and we think that the Recommendations in the last part of the Report contain as distinct a statement as can properly be made of the extent to which naval officers ought to be authorised to depart from it in regard to fugitive slaves seeking protection on board the vessels under their command in such waters.

Of the undersigned the Lord Chief Justice, Mr. Stephen, and Mr. Rothery have stated in separate papers some of their reasons for adopting these opinions.

A. E. COCKBURN.

T. D. ARCHIBALD.
ALFRED HY. THESIGER.

H. T. HOLLAND.

J. F. STEPHEN.

H. C. ROTHERY.

II.

Statement of Opinion on the Question of International Obligations, by Sir R. Phillimore, Mr. M. Bernard, and Sir H. S. Maine.

WE should have been content to sign the Report without expressing any opinion, beyond what is contained in it, on the first Question. But since it has been thought right that opinions should be expressed on that point, we will state the considerations which in our view justify, so far as international law is concerned, the conclusions of the Report, confining ourselves to such considerations, and not entering into a detailed examination of precedents or authorities.

At the same time we think that a careful and discriminating examination of such authorities would support the views we are about to express.

The question is substantially this-what instructions the Government may, without doing violence to any international obligation, give to its officers respecting the reception of fugitive slaves in foreign waters.

I. It is true, as a general proposition, that a naval officer, entering with the ship under his command the waters of a friendly State, ought to respect the local laws, and to refrain from lending his assistance to any violation of them. It is right that he should receive instructions to this effect, and such instructions British officers now receive. They are directed by the Queen's Regulations to "cause all those under their "orders to show due deference to the established rights, ceremonies, customs, and regulations" of the places they have occasion to visit; and they are prohibited in general from receiving on board, whilst lying in the ports of a foreign country, persons who may seek refuge for the purpose of evading the local laws to which such persons may have become amenable.

The foregoing proposition, however, is only a general expression of what, in given circumstances, one maritime State may fairly and reasonably expect at the hands of another; and it would be an error to regard it as a canon of international law, absolute, inflexible, and admitting no qualification. It admits, and indeed requires, at least one material qualification. Where the execution of the local law would be plainly repugnant to humanity or justice, the Sovereign with whose commission the ship sails cannot reasonably be held bound to instruct his officers to enforce the law, or permit it to be enforced, on board of her. He may rightly instruct them not to enforce it there, and not to permit it to be enforced.

It is a general assumption, on which Governments must habitually act, that the laws of civilised States, framed to secure public order and private rights, will not so operate as to be in conflict with humanity or justice. But this general assumption must and does sometimes give way, whether from the necessary imperfection of human laws, or from particular defects which cannot be immediately removed in the institutions of particular States, or from real differences of national sentiment as to what is humane or just-differences which the progress of civilisation, tending though it does continually to produce a general uniformity, has not yet entirely effaced.

In cases of this kind,-which though exceptional, are by no means rare-it is not a sufficient answer to point to the local law and to the sovereign authority which enacted it. Where British subjects are interested, this country deems it no infringement of an international obligation to insist, against the local law, on its own view of what justice or humanity demands, and even, if need be, to exact redress by force. Where no British interest is involved, the British Government has the right to say at least that the authority delegated by it to its officers shall not be used to do what is plainly inhuman or unjust.

This qualification of the general rule is demanded by the national self-respect of every State which commissions a ship of war; and it is consistent with the ordinary principles on which the intercourse of civilized States proceeds.

That there is no unqualified obligation to assist or permit on board a ship of war the enforcement of the local law is assumed in the instructions which British naval officers receive with regard to political refugees, and has been assumed in the cases where, before the issue of those instructions, the refusal to give up a refugee has been approved by the British Government. A political refugee may be an object of partizan rancour and passion; but he is also commonly a criminal in the eye of the local law, the administration of which is in the hands of a Government inimical to him.

