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A GLANCE BEYOND THE “TRENT" DIFFICULTY : THE INTERNATIONAL LAW OF THE SEA.

BY J. M. LUDLOW.

BEFORE these pages appear in print, the dread issues of war and peace, which hang upon the " case of the Trent," will in all probability have been decided; the discussion of the chief points of international law involved in it will have become superfluous, as respects the solution of the present difficulty. But even assuming, as I earnestly trust, that that solution will be peace-that the great sorrow which has fallen upon England and her queen, through the death of the Prince Consort, will not have been outraged by the din of war,-nay, hoping, as I do, that that event will itself tend to still men's angrier passions on either side of the Atlantic,-I believe that there could be no greater fallacy than to suppose that the difficulty itself is but a summer cloud, to pass away and be forgotten. It is, on the contrary, it can be, but the first as towards us, as the shelter given to the Nashville will have been to the Americans, of a series of inevitable frictions produced by a state of war, between nations kindred in pluck, spirit, enterprise, national pride-frictions which are certain to fret into sores, if real wisdom be not actively employed on both sides to minimize pressure, ease contact, soothe every chafed surface.

Never in the history of mankind were the circumstances of any war more favourable for endeavouring to mitigate, at least, its maritime horrors. The war is wide as the continent over which the territories of the belligerents extend, wide as the water-world over which the trade of one of them is spread, and the privateers of the other are scattered. Yet there are no entangling alliances, no furiously passionate sympathies, to stretch the compass of that war over any others than the two belligerent

it is, I trust, the wish of all the world besides, to stand neutral. And the two belligerent powers are the fragments of one, whose whole foreign history, since it entered upon the world's stage, is, so to speak, one long assertion of the rights of neutrality;-whose worst demerits towards foreign countries have been, that it seldom seemed to know where these rights stopped, and by what test a neutral trader was to be distinguished from a piratical slaver or a lawless filibuster ;— and which has sometimes acted as if it deemed it lawful, on strictly neutral principles, to annex every neighbouring province and island. It is impossible thus for either belligerent, without stultifying their common history, to seek to stretch those rights of war, which all the world besides is so interested in curtailing.

Let us briefly recall the facts as matter of history. A steamer, owned by a chartered British Company, under contract with the British Government, for a certain yearly sum, to carry the British mails under the charge of an Admiralty agent, but not in Government employ, and making the usual profit of a merchant ship on passengers and freight, is stopped on her voyage between neutral port and neutral port, being part of the return-route of the mails, by an American war-steamer, and four persons are taken out of her, as agents of what England and France have recognised as a belligerent power, but the United States treat as yet only as an unlawful league of rebel provinces.

Now, when all the treatises on the law of nations, all the reports of Courts of Admiralty, have been fully ransacked for principles and precedents to bear upon the Trent difficulty, there remain

can reach, which it is most essential to determine. For instance, the seemingly elementary questions -In what light are we to consider a ship at sea? What is the protection which may be afforded by a national flag ?-however much discussed, have never been decided. Even the very practical question of the right of search, as the case of the Trent itself shows, embraces several unsettled points.

Let us take the first question :From Jefferson to Webster, America has endeavoured to maintain the principle, that a vessel is to be considered a part of the national territory. But it is obvious that such a principle, construed strictly, is radically contrary to the very existence of the right of search, which her own greatest international jurist, Dr.Wheaton ("Elements of International Law," vol. ii. p. 248,) speaks of as a "belligerent right, essential to the exer"cise of the right of capturing enemy's "property, contraband of war, and ves"sels committing a breach of blockade." Jefferson, indeed, did not shrink from such a conclusion. In a letter to R. R. Livingston, (September 9, 1801), written some months after his entering upon the duties of the Presidency, he says: "The

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persons on board a vessel traversing "the ocean, carrying with them the laws "of their nation, have among them"selves a jurisdiction, a police, not es"tablished by their individual will, but

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by the authority of their nation, of "whose territory their vessel still seems "to compose a part, so long as it does "not enter the exclusive territory of "another. No nation ever pretended

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a right to govern by their laws the ship of another nation navigating the 66 ocean. By what law, then, can it "enter their ship, while in peaceable "and ordinary use of the common ele"ment?" "War between two nations," he says, further on, cannot diminish "the rights of the rest of the world "remaining at peace." And he proceeds accordingly to argue away the whole doctrine of "contraband of war." ("Correspondence," vol. iii. pp. 487-8.)

66

ship, neutral territory," thus carried out to its logical consequences, and the old English doctrine of untransferable allegiance, in virtue of which the Crown claimed a prerogative right of enforcing the services of English subjects wherever they might be, and searching neutral vessels at sea to discover, impress, and if found to be deserters, hang them, there is an abyss. I believe the latter doctrine, although so late as 1842 Lord Ashburton declined to abandon it, will be found untenable for the future. I believe the former doctrine, though it has been once asserted by an English cabinet minister (Sir William Molesworth, in 1856), cannot be literally applied. Some right of search at sea in time of war must, I conceive, subsist, to prevent neutrality from sinking into the most treacherous and cowardly of all modes of warfare. Yet we feel instinctively, that much of the reasoning as to the territorial character of the ship comes entirely home to us. Let us see if there be not some principle by which these contraries can be reconciled.

