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a vessel at sea, to maintain that it is part of the soil, or even a part of the state claiming jurisdiction, than it is necessary, in order to show a title to a carriage running upon the highway, and a right to govern its motions, to show that the carriage is part of the real estate of the claimant.

Mr. Manning says: “Now, no nation has jurisdiction over the territory of another nation. But as soon as a merchantship comes into the harbor of a state to which she does not belong, she becomes subject to the jurisdiction of this latter state. This shows that a merchant-ship cannot be considered part of the territory of her state ; for if she possesses this character at any time, she must possess it at all times.” (p. 210.) This alone would seem to be conclusive of the argument, without reference to the other cogent reasons offered by Mr. Manning in support of his objection to the doctrine. How is it that the character of the ship in this respect can change upon her entrance into the port of another nation, so that the part of the soil, or part of the state, which she constituted, has become detached from the state to which she belongs, but is annexed again the moment she gets out of the port ? If the right of jurisdiction proves the ship to be part of the soil or state, it would seem to show that, upon entering the port of another nation, she had become part of the soil or state there. The proposition, therefore, proves too much. Mr. Clark admits that his rule is subject to certain exceptions, but in fact it is all exceptions. There is no particular in which the vessel can, with any just reason, be regarded as part of the territory. The proposition is, at best, but a mere fiction, for the purpose of asserting a jurisdiction over the ship while on the high seas, and a very unnecessary fiction for that purpose.

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* In a recent debate in the House of Commons on a resolution offered by Mr. Horsfall, “ That the present state of International Maritime Law, as affecting the rights of belligerents and neutrals, is ill-defined and unsatisfactory, and calls for the early attention of Her Majesty's government,” Lord Palmerston said: “We have lately maintained, at the risk of war, that a merchant-ship at sea is a part of our territory, that that territory cannot be violated with impunity, that, therefore, individuals cannot be taken out of a merchantman belonging to a neutral country. The same principle may be said to apply to goods as well as men, and if it be granted, as we do grant, that a belligerent has no right to take out of a neutral ship persons who are enemies, so also it follows that the neutral must always be respected, and in the case even of enemy's property on board ought not to be violated.” — If this is what


There has been much less difference of opinion respecting the rights of belligerents, as against each other, than has existed in relation to their rights, as their warlike operations may affect, directly or indirectly, those nations which, having no interest in the contest, not only desire to remain neutral, but to avail themselves of all the advantages of trade and commercial intercourse to which, but for the hostilities, they would be entitled with each of the belligerents.

The neutral nationality of a vessel being established, there is still no assurance of the observance of the actual neutrality which is incumbent on those who control the ship. The “greedy merchants who care not how things go, provided they can satisfy their thirst of gain,” pay little regard to proclamations of strict neutrality, so long as large profits attend a violation of it by the transportation of contraband goods, and profits may also be derived from the carriage of goods belonging to the citizens or subjects of the belligerent nations. This has led to the admission of a right of search, not to be exercised, we think, in cases where no violation of neutrality can reasonably be supposed to exist, but to which the neutral vessel should submit without objection in all cases where it may be rightfully exercised. This search, according to the general principle as laid down by English and American writers, may be for the purpose of capturing the goods of the enemy found on board, which, if not contraband of war, may be carried without a violation of neutrality, and without subjecting the vessel to confiscation, although the goods themselves are liable to capture.

was maintained, and is admitted, Earl Russell might have spared himself the labor of the greater portion of his despatch in reply to Mr. Seward, upon which we have commented at large in a subsequent part of this article. It is beyond question that there is no contraband of war within a neutral territory, nor any right to capture enemies of any sort within such territory, unless they use it for the purposes of active and immediate hostilities against the belligerent. And it is equally clear that the enemy's despatches, when within neutral territory, are not subject to capture. The whole matter in controversy would be ended at once on such a principle; and we need not talk about, what would be an idle, as well as a ridiculous question, to wit, whether a journey of neutral territory from one neutral port to another neutral port would vary the rights of the parties.

This is admitted to be a general principle of international law, of very ancient date, upon which any nation may act unless restrained by treaty or agreement.

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In the war in 1855 between Great Britain and France on the one part, and Russia on the other, Great Britain waived for the time her right to capture enemy's goods in neutral vessels, but she took good care to limit the waiver to that occasion. The language of Her Majesty's proclamation was,

“ To preserve the commerce of neutrals from all unnecessary obstruction, Her Majesty is willing, for the present, to waive a part of the belligerent rights appertaining to her by the Law of Nations. ....

" It is impossible for Her Majesty to forego the exercise of her right of seizing articles contraband of war, and of preventing neutrals from bearing the enemy's despatches; and she must maintain the right of a belligerent to prevent neutrals from breaking any effective blockade which may be established with an adequate force against the enemy's forts, harbors, or coasts. ..

