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ELEMENTS
OP
INTEENATIONAL LAW.
ELEMENTS
OP
INTERNATIONAL LAW.
BY
HENRY WHEATON, LL.D.,
M1VI8TBB OF TSS UVXTID BTATB8 AT THS OOUBT OV PBU88IA ; 0OB]UiBPO2TDnra MXIIBKB OF THB
ACADSMT OF XO&AL AlTD POUTIOAL BGISXOBB IK THB XKBTITUTB OF FBAHOE ;
HOXORABT MXIfBBB OF THB BOTAL AOADBXT OF 8CIBNCBB AT BBBLIIT,
BTG. BTO.
FOURTH ENGLISH EDITION,
BRINGING THE WORK DOWN TO THE
PRESENT TIME
BY
J. BERE8F0RD ATLAY, M.A.,
OF LIMOOLn'B IHV, BABBIBTBB-AI-I.1.W.
LONDON:
STEVENS AND SONS, LIMITED,
119 & 120, OHANOERT LANE,
1904
Qc
^. ^xc^ ' 7, /<^0 A^
umnov:
0. F. BOWOBTH, OBRIT HBW STBSBfT, FBTTEB LANB, E.C.
PREFACE TO FOURTH ENGLISH EDITION.
More than twenty-five years have elapsed since Mr« A. G.
Bojdy of the Middle Temple, first undertook the pablication
of an English edition of Wheaton's International Law. A
second and a third edition passed through lus hands, the
latter in 1889, and now the publishers have requested me
to revise the work and bring it down to date. In so
doing, I have endeavoured to follow the lines laid down
by Mr. Boyd. Wheaton's original text has been left un-
touched, and Mr. Boyd's additions as well as my own are
distinguished by being printed in a smaller type. In the
footnotes, however, consisting as they do, for the most
part, of references to cases, treatises, and public documents,
it seemed unnecessary to retain the square brackets which
had previously differentiated those supplied by the editor
from those of Wheaton himself.
I should have wished, if it had been practicable without
spoiling the look of the page, to have distinguished my
share from the material accumulated by Mr. Boyd, and I
trust that I shall be acquitted of any intention to assume
.credit which does not belong to me. Compared with his
my labours have been light, but the course of history
during the last fifteen years, the decisions of the law
Courts, legislation on the Continent of Europe, as well as
at home and in the United States, have necessitated an
amount of modification and alteration which in the total
is by no means inconsiderable.
VI PREFACE TO FOURTH ENGLISH EDITION.
Perhaps the most striking features in the domain of
International Law since the publication of the last edition
have been the Hague Peace Conference of 1899 and the
increased recourse to arbitration for the settlement of minor
disputes among nations.
The acquisition by Japan of full international status,
and the abandonment by the United States of its tradi-
tional attitude of isolation, are both events of the first
magnitude. Other points of interest have arisen in con-
nection with naval warfare, with recent developments in
the right of search, with the suppression of the slave trade,
the position of inter-oceanic canals and the rights of belli-
gerents over submarine cables belonging to neutrals.
A translation of the Text of the Hague Arbitration
Convention has been added to the documents in the
Appendices, but to avoid increasing the bulk of the book
the Extracts from Treaties relating to Turkey and the
General Act of the Berlin Conference of 1885 have been
omitted.
The Text of the Anglo-French Agreement signed on
the 8th of April in the present year, was published too
late to permit of any incorporation of its provisions in
the body of the book; a translation of it, however, is
given among the Appendices. The sections relating to
the British occupation of Egypt, and the disputed fishery
rights on the Newfoundland Shore, must be read subject
to the terms of this, the latest accomplishment in the
field of diplomacy.
J. B. ATLAY.
14, Old Square, Lincoln's Inn.
April, 1904.
PBEFACE TO FIBST ENGLISH EDITION.
Whbatok's '^ Elements of International Law '^ was first published in
1836, in two editions, one appearing in Philadelphia, and the other
in London. The third edition oame out in 1846, in Philadelphia.
In 1848, a French edition of the work was published at Leipsio and
Paris ; and in 1853 a second French edition was brought out at the
same places. In 1857, an edition in English (called the sixth) was
edited by Mr. W. B. Lawrence, and published at Boston. A second
edition, by the same editor, appeared in 1863. The next edition,
published in 1864, was a translation of the work into Chinese, and
was executed by order of the Chinese Goyemment. The edition after
that was edited by Mr. B. H. Dana, and appeared in 1866 ; and sinoe
that time, there being no otiier edition in the English language, the
work has been long out of print. The present edition was under-
taken at the suggestion of the publishers, there being no apparent
probability of any new edition being brought out, either in England
or America. The great value of Mr. Wheaton's treatise, and the
importance of international law at the present moment, must be its
justification.
The original text of the author haying, as Mr. Dana says in his
preface, '' become, by the death of Mr. Wheaton, unalterable,'' it is
here reproduced as left by him, and the numbering of the sections
adopted by Mr. Dana has been preserved for the sake of convenience.
The notes of the present edition are entirely original, and are not
taken from those of any previous edition. It has of course been
necessary to refer to many of the same events and judidal decisions
discussed by the previous editors, and without this the work would
have been utterly incomplete ; but, where their notes have been used,
reference is made to them as to any other work.
The notes to this edition are interspersed throughout the text,
but, being printed in a different type, the reader can have no difficulty
in distinguishing the original work from that for which the present
editor is responsible. All foot-notes added to this edition are enclosed
in brackets. A new Appendix has been added, containing the
English and American statute law of Naturalization, Extradition,
and Foreign Enlistment ; the English Naval Prize Act, the Treaty of
Washington, and extracts from the most important treaties relating
VUl PREFACE TO FIBST ENGLISH EDITION.
to the Blaok Sea, the Dardanelles, and Bosphoros, and Turkish
affairs, whioh are now so prominently before the public. An entibrelj
new and full Index has been compiled, by whioh it is hoped that
anything in the work may be readily found.
It has been the aim of the present editor to bring the work down
to the present time, by recording in the notes the most important
diplomatic transactions ; the leading decisions of English, American,
and Continental Courts; and the opinions of the most eminent
publicists which have appeared since the date of the last edition
issued by the author himself. For this purpose the English parlia-
mentary papers and law reports, the American diplomatic corres-
pondence and the decisions of the Supreme and other Courts of the
United States, the writings of the most eminent modem authors on
the subject, and other authoritative sources of international law have
been consulted, and referred to throughout.