Laws which uphold slavery are local not only in the sense that they have legal force in particular countries, but in the further sense that they create a status not recognised in other countries. The right to own a slave as property in a slave-holding country may be recognised elsewhere, and it has been recognised in English courts of justice; but the right to compel the obedience of a slave cannot be enforced in any place where slavery is not legal. But this is far from being the whole account of the matter, though it may perhaps be all that a court of law could properly take notice of. The State, in judging what instructions (as between itself and other States) it may rightly give to its officers, is not confined to the considerations which might be urged before a court of law. Slavery is not only an institution of this strictly local character, but, so far as it operates to keep human beings forcibly and against their will in the condition of mere objects of property, is regarded by nearly the whole of Christendom as repugnant to justice. In Brazil and Cuba it survives only because the total and immediate abolition of it-involving, as this would, the destruction of a large mass of proprietary rights-has not hitherto been found practicable. The deliberate conviction of Great Britain on the subject has been shown in many ways, by her legislation, by the sacrifices she has undergone, by the uniform and unremitting exertions of her Government. It is an institution also which, from its nature, cannot by any restraints of law or custom be so regulated and controlled as to prevent it from sometimes operating in ways repugnant to humanity, and that not alone by the infliction of mere bodily suffering.

International law, it is to be observed, is not stationary; it admits of progressive improvement, though the improvement is more difficult and slower than that of municipal law, and though the agencies by which change is effected are different. It varies with the progress of opinion and the growth of usage; and there is no subject on which so great a change of opinion has taken place as slavery and the slave trade. Bynkershoek, in one of his latest works, published in 1737, maintains that, as a conqueror may in the exercise of an extreme right do what he pleases with his captive, he may, though the practice has fallen into desuetude, put him to death, or, as a consequence of that right, may sell him into slavery.* Such a doctrine would now be held not merely unlawful, but atrocious; and the trade in negro slaves, which was formerly competed for as a legitimate source of profit, has in a great number of treaties been assimilated to the crime of piracy.

These considerations are sufficient to justify Great Britain in instructing her officers not to enforce slave laws, or permit them to be enforced, on board her ships of war in foreign territorial waters, either altogether or in particular circumstances in which the claims of humanity or justice assert themselves more plainly and imperatively than in others. Which of these two courses she should adopt may be a question of prudence, and perhaps also of humanity itself; but we do not think it can be solved by reference to a positive rule of international law. Against either of them slaveholding States have, as is pointed out in the report, an extreme remedy in the power of excluding British vessels from their ports. But in exerting that power, should they deem it necessary to do so, they would be protecting themselves or their subjects,

* Quæst. Juris Publici, L. i. c 3.

not against a violation of international law, for there would be none, but only against apprehended loss.

It is difficult, no doubt, in practice, to draw with theoretical precision the line of demarcation between an active interference with slavery and the refusal to enforce the master's right over his slave. An officer who declines to give up a fugitive does to some extent interfere with the local institution of slavery. He not only protects from injury, but takes away from the slave-owner, the terrified man or helpless girl who by the local law is a marketable object of property; and it makes little practical difference to the owner none-whether the slave has scrambled on board with the officer's leave or without it. But in these cases it may fairly be said that he interferes no more than he inevitably must unless he is to be actively instrumental in forcing the fugitive back into slavery; if he were to go further, to incite slaves to escape, hold out to them inducements to do so, or use force or contrivance to liberate them, this would be an interference of a different kind. In the Recommendations of the Report this distinction is kept in view, and an officer who should be careful to observe it would find little difficulty in doing so.

II. In the foregoing remarks it has been assumed,

1. That a commanding officer on board his ship, even when she is lying within the territorial waters of a foreign State, is to be regarded, not as in subjection to the authority and laws of that state, but exclusively as a subject of his own Sovereign and an officer of his own government.

2. That the laws of the foreign State cannot be forcibly executed on board unless by his order or permission as commanding officer.

4

It is necessary to say a few words on these two assumptions, and in doing so to advert to the distinction between a ship owned by private persons and employed by them for purposes of trade or pleasure, and a ship commissioned by the State and employed in the public service.

A private vessel is not, according to the present practice of States, what a ship has been called by a great authority (Lord Stowell) a "mere moveable." She is also a floating habitation, subject to the law and jurisdiction of the State under whose flag she sails,-a jurisdiction which covers all persons on board, of whatever nationality, enjoying the protection of the flag, which follows her everywhere, and is not interrupted even when she is in the territorial waters of a foreign Power.* According to French authorities and French practice, this jurisdiction is treated as exclusive in all such matters as do not affect the rights of persons not belonging to the ship, nor the peace and order of the port. But in other matters, if not in these, it is universally admitted that the ship and all on board of her are amenable to the law of the country in whose waters she happens to be, although the question may arise (as it has lately arisen) whether that law ought to be held enforceable in the case of vessels navigating within the range of coast-water and not lying in port.

