Slike strani

be content, therefore, to travel after my learned | solemn treaty, binding upon the claimant and friend over a part of the track which he has upon you. In a word, I throw into that scale at once smoothed and illuminated, happy, rather the rights of belligerent America, and, as emthan displeased, that he has facilitated and justi- bodied with them, the rights of these captors, fied me in the celerity with which I mean to tra- by whose efforts and at whose cost the naval verse it; more happy still if I shall be able as I exertions of the government have been secondpass along, to relieve the fatigue of your hon- ed, until our once despised and drooping flag ors, the benevolent companions of my journey, has been made to wave in triumph where by imparting something of freshness and novelty neither France nor Spain could venture to show to the prospect around us. To this course, I am a prow. You may call these rights by what also reconciled by a pretty confident opinion, name you please. You may call them iron the result of general study as well as of particu- rights: I care not; it is enough for me that they lar meditation, that the discussion in which we are rights. It is more than enough for me that are engaged has no claim to that air of intricacy they come before you encircled and adorned by which it has assumed ; that, on the contrary, it the laurels which we have torn from the brow turns upon a few very plain and familiar prin- of the naval genius of England: that they come ciples, which, if kept steadily in view, will before you recommended, and endeared, and guide us in 'safety through the worse than consecrated by a thousand recollections which Cretan labyrinth of topics and authorities that it would be baseness and folly not to cherish, seem to embarrass it, to such a conclusion as it and that they are mingled in fancy and in fact, may be fit for this court to sanction by its with all the elements of our future greatness. judgment.

I shall in the outset dismiss from the cause Mr. Pinkney contended that the property whatever has been rather insinuated with a pru- fought to be considered as good prize of war dent delicacy, than openly and directly pressed by my able opponents , with reference to the per

on the following grounds : sonal situation of the claimant, and of those First. That the treaty of 1795, between the with whom he is united in blood and interest. United States and Spain, contained a positive I am willing to admit that a Christian judicature may dare to feel for a desolate foreigner who stipulation, adopting the maxim of what has stands before it, not for life or death indeed, but sometimes been called the law of nations, that, for the fortunes of himself and his house. I "free ships make free goods ;” and that alam ready to concede, that when a friendly and though it did not expressly mention the cona friendless stranger sues for the restoration of his all to human justice, she may sometimes wish verse proposition, that “enemy ships should to lay aside a portion of her sternness, to take make enemy goods," yet it did not negative him by the hand, and exchanging her character that proposition: and as the two maxims had for that of mercy, to raise him up from an abyss always been associated together in the practice of doubt and fear to a pinnacle of hope and of nations, the one was to be considered as imjoy. In such circumstances, a temperate and guarded sympathy may not unfrequently be plying the other. virtue. But this is the last place upon earth Second. That by the Spanish prize code, in which it can be necessary to state, that, if it neutral property, found on board enemies' vesbe yielded to as a motive of decision, it ceases to be virtue, and becomes something infinitely sels, was liable to capture and condemnation, worse than weakness. What may be the real and that this being the law of Spain, applied value of Mr. Pinto's claim to our sympathy, it by her when belligerent to us and all other is impossible for us to be certain that we know; nations when neutral by the principle of recibut thus much we are sure we know, that whatever may be its value in fact, in the balance of procity, the same rule was to be applied to the the law it is lighter than a feather shaken from property of her subjects, which Mr. Pinto was a linnet's wing, lighter than the down that to be taken to be, the Government of the floats upon the breeze of summer. I throw into United States not having at that time acknowthe opposite scale the ponderous claim of war; a claim of high concernment, not to us only, ledged the independence of the Spanish Ameribut to the world; a claim connected with the can colonies. maritime strength of this maritime State, with

Third. That the claim of Mr. Pinto ought to public honor and individual enterprise, with all those passions and motives which can be be rejected on account of his unneutral conduct made subservient to national success and glory in hiring, and putting his goods on board of an in the hour of national trial and danger. I armed enemy's vessel, which sailed under conthrow into the same scale the venerable code of

voy, and actually resisted search. universal law, before which it is the duty of this court, high as it is in dignity, and great as

