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nister with indifference that justice which the law of nations holds out without distinction to independent states, some happening to be neutral, and fome to be belligerent. The seat of judicial authority is, indeed, locally here, in the belligerent country, according to the known law and practice of nations : bat the law itself has no locality. It is the duty of the person who fits here to determine this question exactly as he would determine the same question if fitting at Stockholm ; to assert no pretensions on the part
of Great Britain which he would not allow to Sweden in the lame circumstances, and to impose no duties on Sweden, as a neutral country, which he would not admit' to belong to Great Britain in the same character. If, therefore, I mistake the law in this matter, I mistake that which I consider, and which I mean should be considered, as the universal law upon the question ; a question regarding one of the most important rights of belligerent nations relatively to neutrals.
The only special consideration which I shall notice in favour of Great Britain (and which I am entirely desirous of allowing to Sweden in the same or similar circumstances) is, that the nature of the present war does give this country the rights of war, relatively to neutral states, in as large a measure as they have been regularly and legally exercised at any period of modern and civilized times. Whether I estimate the nature of the war juftly, I leave to the judgment of Europe, when I declare that I consider this as a war in which neutral states themselves have an interest much more direct and substantial than they have in the ordinary, limited, and private quarrels (if I may so call them) of Great Britain and its great public enemy. That I have a right to advert to such confiderations, provided it be done with fobriety and truth, cannot, I think, reasonably be doubted; and if authority is required, I have authority, and not the less weighty in this qucftion for being Swedish authority; I mean the opinion of that diftinguished person, one of the most distinguished which that coun. try (fertile as it has been of eminent men) has ever produced-I mean Baron Puffendorff: the passage to which I allude is to be found in a note of Barbeyrac's on his larger work, 1. viii. c. 6. 1. 8. Puffendorff had been consulted in the beginning of the present century, when England and other states were engaged in the confederacy against Louis XIV. by a lawyer upon the continent, Groningius, who was desirous of supporting the claims of neutral commerce, in a treatise which he was then projecting. Puffendorff concludes his answer to him in these words:
“ I am not surprised that the northern powers should consult the general interests of all Europe, without regard to the complaints of some greedy merchants, who care not how things go, provided they can but satisfy their thirst of gain. Those princes wisely judge that it would not become them to take precipitate
measures, whilst other nations are combining their whole force to reduce within bounds an insolent and exorbitant power which threatens Europe with slavery, and the Protestant religion with destruction. This being the interest of the northern crowns themselves, it is neither just nor necessary, that, for the present advantage, they should interrupt so salutary a design, especially as they are at no expense in the affair, and run no hazard.”
In considering the case, I think it will be advisable for me, first, to state the facts as they appear in the evidence; secondly, to lay down the principles of law which apply generally to such a state of facts; thirdly, to examine whether any special circumstances attended the transaction in any part of it, which ought in any manner or degree to affect the application of these principles.
[For the facts, see case, p. 3 of this volume.] What do these attestations (uncontradicted attestations) prove? To my apprehension they prove most clearly these facts: That a large number of vessels, connected altogether with each other, and with a frigate which convoyed them, being bound to different ports in the Mediterranean, some declared to be enemy's ports and others not, with cargoes consisting, among other things, of naval stores, were met with, close upon ihe British coast, by his Britannic Majesty's cruisers : that a continued resistance was given by the frigate to the act of boarding any of these vessels by the British cruisers; and that extreme violence was threatened, in order to prevent it; and that the violence was prevented from proceeding to extremities only by the superior British force which overawed it: that the act being effected in the night, by the prudence of the British commander, the purpose of hostile resistance, so far from being disayowed, was maintained to the last, and complaint made that it had been eluded by a stratagem of the night : that a forcible recapture of one vessel took place, and a forcible capture and detention of one British officer who was on board her, and who, as I understand the evidence, was not released till the superiority of the British force had awed this Swedish frigate into something of a stipulated submission.
So far to the general facts. But all this, it is said, might be the ignorance or perverseness of the Swedish officer of the frigate ; the folly or the fault of the individual alone. This suggestion is contradicted most forcibly by the two sets of instructions, those belonging to the frigate, and those belonging to the merchantvesels.
It is said, that the instructions to the frigate are intended only against cruisers of Tripoli, and an affidavit has been brought in to show that that government had begun hostilities against the Swedes. The language, however, of these instructions is as universal as language pollibly can be; it is pointed against the “ fleets of any nation whatever.” It is, however, said that this was merely to li 2
avoid giving offence to the Tripoline government. But is the Tripoline government the only government whose delicacy is to be consulted in such matters ? Are terms to be used alarming to every other state, merely to save appearances with a government which, they allege in the affidavit referred to, had already engaged in unjust hostility against them? There is, however, no neceffity for me to notice this fuggestion very particularly, and for this plain reason, that it is merely a suggestion neither proved nor attempted to be proved in any manner whatever; and the res gefta completely proves the fact to be otherwise, because it is clear that if it had been so, the commander of the frigate must have had the moft explicit instructions to that effect.