A

person therefore who enters a foreign port in a private ship becomes, while there, temporarily a subject of the foreign State, owing a "local allegiance" to its laws, though he is also, when on board, subject to the jurisdiction of the country which extends to him the protection of its flag. He cannot therefore refuse to obey the local laws, for subjection to a law allows no discretionary choice between obeying and not obeying it. Nor can the claim of the local officers of justice to board the ship, search her, and take out of her anyone who has become amenable to those laws be disputed or resisted.

Ships of war, on the other hand, have a recognised immunity, which places them, when within foreign waters, in a condition materially different from that of a private and uncommissioned vessel. So much as this is admitted on all hands. A long succession of writers, English, French, German, and American, referring to this immunity as established by usage and general consent, have described it as an exemption from the "law," the "jurisdiction," or the "law and jurisdiction," of the foreign State, or by other equivalent phrases; language which, though leaving somewhat to argument and inference, has nevertheless a plain and natural meaning. Some of these writers have been judges, some diplomatists, one an officer in the naval service of France, whose book has a deserved reputation for lucidity of statement as well as for sense and

* Reg. v. Sattler, D. & B. C. C. 525; Reg. v. Anderson, 1 C. C. R. Law Rep., 161.

Ortolan, Diplomatie de la Mer, L. II., ch. x, xiii.; Heffter, Europäisches Völkerrecht der Gegenwart, s. 79.; Blüntschli, Droit International Codifié, art. 321.; Calvo, Droit International, 1, 383, 2nd Ed.; Twiss, Law of Nations, 1, 228; Woolsey, International Law, s. 54.; Halleck, International Law, p. 171.; Field, Draft Outlines of an International Code, art. 309. For the opinion of Kent, see Commentaries, 156 and

note.

moderation. Whatever value we may be disposed to assign to testimony of this kind, it is, for the last half century at least, substantially unanimous. The general practice of Governments, and the general belief or impression current in every naval service, appear to have been in accordance with it. No one, it is true, disputes, or has disputed, the right of every sovereign State to exclude foreign ships of war altogether from its ports, or to attach such conditions as it may think expedient to the admission of them. During maritime wars very stringent conditions have been frequently imposed by neutral Powers on the admission of belligerent ships: for example, in the more recent of such wars, when ships of both belligerents have been in a British port at the same time, one has not been allowed to put to sea until after the lapse of twenty-four hours from the departure of the other. It need hardly be said that regulations as to mooring and anchoring, observance of sanitary precautions, and the like, are everywhere usual, though not everywhere the same. Nor has it been contended that a Sovereign, by permitting the entrance of a foreign vessel, abandons the right to repel or arrest by force, if need be, actual or threatened violence towards his subjects, or those under his protection; and this right has been occasionally exerted. But we do not know of an instance within this period in which a right has been conceded or asserted to take a person or thing from on board a ship of war by legal process without leave of the officer in command, or to hold the officer, or any of those under his command, personally amenable to the local jurisdiction for acts done on board in contravention of a local law. Nor are we aware that this state of things has produced any practical inconvenience.

It has been suggested that, whilst the vessel herself as an object of property should be free from process, and the discipline of the ship as well as the cognizance of any offences which one member of the ship's company might commit against another should be left to her own authorities, no further exemption should be allowed. The condition of a man-of-war seeking the accommodation of a foreign port would then be not very different from that which the law of France assigns to a private vessel, except as regards the immunity from proceedings in rem. She would be liable to be boarded and searched by the local authorities: persons who had sought refuge in her either from slavery or from the rage of a victorious faction could be seized and carried ashore, even if they had come on board in a place out of the jurisdiction: the captain himself indeed might be taken from his own quarter-deck on a charge of having offended against some local regulation. A privilege so curtailed-if it be a privilege at allappears to be but imperfectly adapted for securing to maritime Powers undivided control over their ships of war or for preventing hazardous conflicts of authority. But, whether expedient or not, it is certainly different from the understanding which we believe to exist universally at present, and on which naval officers and their Governments have thought themselves entitled to rely.

