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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 i; 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 6 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 “ a right to govern by their laws the “ship of another nation navigating the “ 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.)

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 whererer 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, 80 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 what is to be done with all those little the sea.

bits of France (if you choose to deem them From this movable character of so) called ships, which to-day may be ship-territory, if we may so call it lying in French harbours as parte of a from the circumfusion of the great in- larger France, storing in cannons, rifles, ternational water-realm-flow important powder, shells, and a few days hence and peculiar consequences. No one, may be conterminous with the German that I am aware, has ever claimed that coast ? We cannot have a pair of Eng. the three miles of water, which are held lish eyes on board of each; if we had, annexed to every coast-line, should fol. we could never reckon on receiving in low a ship at sea. Again, on land, the time the result of their observations. sovereignty of each system of municipal Hence, I take it, the right of search, law is, within its domain, absolute and, consequently upon it, the right of against every other, except so far as it seizure. You, belligerent, want to know may be modified by treaty. Without whether this floating morsel of alleged a treaty for the pursuit or extradition of neutral territory is really what it professes criminals, you have no right to meddle to be, or whether it is not seeking to help with a malefactor except upon your own your enemy. If it does so, it is really territory. At sea, the pirate, though he making war in alliance with him, and may claim the benefit of every muni can no more deserve to be treated othercipal law in succession, may be sunk or wise than as a belligerent than would blown out of the water by the first the great fixed territory of which it comer; and this right has, under va- claims to form a part, did the latter do rious safeguards, been extended in the same things. And, therefore, you various cases to the prevention of the may take possession of it, just as you slave-trade. In time of war more im- might, by the law of war, take possesportant results yet follow. On land a sion of the country itself had you conbelligerent, through his ambassadors and quered it. The right of seizure of ministers, through his resident or tra. neutral vessels in such cases is really but velling subjects, or simply through their a limitation of the rights of war, which, relations with other countries, is almost if not confined to the particular persons always able to know all that is going on committing the breach of neutrality, in a neighbouring neutral country. His would have to be extended to the frontier forts and forces protect him country itself under whose flag the against direct hostilities. If aid be ship sails. You seize a private ship, furnished to his adversary through an- as carrying on a private war against other frontier of the neutral state, he you, in order not to make war upon can remonstrate, and, if need be, en- a nation. That such is the principle force neglected remonstrances by march- underlying all the law on the subing troops over his own frontier—in ject, is clearly proved by this, that other words, by making war on the unneutral conduct which, if pracfalse neutral who is really helping his tised by a private ship, would entail foe. But at sea he has no such safe- seizure and confiscation, if practised by guards. Suppose (which God forbid) a ship in the service of the State, would a war between England and Prussia, amount to a casus belli. And the right of France remaining neutral. Our coast- search is, probably, the simplest method defences and Channel fleet may be a at present discovered for enforcing this sufficient protection against French limitation. A ship in the actual service ships; our ambassador, consuls, Eng- of a neutral Government is held exempt lish merchants established in France, from search, because her ownership is Alpine club-men in search of summits, assumed to guarantee her good faith. A and every Brown, Jones, and Robinson private ship is searched because it offers on their travels, must look to the no such guarantee. Whether certain can reach, which it is most essential to ship, neutral territory," thus carried out determine. For instance, the seemingly to its logical consequences, and the old elementary questions - In what light English doctrine of untransferable alleare we to consider a ship at sea ? What giance, in virtue of which the Crown is the protection which may be afforded claimed a prerogative right of enforcing by a national flag ?-however much dis- the services of English subjects wherever cussed, have never been decided. Even they might be, and searching neutral the very practical question of the right vessels at sea to discover, impress, and of search, as the case of the Trent itself if found to be deserters, hang them, shows, embraces several unsettled there is an abyss. I believe the latter points.

