LECTURE V. NAVAL OR MARITIME BELLIGERENCY.
To sum up what I have been saying. I have been discussing certain legal fictions which are signified through legal metaphors， and especially one of them by which places and things not actually within the territorial jurisdiction of a state are supposed to be within that state for the purpose of collecting into a group the rules of law which apply to them. This fiction of ex-territoriality， is applied by general consent to the residences and persons of ambassadors and diplomatic agents in foreign countries， and on the whole the law on these subjects is expressed with sufficient accuracy by the fiction before us. By most nations the fiction is also applied to the portions of sea adjacent to the coast and deemed to be what is called the territorial waters of a particular state； that is to say， water which， so far as water can be assimilated to land， is regarded as part of the state's territory. Finally， by some communities a merchant ship on the high sea is alleged to be ex-territorial —— to be in the same position as the territory of the country to which she belongs. In this last way the fiction before us has become mixed with a very important branch of law， the law of Naval Belligerency， and I use it as a convenient point of transit to that subject which I might take up at several places in these lectures， but which I wish to include in this portion of them for several cogent reasons. It is a province of law which rose into extreme importance at the end of the last century and the beginning of the present； it has long been， and still is， the field of many bitter disputes； it is a part of International Law in which a great reform has recently been attempted； and though the attempt partially miscarried， the cause of failure deserves our attention on a variety of grounds； it sheds light on certain weaknesses of the international system， and raises a very serious question as to the true interests of England in a reform of that system which all but obtained the assent of the civilised world. I proceed， therefore， to deal with naval or maritime belligerency in its effects on belligerent Powers and on neutrals. The elements of the subject are simple. When two states go to war， the ships， public and private， of one are， relatively to the other， so many articles of movable property Boating on the sea. The capture of one of them by a ship of the other belligerent is prima facie regulated by the same principle as the seizure on land of a valuable movable by a soldier or body of soldiers. The law on the subject descends to us directly from the Roman Law. The property of an enemy is one of those things which the Roman Law in one of its oldest portions considers to be res nulliusno man's property. It may be taken just as a wild bird or wild animal is taken， by seizing it with the intention to keep it； but it is expressly laid down that a wild animal if it escapes ceases to be the property of the captor； and the question is， when is the captured property so reduced to possession as to make it altogether the property of the captor？
There was much dispute on this point among the interpreters of Roman Law. Some， including Grotius， maintained that the proper test was time， and the thing had to be possessed by the captor for four-and-twenty hours. A trace of this rule may be seen in the alleged power of the maritime captor to destroy the vessel which he has taken when he has no means of bringing it into a port. There is， however， another rule of Roman origin which has gradually supplanted the first mentioned. The captor must take the captured property infra presidia， within the fortified lines of a Roman camp. This applied to maritime warfare means nowadays at sea a port of the captor's country， as distinguished from an open roadstead， or the port of an ally of the captor or the port of a neutral Power. As it is sometimes put， the ship must be taken into military possession； that is， into a possession from which it cannot be rescued otherwise than by force. But in order that the captor may have the full benefit of his capture， yet another condition must be satisfied. The captured ship and its cargo， or cargo belonging to the enemy but found in a neutral ship， must be taken before a prize court and condemned as lawful prize. Till this condemnation has taken place the purchaser of the captured property could not be sure that he had a complete title to it， and could not obtain full value for it if he sold it.
Prize courts are sometimes called international courts， and no doubt modern International Law does， to some extent， recognize them； but in principle a prize court is a court established by positive municipal law， and it is entrusted by the sovereign of the state in which it is established with the duty of deciding whether ship or cargo is prize or no prize. In the abstract its object is to satisfy the conscience of the sovereign that the captures made by his subjects are valid captures. He is always， in theory， supposed to be responsible for them. But the great practical function of a prize court is to decide between the belligerent sovereign's subjects and subjects of neutral states. Neutral goods may form part of the cargo found in the enemy's ship which has been legally captured； or， again， cargo belonging to the other belligerent may have been found on the high sea in a neutral ship； or， again， the vessel brought into port may have been unlawfully captured through having been in the territorial waters of a neutral state， or by an attack organised in such territorial waters. In both of these cases capture is forbidden. If the belligerent sovereign permitted them， he would be guilty of an injury to an unoffending neutral.
