the President hereby warns such persons as shall compromise the neutrality of this Government by interfering unlawfully with the affairs of the British provinces, that they will render themselves liable to arrest and punishment under the law of the United States” (Message of President Van Buren, January 5, 1838.-Ann. Reg., 1838, p. 318. That is, that Americans were only liable to punishment by American law, unless they committed acts of hostility or warfare on British soil. Then, indeed, they would be liable to British force and British law, and accordingly, when some of them actually invaded the British territory, and were taken prisoners, they were not entitled to the privilege of prisoners of war, but were held liable to be tried and executed summarily by martial law. And in order to assert the right, and thus to excite terror among the assailants of the British territory, one or two out of some hundreds were thus tried and executed (Alison's Continuation of History, vol. vi., p. 94.) But that was by the right of war against armed enemies on British territory, and enemies liable to the terrors of war, though not entitled to its privileges. The exercise of this right was unquestioned. But it was quite different as to the affair of the Caroline.
So deep seated was the feeling of resentment created in the minds of the American people by our conduct in that matter, that years afterwards it was very near causing them to break out into war. In 1843 one McLeod, a British subject, was seized in New York on a charge of having been implicated in the affair of the Caroline, and as having slain one of the men who fell in the conflict on that occasion. The magistrate was about to discharge him, on the ground that the offence, if offence it was, had been committed on British territory, when the peoele prevented his liberation, and this led to the appointment of a Committee of Congress, which reported in a spirit so hostile that it amounted almost to a recommendation to a declaration of war. However, the prisoner was able to bring such overwhelming evidence of an alibi that on that ground he was acquitted. (Alison's Continuation, vol. vi., p. 316.)
The question came under discussion with reference to the right of search claimed by our Government as against American vessels. This, however, was quite a different right from that of searching neutral vessels during war, to ascertain whether they were conveying contraband of war, and was grounded not on any right to search the American vessels as neutrals, but only the right to examine whether or not they were British vessels, engaged in an illegal traffic. That as it was merely a claim to see whether vessels were American or British, and if they were American, even though they were engaged in the obnoxious traffic, it was admitted as clear that we had no right even to detain, still less to capture. This, it is obvious, was a distinct admission of the principle that, in time of peace, there is no right to capture vessels of another nationality, and only an exceptional right was claimed, to search, in order to discover what was the nationality. This was explained in the clearest manner in a dispatch of Lord Aberdeen:—
“It has been the invariable practice of the British navy, and, as he believes, of all the navies in the world, to ascertain by search the real nationality of merchant vessels met with on the high seas. In certain latitudes, and for a particular object, the vessels referred to are visited not as American, but rather as British vessels, engaged in an unlawful traffic, and carrying the flag of the United States for a criminal purpose; or as belonging to States which have by treaty ceded the right of search to Great Britain, and which right it is attempted to defeat by fradulently bearing the flag of the Union; or finally as piratical outlaws, professing no claim to flag or nationality whatever. Should the vessel prove American, no British officer could interfere further.” (Lord Aberdeen to Mr. Stevenson, Sept. 14, 1841, Ann. Reg. I842.
pp. 310, 3II.) And the doctrine was zealously asserted by the President of the United States in these emphatic terms:— “To seize and detain a ship upon suspicion of piracy, with probable cause and in good faith, affords no just ground for complaint on the part of the nation whose flag she bears, or claim of indemnity on the part of the owner. - The universal law sanctions, and the common good requires, the existence of such a rule. The right, under such circumstances, to capture and detain and search a ship is a perfect right, and involves no responsibility or liability. But with this single exception no nation has a right, in time of peace, to detain the ships of another upon the high seas on any pretext whatever, beyond the limits of the territoral jurisdiction. And such, I am happy to find, is substantially the doctrine of Great Britain herself in her most recent official declaration.”—President's Message to Congress, Feb. 27th, 1843, ann. Reg., 1845, p. 318. An examination of the great work of Wheaton, or any other authority on international law, will lead clearly to these conclusions. There must be, to justify seizure on the ground of piracy, proof of depredation on the high seas; to justify it on the ground of right of war, a recognition of belligerency would have been necessary, and that would have entitled the crew to the treatment of prisoners of war. Piracy is the offence of depredations on the high seas, withthe authority from a sovereign state, and pirates are the common enemies of all mankind. Whence it is that, as all nations have an equal interest in their capture and punishment, the vessels of any nation may capture them; but then only to bring them within the jurisdiction of regular tribunals for trial for piracy. And this international right is strictly confined to piracy as an offence against the law of nations, and cannot be extended to offences which are made piracy by municipal legislation. So that it is only those who are acting in defiance of all law, and are committing general depredations who can even be thus captured by the subjects of any nation for trial before their own tribunals. It is true that all persons, foreigners or subjects, who take a part in any civil war or armed rebellion. may be seized when actually engaged in it, tried by court martial, and executed. But that is quite a different kind of right—the right of war, and it is on the seat of war, and as against those actually engaged in it, on the territory of the State, executing them. It is quite otherwise of the seizure of persons on the high seas, in a vessel bearing the flag of a sovereign State. It is an undoubted principle that in time of peace, the flag, of a ship is the sign of its nationality; not merely primá facie, but absolutely, for all foreign ships. The cruisers of the nation to which the flag belong, have exclusive jurisdiction over it. The only exception is the case of piracy, but piracy involves the intention of making depredation on the high seas, and against the vessels of all nations generally. Even when there is not that intention, it must be regularly proved in a Court of Law, on a trial for piracy, and there is no right of summary execution, even when there is a right of capture. But there is no right of capture unless there is either piracy or war. Even at sea, no nation whatever in peace or war, has a right to execute its municipal laws on board ships of another country. It is only during a war that a limited right exists, of seizing soldiers of the enemy on board neutral vessels. But then as the seizure is made in right of war, the persons seized are entitled to the privileges of prisoners of war. Here, however, there was no war, for there was no recognition of belligerency. The state of civil war at the utmost, only existed on the land, and the insurgents were not recognized as belligerents. Even if there was a right of capture,