After discussing the two first of the aboveare its titles to reverence, to bow down with mentioned grounds of argument, Mr. Pinkney submission. I throw into the same scale a I proceeded:

I come now to the third and last question, | force, with full knowledge that she has capaupon which, if I should be found to speak with city to resist the commissioned vessels, and, if more confidence than may be thought to be they lie in her way, to attack and subdue the come me, I stand upon this apology, that I defenceless merchant ships of the other bellig. have never been able to persuade myself that erent, and with the further knowledge that her it was any question at all. I have consulted commander, over whom in this respect he has upon it the reputed oracles of universal law, no control, has inclination and authority, and with a wish disrespectful to their high voca- is bound by duty so to resist, and is inclined tion, that they would mislead me into doubt. and authorized so to attack and subdue. I shall But-pia sunt, nullumque nefas oracula suadent. discuss it as the case of a neutral, who advisedly I have listened to the council for the claimant, puts in motion, and connects his commerce and with a hope produced by his reputation for himself with a force thus qualified and conabilities and learning, that his argument would ducted; who voluntarily identifies his comshake from me the sturdy conviction which merce and himself with a hostile spirit, and held me in its grasp, and would substitute for authority, and duty, thus kl.ɔwn to and unconit that mild and convenient scepticism that ex- trollable by him; who steadily adheres to this cites without oppressing the mind, and sum- anomalous fellowship, this unhallowed league mons an advocate to the best exertion of his between neutrality and war, until in an evil faculties, without taking from him the prospect hour it falls before the superior force of an of success, and the assurance that his cause de- American cruiser, when, for the first time, he serves it. I have listened, I say, and am as insists upon dissolving the connection, and degreat an infidel as ever.

mands to be regarded as an unsophisticated My learned colleague, in his discourse upon neutral, whom it would be barbarous to centhis branch of the subject, relied, in some de- sure, and monstrous to visit with penalty. The gree, upon circumstances, supposed by him to gentlemen tell us that a neutral may do all be in evidence, but by our opponents believed this! I hold that he may not, and if he may, to be merely assumed. I will not rely upon that he is a "chartered libertine," that he is any circumstances but such as are admitted by legibus solutus, and may do any thing. us all. I take the broad and general ground, The boundaries which separate war from which does not require the aid of such special neutrality, are sometimes more faint and obconsiderations as might be borrowed from the scure than could be desired: but there never contested facts.

were any boundaries between them, or they The facts, which are not contested, are most all have perished, if neutrality can, as these: the claimant, Manuel Pinto, intending this new and most licentious creed declares, to make a large shipment of British merchan- surround itself upon the ocean with as much dise from London, where he then was, to Bue- of hostile equipment as it can afford to purnos Ayres, the place of his ordinary residence, chase, if it can set forth upon the great common for himself and other Spaniards, and moreover of the world, under the tutelary auspices, and to take on freight, and with a view to a com- armed with the power of one belligerent, bidmission on the sales, and a share in the profits, ding defiance to and entering the lists of battle in South America, other merchandise belong with the other, and, at the same moment, asing to British subjects, chartered at a fixed sume the aspect and robe of peace, and chalprice, in the summer of 1813, the British ship lenge all the immunities which belong only to the Nereide, for those purposes. The Nereide subrnission. was armed, either at the time of the charter or My learned friends must bear with me, if I afterwards, with ten guns: and her armament say that there is in this idea such an appearwas authorized by the British government, and ance of revolting incongruity, that it is difficult recognized by the usual document. The mer- to restrain the understanding from rejecting it chandise being all_laden, the ship sailed upon without inquiry, by a sort of intellectual instinct. her voyage under British convoy, as the owner It is, I admit, of a romantic and marvellous had, in the charter party, stipulated she should cast, and may, on that account, find favor with do, with the claimant, Pinto, and several pas- those who delight in paradox; but I am utterly sengers introduced, as I think, by him, on board, at a loss to conjecture how a well-regulated and with sixteen or seventeen hands. She and disciplined judgment, for which the gentleparted convoy soon afterwards, and was met men on the other side are eminently distinby the Governor Tompkins privateer, by which guished, can receive it otherwise than as the she was conquered, seized, and brought in as mere figment of the brain of some ingenious prize, after a resistance of several minutes, in artificer of wonders. The idea is formed by a the course of which the Nereide fired about union of the most repulsive ingredients. It twenty guns. Some of the passengers co-exists by an unexampled reconciliation of moroperated in this resistance, but Pinto did not, tal antipathies. It exhibits such a rare discordia nor, as far as is known, did he encourage it. rerum, such a stupendous society of jarring ele