66

This suggestion has been urged by two Italian jurists, Lampredi and Azuni. "A nation," says the former," which resolves to act vigorously will not make the least "difference between a merchant vessel and a ship of war, whenever long custom or a privilege accorded has not established the contrary, and thus set a limit to the "exercise of its sovereign rights."* But he admits himself to be in opposition to many writers, and his opinion does not appear to be shared by the present Italian Government.†

Lampredi, in the chapter referred to, asserts the positions that a ship at sea is to be regarded as a mere vehicle (vettura per mare), and two ships meeting one another at sea as vehicles meeting in an unoccupied desert; and hence that the persons on board are not protected by the flag, but solely as individuals by the law of nature, which makes every man free and independent except in regard to his legitimate Sovereign. It is evident that according to these positions a slave, a refugee, a person liable to conscription or impressment, or any other subject, might be forcibly taken out of a foreign ship by the Power claiming him, not only in territorial waters but on the high seas. A like limitation of the privilege is favoured by Pinheiro-Ferreira. But this author, an avowed theorist, maintains also (in his Annotations on Martens) that ambassadors should be deemed liable to criminal and civil process. It has some support likewise in a dictum of Mr. Justice Best in "Forbes v. Cochrane," and in the far greater authority of Lord Stowell. It must be observed, however, that that whole subject of the national sovereignty over ships has undergone much discussion, not only since Lampredi but since the time of Lord Stowell; and that the effect of those discussions has been to

Letter in Appendix.

* Del Commercio dei Popoli Neutrali in Tempo di Guerra, ch. x. (published in 1788). † Letter of the Italian Minister of Foreign Affairs in Appendix.

carry the jurisdiction of a State over vessels entitled to use its flag to a more advanced point, and place it on a firmer basis, than it had reached in 1820.

It may be that should the extent of the privilege ever become a question in courts of law, some qualifications of it might be allowed, the necessity or expediency of which there has not hitherto been occasion to consider. A concurrent jurisdiction might be held to exist for some purposes, as in matters of civil status. Courts of law are accustomed, in dealing with such questions, to proceed very much, as speculative writers do, on considerations of general convenience; and some questions might easily be suggested as to which it would be hazardous to predict what answer they would receive. But the matter referred to this Commission is one upon which any decisions that could be pronounced by courts of law could have but an indirect bearing. As between State and State, the right which every naval commander in foreign waters has hitherto believed himself to possess of saying, "My ship is the castle of my sovereign "under my command; no one enters it, and no force can be exerted in it, unless by my permission; and for the orders I give here I am not amenable to any foreign jurisdiction," appears to us to be sustained by usage and opinion, and, we may add, by convenience. The privilege of the ship is the privilege of the Power whose flag she displays and in whose service she is employed. And the responsibilities of the officer who in foreign waters acts in obedience to instructions, to the detriment (should this be so) of the foreign country or any of its people are assumed, and would be wholly borne, by the Government which instructed him.

III. In conclusion, we are of opinion that Her Majesty's Government may, without transgressing any international obligation, give such instructions to officers commanding Her Majesty's ships with respect to the disposal of fugitive slaves who may seek refuge on board their vessels as the Government may judge most consonant to humanity and prudence.

Officers acting on such instructions would be responsible to the authority from which they received their orders, and would not be responsible to the foreign territorial authority.

Her Majesty's Government could not deny to any foreign Sovereign the right to interdict the entrance of British ships of war into his ports, although it might not admit that the exercise of the right was under the circumstances necessary or reasonable, and might indeed, should it think proper to do so, reciprocally exclude from its own ports the vessels of any Power which had recourse to this measure.

ROBERT PHILLIMORE.
MOUNTAGUE BERNARD.
H. S. MAINE.

III.

Memorandum by the Lord Chief Justice.

WE are called upon by the Commission to advise, with a view to instructions to be given to officers commanding Her Majesty's ships of war as to the reception of fugitive slaves on board such ships, upon the nature and extent of the international obligations applicable thereto, and as to any engagements which this country may have entered into which may affect the matter of such reception; and with both these heads of inquiry I am prepared to deal. But in order to complete the inquiry it appears to me to be further essential to consider how the matter stands with reference to our own municipal law. For it would obviously be anything but satisfactory if instructions should be given to our officers relatively to this matter, and conduct should be pursued by them, which should prove to be inconsistent with the law of England. I propose, therefore, in the course of my observations, to consider the subject with reference to our own law as well as with reference to the obligations arising from the law of nations. But I will first deal with the subject with reference to the latter.

The reception of a fugitive slave on board a ship of war may take place under two sets of circumstances, which it is essential to distinguish from one another: that is to say, it may take place on the high seas, or it may take place in the waters of a state by the law of which the fugitive is a slave.