What I have said applies to Men-of-Warto public ships flying the flagof their own sovereignbut the fiction of ex-territoriality has had a widerscope than when applied to such shipsAll through the great war at the beginningof the century the United States maintained that even private vessels oughtto be considered as ex-territorial and as retaining the law of the countryto which their owners belongedThis pretension was stoutly combated by GreatBritainThe controversy really turned on one peculiar practice of the BritishNavy in those daysBeing manned by impressment in its own countryits captainssought to supply insufficiency in their crews by examining the ships of neutralnations which they metand taking out of them any sailors who were foundto be of British nationalityThey argued (and that this is the rule we shallsee hereafterthat every private neutral ship on the high sea is liableto be searched in order that a belligerent vessel may be satisfied that thereare no goods belonging to an enemy on boardFor this purpose a British captainhad the right of entering a friendly neutral shipand being there lawfully,it was argued by the British lawyers and Courts that he could take away andremove to his own ship sailors engaged in the navigation of the neutral shipwho were subjects of Great BritainNo dispute was ever more violent thanthisand it led directly to the war between the United States and GreatBritain which began in 1814It is happily not probable that any such disputewill occur againalthough there is no absolute impediment to its revivalin the decisions of Courts or in law booksImpressment is now given up bythe British Governmentand if in some future war Great Britain is compelledto supply its ships with crews through compulsionresort will almost certainlybe had to some other expedientIt is not impossible that we may have tocopy the system which is in force in France and Germanyof a conscriptionconfined to the maritime populationIt should also be borne in mind thatin the Men-of-War of our daywhich are machines of the highest elaboratenessand delicacyworked by steam and hydraulic powerthe numbers of the crewrelatively to the size of the vessel are much smaller than they were in theearly maritime wars of the centuryso that the probability of the ship beingplaced in real difficulty from the insufficiency of her crew is considerablydiminished.
The extreme form of the fiction of ex-territoriality which the Americansput forward in respect of private ships is thus not likely to be advancedagainbecause 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 capturewere tobe adopted by the general agreement of nationsthe ex-territoriality ofmerchant ships might possibly be expunged from International Law by internationalagreementbecause the rights of visiting and searching neutral merchantships in time of war would disappear of themselvesBut it must be understoodthat at present this claim to ex-territoriality has never been formally negativedor set asideThe treaty between Great Britain and the United States whichclosed the war of 181says nothing on this subject or on the subject ofthe grievances which were the foundation of the claimand I suppose thatan American lawyer would be bound by the decisions of his own National Courtsto assert itat least abstractedlyWhat I have saidit will be seenappliessolely to private vesselsWith regard to public vesselsMen-of-Warthereis a much nearer approach to uniformity of practice and doctrineOn thewholethe position that a public ship flying the flag of the sovereign ofan independent country is under the law of that countryeven when in theterritorial waters of another countryis accepted by the Courts and lawyersof the civilised worldBut a distinction is drawn between acts of whichthe consequences begin and end on board the ship and take no effect externallyto herand acts done on board which have an external operationIn the firstcase the jurisdiction of the sovereign to whom the ship belongs is exclusive.
In the secondthe sovereign in whose waters the ship is lying may demandredress for the illegalitybut it must be demanded from the Government whichis Sovereign owner of the vesselThe cases may be illustrated by occurrenceswhich have actually happenedOne sailor on board a Man-of-War lying in territorialwater shoots anotheror a sailor fires a rifle from the deck of the shipand kills a native of the neighbouring countryIn the first casethe captainmay deal at once with the offender as the law and usage of his own countrypermitIn the secondhe must wait until a demand is made upon his sovereign.
I have already mentioned the exceptional case of a fugitive slave takingrefuge on board a foreign public ship in territorial waterThe decisionof the commissioners did not settle any principlebut established a workingrule which is sufficient for the occasion.