“But Her Majesty will waive the right of seizing enemy's property laden on board a neutral vessel, unless it be contraband of war.” — 3 Phill., [294] 238.*

* In the debate in the House of Commons, March 17th, Mr. D'Israeli, referring to the second article of the Declaration at Paris, that the neutral flag covers the enemy's goods, and to the reason given by Lord Palmerston for the adoption of it, said: “I must do the noble Lord the justice to say that he did not dwell much on that point. He adınitted that the real causes of the change have been placed more clearly before the House by the honorable member for Birmingham. It was because, on the eve of a war with Russia, we feared the assertion of the principle that a neutral flag does not cover the cargo might involve us in embarrassments with the United States. The noble Lord recognized the accuracy of that description."

But Dr. Phillimore, who must be good authority, gives a reason altogether different, - one which has no reference to the United States; and we certainly have no evidence that there was any notice given to the United States that Great Britain had adopted and would abide by the principle for which the latter had contended. Dr. Phillimore says: At the breaking out of the present European war (1855], England found herself in close alliance, offensive and defensive, with France. They were to wage war together both by sea and land. It was therefore supposed to be necessary that there should be an agreement between them as to the question which has been so long under our consideration, of the exercise of belligerent rights towards neutrals. The result was a compromise. France abandoned her doctrine, that enemy's ships made enemy's goods; England agreed to allow, during her alliance with France in the present war, the doctrine that free ships made free goods. But she scrupulously and expressly declared that in so doing she ' waived a part of the belligerent rights appertaining to her by the Law of Nations. It will be seen, therefore, from the principles already laid down in this work, as well as from the reason of the thing, that England has retained unimpaired her belligerent right upon this important subject. In the communi. cations which have passed on this subject between England and the North American United States, the Minister of the latter country observed in his reply: ‘Notwithstanding the sincere gratification which Her Majesty's declaration has given to

Right of search may also be exercised for the capture of goods the property of the neutral, if they are contraband of war. In the absence of treaty stipulations one of the most perplexing and irritating questions has been, What shall be deemed contraband of war? The general principle is, that the neutral shall not aid either belligerent in his warlike operations. The transportation of arms and munitions of war generally to a belligerent is clearly a violation of the duty of the neutral, but the list of articles regarded as contraband because of their direct or indirect assistance in the prosecution of the war has been extended greatly beyond goods necessarily of a warlike character; and so controversies have arisen respecting goods of a debatable description, the interest of the belligerent being to cut off all supplies from his enemy, and the interest of the neutral being for the largest liberty of trade and commerce. Great Britain, as a belligerent, has heretofore insisted, against the United States and other neutral nations, upon the largest catalogue of contraband goods. See the case of the Jonge Margaretta (1 Rob. Adm. Rep. 195), also the case of the Zelden Rust (6 Rob. Adm. Rep. 93), in which cheeses suitable for naval stores were held to be contraband.

As between Great Britain and the United States there is a · right to capture despatches of the enemy. Great Britain has uniformly insisted upon the general principle that the carriage of the despatches of a belligerent is a violation of neutrality, and by the decisions of her Admiralty court has maintained the most stringent rule, to the extent of including as despatches “ all official communications of official persons on the public affairs of the government,” saying, if the papers so taken relate to public concerns, be they great or small, civil or military, the court will not split hairs and consider their relative importance. See extracts in our January number, Article X., from the case of the Caroline (6 Rob. Adm. Rep.


the President, it would have been enhanced if the rule alluded to had been announced as one which would be observed, not only in the present, but in every future war in wbich Great Britain shall be a party.” (3 Phill., [292] 237.) In a note he says : “In 1823 and 1826 - 27 vain attempts were made to adjust this question between England and the North American United States." VOL. XCV. - NO. 196.


461 - 470), case of the Susan (6 Rob. 461, note), case of the Atalanta (6 Rob. 440 - 460). In the case of the Caroline, above cited, an exception was made, to which we shall refer hereafter.

In the war by Great Britain and France against Russia, Great Britain, as we have seen, waived the right to capture enemy's goods, but insisted on her right to capture despatches, and American writers have recognized this as a belligerent right.

Controversies less numerous have arisen upon the question, under what circumstances the transportation of persons belonging to a belligerent party is a violation of neutrality. Here, again, Great Britain, as against the United States, has promulgated and enforced the rule limiting to the greatest extent the right of the neutral. See what is said by Sir William Scott respecting persons who were going to be employed in civil capacities in the government of Batavia (6 Rob. 434, Case of the Orozembo).

A vessel resisting visitation and search renders herself liable to capture and condemnation. See case of the Swedish ship Maria, which was under convoy of a Swedish frigate (1 Rob. 340).

That the principles thus laid down remained, up to the time of the present rebellion, as the principles of international law, recognized, and to some extent, it might be said, established by Great Britain, is shown beyond doubt by the fact that Dr. Phillimore, whose work, in four volumes, was published at different times from 1854 to 1861, states them all, with undoubting confidence, as general principles. Other English writers, so far as they have had occasion to refer to them, state them in a similar way, perhaps not so much in detail.

Against some of these doctrines the United States objected, but in vain, and finally acquiesced, so far as acquiescence is shown by a failure to follow up the objection by war, and by the general course of their judicial decisions. They have been recognized by the most eminent publicists here, and have been taught in the schools of law, so far as there has been occasion for instruction, as settled principles, - the principles of Continental Europe, so far as they were different, not being

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