The editor begs to acknowledge the debt of gratitude which he
owes to Mr. Hertslet for the publication of his " Map of Europe by
Treaty," the use of which has immensely facilitated his labours.
In cases where the interests of England and America have been
in conflict, the editor has endeavoured, and hopes he has succeeded,
in taking an impartial view of the controversy ; and he also ventures
to hope that this edition may be as useful to Americans as to
Englishmen.
The editor has also endeavoured to keep the work within the
smallest limits consistent with anything like completeness, and if the
reader should be of opinion that important topics have either been
omitted or been dealt with too shortly, it is hoped that this may be
partially excused by the accessible form in which the work is pre-
sented. The editor also pleads the difficulty of selecting the most
important points from the immense mass of materials furnished by
recent times, as an excuse for any omissions. For those who may
wish to pursue any particular topic further, the references in the
foot-notes have been made as full as possible.
In conclusion, it is hoped that the undoubted value of Mr.
Wheaton's work will compensate those who read it for the short-
comings of the additions to it.
A. 0. BOTD.
3, Habooubt Buildinos, Temple.
dth February, 1878.
ADVERTISEMENT TO FIRST EDITION.
The object of the Author in the following attempt to oolleot the
rules and principles which govern, or are supposed to govern, the
conduct of States, in their mutual intercourse in peace and in war,
and which have therefore received the name of International Law,
has been to compile an elementary work for the use of persons
engaged in diplomatic and other forms of public life, rather than for
mere technical lawyers, although he ventures to hope that it may not
be found entirely useless even to the latter. The great body of the
rules and principles which compose this law is commonly deduced
from examples of what has occurred or been decided, in the practice
and intercourse of nations. These examples have been greatly
multiplied in number and interest during the long period which has
elapsed since the publication of Yattel's highly appreciated work ; a
portion of human history abounding in fearful transgressions of that
law of nations which is supposed to be founded on the higher sanction
of the natural law (more properly called the law of God), and at the
same time rich in instructive discussions in cabinets, courts of justice,
and legislative assemblies, respecting the nature and extent of the
obligations between independent societies of men called States. The
principal aim of the Author has been to glean from these sources the
general principles which may fairly be considered to have received
the assent of most civilized and Christian nations, if not as invariable
rules of conduct, at least as rules which they cannot disregard without
general obloquy and the hazard of provoking the hostility of other
communities who may be injured by their violation. Experience
X ADVERTISEMENT TO FIRST EDITION.
showB that these motives^ even in the worst tunes, do really afford a
considerable security for the observance of justice between States, if
they do not furnish that perfect sanction annexed by the lawgiver to
the observance of the municipal code of any particular State. The
knowledge of this science has, consequently, been justly regarded as
of the highest importance to aU who take an interest in political
affairs. The Author cherishes the hope that the following attempt to
illustrate it will be received with indulgence, if not with favour, by
those who know the difficulties of the undertaking.
BxBLDT, Jamtarp 1, 1836.
CONTENTS.
PAOE
Paxfaoe to Fotjbth English Edition r
Pbefaoe to Fibst English Edition . . vii
Adyhbtthkm bwt to thb EntST Edition ...... ix
Index of Oases Gtted xxiz
PABT FIBST.
DEFINITION, SOUEOES, AND SUBJECTS OF INTBBNATIONAL
LAW.
OHAPTEE I.
Definition and Sotjboes of Intebnational Law.
SECT.
1 Origin of International Law 1
2 Natural Law defined 2
8 Natural Law identioal with the law of Ood, or Divine Law . 3
4 Law of Nations distinguished from Natural Law, by Grotius . 3
6 Law of Nature and Law of Nations asserted to be identical
b J Hobbes and Pufiendoif 6
6 Law of Nations derired from reason and usage by Bjnker-
shoek 8
7 System of Wolf 10
8 Difierence of opinion between QrOtius and Wolf on the origin
of the voluntary Law of Nations 11
9 System of Yattel 11
10 System of HefEter 15
10a Distinction between Public and Private International Law . 15
11 There is no universal Law of Nations . . 17
12 Jus et Lex 18
18 Opinion of Savigny 21
18a Inteimati<mal Status of non-Ohristian Nations .22
14 Definition of International Law 24
16 Sources of International Law 24
16a The authority of Text Writers 28
Xll CONTENTS.
SEOT. PAGE
16b Eules of Law in Treaties 29
16o Marine Ordinances not necessarily imiyersal . . 29
15d Ooorts of Admiralty 30
CHAPTER n.
Nations and Soybreiov States.
16 Subjects of International Law 31
17 Definition of a State 31
17a Nations and States 32
17b Meaning of State in the American Constitution . .33
18 Sovereign Princes the subjects of International Law . . 33
19 Individuals or Corporations the subjects of International
Law 33
20 Sovereignty defined 34
21 How Sovereignty is acquired 34
21a De jure and de facto Governments 35
22 Identity of a State 37
23 Conduct of foreign States towards another Nation involved in
Civil War 37
24 Identity of a State, how affected by external violence . . 38
26 Identity of a State, how affected by the joint effect of internal
and external violence confirmed by Treaty . . . 38
26 Province or Colony asserting its independence, how considered
by other foreign States 40
27 Becognition of its independence by other foreign States . . 41
27a Eecognition of belligerency and independence .41
27b Belligerency 42
27c Eecognition of the Confederate States 43
27d Becognition of independence 43
27e Independence of Greece and Belgiimi 44
27f Texas and Hungary 44
28 International effects of a change in the person of the Sove-
reign, or in the internal constitution of the State . . . 44
29 Treaties 45
29a Binding effect of Treaties 46
30 Public Debts 46
30a Payment of Debts of Territory ceded by Treaty . . 47
31 Public Domain and private rights of Property .47
32 Wrongs and injuries 50
33 Sovereign States defined 50
33a Equality of Sovereign States 51
34 Semi-sovereign States 51
35 United States of the Ionian Islands . . . 52
CONTENTS. XIU
SECT. FAQE
36 Other Semi-sovereign States 55
37 Tribntory and Vassal States 61
37a Present position of Barbary States 63
38 North American Indians 63
38a Their present Status 65
38b Relations of China with certain Asiatic Kingdoms . 65
38c Status of British Indian Protected Princes and of Cuba . . 66
39 Single or united States 67
40 Personal Union under the same Sovereign . . 67
41 Beal Union under the same Sovereign 67
41a Constitution of the Austro-Hungarian Monarchy . . 68
42 Incoiporate Union 69
43 Union between Bussia and Poland 69
44 Federal Union 70
45 Confederated States 71
46 Supreme Federal Government or Compositive State .71
47 The Germanic Confederatipn 71
48 Of the Internal Sovereignty of the States of the Germanic
Confederation 73
49 Of the external Sovereignty of these States . . 74
50 States with Domains beyond the Confederation . .75
51 The Germanic Confederation a System of Confederated States 76
51a German Unity 76
51b The German Empire since the War with France . . . 77
51o The Zollverein 78
52 United States of America 78
63 Legislative Power of the Union 79
64 Executive Power 80
64a Legislation in the United States 80
66 Treaiy-making Power 81
66 The American Union a Supreme Federal Government . . 82
67 Swiss Confederation 82
68 Constitution of the Swiss Confederation compared with those
of the Germanic Confederation and of the United States . 83
69 Abortive attempts since 1830 to change the Federal Pact
ofl815' 84
69a Changes in the Swiss Constitution in 1848 and 1874 84
xiv CX)NTENTS.
