亨利-梅因：国际法Lecture 4

French in favour of the Flemings and against the Dutch which led to the entrance of our own country into the war of the French Revolution.

　　Some writers on I

nternational Law have asserted that the innocent navigation， as the phrase runs， of a river circumstanced like the Rhine， existed by nature. This was controverted by the others， and the question is one of the great topics of argument in International Law. The discussion， as sometimes happens， has been much embarrassed by the use of terms of dubious meaning. Those who denied the right generally， allowed that there was an imperfect right to the privilege claimed. These terms 'perfect' and 'imperfect right' descend to us from the Roman Law， where an imperfect law is a law without a sanction. John Austin has examined these terms 'imperfect' and 'perfect law，' and asserts that in such cases the lawgiver， though he has indicated his intention， has forgotten or accidentally omitted to impose penalties on disobedience. Such a use of words is altogether out of place in International Law， because in that system there is never any direct sanction， since there is no common sovereign. Consequently 'imperfect law' and 'imperfect right' have gradually attained a different sense in later International Law. Sometimes the words were used to imply that it would be fair and reasonable to concede the liberty claimed， sometimes it seems to have meant that a state alleged to lie under an imperfect obligation may concede the privilege， but might consult its own convenience as to the method of concession. If this way of expressing the conflicting doctrines had always been followed， it is a not inconvenient basis for practically settling the question. Many states will acknowledge an imperfect duty which would refuse to allow a perfect right in any sense of the words.

　　On this basis， however， that of imperfect right， the passage of rivers has been largely regulated by treaty. The Rhine and the Elbe were placed under special regulations in 1814 and 1815， after the close of the great war， by which all the states along their banks had a right of access to the sea. In 1828 there began a violent dispute between England and the United States as to the power of navigating the St. Lawrence. The St. Lawrence is in point of fact the outlet by which the water of the great lakes or fresh-water inland seas escapes from the continent of America into the Atlantic. England claimed， as owner of the territory near the mouth， to close the St. Lawrence at pleasure， though she never exercised the power which she assumed. On the other hand， the United States， as sovereign owners of valuable territory abutting on some of the great lakes， assumed a free right of navigation to the mouth of the St. Lawrence. Both Powers claimed more than they hoped to obtain. The language of the English Foreign Office assumed that England had a perfect right to forbid the navigation of the river. The United States seemed to assert that the whole river was open to themselves， and perhaps to navigators of all civilised states. The controversy ended in 1854 much in the same way as the disputes about passage down the Rhine， and the principles here applied were shortly afterwards applied to the great rivers of South America. They were all thrown open， the Parana， the Uruguay， and the Amazons. This liberality perhaps was more due to an increased perception of the advantages of commerce than to the adoption of either one or other of the alleged rules of International Law. In all cases， however， the legal view of the matter is that the riparian states have assented to an arrangement based on an imperfect right.

　　I have spoken at the close of my last lecture of the intricate controversies in International Law which have a fiction for a base. Perhaps the fiction most celebrated among international lawyers is that of ex-territoriality. The fiction of ex-territoriality is in fact founded on a metaphor. A man in a foreign country or a ship in foreign waters is conceived as still within the limits of the original sovereignty to which he belonged. Sometimes， it has been said， the ship is conc

eived as a portion of the sovereign state floating about in the high sea or elsewhere. The word seems to have been originally used to describe the privileges of ambassadors in foreign states， and it describes them as vividly and on the whole as accurately as a metaphor can. The main drawback to the use of such metaphors in legal discussion is that men， and particularly lawyers， begin in time to conceive the metaphor as having an existence of its own， and they make it the starting point for new inferences which themselves are often metaphorical.

　　This peculiarity remarkably distinguished another employment of the figure of which I am speaking. The jurists of some nations contend that the ships of a state are ex-territorial when in the territorial waters of another state. This is again denied by others， and various very difficult questions have arisen in quite recent times through the ambiguity of the terms employed. We may take as an example of this the controversy which arose fourteen or fifteen years ago as to the duty of captains of ships of war in regard to fugitive slaves. Ships of the British Government were constantly lying in the territorial water of independent states in the Eastern seas； for example， in the Persian Gulf within the territorial water of Persia or within the territorial water of Turkey. If a Man-of-War lying in its territorial water was under the jurisdiction of the state to which the neighbouring coast belonged， one treatment of a very difficult case was incumbent on her captain which would become wholly different if a ship-of-war remained within the territorial water of the state whose flag it was flying. This case was that of the fugitive slave escaping to a British Man-of-War. It frequently arose， for it was generally known among the populations near the coast that the English laws did not allow or pay any regard to the status of slavery. If the ship was within the law of the neighbouring territory， there could be no question that the fugitive should be given up again to his master. On the other hand， if the ship were subject to the law of the country whose flag it sailed under， then it became the duty of the captain to carry away the fugitive and to put him on shore in some place where he would not be again reduced to slavery. Conflicting reports reached this country as to what was the practice in these seas， and a large commission， consisting chiefly of lawyers， was ap- pointed for the purpose of determining the practice and deciding what the law ought to be. The discussions which followed may be compared with those in the 'Franconia' case for the number of topics of International Law which they included. In the long run the commission came to an agreement. Some of them thought that a British ship in Turkish water was for all purposes ex-territorial and under British Sovereignty. Others thought that it was for the time under the Sovereignty of the Turkish Government. But it was unanimously determined by the commissioners that， whichever view prevailed， a British officer could not lawfully be called upon to give up a fugitive in any case where the result of surrendering him would be to expose him to ill usage.

　　What I have said applies to Men-of-War， to public ships flying the flag of their own sovereign， but the fiction of ex-territoriality has had a wider scope than when applied to such ships. All through the great war at the beginning of the century the United States maintained that even private vessels ought to be considered as ex-territorial and as retaining the law of the country to which their owners belonged. This pretension was stoutly combated by Great Britain. The controversy really turned on one peculiar practice of the British Navy in those days. Being manned by impressment in its own country， its captains sought to supply insufficiency in their crews by examining the ships of neutral nations which they met， and taking out of them any sailors who were found to be of Br

itish nationality. They argued （and that this is the rule we shall see hereafter） that every private neutral ship on the high sea is liable to be searched in order that a belligerent vessel may be satisfied that there are no goods belonging to an enemy on board. For this purpose a British captain had the right of entering a friendly neutral ship； and being there lawfully， it was argued by the British lawyers and Courts that he could take away and remove to his own ship sailors engaged in the navigation of the neutral ship who were subjects of Great Britain. No dispute was ever more violent than this， and it led directly to the war between the United States and Great Britain which began in 1814. It is happily not probable that any such dispute will occur again， although there is no absolute impediment to its revival in the decisions of Courts or in law books. Impressment is now given up by the British Government， and if in some future war Great Britain is compelled to supply its ships with crews through compulsion， resort will almost certainly be had to some other expedient. It is not impossible that we may have to copy the system which is in force in France and Germany， of a conscription confined to the maritime population. It should also be borne in mind that in the Men-of-War of our day， which are machines of the highest elaborateness and delicacy， worked by steam and hydraulic power， the numbers of the crew relatively to the size of the vessel are much smaller than they were in the early maritime wars of the century， so that the probability of the ship being placed in real difficulty from the insufficiency of her crew is considerably diminished.

　　The extreme form of the fiction of ex-territo

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