doctrine, although so late as 1842 Lord Let us take the first question : Ashburton declined to abandon it, will From Jefferson to Webster, America be found untenable for the future. I has endeavoured to maintain the prin- believe the former doctrine, though it ciple, that a vessel is to be considered a has been once asserted by an English part of the national territory. But it is cabinet minister (Sir William Molesobvious that such a principle, construed worth, in 1856), cannot be literally apstrictly, is radically contrary to the very plied. Some right of search at sea in existence of the right of search, which time of war must, I conceive, subsist, her own greatest international jurist, to prevent neutrality from sinking into Dr.Wheaton (“Elements of International the most treacherous and cowardly of Law," vol. ii. p. 248,) speaks of as “a all modes of warfare. Yet we feel in“ belligerent right, essential to the exer- stinctively, that much of the reasoning “cise of the right of capturing enemy's as to the territorial character of the ship “ property, contraband of war, and ves- comes entirely home to us. Let us see “ sels committing a breach of blockade." if there be not some principle by which Jefferson, indeed, did not shrink from these contraries can be reconciled. such a conclusion. In a letter to R. R. It is strictly true, no doubt, that Livingston, (September 9, 1801), written every ship is primarily governed by some months after his entering upon the the municipal law of the country to duties of the Presidency, he says: “The which it belongs, and is therefore in“ persons on board a vessel traversing dependent of any other. It is, so “ the ocean, carrying with them the laws far, similar to the landed territory of 6 of their nation, have among them the country 'itself. But there is this “ selves a jurisdiction, a police, not es- great difference between the two. The “ tablished by their individual will, but domain of the municipal law in question “ by the authority of their nation, of on land is fixed, and immediately con“ whose territory their vessel still seems terminous with other domains of a dif“ to compose a part, so long as it does ferent municipal law. You cannot step 6 not enter the exclusive territory of out of France to the north without " another. No nation ever pretended stepping into Belgium ; to the north“a right to govern by their laws the east and east, without stepping into “ ship of another nation navigating the Germany, Switzerland, or Italy; to the " ocean. By what law, then, can it south, where the frontier is a land one, “ enter their ship, while in peaceable without stepping into Spain. The sphere 66 and ordinary use of the common ele- of international law, so far as it affects “ ment?” “War between two nations,” that territory on the land side, is purely he says, further on, “ cannot diminish a moral one. But, when we come to “ the rights of the rest of the world those domains of municipal law which “ remaining at peace.” And he pro- are called ships, we find them in the ceeds accordingly to argue away the first place movable ones—th conterwhole doctrine of “ contraband of war." minous with the land-dom. the (Correspondence," vol. iii. pp. 487-8.) same law, now with that

material realm of international law called what is to be done with all those little the sea.

bits of France (if you choose to deem them From this movable character of s0) called ships, which to-day may be ship-territory, if we may so call it lying in French harbours as parte of a from the circumfusion of the great in- larger France, storing in cannons, rifles, ternational water-realm-flow important powder, shells, and a few days hence and peculiar consequences. No one, may be conterminous with the German that I am aware, has ever claimed that coast? We cannot have a pair of Eng. the three miles of water, which are held lish eyes on board of each ; if we had, annexed to every coast-line, should fol- we could never reckon on receiving in low a ship at sea. Again, on land, the time the result of their observations. sovereignty of each system of municipal Hence, I take it, the right of search, law is, within its domain, absolute and, consequently upon it, the right of against every other, except so far as it seizure. You, belligerent, want to know may be modified by treaty. Without whether this floating morsel of alleged a treaty for the pursuit or extradition of neutral territory is really what it professes criminals, you have no right to meddle to be, or whether it is not seeking to help with a malefactor except upon your own your enemy. If it does so, it is really territory. At sea, the pirate, though he making war in alliance with him, and may claim the benefit of every muni- can no more deserve to be treated othercipal law in succession, may be sunk or wise than as a belligerent than would blown out of the water by the first the great fixed territory of which it comer; and this right has, under va- claims to form a part, did the latter do rious safeguards, been extended in the same things. And, therefore, you various cases to the prevention of the may take possession of it, just as you slave-trade. In time of war more im- might, by the law of war, take possesportant results yet follow. On land a sion of the country itself had you conbelligerent, through his ambassadors and quered it. The right of seizure of ministers, through his resident or tra- neutral vessels in such cases is really but velling subjects, or simply through their a limitation of the rights of war, which, relations with other countries, is almost if not confined to the particular persons always able to know all that is going on committing the breach of neutrality, in a neighbouring neutral country. His would have to be extended to the frontier forts and forces protect him country itself under whose flag the against direct hostilities. If aid be ship sails. You seize a private ship, furnished to his adversary through an- as carrying on a private war against other frontier of the neutral state, he you, in order not to make war upon can remonstrate, and, if need be, en- a nation. That such is the principle force neglected remonstrances by march- underlying all the law on the subing troops over his own frontier—in ject, is clearly proved by this, that other words, by making war on the unneutral conduct which, if pracfalse neutral who is really helping his tised by a private ship, would entail foe. But at sea he has no such safe- seizure and confiscation, if practised by guards. Suppose (which God forbid) a ship in the service of the State, would a war between England and Prussia, amount to a casus belli. And the right of France remaining neutral. Our coast- search is, probably, the simplest method defences and Channel fleet may be a at present discovered for enforcing this sufficient protection against rench lination. A ship in the actual service ships; our ambassador , Eng- o neutral Government is held exempt lish merchants establi

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