PABT SECOND.
ABSOLUTE INTEBNATIONAL BIGHTS OF STATES.
OHAFTEB I.
BiaHTS 07 SSLE'VKBSE&TATIOJS JOW IziDSFXHDBirOE.
BKCfT. P-^OK
60 Bights of Sovereign States with respect to one another . . 86
61 Bight of self-preservation 86
62 Bight of self-defence modified by the equal rights of other
States or by Treaty . . . ' 87
68 Bight of intervention or interference 88
6Sa Legal aspect of intervention 89
64 Wars of the French Bevolution 92
66 Congress of Troppau and Laybach 93
66 Congress of Yerona 94
67 War between Spain and her American Colonies . .95
67a The Monroe Doctrine 97
68 British interference in the affairs of Portugal in 1826 . . 99
69 Literf erence of the Christian Powers of Europe in favour of
theOreeks 101
70 Literference of Austria, Great Britain, &c. in the internal
affairs of the Ottonmn Empire in 1840 . .104
70a The Eastern Question 106
71 Interference of the five great European Powers in the Belgic
Bevolution of 1830 119
72 Independence of the State in respect to its Internal Qpvem-
ment 120
78 Mediation of Foreign States for the Settlement of the Internal
Dissensions of a State 120
78a Proposed Mediation in the American Civil War . . . 121
74 Independence of every State in respect to the choice of its
Bulers 122
75 Exceptions growing out of Compact or other just Bight of
Intervention 122
76 Quadruple Alliance of 1834 between FrancCi Qreat Britain,
Portugal and Spain 123
76ar-c Instances of Intervention 126
CHAPTEB n.
Bights of Civil and Ckihikal Legislation.
77 Exclusive power of Civil Legislation 128
78 Conflict of Laws 129
79 No obligation as to foreign Laws 130
CONTENTS. XV
8BCT. FAOB
80 Eules laid down by Huberus 181
81 Lex loci ret sita 132
82 Droit (Taubaine 134
82a Bights of Aliens to hold land in yarioiu States . 136
82b Effect of Birth in yarions States 137
83 Lex domicilii 138
83a The lex domicilii only regulates nniversal successions . .139
83b Wills of British subjects made abroad 140
84 Personal Status 140
85 Naturalization 141
86 Begulation of Property situated in a State . . 142
87 Personal Properly 142
87a Matrimonial Domicile 143
88 Effect of banlmipt discharge and title of assignee in another
Country 144
89 — 91 The lex loci contractAe often causes exceptions to the rule . 145
92 Foreign marriages 146
93 Execution of Contract in another Country . . 147
93a English Law 148
94 Lex fori 160
96-6 Foreign Sovereign, his Ambassador, Army, or Fleet within
the Territory of another State 150
97 Exemption of tilie person of the foreign Sorereign from the
local jurisdiction 153
98 Exemption of foreign Ministers from the local jurisdiction . 154
99 Exemption from the local jurisdiction of foreign Troops
passing through the Territory 155
100 Exemption of foreign Ships of War entering the ports of
any Nation under an express or implied permission . .156
101 Distinction between Public and Private Vessels . .158
101a Plroceedings against Ships of War 161
lOlb Other Property of foreign Sovereigns 162
lOlo Suits by foreign Sovereigns 162
102-3 Law of France as to the exemption of Private Vessels
from the local jurisdiction 163
103a Distinction between Public and Private Ships . . 166
103b Doctrine of Exterritoriality 166
103c Criminals and Fugitive Slaves 167
103d — e Merchant Vessels in foreign parts 168
104 Exemption of Public or Private Vessels from the local
jurisdiction does not extend or justify acts of aggression
against the security of the State 169
106 The exemption of Public Ships from the local jurisdiction
does not extend to their Prize Ooods taken in violation of
the neutrality of the country into which they are brought. 170
106 Jurisdiction of the State over its Public and Private Vessels
on the High Seas 171
XVI CJONTENTS.
