亨利-梅因：国际法Lecture 4

riality which the Americans put forward in respect of private ships is thus not likely to be advanced again， because the provocation which elicited it is very unlikely to recur； and indeed if an American proposal on which I shall have to say much hereafter， that all private property on the sea shall be exempt from capture， were to be adopted by the general agreement of nations， the ex-territoriality of merchant ships might possibly be expunged from International Law by international agreement， because the rights of visiting and searching neutral merchant ships in time of war would disappear of themselves. But it must be understood that at present this claim to ex-territoriality has never been formally negatived or set aside. The treaty between Great Britain and the United States which closed the war of 1814 says nothing on this subject or on the subject of the grievances which were the foundation of the claim， and I suppose that an American lawyer would be bound by the decisions of his own National Courts to assert it， at least abstractedly. What I have said， it will be seen， applies solely to private vessels. With regard to public vessels， Men-of-War， there is a much nearer approach to uniformity of practice and doctrine. On the whole， the position that a public ship flying the flag of the sovereign of an independent country is under the law of that country， even when in the territorial waters of another country， is accepted by the Courts and lawyers of the civilised world. But a distinction is drawn between acts of which the consequences begin and end on board the ship and take no effect externally to her， and acts done on board which have an external operation. In the first case the jurisdiction of the sovereign to whom the ship belongs is exclusive. In the second， the sovereign in whose waters the ship is lying may demand redress for the illegality， but it must be demanded from the Government which is Sovereign owner of the vessel. The cases may be illustrated by occurrences which have actually happened. One sailor on board a Man-of-War lying in territorial water shoots another； or a sailor fires a rifle from the deck of the ship and kills a native of the neighbouring country. In the first case， the captain may deal at once

with the offender as the law and usage of his own country permit. In the second， he must wait until a demand is made upon his sovereign. I have already mentioned the exceptional case of a fugitive slave taking refuge on board a foreign public ship in territorial water. The decision of the commissioners did not settle any principle， but established a working rule which is sufficient for the occasion

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