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the habit of seizing or destroying vessels in neutral
Judicial decisions exhibit the strict law obligatory on courts. Historic precedents exhibit the practice of nations, where strict law is often modified by considerations of necessity or policy. The first, as a general rule, concern private rights; the second, as a general rule, concern public rights. The first are questions for the court; the second are questions for executive deliberation and for diplomacy. It is needless to add that the case of the Florida is not a case of private rights. It is an historic incident, destined hereafter to be a precedent, which will be determined by the executive, and not by the judiciary. If the Florida were an ordinary private ship, claimed by private individuals, it would naturally fall under the cognizance of a prize court. But it is claimed as a public ship, which, as is well known, is not subject to the jurisdiction of a prize court. Or, assuming its private character by reason of its piratical origin, there are questions involved which must ultimately come under the cognizance of the Executive, and which belong to the history of the country.
Of course, the general principle of International Law applicable to such an incident is beyond question. It is found in the authoritative words of the Dutch publicist, Bynkershoek, when he says, "Certainly it is by no means lawful to attack or take an enemy in the port of a neutral who is in amity with both parties."1 Chancellor Kent, a great authority, enforces the same principle, when he says, "It is not lawful to make neutral territory the scene of hostility, or to attack an
1 Quæstiones Juris Publici, tr. Du Ponceau, Lib. I. cap. 8.
enemy while within it."1 General Halleck, in his excellent work on International Law, says: "Hostilities cannot be lawfully exercised within the territorial jurisdiction of the neutral state which is the common friend of both parties." And he follows this compendious statement with the remark, that "the Government of the United States has invariably claimed the absolute inviolability of neutral territory."2 As early as 1793, our Government gave its adhesion to this principle in a case where Great Britain and France were the hostile parties. The British merchant-ship Grange was captured in Delaware Bay by a French frigate, and brought into Philadelphia, to which port she was bound. Mr. Jefferson, in a gossiping letter to Mr. Monroe, under date of May 5, 1793, says: "Upon her coming into sight, thousands and thousands of the yeomanry of the city crowded and covered the wharves. Never before was such a crowd seen there; and when the British colors were seen reversed, and the French flying above them, they burst into peals of exultation."3 The British minister, addressing himself at once to our Government, demanded restitution of the captured vessel, then within our jurisdiction. The French minister insisted that Delaware Bay was an open sea, so that the original capture was lawful. But the ship was restored. Washington was at the time President, and Jefferson Secretary of State. It is not known that there was any appearance in the prize court with reference to the Grange. It was settled by diplomacy, as will be seen by a formal letter of the Secretary of State addressed to the French minister, where he says: "I am charged by
1 Commentaries on American Law, Vol. I. p. 117.
2 International Law, pp. 517, 520.
3 Writings, Vol. III. p. 548.
the President of the United States to express to you his expectation, and at the same time his confidence, that you will be pleased to take immediate and effectual measures for having the ship Grange and her cargo restored to the British owners, and the persons taken on board her set at liberty."1 The general principle illustrated by this striking case has been maintained by our Government ever since. If any reader is curious to see an elaborate vindication of it, I refer him to a very animated article in the "Boston Gazette" for 1814, transferred to "Niles's Register," where the 2 inviolability of neutral territory is upheld, especially against the open pretensions of Great Britain.
This general principle may seem at first view conclusive with regard to the Florida. If this vessel, now lying within the jurisdiction of the United States, were an ordinary private ship, cognizable in a prize court, or if it were still within the jurisdiction of Brazil, it might be so. But it remains to be seen whether there are not decisive considerations, distinguishing this case from every other, which will justify our Government, while recognizing the violation of Brazilian territory, and making all proper apologies, at least in declining any restitution of the ship. On this point it is not necessary to express an opinion. I began by allusion to the reckless judgments of British journals, tending to excite a cry against our country; and my present object will be accomplished, if I exhibit those historic precedents which must close the British mouth, whenever it opens to condemn a capture like that of the Florida.
1 To M. de Ternant, May 15, 1793: Jefferson's Writings, Vol. III. p. 561. 2 Vol. VI. pp. 34S, 352, July 23, 1814.
1. It was in the reign of Queen Elizabeth that England began to contest the supremacy of the seas; and it was in this same reign that this domineering power began those pretensions under which neutral rights of all kinds were set at nought. As early as 1567, Hawkins, fresh from a slave-trading voyage in the ship "Jesus," fired at a Spanish ship in the harbor of Plymouth, and forced her to lower her flag. The Spanish ambassador said indignantly to Elizabeth: "Your mariners rob my master's subjects on the sea; they plunder our people in the streets of your towns; they attack our vessels in your very harbors. I entreat your Majesty to punish this last outrage at Plymouth, and to preserve the peace between the two nations."1 Elizabeth gave a smooth answer, and that was all.
2. Not long afterwards Admiral Drake entered the harbor of Cadiz, where he scattered, sunk, and burned an immense fleet of Spanish transports, and then did the same thing in the harbor of Lisbon. There were apologies on the part of Elizabeth; Burleigh wrote a crafty letter; the Admiral was disavowed; but this was all. Among the ships seized at Lisbon were no less than sixty belonging to the Hanse Towns. These towns vainly demanded their restitution. Philip of Spain, at that time sovereign of Portugal, was equally unsuccessful, although, by way of retaliation, he drove from Lisbon the factors of the Company of English Merchants.3
Such are some of the earliest historic precedents.
1 Froude, History of England (London, 1863), Vol. VIII. pp. 481-483.
2 Motley, History of the Netherlands, Vol. II. pp. 284, 285.
3 Cussy, Phases et Causes Célèbres du Droit Maritime des Nations, Tom. II. p. 60.
3. In similar defiance of unquestionable right, the Dutch East India fleet, in 1665, which had put into Bergen in Norway, was attacked by the English in this neutral port. On this outrage Vattel remarks: "But the Governor of Bergen fired on the assailants, and the Court of Denmark complained, perhaps too faintly, of an enterprise so injurious to its dignity and its rights."1
4. Throughout the seventeenth century numerous incidents illustrate the pretensions of Great Britain; and so also in the next century. Émérigon, the famous French authority on the Law of Insurance, mentions one which deserves notice. In 1757, a French bark, La Victoire, chased by a British privateer, sought refuge in the neutral waters of Majorca, where she anchored within pistol-shot of the shore. The British privateer seized the bark, notwithstanding three shots fired from the castle. A few days later the prize was recaptured by a French privateer. The original owners of the bark claimed her, on the ground that her capture was null; but the court of prizes awarded one third to the recaptor.2 The learned author fails to record. any reparation by Great Britain.
Advancing to later times, the historic precedents multiply. I pass over a considerable period, not without examples, and come at once to those occurring in the protracted war against the French Revolution.
5. War had hardly begun, when, in 1793, the port of Genoa was the scene of an incident differing from
1 Le Droit des Gens, Liv. III. ch. 7, § 132.
2 Émérigon, Traité des Assurances (Marseille, 1783), Tom. I. p. 500, Ch. 12, § 23. See, also, Azuni, Droit Maritime de l'Europe Paris, An VI.), Tom. II. p. 306, note, Part. II. ch. 4, art. 4, § 5.