advantage. For, in all cases, European governments have, during peace, excluded other countries from the carrying trade between them and their colonies.* But in the Seven-years' War, begun in 1756, the French were prevented, by the maritime superiority of the British, from carrying on their colonial trade themselves. Upon this, they threw open the trade to neutrals; but Great Britain denied that neutrals had a Right to such a trade, and therefore acted upon the Rule of 1756 just stated. The consistency of the Rule with the common Rights of war, is evident. Such an interposition of neutrals as was here attempted, was a manifest assistance to France. It enabled Colonies to hold out, which must otherwise have surrendered; supplied the mother-country with . colonial produce and revenue; and enabled her to withdraw sailors from her merchant-service to man her fleet. It was a trade which the neutral had not possessed before the war; and possessed, during the war, only in virtue of the British naval superiority; and which they would lose again on the restoration of peace. The neutrals exercise such a trade under the protection of the stronger naval power, and entirely to his damage. The prohibition of such a trade is no doubt a limitation of the Rights of Commerce; but, in this respect, the prohibition of a neutral supplying the suppressed colonial trade of the weaker naval belligerent, does not differ from the prohibition of a neutral supplying a blockaded town with food, or a defeated belligerent with arms. such cases, the Rights of War supersede the Rights of Commerce, in order that the operations of War may not become futile. In 1179. The Right of Visitation or Search of neutral vessels at sea,† is a belligerent Right, essential to the exercise of the Right of capturing ene * Ibid. Wheaton, P. iv., c. iii., § 26 mies' property, contraband of war, and vessels committing breach of blockade. Even if the Right of capturing enemies' property be ever so strictly limited, and the Rule of "free ships, free goods," be adopted, still the Right of Visitation and Search is essential, in order to determine whether the ships themselves are neutral. It is conformable to the Law of Nations to detain a neutral vessel, in order to ascertain, not by the flag merely, which may be fraudulently assumed, but by the documents on board, whether she is really neutral. Indeed, the practice of maritime Capture could hardly exist without this Right. Accordingly, the writers on the subject concur in recognizing the existence of this Right. But it is to be observed, that we here speak of it only as a Right of Belligerents. CHAPTER IV. INTERNATIONAL RIGHTS OF JURISDICTION. 1180. WITHIN its own territory, every State has complete and exclusive jurisdiction. The Laws are made, and the administration of them directed, by the State; and speaking generally, this adminis tration extends to foreigners, so long as they are in the territory, no less than to natives. The practice and Treaties of nations may have introduced exceptions; but this is the general Rule. 1181. How far the jurisdiction of a State extends over its subjects, when they are out of the limits of all States, as for instance, when they are in a ship on the High Seas, is a question of International Law. As we have already said, it is maintained by some writers that the ship, wherever it may be, is to be considered as a part of the territory of the State: a sort of floating Colony. This is one mode of expressing a Rule which is assented to by all :*-That both the public and private vessels of every nation, on the high seas, and out of the territorial limits of another State, are subject to the jurisdiction of the State to which they belong. But if we say that this is because the vessel is a part of the national territory, we express this Rule in such a way as to contradict other Rules generally agreed to. For if the ship were really national territory; contraband of war, or enemy's goods, could not rightfully be seized within it; which, by acknowledged International Law, they may. 1182. A State has an exclusive jurisdiction over its vessels on the high seas, so far as respects offences against its own laws. But there are certain offences which are violations, not of the Law of any single State, but of International Law; as Piracy. The offence of depredating on the high seas without being authorized by any Sovereign State. This is a crime, not against any particular State, but against. all mankind; and may be punished by the competent tribunal of any country where the offender may be found, or into which he may be carried, though committed on the high seas. 1183. Hence, when a State declares an of fence Piracy, it declares that persons committing this offence may be lawfully captured on the high seas by the armed vessels of any State, and carried within the territorial jurisdiction of the captors for trial. And if the nations of Europe and America were to agree in declaring an offence, the Slave-trade, for instance, to be Piracy, vessels detected in the practice of the Slave-trade might be captured and condemned by any State which had the means of doing this. * Wheaton, Vol. 1., 152. 1184. The International Law of Europe and America appears to be approaching this point, but has not yet reached it. The Slave-trade has been declared a crime by every Christian nation. It has been declared piratical by many treaties between nations. An American vessel engaged in the trade has been condemned by an English prize-court.* For the trade having been prohibited by the Laws of both countries, and having been declared to be contrary to the principles of justice and humanity, the Judge decided that it was necessarily illegal. But in more recent cases, it has been decided by Judges that the Slave-trade is not a criminal traffic by the general law of nations; that each person can be judged for it only by the tribunals of his own country, except so far as the treaties of nations provide other jurisdictions. The Judget said that no one nation had a Right to force a way to the liberation of Africa by trampling on the independence of other States; or to procure eminent good by means that were unlawful; or to press forward to a great principle, by breaking through other great principles that stood in the way. But it must be remarked, on the other side, that there is great moral inconsistency in those States which declare the Slave-trade to be a crime, and express horror at the atrocities to which it leads; and who yet refuse to join in such an improvement of International Law, as would enable the powerful maritime nations altogether to suppress this traffic. 1185. The suspicion of a piratical character in a vessel, authorizes a stronger vessel to search the suspected ship. For if merely showing the flag of a State at peace with that of the stronger vessel, would suffice to pass the suspected ship unquestioned, no pirate need ever submit to be taken. Hence, the * Wheaton, P. I., c. xi. § 17. † Lord Stowell. question as to whether the Slave-trade is to be treated as being Piracy by International Law, leads to the question whether the Right of Search for the suppression of the Slave-trade exists by International Law. The Right of Mutual Search for this purpose has been established by treaties between several nations in modern times;* and probably the Moralists of all Countries will agree with the English Moralist, who said that he felt a pride in the British flag being, for this purpose alone, subjected to search by foreign ships. It had, he said, risen to loftier honour by bending to the cause of justice and humanity. 1186. Besides its jurisdiction over its subjects on the high seas, there are cases in which by the usage of nations, the jurisdiction of one State, more or less modified, extends into the territory of another. Thus, the person of a Sovereign going into the territory of a foreign State in time of peace, is, by the general usage and Comity of Nations, exempt from the ordinary local jurisdiction. And the person of an Ambassador, whilst within the territory of the State to which he is delegated, is in like manner exempt from the local jurisdiction. His residence is considered as a continued residence in his own country: and he retains his national character, unmixed with that of the country where he locally resides. Also by particular treaties between Countries, the Consuls, and other Commercial Agents, which a State appoints in a foreign country, are authorized to exercise a jurisdiction on the part of the State which appoints them. The nature and extent of this jurisdiction depends upon the stipulations of the treaties. Among Christian nations, it is generally confined to civil causes among merchants and seamen, to matters relating to Contracts and Wills, and the like. But the resident Consuls of Christian * Manning, B. II., ch., xi., p. 376. † Mackintosh. VOL. II. KK |