I shall consider the case, then, as simply that ments, or, to use an expression of Tacitus, of a neutral, who attempts to carry on

trade res insociabiles, that it throws into the shade from a belligerent port, not only under bellig- the wildest fictions of poetry. I entreat your erent convoy, but in á belligerent vessel of | honors to endeavor a personification of this

motley notion, and to forgive me for presuming your indulgence, I have been betrayed into the to intimate, that if, after you have achieved it, use of them, by the composition of this mixed you pronounce the notion to be correct, you and (for a court of judicature,) uncommon auwill have gone a great way to prepare us, by dience. I trust that they will be pardoned upon the authority of your opinion, to receive as cred- the ground that they serve to mark ont and ible history, the worst parts of the mythology illustrate my general views, and to introduce of the Pagan world. The Centaur and the Pro- my more particular argument. teus of antiquity will be fabulous no longer. I will begin by taking a rapid glance at the The prosopopeia, to which I invite you, is effect which this imagined license to neutrals, scarcely, indeed, within the power of fancy, to charter the armed commercial vessels of á even in her most riotous and capricious mood, belligerent, may produce upon the safety of the when she is best able and most disposed to unarmed trade of the opposite belligerent; and force incompatibilities into fleeting and shadowy I deceive myself greatly, if this will not of itself, combination; but if you can accomplish it, will dispose us to reject the supposition of such a give you something like the kid and the lion, license. the lamb and the tiger portentously incorpora- It will not be denied, that, if one neutral may ted, with ferocity and meekness co-existent in hire such a vessel from a belligerent, every neuthe result, and equal as motives of action. It tral way do so. The privilege does not exist will give you a modern Amazon, more strangely at all, or it is universal. The consequence is constituted than those with whom ancient fable that the seas may be covered with the armed peopled the borders of the Thermodon-her ships of one of the parties to the war by the voice compounded of the tremendous shout of direct procurement and at the sole expense of the Minerva of Ilomer, and the gentle accents of those who profess to be no parties to it. What a shepherdess of Arcadia—with all the faculties becomes, then, of the defenceless trade of the and inclinations of turbulent and masculine other party to the war? Is it not exposed by war, and all the retiring modesty of virgin this neutral interference to augmented peril, peace. We shall have in one personage the and encountered by a new repulsion? Are not pharetrata Camilla of the Æneid, and the the evils of its predicament inflared by it? Is not Peneran maid of the Metamorphosis. We shall a more ample hostility, a more fearful array of have neutrality, soft and gentle and defenceless force provided for its oppression? Can it now in herself, yet clad in the panoply of her war- pass at all where before it passed with difficullike neighbors; with the frown of defiance ty and hazard? Can it now pass without danupon her brow, and the smile of conciliation ger where before it was in perfect safety? upon her lip; with the spear of Achilles in one Suppose one of the contending powers to be hand, and a lying protestation of innocence and greatly superior in maritime means to the helplessness unfolded in the other. Nay, if I other; what better expedient could be devised may be allowed so bold a figure, in a mere legal to make that superiority decisive and fatal, than discussion, we shall have the branch of olive to authorize neutrals to foster it into activity entwined around the bolt of Jove, and neutral- by subsidies under the name of freight, to draw ity in the act of hurling the latter under the it out upon the ocean, with a ripe capacity for deceitful cover of the former !

