Bynkershoek. accordingly the Law of Nature will suffice to establish the principle that the flag protects the cargo (frey schiff frey gut), but never confiscates it (verfallenes schiff macht nicht verfallenes gut). "It must be admitted," he goes on to say, "that an opinion contrary to the first of these principles, namely, that according to the law of Nature regard should be had to the property of the cargo rather than to that of the ship, does not want specious arguments to support it, and that a simple theory will never suffice to make persons agree upon a point, in regard to which their interests are not the same." Of the above writers Klüber is the most logical in his conclusions, as he denies to a belligerent any Right of Visit and Search, which would be a necessary consequence of admitting a neutral ship to all the privileges of neutral territory. Martens, on the other hand, does not claim immunity under the law of Nature for enemy's cargo on board a neutral ship, except it be of an innocent character; but it must not be forgotten that the inviolability of neutral territory is something absolute, and is communicated to everything within it, whether it be suitable or not to belligerent purposes. Martens also admits the Right of Visit to be a Natural Right of belligerents, on the ground that the neutral merchant flag is not sufficient proof that the vessel is not an enemy vessel; but the Right of Visit on the part of a belligerent is inconsistent with the sacred character of neutral territory, more particularly as the object of the visit of a merchant ship by a belligerent is to examine the ship's papers, and to ascertain thereby whether the owners of the ship are friends or enemies, independently of the question whether the vessel lawfully sails under a neutral flag. § 88. Bynkershoek had anticipated the territorial 60 theory of Hübner in discussing the right of a belligerent to take possession of enemy's goods on board of a neutral ship, and had shown its inconsistency with the belligerent Right of Visit. Right of Visit. "Velim animadvertes eatenus licitum esse amicam navem sistere, ut non ex fallaci forte aplustri, sed ex ipsis instrumentis in navi repertis constet navem amicam esse. Si id constet, dimittam; si hostilem esse constiterit, occupabo. Quod si liceat, ut omni jure licet, et perpetuo observatur, licebit quoque instrumenta, quæ ad merces pertinent, excutere, et inde discere, an quæ hostium bona in navi lateant, et si lateant, quidni ea jure belli occupem." Lam- Lampredi. predi, writing subsequently to the appearance of Hübner's work, contravenes the fiction of a ship being part of the territory of a State, as altogether untenable. In effect, he says, it is not true to say that men who navigate the High Seas, that is who find themselves in a place which is not subject to the jurisdiction of any Nation, can be regarded as upon the territory of the Nation whose flag they carry, as Hübner has erroneously pretended. The flag, when it is accompanied by sea-papers, only serves to make known to what Nation the crew and the ship belong, that they have set out from a certain port with permission to navigate the Sea, and to hoist the flag which they carry. With regard to other persons who may be on board, they have no other laws to observe than those of natural justice and of the police established by the Sovereign Power of the Nation, as well for the maintenance of good order on board, as for the conduct to be observed in regard to vessels which they may meet with upon 60 Quæst. Juris Publici, L. I. c. 14. 61 Du Commerce des Neutres, en temps de Guerre, traduit par the Sea. Two vessels which meet under such like § 89. The principle of territoriality has been ably discussed by an English writer. an English writer. "It remains," says Manning. Mr. Manning, "to consider one more position, which has been much relied on by writers, who have claimed that the flag of a neutral shall protect the goods of a belligerent. The argument is based on the fact, that a belligerent has no right to capture the property of his enemy, when in the territory of a neutral. It is asserted that a ship is part of the territory of the State, to which she belongs; and that goods on board a neutral ship are therefore as exempt from capture, as if they were actually in the neutral country itself. The "To argue that a neutral ship is neutral territory is a fiction so palpable, that it appears surprising that it should ever have been insisted on as a tenable position, especially as only one argument is adduced in support of this territoriality of ships at sea. jurisdiction of the State to which a ship belongs extends to the cognisance of acts committed in that ship at sea; and it is argued that this continuance of jurisdiction proves that a ship at sea is part of the territory to which she belongs. This deduction seems, in the first place, farfetched and too flimsy to be made the basis of any serious conclusion. But more than this, it meets with contradictions on its own terms. A ship, say the assertors of this proposition, is part of the State to which she belongs, as is evident, because at sea she is subject to its jurisdiction. Now no Nation has jurisdiction over the territory of another Nation. But as soon as a merchant ship comes into the harbour 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 as part of the territory of a State; for if she possesses this character at any time, she must possess it at all times. The fact of a ship at sea being subject to the jurisdiction of the State, under whose flag she sails, is a most reasonable and advantageous regulation if not amenable to the jurisdiction of their own State, to whom would the crews of ships at sea be answerable? and if they were amenable to no tribunal, the sea would be a place where every crime might be committed with impunity. But it is difficult to imagine how it can be deduced as a consequence from this, that a ship is part of the territory of her State. The fiction is completely destroyed by the disproof above alleged, but other reasons combine to show how little tenable is this position. If a ship be part of the territory of the State of which her owners are citizens, it cannot be allowed to take from her Contraband of war going to an enemy, because such capture would not be permitted, if the Contraband goods were lying in neutral territory. Again, if neutral ships carry the soldiers of our enemy, it would not be allowable to make them prisoners, because we must not attack the territory of a neutral. Either the argument is worth nothing at all, or it holds to this extent, which is a reductio ad absurdum. To escape contradiction, the Right of Search and of seizing coutraband goods must be denied, if the right to protect enemy's goods be claimed on this ground." Mr. Manning might have gone even further in tracing out the necessary consequences of the territorial theory, and have added that the right of blockade must also be denied, if neutral ships partake of the inviolable character of neutral territory. § 90. If we look to the origin of the Mercantile Flag, it would appear to be a regulation of the municipal Law of individual States, and not to be an The Pass institution of the general Maritime Law. The PassSea-Letter. Port or the Sea-Letter, as the case may be, is the Port or formal voucher of the ship's National Character. The Passport purports to be a Requisition on the part of the Government of a State to suffer the vessel to pass freely with her company, passengers, 61 Manning's Commentaries on the Law of Nations, c. vi. § 1. p. 209. |