The terms of the instructions are these ; they are incapable of being misunderstood: “ In case the commander should meet with any ships of war of other nations, one or more of any feet whatever, then the commander is to treat them with all poflible friendship, and not to give any occasion of enmity; but if you meet with a foreign arıned vefsel which should be desirous of having further assurance that your frigate belongs to the King of Sweden, then the commander is by the Swediih flag and falute to make known that it is fo; or if they would make any search amongst the merchant-veífels under your convoy, which ought to be endeavoured to be prevented as much as possible, then the commander is, in cafe such thing should be infifted upon, and that remonftrances could not be amicably made, and that notwithstand. ing your amicable comportment the merchant-hips should nevertheless be violently attacked, then violence must be opposed against violence.” Removing mere civility of expreffion, what is the real import of these instructions? Neither more nor less than this, according to my apprehension: “ If you meet with the cruisers of the belligerent states, and they express an intention of visiting and searching the merchant-fhips, you are to talk them out of their purpose if you can; and if you can't, you are to fight them out of it.' That is the plain English, and, I prefume, the plain Swedish of the matter.
Whatever then was done upon this occasion, was not done by the unadı ised rathness of one individual, but it was an instructed and premed tated act ; an act common to all the parties concerned in it, and of which every part belongs to all; and for which all the parties, being associated with one common intent, are legally and equitably answerable.
This being the actual state of the fact, it is proper for me to examine, 2dly, what is their legal state, or, in other words, to what confiderations they are justly subject according to the law of nations ; for which purpose I ftate a few principles of that system of law which I take to be incontrovertible.
ist, That the right of visiting and searching merchant-ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestable right of the lawfully commillioned cruisers of a belligerent nation. I say, be the ships, the cargoes, and the destinations what they inay, because, till they are vilited and searched, it does not appear what the ships, or the cargoes, or the destinations are ; and it is for the purpose of ascertaining these points that the neceflity of this right of visitation and search exists. This righe is so clear in principle, that no man can deny it who admits the legality of ma, ritime capture ; because, if you are not at liberty to ascertain by sufficient inquiry whether there is property that can legally be captured, it is impollible to capture. Even those who contend for the inadmissible rule, that “ free thips make free goods," must admit the exercise of this right, at least for the purpose of ascertaining whether the thips are free thips or not. The right is equally clear in practice; for practice is uniform and universal upon the subject. The many European treaties which refer to this right, refer to it as pre-existing, and merely regulate the exercise of it. All writers upon the law of nations unanimoully acknowledge it, without the exception even of Hubner himself, the great champion of neutral privileges. In thort, no man in the least degree conversant in subjects of this kind has ever, that I know of, breathed a doubt upon it.
The right must unquestionably be exercised with as little of personal harshness and of vexation in the mode as poflible ; but foften it as much as you can, it is itill a right of force, though of lawful force ; something in the nature of civil process, where force is employed, but a lawful force, which cannot lawfully be relifted. For it is a wild conceit, that whatever force is used, it may be forcibly resisted : a lawful force cannot lawfully be refilted. The only case where it can be fo, in matters of this nature, is in the state of war and conilict between two countries, where one party has a perfect right to attack by force, and the other has an equally perfect right to repel by force. But in the relative fituation of two countries at peace with each other, no such conflicting rights can pollibly co-exist.
2dly, That the authority of the sovereign of the neutral country being interposed in any manner of mere force, cannot legally vary the rights of a lawfully commiflioned belligerent cruiser; I say legally, because what may be given, or be fit to be given, in the adminiitration of this species of law, to confiderations of comity or of national policy, are views of the matier which, fitting in this court, I have no right to entertain. All that I asfert is, that legally it cannot be maintained, that if a Swedish commillioned cruiser, during the wars of his own country, has a right by the law of nations to vilit and examine neutral thips, the King of England being neutral to Sweden, is authorized by that Jaw to obstruct the exercise of that right with respect to the merchant-fhips of his country. I add this, that I cannot but think that, if he obstructed it by force, it would very much refemble (with all due reverence be it spoken) an oppofition of illegal violence to legal right. Two fovereigns may unquestionably agree, if they think fit (as in some late initances they have agreed), by fpecial covenant, that the presence of one of their armed ships along with their merchant-thips, fhall be mutually understool to imply that nothing is to be found in that convoy of merchanifhips inconsistent with amity or neutrality; and if they consent to accept this pledge, no third party has a right to quarrel with it any more than with any other pledge which they may agree matually to accept. But surely no fovereign can legally compel the acceptance of such a security by mere force. The only security known to the law of nations upon this subject, independent of all special covenant, is the right of personal visitation and search, lo be exercised by those who have the interest in making it. I am not ignorant, that amongst the loofe doctrines which modern fancy, under the various denominations of philosophy and philanthropy, and I know not what, has thrown upon the world, it has been within these few years advanced, or rather infinuated, that it might poffibly be well if such a security were accepted. Upon fuch unauthorized speculations it is not neceifary for me to defcant; the law and practice of nations (I include particularly the practice of Sweden when it happens to be belligerent) give them no sort of countenance; and until that law and practice are new-modelled in such a way as may surrender the known and ancient rights of fome nations to the present convenience of other nations (which nations may perhaps remember to forget them, when they happen to be theinfelves belligerent), no reverence is due to thein ; they are the elements of that system which, if it is co: futent, has for its real purpose an entire abolition of capture in war; that is, in other words, to change the nature of hostility, as it has ever existed amongst mankind, and to introduce a state of things not yet feen in the world, that of a military war and a commercial peace. If it were fit that such a state should be introduced, it is at least necessary that it hould be introduced in an avowed and intelligible manner, and not in a way which, prifelling gravely to adhere to that system which has for centuries preva:led among civilized states, and urging at the fame time a pretention utterly inconsistent with all its known principles, delivers over the whole matter at once to eternal controversy and conflict, at the expense of the constant hazard of the harmony of ftates, and of the lives and safeties of innocent individuals.