It is strictly true, no doubt, that every ship is primarily governed by the municipal law of the country to which it belongs, and is therefore independent of any other. It is, so

far, similar to the landed territory of the country itself. But there is this great difference between the two. The domain of the municipal law in question on land is fixed, and immediately conterminous with other domains of a different municipal law. You cannot step out of France to the north without stepping into Belgium; to the northeast and east, without stepping into Germany, Switzerland, or Italy; to the south, where the frontier is a land one, without stepping into Spain. The sphere of international law, so far as it affects that territory on the land side, is purely a moral one. But, when we come to those domains of municipal law which are called ships, we find them in the first place movable ones-now conterminous with the land-domain of the same law, now with that of another

material realm of international law called the sea.

From this movable character of ship-territory, if we may so call it from the circumfusion of the great international water-realm-flow important and peculiar consequences. No one, that I am aware, has ever claimed that the three miles of water, which are held annexed to every coast-line, should follow a ship at sea. Again, on land, the sovereignty of each system of municipal law is, within its domain, absolute against every other, except so far as it may be modified by treaty. Without a treaty for the pursuit or extradition of criminals, you have no right to meddle with a malefactor except upon your own territory. At sea, the pirate, though he may claim the benefit of every municipal law in succession, may be sunk or blown out of the water by the first comer; and this right has, under various safeguards, been extended in various cases to the prevention of the slave-trade. In time of war more important results yet follow. On land a belligerent, through his ambassadors and ministers, through his resident or travelling subjects, or simply through their relations with other countries, is almost always able to know all that is going on in a neighbouring neutral country. His frontier forts and forces protect him against direct hostilities. If aid be furnished to his adversary through another frontier of the neutral state, he can remonstrate, and, if need be, enforce neglected remonstrances by marching troops over his own frontier-in other words, by making war on the false neutral who is really helping his

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what is to be done with all those little bits of France (if you choose to deem them so) called ships, which to-day may be lying in French harbours as parts of a larger France, storing in cannons, rifles, powder, shells, and a few days hence may be conterminous with the German coast? We cannot have a pair of English eyes on board of each; if we had, we could never reckon on receiving in time the result of their observations. Hence, I take it, the right of search, and, consequently upon it, the right of seizure. You, belligerent, want to know whether this floating morsel of alleged neutral territory is really what it professes to be, or whether it is not seeking to help your enemy. If it does so, it is really making war in alliance with him, and can no more deserve to be treated otherwise than as a belligerent than would the great fixed territory of which it claims to form a part, did the latter do the same things. And, therefore, you may take possession of it, just as you might, by the law of war, take possession of the country itself had you conquered it. The right of seizure of neutral vessels in such cases is really but a limitation of the rights of war, which, if not confined to the particular persons committing the breach of neutrality, Iwould have to be extended to the country itself under whose flag the ship sails. You seize a private ship, as carrying on a private war against you, in order not to make war upon a nation. That such is the principle、 underlying all the law on the subject, is clearly proved by this, that unneutral conduct which, if practised by a private ship, would entail seizure and confiscation, if practised by a ship in the service of the State, would amount to a casus belli. And the right of search is, probably, the simplest method at present discovered for enforcing this limitation. A ship in the actual service of a neutral Government is held exempt from search, because her ownership is assumed to guarantee her good faith. A private ship is searched because it offers no such guarantee. Whether certain

can reach, which it is most essential to determine. For instance, the seemingly elementary questions-In what light are we to consider a ship at sea? What is the protection which may be afforded by a national flag?-however much discussed, have never been decided. Even the very practical question of the right of search, as the case of the Trent itself shows, embraces several unsettled points.

66

Let us take the first question :From Jefferson to Webster, America has endeavoured to maintain the principle, that a vessel is to be considered a part of the national territory. But it is obvious that such a principle, construed strictly, is radically contrary to the very existence of the right of search, which her own greatest international jurist, Dr.Wheaton ("Elements of International Law," vol. ii. p. 248,) speaks of as "a belligerent right, essential to the exer"cise of the right of capturing enemy's 66 property, contraband of war, and ves"sels committing a breach of blockade." Jefferson, indeed, did not shrink from such a conclusion. In a letter to R. R. Livingston, (September 9, 1801), written some months after his entering upon the duties of the Presidency, he says: "The 66 persons on board a vessel traversing "the ocean, carrying with them the laws "of their nation, have among them"selves a jurisdiction, a police, not es"tablished by their individual will, but "by the authority of their nation, of "whose territory their vessel still seems "to compose a part, so long as it does "not enter the exclusive territory of "another. No nation ever pretended

