ade, neutrals have not a right to carry thither any goods or to go there at all. The Belligerents have, even against Neutrals, a Right of Search, in order that they may ascertain whether the prohibition of Contraband is violated. The Conflict of the Rights of Belligerents and of Neutrals, in this and the like cases, gives rise to many questions of International Jus. Others arise from doubts whether enemy's vessels captured were taken in time of War or not, and the like. For the decision of such questions, there have been established Courts in which International Law is administered; Courts of Prize; Courts of Admiralty; Courts of Maritime Law. 1074 Having thus spoken of the Rights of War, I must now notice the International Rights which subsist during Peace, and those which belong to Neutrals. These I must enumerate very briefly, by the aid of well-esteemed writers on the subject: for my object is only to give such a sketch as may show the place which International Jus occupies in a system of Morality. I shall arrange the Rights of which I have to speak, as International Rights of Property, International Rights of Jurisdiction, International Rights of Intercourse. CHAPTER III. INTERNATIONAL RIGHTS OF PROPERTY. 1075 WE have already said (772) that every State has a Right to the National Territory. This is an International Right; and is absolutely and completely valid, as excluding Rights of other States. With regard to the citizens of the State itself, the Right to any part of the Territory is not simple ownership, but that permanent proprietorship which is called Dominium Eminens (688), by which the State prescribes the conditions on which individuals are to hold and enjoy their possessions. 1076 Nations have come into possession of their present territories by the migrations of the various tribes of mankind (870); and by various other historical events, as conquests, colonies, and the like. Their present Rights rest upon these previous facts; and the fact of the national possession of any Territory, continued and unquestioned, of itself constitutes a Right of possession. Prescription, which is a mode of acquiring a Right for individuals (695), holds also for States*. 1077 European nations have recognized a national property in uncultivated countries, founded upon the Right of Discovery. Where the land so claimed is inhabited by savages, such a claim of Right goes upon the supposition that a population of savages do not form an organized State which can have International Rights. But this limitation of International Law, and consequently of Morality, is rejected by the more humane views of modern times. The claims of European States to possessions in America, Africa, and Asia, originally founded on discovery or colonization, now rest, not only upon prescription, but also, for the most part, upon subsequent compact. 1078 The Right of Conquest, when it is stated barely as constituting rightful possession, belongs to a condition of International Jus more rude and arbitrary than now prevails. A State which would assert the mere Right of Conquest, would also make war for the mere sake of Conquest; which, as we have said, would justify civilized States in declaring such a State a Common Enemy (1058). But a Conquest, made in a just war, may rightly be considered as in the light of indemnity for wrong suffered; and may be either retained or used in the negotiations for peace, in order to obtain just terms. 1079 There prevail among nations several Rules and maxims with regard to the Rights of national territory. These Rules have been established by the gradual usage and successive agreements of nations and jurists; and are to be found, with the reasonings respecting them, in works on International Law. It may serve to illustrate the subject if I extract some of these Rules; which I shall do, principally following Mr Wheaton's Elements of International Law, and Mr Manning's Commentaries on the Law of Nations. 1080 "The maritime territory of every Statet extends to the ports, harbours, bays, mouths of rivers, and adjacent parts of the sea enclosed by headlands belonging to the same State.” These must be included, in order to make the territorial jurisdiction continuous. 1081 "The general usage of nations superadds to this extent of territorial jurisdiction, a distance of a marine league, or as far as a cannon-shot will reach from the shore, along all the coasts of the State. Within these limits, its rights of property and terri * Wheaton, International Law, Part 1. ch. iv. p. 206. torial jurisdiction are absolute, and exclude those of every other nation*." "The rule of law on this subject is terræ dominium finitur ubi finitur armorum vis.” 1082 "The exclusive territorial jurisdiction of the British Crown over the enclosed parts of the sea along the coasts of the island of Great Britain, has immemorially extended to those bays called the King's Chambers; i. e. portions of the sea cut off by lines drawn from one promontory to another. A similar jurisdiction is also asserted by the United States over the Delaware Bay, and other bays and estuaries forming portions of their territory." Such regulations are justified on the ground of their being essentially necessary to the security and interests of the State. 1083 Besides such regulations, a "jurisdiction and right of property over certain other portions of the sea have been claimed by different nations, on the ground of immemorial use. Such, for example, was the sovereignty formerly claimed by the republic of Venice over the Adriatic. The maritime supremacy of Great Britain over what are called the Narrow Seas, has generally been asserted merely by requiring certain honour to the British flag in those seas." The Baltic Sea is claimed as mare clausum by the powers bordering on its coasts; and the Euxine was so claimed by Turkey, so long as she exclusively possessed its shores. Denmark asserts a supremacy over the Sound, and the Two Belts, which form the outlet of the Baltic. In opposition to such claims, the Freedom of the Seas is asserted by other States. They have asserted the Right to navigate the High Sea (mare liberum), as being essential to the Right of Commerce which belongs to all States. 