BEOr. PAQS
107 — 9 Lnpressmeni of Seamen by England 172
lOBa Abandonment of the custom 177
109b Case of the Trent 178
110 Consular Jurisdiction 179
110a British Consular Courts in non-Christian countries . . . 181
111 Independence of the State as to its Judicial Power . .182
112 Exceptions 182
113 Extent of the Judicial Power over Criminal Offences . .182
113a Jurisdiction of British Courts over crimes committed abroad 184
114 Laws of Trade and Navigation 184
116 Extradition of Criminals 184
116 Extradition by the U. S. Constitution 186
116a Obligation of Extradition not a decided point . . . . 186
116b Practice of England 186
116o— d Practice of the United States 187
116e Extradition in France 188
116f What Criminals are subject to Extradition . . 189
116g Political Befugees 189
117 The Ashburton Treaty 190
117a Its construction 191
117b Extradition Act of 1870 191
118 Treaty between France and the United States . . . 194
119 Additional Article .195
120 Extradition Treaties 196
120a Surrender of its own Subjects by a State ... 196
121 Extraterritorial operation of a criminal sentence . .198
122 Piracy under the Law of Nations 198
123 Commissioned Cruisers 199
124 Piracy triable everywhere 200
124ar-e Insurgents carrying on War at Sea . .201
125 Whether the Slave-trade is prohibited by the Law of
Nations 206
126 Treaties to suppress the Slave-trade 206
127 — 133a Decisions of British and American Courts . . 208
133b Fugitive Slaves 217
lS3o British Admiralty Instructions 218
133d Slavery in the United States 218
134 Extent of the Judicial Power as to Property within the
Territory 219
136 Distinction between the Bule of Decision and the Bule of
IVocedure as affecting cases in rem 219
136 Succession to Personal Property ab intestato . . . 219
137 Foreign Will, how carried into effect in another country . 220
137a Probate of Wills in England 221
138 Conclusiveness of foreign sentences in rem .... 221
138a English and American decisions 221
CONTENTS. XVU
SECT. PAGE
139 Transfer of Property under foreign Bankrupt Proceedings , 222
140 Extent of the Judicial Power over Foreigners residing within
the Territory 223
141 French Law 224
142 Proceedings against absent Parties 226
148 Distinction between the Eule of Decision and Eule of Pro-
ceeding, in cases of Contract 226
144 Bankruptcy 228
144a Eemedy for Wrongs committed in a foreign country . . 229
146 Obligation of a Contract 229
146 Form of a Contract 230
147 Conclusiveness of foreign Judgments in Personal Actions . 230
148 English Law as to foreign Judgments 231
149 American Law 232
160 Law of France 232
161 Foreign Divorces 233
161a Validity of a foreign Divorce in England . . . 235
161b Divorce should be decided in the Country of Domicile . 235
161c Domicile necessary to give Jurisdiction to Divorce . . 236
CHAPTEE IIa.
National Characteb and Domicile.
161 A Distinction between National Character, Domicile, and Alle-
giance 238
161 B Definitions of Domicile 239
161 C Domicile of Origin and of Choice 240
161 D Domicile of Choice 240
161 £ Change of Domicile 241
161 F Intention to change Domicile 241
161 G Eesidence in ex-territorial Community .... 242
151 H Acquisition of Domicile and National Character . . . 242
151 1 Incidents of National Character 242
161 J Permanent Eesidents in Foreign Countries . . . . 243
161 K Expatriation by the Law of England .... 243
161 L Law of the United States as to Expatriation . . . 244
161 M Who are Citizens of the United States .... 245
161 H United States' Citizens abroad 245
161 0 Naturalisation Treaty between England and America . 246
161 P Former Discussion between England and America as to the
Allegiance of their Subjects 247
161 Q British subjects in America during the Civil War . . 247
151 E Prussian Laws 248
161 S Oases of Martin Kozta and Simon Tousig .... 250
161 T Law of France 251
W. h
• • •
XVIU CONTENTS.
OHAPTEEin.
EiGHTB OF Equality.
8B0T. PAQB
152 Natural equality of States modified by Compact and Usage. 252
153 Eoyal Honours 252
154 Precedence among Princes and States enjoying Eoyal
Honours 253
155 The great Republics 254
156 Monarchs not crowned, and semi-Sovereigns . . . 254
157 Usage of the a/^tfma^ 255
158 Language used in Diplomatic Intercourse .... 256
159 Titles of Sovereign Princes and States 256
160 Maritime Ceremonial 258
OHAPTEE IV.
Bights of Property.
161 National Proprietary Eights 260
162 Public and Private Property 260
163 Eminent Domain 260
164 Prescription 260
165 Conquest and Discovery confirmed by Compact and the
Lapse of Time . . . 261
166 Papal Bull of 1493 262
167 Dispute between Ghreat Britain and Spain relating to Nootka
Sound 263
168-71 Controversy between the United States and Eussia
respecting the North-Western Coast of America . 265
172-76 Claim of the United States to the Oregon Territory . . 269
176a Occupations on the AMcan Coast 275
177 Maritime Territorial Jurisdiction 275
177a The case of The Franconia 276
177b Territorial Waters Jurisdiction Act 276
177o Extension of Three-Mile Belt 277
178 Extent of the term Coasts or Shore 277
179 The King's Chambers 278
179a Customs Legislation at the present time 279
180 Eight of Fishery 280
181 Claims to portions of the Sea upon grounds of Prescription . 283
182 The Black Sea, the Bosphorus, and the Dardanelles . . 284
183-4 Danish Sovereignty over the Sound and Belts . . . 286
185 Whether the Baltic Sea is mare clausum f . . . , 289
186-7 Controversy respecting the Dominion of the Seas . . 289
188 Ports, Mouths of Eivers, &o 293
189 The Marine League 293
CONTENTS. ZIX
SKOT. PAQB
190 SiraitB and SonndB 294
191 The Dardanelles 296
192 Biyers forming part of the Territory of the State . 297
193 Bight of innocent passage on Biyers flowing through dif-
ferent States 297
194 Incidental Bight to use the Banks of Biyers . . 298
196 These Bights are imperfect 298
196 Modification of these Bights by Compact . .298
196a Bedemption of the Scheldt Tolls 299
197 Treaty of Vienna respecting the great European Biyers . 299
197a Navigation of the Danube . 300
198-9 Navigation of the Bhine 301
300-2 Navigation of the Mississippi 304
203-6 Navigation of the St. Lawrence 309
206a Treaty of Washington as to the St. Lawrence .314
206b African Bivers 314
206o Litemational Canals 314
206d The Suez Canal 315
206e The Panama Canal 317
PART THIBD.
INTBENATIONAL EIGHTS OF STATES IN THEIE
PAOIFIO EELATIONS.
CHAPTEB L
Bights of Leqation.
206 Usage of Permanent Diplomatic Missions . . . . 321
207 Bight to send and obligation to receive Public Ministers . 321
206 To what States Bights of Legation belong . . . . 322
200 How affected by Civil War or contest for the Sovereignty . 323
206a Communication with Bebels 324
210 Conditional reception of foreign Ministers . . . . 324
211 Classification of Public Ministers 324
212 Ambassadors 325
213 Ministers of the Second Clai9S 326
214 Diplomatic Precedence 326
216 Ministers of the Third Class 328
216 Consuls 328
217 Letters of Credence 329
218 Pull Power 329
219 Instructions 329
62
XX coirrENTS.
