Lam- Lampredi.

si lateant, quidni ea jure belli occupem."
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
the Sea. Two vessels which meet under such like
circumstances, resemble two carriages which happen
to meet in a desert place, which is not in the occupa-
tion of any Nation. It would be very absurd for the
owner of one of them to pretend that his carriage
is the territory of his State, because he has hoisted
upon it the flag of his State. The pretension of a
marine carriage (voiture de mer) is not less ridi-
culous, when, having hoisted the flag of a Nation,
the owner of the carriage claims that it should be
regarded as forming part of the Nation's territory,
and as such should be inviolable.
The persons
of the individuals, who are on board of a vessel

61 Du Commerce des Neutres, J. Peuchet, Paris, an. X. (1862), en temps de Guerre, traduit par p. 139. Part. I. § 10.

on the High Seas deserve to be respected beyond doubt, and they ought not to be troubled or arrested, not because they are upon a territory, but by reason of Natural Right, which constitutes them free and independent of every other person but their lawful Sovereign. Although it may be perfectly true that violence and injustice exercised on the High Seas against the subjects of a State ought to lead, and does in fact lead, their Sovereign to demand redress even by force of arms, he does not however do so because his territory is violated, but from the general obligation under which he is placed to defend his Subjects from all violence, in whatever place they may be, and to obtain reparation for any damage which they may have suffered." § 89. The principle of territoriality has been ably discussed by 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.

Το

"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

The

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 contraband 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 institution The Pass of the general Maritime Law. The Passport or the Sea-Letter. Sea-Letter, as the case may be, is the formal voucher

port or

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, goods, and merchandise, without any hinderance, seizure, or molestation, as being owned by citizens or subjects of such State®3.

62 Manning's Commentaries on the Law of Nations, c. vi. § I. p. 209.

63 The best account of the Passport is given by D'Abreu (Part I. c. 2), who justly observes that it covers sometimes the cargo as well as the ship, but that it invariably names the ship, its build, the captain, and his residence. D'Abreu also gives an account of the Sea-Letter, which he describes as being in the same form as the Pass. The difference between them would seem to consist in this, that whilst the Pass is issued in the name of a

Sovereign Power or State, the Sea Letter is issued in the name of the Civil Authorities of the port, from which the vessel is fitted out. The form of a Sea Letter is annexed to the Treaty of the Pyrenees (A. D. 1659), under which it was provided that Free Ships should make Free Goods. It is termed "Literæ Salvi Conductus," and the force and effect of it is thus described in the XVIIth Article of the Treaty itself: "Ex quibus non solum de suis mercibus impositis, sed etiam de loco domicilii et habitationis, ut et de nomine tam

66

which we

64

"The first paper," says Sir W. Scott, usually look for, as proof of property, is the Pass 4." The same learned Judge elsewhere observes, "It is a known and well established rule with respect to a vessel, that if she is navigating under the Pass of a foreign country, she is considered as bearing the national character of that Nation under whose Pass she sails. She makes a part of its navigation, and is in every respect liable to be considered as a vessel of that country." The Pass or Sea-Letter was, until very recent times, indispensable for the security of a neutral ship from molestation by belligerent cruisers, and it was the only paper to which any respect was paid by the Corsairs of the Barbary States, as warranting the vessel to be within the protection of their respective treaty-engagements with the European Powers. If a vessel be furnished with a Pass or Sea-Letter, it is immaterial whether she has any Mercantile Flag on board or not. The latter by itself is not a criterion of the national character of the owners of the vessel. By an early Statute of the City of Lubeck (A. D. 1299),

Domini et Magistri navis, quam navigii ipsius constare queat: quo per duo hæcce media cognoscatur, an merces vehant de Contrebande, et sufficienter tam de qualitate, quam de Domino et Magistro dicti navigii constet. His literis salvi conductus et certificationibus plena fides habebi

In the Treaty of Copenhagen concluded 11 July 1670, between Great Britain and Denmark, the Sea-Letter is termed a Certificate; and it is provided that the ships of either Confederate shall carry Letters of Passport and a Certificate, of which the forms are set forth in

67

the body of the treaty. This Sea Letter or Certificate extended to the cargo.

64 The Hoop, 1 Ch. Rob. p. 130.

65 The Vigilantia, Ch. Rob. p. 13.

66 An account of the Mediterranean Passes will be found in Reeves's History of the Law of Shipping, Pt. III. p. 423.

67 Pardessus, Lois Maritimes, Tom. III. p. 411. Tout patron, bourgeois de Lubeck, sera tenu d'arborer le pavillon Lubeckois, sous peine d'une amende de trois marcs d'argents au profit de MM. les sénateurs et de la ville de