The capture of ship or cargo belonging to one belligerent by the armed ships of the other is part of the fortune of war； nor can the captor much complain of having to bring his prize into a port for condemnation. So far as the captured vessel is concerned， this hardship is somewhat mitigated by the practice of what is called 'ransoming.' The commander willing to promise a definite sum for ship or cargo prepares a document which is called a 'Ransom Bill.' It is drawn in duplicate. The capturing officer takes one copy， and the commander of the captured ship another； and this ransom bill operates as a safe-conduct to the captured vessel on her voyage to a separate port. So far as relates to cruisers of the other belligerent， she enjoys immunity from their power of capturing her unless she has varied her course so as to raise suspicion of an intention to escape.
The real hardships of capture at sea， to which a large part of the world is not， even now， reconciled， are those affecting neutrals. If an enemy's ship at sea contains neutral cargo， the neutral must submit to have his goods taken into port for adjudication， and must of course forego opportunities of obtaining a favourable market， though his goods are not liable to capture. If a neutral ship contains admittedly enemy's cargo， the captain must submit to have his goods transhipped. These rules are of much antiquity. They are found in one of those treatises which are authorities on International Law， but which are older than its recognised beginning. In the ' Consolato del Mare，' which is supposed to contain the maritime usages of the seas which formed part of the Mediterranean basin， there are various laws with reference to the capture of neutral ships and neutral cargo， and enemy's cargo in neutral bottoms. These seas were， in the days in which these usages grew up， full of small commercial ports， all manufacturing and exporting， and not situated at great distances from one another. The origin of the rule which we are discussing exactly fits in with the relations of a certain number of small sovereignties of this kind； and that this is really the origin of the rule before us is indicated by provisions relating to the interruption of voyage， as for example by rules compelling the neutral ship to change her course for the port of the captor， and providing that she shall have compensation for her loss of time. The condition of these seas which I have sketched —— a number of small towns engaged in actual commerce， but not separated from one another by any great length of sea —— goes far to explain this ancient maritime law； but as one maritime Power and another grew in strength and came to value the advantages of neutrality， the discontent with these old rules began， and a desire arose for a more general and simpler system. One， in fact， which grew up was looked upon with much favour. It is often denoted by a sort of jingle which does not convey a real antithesis： 'Enemy ships， enemy goods； free ships， free goods.' All the cargo found in a hostile vessel may be made prize； if the vessel itself belong to a neutral， all the goads shall be treated as neutral property and shall not be liable to capture. France was on one side with a severe rule confiscating the neutral ship when any hostile cargo was carried in it， while the Dutch were for a system more lenient to neutrals， and finally France herself became patroness of this rule.
Many treaties have been negotiated between civilised states which embodied either both these rules or one of them； but still the rule which enables the belligerent to capture hostile cargo wherever he finds it， was on the whole that which lay at the base of International Law. The first serious attempt to effect a general reform of this principle was undertaken at the close of the Crimean war； and in 1854 the Powers which had taken part in， or had been most directly interested in， that war， issued what was called the Declaration of Paris. After reciting that maritime law in time of war had been the subject of deplorable disputes； that the uncertainty of this law gave rise to differences of opinion which might occasion serious differences and even conflicts， the plenipotentiaries at Paris， seeking to introduce into international relations fixed principles on the subject before them， declare that they have adopted the following summary of the rules which they wish to see carried into practice： First， privateering is abolished； second， the neutral flag covers enemy's goods with the exception of contraband of war； third， neutral goods， with the exception of contraband of war， are not liable to capture under the enemy's flag； fourth， blockades in order to be binding must be elective； that is to say， maintained by a force sufficient really to prevent access to the coast of the enemy. The net result shows that the rule， free ships make free goods， was adopted； but the other rule which has so often been coupled with it， enemy ships make enemy goods， was not adopted.