SECT. PAaS
219a Communication of Instruotions 329
220 Passport 330
221 Duties of a Public Minister on arriving at his Post . . 330
Audience of the Sovereign or Chief Magistrate . . .331
Diplomatic Etiquette 331
Privileges of a Public Minister 331
224a Inviolability and Exterritoriality 332
225 Exceptions to the General Bule of Exemption from the
Local Jurisdiction 333
225a Minister's House 333
226b Suits by and against Ministers 334
225o Foreign Ministers in England 335
225d Instances of the Expulsion of Ambassadors .... 337
226 Personal Exemption extending to the Eamily, Secretaries,
Servants, &c. of Ambassadors 339
227 Exemption of the Minister's House and Property . . 340
228-41 Discussion between the American and Prussian
Governments respecting the Exemption of Public
Ministers from the Local Jurisdiction 341
Duties and Taxes 354
Messengers and Couriers 354
244-7 Public Minister passing through the Territory of another
State 355
248 Freedom of Eeligious Worship 358
249 Consuls not entitled to the peculiar Privileges of Public
Ministers 359
249a Privileges of Consuls 359
249b Case of Mr. Bunch 360
260 Termination of Public Mission 360
251 Letter of Eecall 360
CHAPTER n.
Rights op Negotiation and Treaties.
252 Faculty of contracting by Treaty, how limited or modified . 864
253 Form of Treaty 364
254 Cartels, Truces, and Capitulations 365
255 Sponsions « . 365
266-62 Full Power and Ratification 366
Justification of refusal to ratify 372
When Treaties begin to bind 373
265 The Treaty-making Power dependent on the Municipal
Constitution 374
266 Auxiliaiy Legislative Measures, how far necessary to the
validity of a Treaty 375
COiJTENTS. XXI
SECT. PAGE
266a Commencement of Treaties 376
867 Freedom of Consent, how far necessary to the yalidity of
Treaties 376
268 Transitory Conventions perpetual in their Nature . . . 377
269-74 Controversy respecting the Bights of Fishery on the
Coasts of the British Dominions in North America . . 379
275 Treaties, the operation of which ceases in certain cases . . 389
276 Treaties revised and confirmed on the renewal of Peace . 390
277 Treaties of Guaranty 391
278 Treaties of AUiance 392
279 Distinction between general Alliance and Treaties of limited
Succour and Subsidy 392
280 Can««/(s</€m of a defensive Alliance 393
281-3 Alliance between Ghreat Britain and Holland . . . 393
284-6 Alliance between Great Britain and Portugal . . . 398
286 Hostages for the execution of Treaties 402
287 Interpretation of Treaties 403
287a Eules for Interpretation .403
288 Mediation 403
288a The Treaty of Paris 404
288b Arbitration 404
288c The Hague Peace Conference 405
288d Conferences 408
Diplomatic Histoiy 408
PAET FOUBTH.
INTEENATIONAL EIGHTS OF STATES IN THEIE
HOSTILE EELATIONS.
CHAPTER I.
OOMKKNCEHENT OF Wab AND ITS IMMEDIATE EPFECTS.
Eedress by forcible Means between Nations • .411
291 Reprisals . . 412
292 Effect of Reprisals .413
283 Embargo previous to Declaration of Hostilities . .413
293a Case of Don Paciflco 414
293b Pacific Blockade 415
293o Droit d'Angarie 416
294 In whom the Right of making War is vested . .416
226 Public or solemn "War 416
296 Perfect or imperfect War 417
XXU CX>NT£NTS.
SBOT. PAQB
296a Civil War 417
297 How far a Declaration of War is necessary . . . 418
298 How far Enemy's Property found in the Territory on the
Commencement of War is liable to Confiscation . . 420
299 Opinion of Vattel 422
300 The modem Eule 423
301 Eule of Reciprocity 424
302 Droits of Admiral^ 424
303-4 Seizure of Enemy's Property found within the territorial
limits of the belligerent State on the Declaration of War,
considered in Brovm v. United States 425
304a Practice of the Crimean War 431
306 Debts due to the Enemy 431
306 Practice of the United States 432
307 Of England and France 432
308 Of England and Denmark 433
308a Confiscation of Public and Private Debts . . . . 433
309:10 Trading with the Enemy unlawful on the part of Sub-
jects of the Belligerent State 434
311-14 Decisions of the American Courts as to Trading with
the Public Enemy 437
316 Strictness of the Eule 443
315a Relaxation of Eules against Trade with the Enemy . .443
316b Extent of Prohibition of Intercourse between Enemies . 443
316o Contracts with Neutrals to be performed in Enemy's Country 444
316 Trade with the Common Enemy unlawful on the part of
Allied Subjects 446
317 Contracts with the Enemy prohibited 446
318-19 Persons Domiciled in the Enemy's Country liable to Re-
prisals 446
320-23 Species of Eesidence constituting such Domicile . . 448
324-26 The Native Character easily reverts 450
326-27 Case of Persons removing from the Enemy's Countiy on
the breaking out of War 453
Domicile distinguished from Allegiance 455
Effect of Domicile in a Foreign State 457
330 Eenunciation of Domicile 457
331 Effect of retaining Foreign Domicile 459
332 Time for Election to change Domicile not allowed . . . 460
333 National Character of Merchants residing in the East . . 462
334 Effect of House of Trade in the Enemy's Country . . . 464
336 Converse of the Eule 454
336-9 Produce of the Enemy's Territory considered as hostile so
long as it belongs to the Owner of the Soil, whatever
may be his National Character or Personal Domicile . 464
340 National character of Ships 459
CONTENTS. XXlll
8B0r. PAQB
840a The Flag as eyidence of Ship's Nationality . . . 470
S40b Ownership of British Ships 470
341 Sailing under the Enemy's Licence 471
CHAPTER n.
Bights of Wab as Bgrwiuw Enxioes.
