of acquiring a Right for individuals (151), holds also for States.* 1165. 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. 1166. 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 (1146). 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 negociations for peace, in order to obtain just terms. 1167. 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 1 extract some of these Rules; which I shall do, * Wheaton, International Law, Part 1., ch. iv., p. 206. principally following Mr. Wheaton's Elements of International Law, and Mr. Manning's Commentaries on the Law of Nations. 1168. "The maritime territory of every State* 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. 1169. "The general usage of nations superadds to this extent of territorial jurisdiction, a distance ɔf 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 right of property and territorial 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.” A 1170. "The exclusive territorial jurisdiction. of the British Crown over the enclosed parts of the sea along the coasts of the islands 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. similar jurisprudence 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. 1171. Besides such regulations, "a jurisdiction and right of property over certain other portions of the sea have been claimed by different nations, en the ground of immemorial use. Such, for example. was the sovereignty formerly claimed by the republic of Venice over the Adriatic. The maritime supre • Wheaton, Part II., chap. iv. † See also Grotius, J. B. et P. lib. 11., c. iii., § 10 macy 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. 1172. It is said by the 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 convention.* Such conventions have been established, 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 already said, by some a general Right of Commerce is asserted, which goes beyond this appeal to humanity. 1173. 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 espe. cially as regards Colonies of the belligerent parties. For it has been assumed, by modern European States, VOL. II. * Wheaton, P. 11., c. iv., § 12. that they have a Right to direct and limit the trade of their Colonies, as well as of the ports of the Mothercountry.. at sea. 1174. 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 the citizens of the hostile State captured To this Right, of which we have already spoken, belligerents have 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 consistent 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. 1175. 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 inust 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 * Manning, B. 111., c. vii. the means of warfare, they, though 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 to carry to either party goods which do not affect him in his belligerent character; bu military stores are prohibited, under the title of Contraband of War. 1176. 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 able 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. 1177. 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 * Manning, B. III., c. ix. |