This Declaration was adhered to by all the Powers who had joined in the Crimean war， and it seemed for awhile that it would receive the assent of the whole of the civilized world， thus forming the first great example of a reform of the Law of Nations resting on the basis of expressly pledged faith instead of the older foundation of precedent and ancient rule. But on the Declaration being submitted to the United States， the Government of that country objected to the first article， 'Privateering is abolished.' A privateer is an armed private ship commissioned by belligerent sovereign to depredate on the commerce of his enemy， and rewarded by a share of the capture， which in recent times has amounted nearly to the whole of it. The reason given for the refusal of the United States by Mr. Marcy， the Secretary of State， was plausible enough.
'The United States consider powerful navies and large standing armies as permanent establishments to be detrimental to national prosperity and dangerous to civil liberty. The expense of keeping them up is burdensome to the people； they are in some degree a menace to peace among nations. A large force ever ready to be devoted to the purposes of war is a temptation to rush into it. The policy of the United States has ever been， and never more than now， adverse to such establishments， and they can never be brought to acquiesce in any change in International Law which may render it necessary for them to maintain a powerful navy or large standing army in time of peace. If forced to vindicate their rights by arms， they are content， in the present aspect of international relations， to rely in military operations on land mainly upon volunteer troops， and for the protection of their commerce in no inconsiderable degree upon their mercantile marine. If this country were deprived of these resources it would be obliged to change its policy and assume a military attitude before the world. In resisting an attempt to change the existing maritime law that may produce such a result， it looks beyond its own interest， and embraces in its view the interest of such nations as are not likely to be dominant naval Powers. Their situation in this respect is similar to that of the United States， and to them the protection of commerce and the maintenance of international relations of peace appeal as strongly as to this country to withstand the proposed change in the settled Law of Nations. To such nations the surrender of the right to resort to privateers would be attended with consequences most adverse to their commercial prosperity without any compensating advantages. . .
To sum up what I have been saying. I have been discussing certain legal fictions which are signified through legal metaphors， and especially one of them by which places and things not actually within the territorial jurisdiction of a state are supposed to be within that state for the purpose of collecting into a group the rules of law which apply to them. This fiction of ex-territoriality， is applied by general consent to the residences and persons of ambassadors and diplomatic agents in foreign countries， and on the whole the law on these subjects is expressed with sufficient accuracy by the fiction before us. By most nations the fiction is also applied to the portions of sea adjacent to the coast and deemed to be what is called the territorial waters of a particular state； that is to say， water which， so far as water can be assimilated to land， is regarded as part of the state's territory. Finally， by some communities a merchant ship on the high sea is alleged to be ex-territorial —— to be in the same position as the territory of the country to which she belongs. In this last way the fiction before us has become mixed with a very important branch of law， the law of Naval Belligerency， and I use it as a convenient point of transit to that subject which I might take up at several places in these lectures， but which I wish to include in this portion of them for several cogent reasons. It is a province of law which rose into extreme importance at the end of the last century and the beginning of the present； it has long been， and still is， the field of many bitter disputes； it is a part of International Law in which a great reform has recently been attempted； and though the attempt partially miscarried， the cause of failure deserves our attention on a variety of grounds； it sheds light on certain weaknesses of the international system， and raises a very serious question as to the true interests of England in a reform of that system which all but obtained the assent of the civilised world. I proceed， therefore， to deal with naval or maritime belligerency in its effects on belligerent Powers and on neutrals. The elements of the subject are simple. When two states go to war， the ships， public and private， of one are， relatively to the other， so many articles of movable property Boating on the sea. The capture of one of them by a ship of the other belligerent is prima facie regulated by the same principle as the seizure on land of a valuable movable by a soldier or body of soldiers. The law on the subject descends to us directly from the Roman Law. The property of an enemy is one of those things which the Roman Law in one of its oldest portions considers to be res nulliusno man's property. It may be taken just as a wild bird or wild animal is taken， by seizing it with the intention to keep it； but it is expressly laid down that a wild animal if it escapes ceases to be the property of the captor； and the question is， when is the captured property so reduced to possession as to make it altogether the property of the captor？