342-3 Bights of War against an Enemy and their limits . 472
343a Tendency in Modern Warfare 473
343b The Geneva Conyention 474
343c The Hague Convention as to Maritime Warfare . . .475
343d The St. Petersburg Declaration 477
343e The Hague Declarations 477
344 Exchange of Prisoners of War 478
344a Persons not entitled to be treated as Prisoners of War . .479
344b Persons in Balloons 479
345 Persons exempt from Acts of Hostility 479
345a Crews of Merchant Ships 480
346 Enemy's Property, how far subject to Capture and Con-
fiscation 480
346a Enemy's Private Property on Land 482
346b Effects of Military Occupation 483
346o Martial and Military Law 484
347 When ravaging the Enemy's Territory is Lawful . . . 487
348-60 Discussions between the British and American GK)vem-
ments upon this subject 488
351 Burning of Washington 491
352-4 Bestitution of the Works of Art in the Museum of the
Louvre 494
355 Distinction between Private Property taken by Sea and on
Land 497
355a Enemy's Goods under a Neutral Flag 498
355b Capture of Property on the High Seas .498
355c What are Enemy's Goods 499
355d Sale of Ships by Belligerents to Neutrals .... 500
356 What Persons are authorised to engage in Hostilities
against the Enemy 501
357 Non-commissioned Captors 501
358 Privateers 502
358a Abolition of Privateering 503
359 Title to Property captured in War 503
359a Booty and Prize 504
859b They belong primarily to the Sovereign 504
359c Duties of Captors 505
359d Destruction of Prizes at Sea 506
359e Destruction of Neutral Ship or Cargo 507
860 Becaptures and Salvage 507
XXIV CONTENTS.
8E0T. PAGX
361-2 Eecapturee from Pirates 507
363 Recapture of Neutral Property 609
364-6 No Salvage on Neutral YesselB and Gk>ods recaptured . 509
366 Exception when Ship might have been confiscated by the
Enemy 511
367 Becapture from an Enemy 513
368-9 Eule of amicable Betaliation or Heciprodty applied to re-
capture of the Property of Allies 514
370 American Law adopts the rule of reciprocity as to Bestitution
of the Property of Friendly Nations recaptured from an
Enemy 517
371 Laws of different Countries as to Becapture .518
372 British Law 518
373 American Law 519
374 French Law 520
375 Spanish Law 522
376 Portuguese Law 523
377 Dutch Law 523
378 Danish Law 523
379 Swedish Law 523
380 What constitutes a ** setting forth as a Vessel of War "
under the Prize Act 524
381 Becapture by a Non-commissioned Vessel .... 524
382 Actual Bescue necessary for Military Salvage for recapture. 525
383 Salvage on second recapture 528
384 Bate of Salvage 528
384a Joint capture of Prize 528
384b Joint capture of Booty 529
386 Validity of maritime captures determined in the Courts of
the Captor's Country 530
386 Condemnation of Property lying in the Ports of an Ally . 530
38 r Property carried into a Neutral Port 530
388 Jurisdiction of the Courts of the Captor, how far exclusive . 531
389 Condemnation by Consular Tribunal sitting in the Neutral
Country 532
390 Besponsibility of the Captor's Government for the acts of its
Commissioned Cruisers and Courts 532
391 Unjust Sentence of a Foreign Court, Grounds of Beprisal . 533
392-3 Distinction between Municipal Tribunals and Courts of
Prize . * * . . . . . . . 534
394 Beport on the Silesian Loan causes 538
395 Mixed Commission under Treaty of 1794 . . . . 540
396 Conclusiveness of Prize Decisions 540
397 Danish Indemnities under Treaty of 1830 . . . 541
397a Municipal Laws administered in Prize Courts . 542
398 Jus postlimtnii 543
899 Good Faith towards Enemies 543
CONTENTS. XXV
8B0T. PAGE
400-2 Truce or Armistice 544
403 Eules for interpretiDg ConyentioDS of Truce . . . . 545
404 Ee-commencement of Hostilities 546
405-7 Capitulation for the Surrender of Troops and Fortresses . 547
408 Passports, Safe Conducts and Licences . . . .549
409-10 Licences to Trade with the Enemy 550
411 Eansom of captured Property 553
411a British Law of Eansom 555
411b The Brussels Conference 555
411c — 1 Hag^e Conyention as to the Laws and Customs of Land
Warfare 556
CHAPTER m.
Bights of Wab as to Nettteals.
412 Definition of Neutrality 564
413 Different Species of Neutrality 565
414 Perfect Neutrality . 565
415-22 Imperfect Neutrality 566
423 Conyentional or Guaranteed Neutrality .... 574
424 Neutrality modified by a limited Alliance with one of the
belligerent Parties 575
424a The Eight to make such Treaties 576
424b Loans to Belligerents by Neutrals 576
426 Qualified Neutrality arising out of antecedent Treaty
Stipulations 577
426 Hostilities within the Territory of the Neutral State . . 578
427 Passage through the Neutral Territory .... 579
428 Capture within the Maritime Territorial Jurisdiction or by
Vessels stationed within it or hoyering on the Coasts . 579
429 Vessels chased into Neutral Territory and captured there . 581
430 Claim on the Ground of Violation of Neutral Territory must
be sanctioned by the Neutral State ..... 582
431 Eestitution by the Neutral State of Property captured
within its Jurisdiction or otherwise in yiolation of its
Neutrality 583
432 Extent of the Neutral Jurisdiction along Coasts and within
Bays and Eiyers 584
433 Limitations of the Neutral Jurisdiction to restore in Cases
of illegal Capture 586
434 Bight of Asylum in Neutral Ports dependent on the
Consent of the Neutitd State 586
434a Eeception of belligerent Cruisers in Neutral Ports . . 587
434b Eepairs in Neutral Ports 587
434o English Eules 588
434d Prizes brought into British Ports . . • . . 588
XXVI CONTENTS.