1084 It is said by Jurists, that when a river flows through the territories of different States, the innocent use of it for commercial purposes belongs to all the nations inhabiting the different parts of its banks; but that this is an imperfect Right, and must be regulated by conventiont. Such conventions have been estab'ished, for instance, with respect to the Rhine and the Scheldt. We have already said (89) that imperfect Rights are improperly called Rights; and are really moral claims, indicating what the other party ought to grant or to do. And it is plain that the general Duty of Humanity would lead a State to allow its neighbours to make such use of its rivers and straits as should be accompanied with no inconvenience to itself. But, as we have See also Grotius, J. B. et P. lib. II. c. iii. § 10. Wheaton, P. II. c. iv. § 12. already said, by some a general Right of Commerce is asserted, which goes beyond this appeal to humanity. 1085 In time of War, this Right of Commerce comes in conflict with the Rights of War; and the conflict has, in modern times, given rise to many questions of international jurisprudence ; and especially as regards Colonies of the belligerent parties. For it has been assumed, by modern European States, that they have a Right to direct and limit the trade of their Colonies, as well as of the ports of the Mother-country. 1086 The question of which we have spoken, between the Rights of War, on the one hand, and the Rights of Commerce on the other, implies, among the Rights of War, the Right of seizing the private property of citizens of the hostile State captured at sea. To this Right, of which we have already spoken, belligerents have sometimes added the Right of seizing also the property of neutrals, when taken in hostile ships: and they have expressed their Rule in the maxim, "Enemy's ships make enemy's goods." This Maxim is not inconsistent with what has already been said of the nature of War. All property is in some one's custody; this is in the enemy's custody. We deny their power of custody of property on the sea, and we strike a blow at them as a maritime State, by showing that they do not possess this power. The Neutral must attend to this, and must not place his goods in our enemy's vessels, except he is willing to share their fate. But the more indulgent rule now generally assented to is, that the goods of a friend are not to be confiscated, though found in the ship of an enemy*. 1087 The Rights of Commerce are asserted in a Maxim similar in form to the one just stated; namely this: "Neutral ships make neutral goods;" or, "Free bottoms, free goods." But it is plain that this maxim must be limited and modified, or it might be used as a powerful mode of warfare. Thus belligerents have a Right to prevent neutrals from carrying to an enemy munitions of war. It is no interference with the Right of a third person to say that he shall not carry to my enemy instruments with which I am to be attacked. On the contrary, such Commerce is a deviation from neutrality; (or at least would be so, if it were the act of the State). If we allow neutral ships to be inviolable when they carry to the enemy the means of warfare, they, though * Wheaton, P. IV. c. iii. § 18. For further mitigations of the Rule, see the Supplement, Chap. v. + Manning, B. III. c. vii. professedly not parties to the contest, may greatly damage one of the belligerents, and transfer the success to the other side. Hence, belligerents have a Right to prevent neutrals doing this. The Right of Commerce entitles the neutrals to carry to either party goods which do not affect him in his belligerent character; but military stores are prohibited, under the title of Contraband of War. 1088 Again, belligerents have, by the Laws of War, a Right to put a place in a State of blockade, and then to prohibit neutrals from entering it. Neutrals, who violate this Rule, are liable to confiscation for breach of blockade. According to modern practice*, in order that a party may be liable to punishment for breach of blockade, three things are requisite to be proved:-the actual existence of the blockade:-that the party offending knew of it:that he commit some act which was a breach of it. The definition of blockade is given in various Treaties. It is generally agreed, that a mere declaration cannot constitute a blockade: it must be actually enforced by a continued circuit of troops and ships. 1089 The maxim, that "free ships make free goods," has been a subject of much discussion in modern times, having been asserted by Confederacies calling themselves "Armed Neutralities," in opposition to the claims of Belligerents. Belligerents, seizing the property of an enemy on board a neutral ship, have, on their side, both the ancient authorities, and the usually received Principles of the Law of Nations. In opposition to the Right of Commerce, urged on the side of the above maxim, it is replied, that the Rights of War suspend many of the Rights of Commerce, as when they authorize seizure of contraband of war, or confiscation of a ship for breach of blockade. And the general Rule must be, that all Rights of Commerce are suspended, which, being nominally neutral, are really favourable to one of the belligerent parties. Now to carry goods for an enemy, who is so weak at sea, as not to be able to carry for himself, is to give him a great advantage. It deprives the stronger naval power of the benefit of his superiority. The Belligerent cannot be required to allow this. When it is urged, on the other side, that a Neutral has a Right to trade with both parties; it is replied, that he may trade with both, but not for one. If he gives his protection to the property of one of the belligerents, who is too weak to protect it himself, he makes himself his Ally, and is no longer neutral. An argument sometimes urged on this side is, that a ship is like a part of the territory of the state Manning, B. III. c. ix. |