This liberality perhaps was more due to an increased perception of the advantagesof commerce than to the adoption of either one or other of the alleged rulesof International LawIn all caseshoweverthe legal view of the matteris that the riparian states have assented to an arrangement based on an imperfectright.
I have spoken at the close of my last lecture of the intricate controversiesin International Law which have a fiction for a basePerhaps the fictionmost celebrated among international lawyers is that of ex-territoriality.
The fiction of ex-territoriality is in fact founded on a metaphorA manin a foreign country or a ship in foreign waters is conceived as still withinthe limits of the original sovereignty to which he belongedSometimesithas been saidthe ship is conceived as a portion of the sovereign statefloating about in the high sea or elsewhereThe word seems to have beenoriginally used to describe the privileges of ambassadors in foreign states,and it describes them as vividly and on the whole as accurately as a metaphorcanThe main drawback to the use of such metaphors in legal discussion isthat menand particularly lawyersbegin in time to conceive the metaphoras having an existence of its ownand they make it the starting point fornew inferences which themselves are often metaphorical.
This peculiarity remarkably distinguished another employment of the figureof which I am speakingThe jurists of some nations contend that the shipsof a state are ex-territorial when in the territorial waters of another state.
This is again denied by othersand various very difficult questions havearisen in quite recent times through the ambiguity of the terms employed.
We may take as an example of this the controversy which arose fourteen orfifteen years ago as to the duty of captains of ships of war in regard tofugitive slavesShips of the British Government were constantly lying inthe territorial water of independent states in the Eastern seasfor example,in the Persian Gulf within the territorial water of Persia or within theterritorial water of TurkeyIf a Man-of-War lying in its territorial waterwas under the jurisdiction of the state to which the neighbouring coast belonged,one treatment of a very difficult case was incumbent on her captain whichwould become wholly different if a ship-of-war remained within the territorialwater of the state whose flag it was flyingThis case was that of the fugitiveslave escaping to a British Manof-WarIt frequently arosefor it wasgenerally known among the populations near the coast that the English lawsdid not allow or pay any regard to the status of slaveryIf the ship waswithin the law of the neighbouring territorythere could be no questionthat the fugitive should be given up again to his masterOn 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 toput 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 theseseasand a large commissionconsisting chiefly of lawyerswas appointedfor the purpose of determining the practice and deciding what the law oughtto beThe discussions which followed may be compared with those in the 'Franconia'case for the number of topics of International Law which they includedInthe long run the commission came to an agreementSome of them thought thata British ship in Turkish water was for all purposes ex-territorial and underBritish SovereigntyOthers thought that it was for the time under the Sovereigntyof the Turkish GovernmentBut it was unanimously determined by the commissionersthatwhichever view prevaileda British officer could not lawfully be calledupon to give up a fugitive in any case where the result of surrendering himwould be to expose him to ill usage.