SECT. PAaB
4S4e Eules of other Countries 589
434f Prizes fitted out as Ships of War 590
436 In what Neutral Impartiality consists .... 590
436 Arming and equipping of Vessels and enlisting Men within
the Neutral Territoritj, by either Belligerent, unlawful . 591
437 Prohibition enforced by American Municipal Statutes . 592
438-9 British Foreign Enlistment Act of 1819 592
439a — ^bb Neutrality Laws of Great Britain and the United States,
and Cases arising under them . . . . , 595
440 How far the immunity of the Neutral Territory extends to
Neutral Vessels on the High Seas 613
441 Distinction between Public and Private Vessels . . .614
442 Usages of Nations subjecting Enemy's Goods in Neutral
Vessels to capture 615
443 Neutral Vessels laden with Enemy's GK)ods subject to
confiscation by Ordinances of the State . . . .615
444 Goods of a Friend on board the Ships of an Enemy liable
to confiscation by the Prize Codes of some Nations . .616
446 The two maxims of Free Ships, Free Goods and Enemy Ships,
Enemy Goods, not necessarily connected . . . . 617
446 Conventional Law as to Free Ships, Free Goods . .619
447 Treaties of Holland on the subject 620
448 Portuguese Treaty 622
449 Union of the Two Maxims in Treaties 622
450 ArmedNeutrality of 1780 . 622
461 Treaties Uniting the Maxims not renewed . . 623
452 Practice during the French Revolution .... 624
463 Armed Neutrality of 1800 624
464 The International Law of Europe adopted by America and
modified by Treaty 625
466 Conflict in Provisions of Treaties with England and France . 627
466-70 Discussion between the American and Prussian Oovem-
ments 628
471 Bule in American Prize Courts 644
472 Treaties between the United StAtes and the South American
Republics 644
478 Covering Enemies' Goods in Neutral Ships by False Papers 645
474 Rule of Enemy Ships, Enemy Goods not applicable when the
Goods are shipped before War 646
476 The Two Maxims in later Treaties 646
476a The Declaration of Paris 648
476 Contraband of War 648
477-9 Classification of Goods as Contraband by Grotius, Yattel,
and Bynkershoek 649
480-7 How far Naval Stores are Contraband 650
488 Provisions and Naval Stores, when Contraband independently
of Treaty . . 656
CX)NTENTS. XXVll
aSCT. FAQB
488 Articles of Promiscuous Use becoming Oontraband when
destined to a Port of Naval Equipment . . . . 657
480 — 601 Proyisions Contraband under certain circumstances of
War 653
601a-b Classification of Contraband Goods 667
601c-d Ulterior Destination of Goods 669
sole Contraband Trade no Breach of Neutrality . . . . 671
601f Ships as Contraband 672
601g Coals and Machinery 672
601h Food ; Blockade of Formosa 672
602 Transportation of Military Persons and Despatches in the
Enemy's Service 673
603 Fraudulently carrying Contraband Despatches . . .674
604 Diplomatic Despatches an exception 675
604a Case of The Trent 676
604b General Bules as to the Carriage of Hostile Persons . . 677
606 Penalty for carrying Contraband 678
606 The Ship must be taken in delicto 678
607 American Eule — The Commercen 679
608 Rule of the War of 1756 682
608a Continuous Voyages 684
608b DilEerence between Carriage by Land and Sea . . . 686
609-10 Breach of Blockade 687
610a Legal aspect of Blockade Bunning and Conveying Contra-
band 689
610b Distinction between Sieges and Blockades .... 690
610e Extent of Blockades 690
611 What things must be proved to constitute Violation of
Blockade 691
612 Actual presence of the Blockading Force . . 691
613 Temporary interruption 691
613a— d Efficiency of Blockade 691
614 Knowledge of the Party 693
616 Constructive or presumed Knowledge 694
616a Simple and Public Blockades 695
616b Extent of Notice 696
616 Treaty stipulations as to Notice 696
617 Blockading Force driven off by hostile Attacks . . . 697
618 New Notice necessary in such a case 698
619 Some Act of Violation necessary 699
619a Intent to Violate Blockade 700
619b Justifiable Entry into a Blockaded Port 701
619c Cargo on Ship Condemned for Breach of Blockade . .701
620 Violation of Blockade by Egress 701
621 Purchase of GK)ods in a Blockaded Port .... 702
622 Interior Canal Navigation 703
628 Duration of the Offence 703
XXviii CONTENTS.
SECT. PAOB
624 Bight of Yisitation and Search 704
525-27 Eight of Search and Convoy 704
628 Forcible Eesistance bj an Enemy Master . . . . 708
629 Eight of a Neutral to carry his Gk>ods in an armed Enemy
Vessel 709
530 Neutral Vessels under enemy's Convoy liable to Capture .710
681-7 Captures under Danish Ordinances of 1810 . , . . 711
687a Torpedoes and the Obstruction of Channels . .721
637 -b Submarine Cables and Wireless Telegraphy . . . . 721
CHAPTER rV.
Tkbaty of Pbaob.
638 Power of making Peace dependent on the Municipal Con-
stitution 723
639 Power of making Treaties of Peace limited in extent . . 724
640 Indemnity to Individuals for losses by Public Concessions . 724
641 Dismemberment of States by Treaty 724
642 Treaty-making Power of Great Britain 726
643 Treaty-making Power of a Confederation . « • . 726
644 EfPects of a Treaty of Peace 727
646 Uti possidetis the basis of every Treaty of Peace, unless the
contrary be expressed 728
646 Effect of Eestoration of Territory by a Treaty of Peace . . 728
647 From what Time the Treaty of Peace commences its
Operation . . 729
648 Cessation of Hostilities after Treaty 730
649 In what Condition Things taken are to be Eestored . . 731
660 Breach of the Treaty 732
661 How Disputes respecting the Breach are adjusted . . 732
APPENDICES.
A. British and American Naturalization Acts .... 735
B. „ „ ,, Extradition Acts 745
C. „ ,, „ Foreign Enlistment Acts . .. . 757
D. English Naval Prize Act 773
E. Treaty of Washington 783
F. Hague Convention for the Pacific Settlement of International
Disputes ..." 797
G. Declaration of Paris 803
H. Territorial Waters Jurisdiction Act 804
I. International Convention for securing the Free Navigation of
the Suez Canal 806
El. Anglo-French Agreement of 1904 810
INDEX 817
INDEX OF CASES CITED.
Abdajxah V, Bickards, 242.
Abd-ul-Mesflili V. Faxra, 61, 141, 180,
181, 239, 242.
Abig^, The, 501.
Abouloff v. Oppenheimer, 222, 232.
Acteon, The, 512.
Actif, The, 524.
Adam, In re, 137.
Adams v, Olutterbuck, 133.
Adela, The, 582.
Adeline, The, 519.