mischief, to spread it far and wide over its sur

face, and to send it across every path which the I must take the liberty to assert, that if this commerce of the weaker belligerent might otherbe law, it is not that sort of law which Hooker wise hope to traverse ? Call you that neutralspeaks of, when, with the splendid magnificence ity which thus conceals beneath its appropriate of eastern metaphor, he says, that "ber seat is vestment the giant limbs of war, and converts the bosom of God, and her voice the harmony the charter party of the compting-house into a of the world.” Such a chimera can never be commission of marque and reprisals; which fashioned into a judicial rule fit to be tolerated makes of neutral trade a laboratory of belligeror calculated to endure. You may, I know, ent annoyance; which, with a perverse and erect it into a role: and when you do, I shall, pernicious industry, warms a torpid serpent into in common with others, do my best to respect life, and places it beneath the footsteps of a it; but, until you do so, I am free to say, that friend with a more appalling lustre on its crest in my humble judgment, it must rise upon the and added venom in its sting; which for its ruins of many å principle of peculiar sanctity selfish purposes feeds the fire of international and venerable antiquity, which “the wing of discord, which it should rather labor to extintime has not yet brushed away," and which it guish, and in a contest between the feeble and will be your wisdom to preserve and perpetu- the strong enhances those inequalities that give ate.

encouragement to ambition and triumph to inIf I should be accused of having thus far justice ? spoken only or principally in metaphors, I I shall scarcely be told that this is an imagtrust I am too honest not to plead guilty, and inary evil. I shall not, in this court, hear it certainly I am not ashamed to do so: for, though said, as I think it has elsewhere been said,* that my metaphors, hastily conceived and hazarded, the merchant vessel of a belligerent, (of Engwill scarcely bear the test of a severe and vigorous criticism, and although I confess that under * At the hearing of the cause in the court below.


land especially,) armed under the authority of as it is laid down by Professor Rutherforih the state, and sailing under a passport which (Vattel, Droit des Gens, liv. 5, ch. 15, s. 226.) recognizes that armament, has not a right to He says, however, that a usage has grown up attack, and, if she can, to capture such enemy among the nations of Europe restrictive of the vessels as may chance to cross her track. general right of the individual subjects of one

[Mr. EMMET.— I shall maintain that she has power at war—"agir hostilement contre l'auno such right. She can capture only when she tre.” “La nécessité d'un ordre particulier est is herself assailed. She may be treated as a si bien établi que lors même que la guerre est pirate, if she is the assailant. Where are the déclarée entre deux nations, si des paysans comauthorities that prove the contrary?]

mettent d'eux-mêmes quelques hostilités, l'enWhere are my authorities? They are every nemi les traite sans ménagement, et les fait penwhere. Common sense is authority enough dre, comme il feroit des voleurs ou des brigupon such a point; and if the recorded opinions ands.” He adds, “Il en est de même de ceux of jurists are required, they are already familiar qui vont en course sur mer. Une commission to the learning of this court. The doctrine re- de leur prince, ou de l'amiral, peut seule les sults in the clearest manner from the nature of assurer, s'ils sout pris, d'étre traités comme des solemn war, as it is viewed by the law of na- prisonniers faits dans une guerre en forme." tions; and it should seem rather to be the duty This has been relied upon, it seems, as a point of my opponents to produce authorities to show to show that vessels in the predicament of the that this obvious corollary has been so restrain- Nereide can have no authority to attack such ed and qualified by civil regulations, or conven- enemy merchant ships as they may meet upon tion, or usage, as no longer to exist in the extent the ocean. But does the qualification produced which I ascribe to it. But I undertake, myself, by the usage which Vattel describes, (admitto produce ample proof that my doctrine is in ting it to be as he supposes,) amount to this? its utmost extent correct.

