To sum up what I have been sayingI have been discussing certain legalfictions which are signified through legal metaphorsand especially oneof them by which places and things not actually within the territorial jurisdictionof a state are supposed to be within that state for the purpose of collectinginto a group the rules of law which apply to themThis fiction of ex-territoriality,is applied by general consent to the residences and persons of ambassadorsand diplomatic agents in foreign countriesand on the whole the law on thesesubjects is expressed with sufficient accuracy by the fiction before us.
By most nations the fiction is also applied to the portions of sea adjacentto the coast and deemed to be what is called the territorial waters of aparticular statethat is to saywater whichso far as water can be assimilatedto landis regarded as part of the state's territoryFinallyby some communitiesa merchant ship on the high sea is alleged to be ex-territorial -to bein the same position as the territory of the country to which she belongs.
In this last way the fiction before us has become mixed with a very importantbranch of lawthe law of Naval Belligerencyand I use it as a convenientpoint of transit to that subject which I might take up at several placesin these lecturesbut which I wish to include in this portion of them forseveral cogent reasonsIt is a province of law which rose into extreme importanceat the end of the last century and the beginning of the presentit has longbeenand still isthe field of many bitter disputesit is a part of InternationalLaw in which a great reform has recently been attemptedand though the attemptpartially miscarriedthe cause of failure deserves our attention on a varietyof groundsit sheds light on certain weaknesses of the international system,and raises a very serious question as to the true interests of England ina reform of that system which all but obtained the assent of the civilisedworld.
I proceedthereforeto deal with naval or maritime belligerency in itseffects on belligerent Powers and on neutralsThe elements of the subjectare simpleWhen two states go to warthe shipspublic and privateofone arerelatively to the otherso many articles of movable property Boatingon the seaThe capture of one of them by a ship of the other belligerentis prima facie regulated by the same principle as the seizure on land ofa valuable movable by a soldier or body of soldiersThe law on the subjectdescends to us directly from the Roman LawThe property of an enemy is oneof those things which the Roman Law in one of its oldest portions considersto be res nulliusno man's propertyIt may be taken just as a wild bird orwild animal is takenby seizing it with the intention to keep itbut itis expressly laid down that a wild animal if it escapes ceases to be theproperty of the captorand the question iswhen is the captured propertyso reduced to possession as to make it altogether the property of the captor?
There was much dispute on this point among the interpreters of Roman Law.
Someincluding Grotiusmaintained that the proper test was timeand thething had to be possessed by the captor for four-and-twenty hoursA traceof this rule may be seen in the alleged power of the maritime captor to destroythe vessel which he has taken when he has no means of bringing it into aportThere ishoweveranother rule of Roman origin which has graduallysupplanted the first mentionedThe captor must take the captured propertyinfra presidiawithin the fortified lines of a Roman campThis appliedto maritime warfare means nowadays at sea a port of the captor's country,as distinguished from an open roadsteador the port of an ally of the captoror the port of a neutral PowerAs it is sometimes putthe ship must betaken into military possessionthat isinto a possession from which itcannot be rescued otherwise than by forceBut in order that the captor mayhave the full benefit of his captureyet another condition must be satisfied.
The captured ship and its cargoor cargo belonging to the enemy but foundin a neutral shipmust be taken before a prize court and condemned as lawfulprizeTill this condemnation has taken place the purchaser of the capturedproperty could not be sure that he had a complete title to itand couldnot obtain full value for it if he sold it.
Prize courts are sometimes called international courtsand no doubt modernInternational Law doesto some extentrecognize thembut in principlea prize court is a court established by positive municipal lawand it isentrusted by the sovereign of the state in which it is established with theduty of deciding whether ship or cargo is prize or no prizeIn the abstractits object is to satisfy the conscience of the sovereign that the capturesmade by his subjects are valid capturesHe is alwaysin theorysupposedto be responsible for themBut the great practical function of a prize courtis to decide between the belligerent sovereign's subjects and subjects ofneutral statesNeutral goods may form part of the cargo found in the enemy'sship which has been legally capturedoragaincargo belonging to the otherbelligerent may have been found on the high sea in a neutral shiporagain,the vessel brought into port may have been unlawfully captured through havingbeen in the territorial waters of a neutral stateor by an attack organisedin such territorial watersIn both of these cases capture is forbidden.
If the belligerent sovereign permitted themhe would be guilty of an injuryto an unoffending neutral.
