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.

62 Manning's Commentaries on the Law of Nations, c. vi. § 1. 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

which we

"The first paper," says Sir W. Scott, usually look for, as proof of property, is the Pass." 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 67 (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 habebitur." 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

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, 1 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

every citizen of Lubeck, who was master (patron) of a ship, was bound to hoist the flag of Lubeck, under pain of a fine of three marks of silver for the benefit of the Senators and the City of Lubeck. A similar regulation had been made by the City of Hamburg (mutatis mutandis) with regard to masters of vessels, who were citizens of Hamburg. (A.D. 1270.) On the other hand, by a Statute of the City of Marseilles, of still earlier date, between 1253 and 1255, we find it provided that every ship belonging to men of Marseilles shall be bound to hoist on the ship the flag of the community of Marseilles with a cross extended aloft; and that no citizens of Marseilles who are owners (domini) of ships may or ought to hoist on their ships, within the port of Marseilles or elsewhere, any arms or any flag of another civic community, but only the flag of the community of Marseilles, except in the land of Syria, in which those citizens of Marseilles, who have special privileges in that country distinct from the other citizens, may hoist another flag on their ships, provided also that they likewise hoist always the flag of the community of Marseilles 69. It would thus appear that the Mercantile Flag was originally of ambiguous import, inasmuch as it might denote either the National character of the master or patron of the ship, or the National character of the owner of the ship; but that the Pass or Sea-Letter was always a criterion of ownership, that is, whether the ship

Lubeck, à moins qu'il n'en soit empêché par des obstacles de force majeure, ou par des dangers aux quels sa personne ou son navire seroient exposés.

68 Pardessus, Lois Maritimes, Tom. IV. p. 272.

69 Emérigon, in his Treatise on Insurances, c. 7. § 5. says, "They

68

69

also call captain him who commands a merchant vessel intended for a long voyage; but persons commanding trading barques, or merchant vessels not making long voyages, are entitled on the ocean masters, and in the Mediterranean patrons."

was the property of an enemy or friend. Hence Bynkershoek justifies the Right of a belligerent cruiser to visit a neutral ship, in order that it may be established from the ship's papers, as distinguished from her flag, that she is neutral property. But the legal incidents of ownership, as regards a ship, are quite irreconcilable with the theory of a ship being the territory of the Nation, whose flag she carries. By the general Maritime Law a ship is capable of being owned in shares, and there is nothing in the Law Maritime which precludes a ship from being owned in shares by citizens of different States. Again, although it may be sometimes the policy of a State to exclude foreigners altogether from the right of owning any part of a vessel entitled by the municipal law of that State to hoist its Mercantile Flag, still that is not the invariable rule, and the actionaries or partowners of a merchant ship are in some cases permitted by the municipal law of a State to be citizens of different countries. In such a case, however, a belligerent cruiser is entitled to look at the Pass or Sea-Letter of the ship, and Courts of Prize have held the ship to be bound by the character imposed upon it by the authority of the Government, from which the Pass or Sea-Letter has issued 70.

§ 91. In the sight of a belligerent a merchant vessel is regarded simply as a vehicle conveying goods over sea to or from a market. Accordingly, under the Common Law of Nations, if the vehicle and goods should happen to be enemy's property, the belligerent takes possession of them jure belli; if on the other hand the ship should belong to a friend, and the cargo should be enemy's property, the belligerent relieves the carrier of his charge,

The Vreede Scholtys, cited in a note to the Vrow Elizabeth. 5 Ch. Rob. p. 5.

indemnifying him at the same time for the carriage of the goods. If again the ship should belong to an enemy, and the cargo should be neutral property, the belligerent takes possession of the ship, whilst he restores the cargo to the neutral merchant. Further, both the ship and cargo may be the property of neutrals, whilst their destination is the port of an enemy; in which case a belligerent has a right to prohibit the conveyance of the goods to their destination, if their safe arrival is likely to be prejudicial to his success, and under certain circumstances he is entitled to seize and confiscate them. On the other hand, a neutral merchant is entitled to transport his merchandise over sea to a neutral port, in time of war, free from any interference on the part of a belligerent, beyond that, which may be necessary to assure the belligerent of the innocent character of the voyage. For the purpose, however, of such assurance, a belligerent has a right to visit a merchant vessel on the High Seas, with the object of ascertaining who may be its owner and what may be its destination, and of searching it with the object of ascertaining the nature and ownership of its cargo. "The Right of and Search. Visiting and searching merchant ships on the High Seas," observes Lord Stowell, in the well known case of the Swedish Convoy, "whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestable Right of the lawfully commissioned ship of a belligerent Nation; because till they are visited and searched it does not appear what the ships, or the cargoes, or the destinations are; and it is for the purpose of ascertaining these points that the necessity of this Right of Visitation and Search exists. This Right is so clear in principle, that no man can deny it who admits the Right of

Right of Visitation