The rule in Vattel, as it applies to the peasIt is stated in Rutherforth’s Institutes, (vol. antry of a country, is connected with another2, p. 576—578,) that by the law of nations a that they shall not ordinarily be made the obsolemn war makes all the members of the one jects of hostility. This exemption implies a contending state the enemies of all the members corresponding forbearance, on their part, to of the other, and, as a consequence, that by mingle without the orders of the state in offenthat law a declaration of war does in itself au- sive war; and they are punished if they violate thorize every citizen or subject of the nation the condition of the immunity. This apparent which issues it to act hostilely against every severity is real mercy; for its object is to keep citizen or subject of the opposite nation. It is the peasantry at home, and to confine the confurther stated in the same book, (p. 577, 578,) tentions, and, consequently, the direct effects that, as the nation which has declared war has of war to the troops who are appointed by the authority over its own subjects, it may restrain state to fight its battles. But a non-commisthem from acting against the other nation in sioned merchant vessel upon the high seas has any other manner that the public shall direct, nothing of this exemption. She cannot pur• and, of course, that notwithstanding the gener- chase it by forbearance; nay, she is at every

al power implied in a declaration of war, it may moment the chosen object of hostility, as she is happen that none can act in war except those at every moment peculiarly exposed to it. who have particular orders or commissions for So far as the supposed usage applies to prithis purpose. But, (it is added,) “ this restraint vateers, it has no bearing upon this case. It and the legal necessity which follows from it, may be proper to confine to commissioned vesthat they who act should have particular orders sels the right of cruising for the mere purposes or commissions for what they do, arises, not of war and prize. Yet it may be equally proper from the law of nations, or from the nature of to leave to an armed merchant vessel the smaller war, but from the civil authority of their own and incidental right, (modified and checked in country. A declaration of war is, in its own its exercise by such municipal regulations as nature, a general commission to all the mem- each belligerent may and always does find it bers of the nation to act hostilely against all expedient to provide,) to act offensively against the members of the adverse nation. And all the public enemies, if she chances to encounter restraints, that are laid upon this general com- them. At any rate, as the armament of a mermission, and make any particular orders or chant vessel is sanctioned by the state to which commissions necessary, come from positive and she belongs, and is evidenced by its passport, civil institution.” I might now ask, in my it must depend altogether upon the laws of turn, where are the authorities, or documents that state, whether this sanction amounts to a of any sort, that show the imposition or exist- permission to commit hostilities in transitu or ence of these restraints upon English vessels, not. And I think I may venture to assert that without which restraints the Nereide might whatever inferences may be drawn from loose lawfully have assailed, and (if strong enough) and general dicta to be found in a very few captured any American vessel that came in her works upon the law of nations, no instance can way?

be produced, in which a merchant ship, attackVattel, who is not a very precise or scientific, ing an enemy vessel in the course of her voyalthough a very liberal writer, states the law | age, has received the treatment which the learned counsel for the claimant has allotted to of law and custom of that country upon a great such a proceeding, or has in any manner, been maritime subject, I have gone very far to show punished or even in any degree censured. the law and custom of Europe, or at least what