There was much dispute on this point among the interpreters of Roman Law. Some， including Grotius， maintained that the proper test was time， and the thing had to be possessed by the captor for four-and-twenty hours. A trace of this rule may be seen in the alleged power of the maritime captor to destroy the vessel which he has taken when he has no means of bringing it into a port. There is， however， another rule of Roman origin which has gradually supplanted the first mentioned. The captor must take the captured property infra presidia， within the fortified lines of a Roman camp. This applied to maritime warfare means nowadays at sea a port of the captor's country， as distinguished from an open roadstead， or the port of an ally of the captor or the port of a neutral Power. As it is sometimes put， the ship must be taken into military possession； that is， into a possession from which it cannot be rescued otherwise than by force. But in order that the captor may have the full benefit of his capture， yet another condition must be satisfied. The captured ship and its cargo， or cargo belonging to the enemy but found in a neutral ship， must be taken before a prize court and condemned as lawful prize. Till this condemnation has taken place the purchaser of the captured property could not be sure that he had a complete title to it， and could not obtain full value for it if he sold it.
Prize courts are sometimes called international courts， and no doubt modern International Law does， to some extent， recognize them； but in principle a prize court is a court established by positive municipal law， and it is entrusted by the sovereign of the state in which it is established with the duty of deciding whether ship or cargo is prize or no prize. In the abstract its object is to satisfy the conscience of the sovereign that the captures made by his subjects are valid captures. He is always， in theory， supposed to be responsible for them. But the great practical function of a prize court is to decide between the belligerent sovereign's subjects and subjects of neutral states. Neutral goods may form part of the cargo found in the enemy's ship which has been legally captured； or， again， cargo belonging to the other belligerent may have been found on the high sea in a neutral ship； or， again， the vessel brought into port may have been unlawfully captured through having been in the territorial waters of a neutral state， or by an attack organised in such territorial waters. In both of these cases capture is forbidden. If the belligerent sovereign permitted them， he would be guilty of an injury to an unoffending neutral.
The capture of ship or cargo belonging to one belligerent by the armed ships of the other is part of the fortune of war； nor can the captor much complain of having to bring his prize into a port for condemnation. So far as the captured vessel is concerned， this hardship is somewhat mitigated by the practice of what is called 'ransoming.' The commander willing to promise a definite sum for ship or cargo prepares a document which is called a 'Ransom Bill.' It is drawn in duplicate. The capturing officer takes one copy， and the commander of the captured ship another； and this ransom bill operates as a safe-conduct to the captured vessel on her voyage to a separate port. So far as relates to cruisers of the other belligerent， she enjoys immunity from their power of capturing her unless she has varied her course so as to raise suspicion of an intention to escape.
The real hardships of capture at sea， to which a large part of the world is not， even now， reconciled， are those affecting neutrals. If an enemy's ship at sea contains neutral cargo， the neutral must submit to have his goods taken into port for adjudication， and must of course forego opportunities of obtaining a favourable market， though his goods are not liable to capture. If a neutral ship contains admittedly enemy's cargo， the captain must submit to have his goods transhipped. These rules are of much antiquity. They are found in one of those treatises which are authorities on International Law， but which are older than its recognised beginning. In the ' Consolato del Mare，' which is supposed to contain the maritime usages of the seas which formed part of the Mediterranean basin， there are various laws with reference to the capture of neutral ships and neutral cargo， and enemy's cargo in neutral bottoms. These seas were， in the days in which these usages grew up， full of small commercial ports， all manufacturing and exporting， and not situated at great distances from one another. The origin of the rule which we are discussing exactly fits in with the relations of a certain number of small sovereignties of this kind； and that this is really the origin of the rule before us is indicated by provisions relating to the interruption of voyage， as for example by rules compelling the neutral ship to change her course for the port of the captor， and providing that she shall have compensation for her loss of time. The condition of these seas which I have sketched —— a number of small towns engaged in actual commerce， but not separated from one another by any great length of sea —— goes far to explain this ancient maritime law； but as one maritime Power and another grew in strength and came to value the advantages of neutrality， the discontent with these old rules began， and a desire arose for a more general and simpler system. One， in fact， which grew up was looked upon with much favour. It is often denoted by a sort of jingle which does not convey a real antithesis： 'Enemy ships， enemy goods； free ships， free goods.' All the cargo found in a hostile vessel may be made prize； if the vessel itself belong to a neutral， all the goads shall be treated as neutral property and shall not be liable to capture. France was on one side with a severe rule confiscating the neutral ship when any hostile cargo was carried in it， while the Dutch were for a system more lenient to neutrals， and finally France herself became patroness of this rule.