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66

a right to govern by their laws the ship of another nation navigating the 66 ocean. By what law, then, can it "enter their ship, while in peaceable "and ordinary use of the common ele"ment?" "War between two nations," he 66 further on, says, cannot diminish "the rights of the rest of the world "remaining at peace." And he proceeds accordingly to argue away the whole doctrine of "contraband of war." ("Correspondence," vol. iii. pp. 487-8.)

ship, neutral territory," thus carried out to its logical consequences, and the old English doctrine of untransferable allegiance, in virtue of which the Crown claimed a prerogative right of enforcing the services of English subjects wherever they might be, and searching neutral vessels at sea to discover, impress, and if found to be deserters, hang them, there is an abyss. I believe the latter doctrine, although so late as 1842 Lord Ashburton declined to abandon it, will be found untenable for the future. I believe the former doctrine, though it has been once asserted by an English cabinet minister (Sir William Molesworth, in 1856), cannot be literally applied. Some right of search at sea in time of war must, I conceive, subsist, to prevent neutrality from sinking into the most treacherous and cowardly of all modes of warfare. Yet we feel instinctively, that much of the reasoning as to the territorial character of the ship comes entirely home to us. Let us see if there be not some principle by which these contraries can be reconciled.

It is strictly true, no doubt, that every ship is primarily governed by the municipal law of the country to which it belongs, and is therefore independent of any other. It is, so far, similar to the landed territory of the country itself. But there is this great difference between the two. The domain of the municipal law in question on land is fixed, and immediately conterminous with other domains of a different municipal law. You cannot step out of France to the north without stepping into Belgium; to the northeast and east, without stepping into Germany, Switzerland, or Italy; to the south, where the frontier is a land one, without stepping into Spain. The sphere of international law, so far as it affects that territory on the land side, is purely a moral one. But, when we come to those domains of municipal law which are called ships, we find them in the first place movable ones-no minous with the land-domas same law, now with that of

conter

the

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material realm of international law called
the sea.

From this movable character of
ship-territory, if we may so call it
from the circumfusion of the great in-
ternational water-realm-flow important
No one,
and peculiar consequences.
that I am aware, has ever claimed that
the three miles of water, which are held
annexed to every coast-line, should fol-
low a ship at sea. Again, on land, the
sovereignty of each system of municipal
law is, within its domain, absolute
against every other, except so far as it
may be modified by treaty. Without
a treaty for the pursuit or extradition of
criminals, you have no right to meddle
with a malefactor except upon your own
territory. At sea, the pirate, though he
may claim the benefit of every muni-
cipal law in succession, may be sunk or
blown out of the water by the first
comer; and this right has, under va-
rious safeguards, been extended in
various cases to the prevention of the
slave-trade. In time of war more im-
portant results yet follow. On land a
belligerent, through his ambassadors and
ministers, through his resident or tra-
velling subjects, or simply through their
relations with other countries, is almost
always able to know all that is going on
in a neighbouring neutral country. His
frontier forts and forces protect him
If aid be
against direct hostilities.
furnished to his adversary through an-
other frontier of the neutral state, he
can remonstrate, and, if need be, en-
force neglected remonstrances by march-
ing troops over his own frontier-in
other words, by making war on the
false neutral who is really helping his
foe. But at sea he has no such safe-
guards. Suppose (which God forbid)

what is to be done with all those little bits of France (if you choose to deem them so) called ships, which to-day may be lying in French harbours as parts of a larger France, storing in cannons, rifles, powder, shells, and a few days hence may be conterminous with the German coast? We cannot have a pair of English eyes on board of each; if we had, we could never reckon on receiving in time the result of their observations. Hence, I take it, the right of search, and, consequently upon it, the right of seizure. You, belligerent, want to know whether this floating morsel of alleged neutral territory is really what it professes to be, or whether it is not seeking to help your enemy. If it does so, it is really making war in alliance with him, and can no more deserve to be treated otherwise than as a belligerent than would the great fixed territory of which it claims to form a part, did the latter do the same things. And, therefore, you may take possession of it, just as you might, by the law of war, take possession of the country itself had you conquered it. The right of seizure of neutral vessels in such cases is really but a limitation of the rights of war, which, if not confined to the particular persons committing the breach of neutrality, would have to be extended to the country itself under whose flag the ship sails. You seize a private ship, as carrying on a private war against you, in order not to make war upon a nation. That such is the principle underlying all the law on the subject, is clearly proved by this, that unneutral conduct which, if practised by a private ship, would entail seizure and confiscation, if practised by a ship in the service of the State, would amount to a casus belli. And the right of search is, probably, the simplest method at present discovered for enforcing this liation. A ship in the actual service. s, Eng-neutral Government is held exempt France search, because her ownership is ed to guarantee her good faith. A searched because it offers

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