The notions of Azuni appear, (as far as any they ought to be; but as my purpose does not intelligible notions can be collected from his require that I should occupy so wide a field, I work, called a Treatise on the Maritime Law of shall use the English anthorities merely as supEurope,) to be similar to those of Vattel, and, porting the doctrine (unquestionable in itself), consequently, do not touch the point under con- which I have quoted from Rutherforth and sideration. This writer bas not been able to Vattel, and as proving that England has not insatisfy himself as to the propriety of the prac-troduced or made herself a party to those retice of privateering; or rather he is the undis- straints to which the right of offensive warfare, guised advocate, in different parts of his book, possessed upon original principles, by her armof the two opposite opinions, that it is a very ed merchant vessels, is alleged to be subject; bad practice and a very good one. Thus, in but, on the contrary, that her government and Part 2d, ch. 4, s. 13, (p. 232 of the translation,) courts of prize always have asserted, in the he inveighs with an amiable vehemence against most explicit manner, the existence of this right, it, bringing the Abbé Mably his assistance; and always have encouraged its practical exerand in the next chapter, (p. 350,) gives us a cise. proud panegyric upon it, and stigmatizes its When the cases to which I am about to refer censurers (and of course himself and the “ vir- for this purpose, come to be considered, it will tuoas Mably,'') as “pretended philosophers," be proper to bear in mind the distinction beand as shallow and malignant declaimers. Ad-tween the right which a capturing ship acmit, however, that this member of a score of quires in the thing captured and the validity academies does seem to have been steadily of or legality of that capture. Without a constant opinion, that a cruiser without a commission, attention to this distinction, which is manifestor something equivalent to a commission, must ly the creature of municipal law, the English be regarded as "a pirate or a sea-robber”-Per authorities cannot be understood.' In England mare discurrit deprædandi causa," is true, as it depends upon the prize act and the royal he tells us, of a privateer as well as of a pirate. proclamation, who shall be regularly entitled They differ, as he also assures nis, in this; that to the benefit of prizes. The property of all the latter pursnes all vessels indiscriminately, prizes is originally in the government, and it (as Casaregis expresses it,)“ sine patentibus ali- | grants that property how and to whom it cujus principis, ex propria tantum ac privata auc- pleases. The interest in prize is guaranteed toritate;" or as Azuni himself phrases it, “with only to a commissioned captor. A non-comout any commission or passport from any prince missioned vessel cannot, therefore, take for her or sovereign state;" wbilst the former attacks own benefit, but she may take, (and that too public enemies only, and has a special authority as an assailant,) for the benefit of the king or for that object. Now, although I am not con- lord high admiral, and may expect, and always vinced that a cruiser against public enemies does receive the whole or a part of the proceeds is necessarily a pirate, because she wants a from the justice, or if you choose, the politic commission, and am even very sure of the con- bounty of the crown, judicially not arbitrarily trary, I content myself with asking if all this is dispensed, as a reward for the capture. If this not (as well as what has been quoted from be, there is no difference according to the Vattel,) quite aside from the case of an armed English law, between a commissioned and a merchant vessel sailing under the passport of non-commissioned captor, so far as regards the the sovereign, to whose subjects she belongs, legality of the seizures made by them of the not a cruiser for prize or plunder, not depræ- property of enemies. The sole difference is dandi causa, but for commercial purposes, and that a commissioned captor has a positive title upon a commercial voyage, and only using her (derived from the previous act of the governauthorized force as an assailant when an enemy ment) to the thing taken, and that the non-commore feeble than herself comes within her missioned captor has no such positive title, but' power?

is referred altogether for his reward to what is But if a thousand such writers as Azuni, or called the discretion of the executive governeven writers of a much higher order, had incul- ment, which, however, is not a capricious discated (as they do not,) the general idea that an cretion, but is to be guided and carried into armed merchant vessel ought only to defend effect by the court of admiralty, with a view herself, and can never attack without becoming to the circumstances of each case. criminal, I should still have this successful re- The cases to which I shall refer, (principally ply, that it is not for a general rule that I am in Robinson's Admiralty Reports,) will be found, bound to contend; that the Nereide was an as I trust, to be perfectly conclusive on this English ship; and that it is, therefore, enough subject. for me to show, upon this matter, the law of The case of the Haase, (Rob. Adm. Rep. vol. England, as it has always been held by her I. p. 286,) was that of an enemy ship, taken prize tribunals and acquiesced in by the rest of near the Cape of Good Hope, by a non-comthe world. I might, indeed, maintain that missioned captor, and condemned by the high when I show the unresisted and uncomplained court of admiralty as a droit. The capturing

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