Many treaties have been negotiated between civilised states which embodied either both these rules or one of them； but still the rule which enables the belligerent to capture hostile cargo wherever he finds it， was on the whole that which lay at the base of International Law. The first serious attempt to effect a general reform of this principle was undertaken at the close of the Crimean war； and in 1854 the Powers which had taken part in， or had been most directly interested in， that war， issued what was called the Declaration of Paris. After reciting that maritime law in time of war had been the subject of deplorable disputes； that the uncertainty of this law gave rise to differences of opinion which might occasion serious differences and even conflicts， the plenipotentiaries at Paris， seeking to introduce into international relations fixed principles on the subject before them， declare that they have adopted the following summary of the rules which they wish to see carried into practice： First， privateering is abolished； second， the neutral flag covers enemy's goods with the exception of contraband of war； third， neutral goods， with the exception of contraband of war， are not liable to capture under the enemy's flag； fourth， blockades in order to be binding must be elective； that is to say， maintained by a force sufficient really to prevent access to the coast of the enemy. The net result shows that the rule， free ships make free goods， was adopted； but the other rule which has so often been coupled with it， enemy ships make enemy goods， was not adopted.
This Declaration was adhered to by all the Powers who had joined in the Crimean war， and it seemed for awhile that it would receive the assent of the whole of the civilized world， thus forming the first great example of a reform of the Law of Nations resting on the basis of expressly pledged faith instead of the older foundation of precedent and ancient rule. But on the Declaration being submitted to the United States， the Government of that country objected to the first article， 'Privateering is abolished.' A privateer is an armed private ship commissioned by belligerent sovereign to depredate on the commerce of his enemy， and rewarded by a share of the capture， which in recent times has amounted nearly to the whole of it. The reason given for the refusal of the United States by Mr. Marcy， the Secretary of State， was plausible enough.
'The United States consider powerful navies and large standing armies as permanent establishments to be detrimental to national prosperity and dangerous to civil liberty. The expense of keeping them up is burdensome to the people； they are in some degree a menace to peace among nations. A large force ever ready to be devoted to the purposes of war is a temptation to rush into it. The policy of the United States has ever been， and never more than now， adverse to such establishments， and they can never be brought to acquiesce in any change in International Law which may render it necessary for them to maintain a powerful navy or large standing army in time of peace. If forced to vindicate their rights by arms， they are content， in the present aspect of international relations， to rely in military operations on land mainly upon volunteer troops， and for the protection of their commerce in no inconsiderable degree upon their mercantile marine. If this country were deprived of these resources it would be obliged to change its policy and assume a military attitude before the world. In resisting an attempt to change the existing maritime law that may produce such a result， it looks beyond its own interest， and embraces in its view the interest of such nations as are not likely to be dominant naval Powers. Their situation in this respect is similar to that of the United States， and to them the protection of commerce and the maintenance of international relations of peace appeal as strongly as to this country to withstand the proposed change in the settled Law of Nations. To such nations the surrender of the right to resort to privateers would be attended with consequences most adverse to their commercial prosperity without any compensating advantages. . .