Admiral, The, 695.
Adula, The, 700.
Adyentore, The, 526.
Aemam (Von), Ex parte, 197, 755.
Aina, The, 501.
Aitchison v. Dixon, 239.
Alabama, The, 606.
Alby, The, 443.
Alerta and Cargo, The, v. Bias, 598.
Alexander, The, 440.
Alexander v. Duke of Welling:ton,
505, 529.
Alexander's Cotton (Mrs.), 417, 483.
Ahnida, Be, 241.
Amedie, The, 210.
A misted de Bues, 586, 598.
Anderson's case, 191.
Andromeda, The, 692, 701.
Anna, The, 278, 580.
Anna Catherina, The, 683.
Anna Maria, The, 506.
Annandale, The, 471.
Anne, The, 582.
Anstnither v. Adair, 143.
Antelope, The, 172, 214, 217.
Antonia Johanna, The, 464.
Apollo, The, 668.
Ariadne, The, 471.
Ariel, The, 500, 501.
Armstrong v, Lear, 220.
Armytage v. Armytage, 235.
Arrogante Barcelones, The, 586, 598.
Aspinwall v. Queen's Proctor, 360.
Astrea, The, 525.
Atalante, The (6 C. Bob.), 674.
— (3 Wheaton), 710.
Atlas, The, 500.
Attorney-General v. Bowens, 221.
— V. Campbell, 140.
Attorney -General v. Kent, 362.
— for Hong Kong v.
Kwok-a-Sing, 199.
Augusta, The, 529.
Aurora, The, 471, 500.
Baigory, The, 692, 701.
Baltezzi v. Byder, 701.
Banco de Portugal v. Waddell, 223.
Banda and Kirwee Booty, The, 529.
Banfield v. Soloman, 223.
Barbuit's case, 335.
Barne, Ex parte, 241.
Battle, The, 501.
Beaumont, Re, 240.
Becquet v, McCarthy, 232.
Bedreechund v. Elphinstone, 484.
Bell V. Kennedy, 239, 241.
Belle, The, 525.
Bello Corrunes, The, 598.
Bennett, In re, 191.
Bermuda, The, 678, 685.
Berne, City of, v. Bk. of England, 41.
BetheU. Be, 149.
Betsy, The, 449, 597, 690, 692, 694,
699, 702.
Blendenhale, The, 528.
Bloxam v. Favre, 137.
Boedes Lust, The, 414.
Bonati v. Welsh, 143.
Bothnea, The, 506.
Boussmaker, Ex parte, 431.
Boyce r. Tabb, 217.
Bradford v. Young, 241.
Bremer v. Freeman, 138.
Briggs V. Briggs, 235, 236, 239, 241.
— V, The Light Ships, 161.
Brinkley v. the Attomey-Gteneral,
149.
British Prisoners, The, 756.
Brodie r. Barry, 133.
— v. Brodie, 236.
Brook V. Brook, 148, 149.
Brown v. U. S., 424, 431, 433.
Brunei v. Brunei, 241.
Brunswick, Duke of, v» King of
Hanover, 33.
Brutus, The, 672.
XXX
INDEX OF CASES CITED.
Bundesrath, The, 670.
Burle/s case, 197, 202.
BuTon V, Demuan, 217.
Burton v. Finkerton, 610.
Caouabi, The, 203.
Caldwell v. YanTliaagen, 131.
Caledonia, The, 471.
Calvin's case, 50, 137.
Calypso, The, 694.
Cammel v. Sewell, 139.
Campbell v, Gordon, 743, 744.
Carl, The, 529.
Carlotta, The, 512.
Carolina, The, 673.
Caroline, The, 355, 676.
Carrington v. Merdiant Ins. Co., 678.
Castioni, Be, 189.
Castrique v. Imrie, 222.
Cathanne Elizabeth, The, 527, 709.
Ceylon, The, 524.
Charkieh, The, 33, 57, 159, 162.
Charlotte, The, 658, 668.
— Caroline, The, 528.
Chartered Bk. of India v, Nether-
lands India Steam Navigation Co.,
229.
Chavasse, Ex parte, 690.
Cherokee NaUon, The, v. State of
Georgia, 64.
— V, Soutnem Kansas Bail-
way, 65.
Cherokee Trust Funds, 64, 65.
Chesapeake, The, 191, 580.
Cheshire, The, 695.
Chirac r. Chirac, 378, 743.
Church V. Hubbard, 279.
Cig^'s Trust, In re, 140.
Circassian, The, 686, 692, 695, 701.
Citade de Lisboa, The, 645.
City of Berne v. Bank of England, 41.
Clark V. Cretico, 360.
— V. Smith, 65.
Clio, The, 553.
Cohens v. Virginia, 334.
Colliss V. Hector, 143, 222.
Columbia. The, 690.
Comet, The, 703.
Commercen, The, 682.
Comus, The, 161.
Concepcion, La, 598.
Concha v. Concha, 241.
Confederate Note Case, The, 418.
Constancia, The, 500.
Constitution, The, 162.
Cooke, Be, 228, 241.
Cooper V. Cooper, 228.
Cope V, Doherty, 30.
Coppin V. Coppm, 133.
Cornelius. The, 701.
Cosmopolite, The, 553.
Cotton, Mrs. Alexander's, 417, 483.
Cotton Plant, The, 604.
Craignish v. Hewitt, 240.
Crockenden v. Fuller, 241.
Crow Dog, Be, 65.
Cunningham, Ex parte, 241.
Curling v. Thornton, 138.
Daifjb, The, 544.
Dainese v, Ilale, 181.
Damodhar Gordham v, Deoram
Kanzi, 484.
Davis V. Packhard, 360.
De Almeda, Be, 241.
De Couche v. Savetier, 143.
D'Etchegoyen v. D'Etchegoyen, 239.
De Geer v. Stone, 242.
De Lane v. Moore, 143.
Del Col r. Arnold, 506.
Dent V. Smith. 181.
Des Hais, In the goods of, 221.
Desmare v. U. S., 241.
Despatch, The, 527.
Dever. Ex parte, 145.
De Wahl v. Braune, 444.
De Wutz V, Hendricks, 577.
Diana, The, 212, 453, 701.
Diligentia, The, 525, 526.
Divina Pastora, The, 38.
Doelwvck, The, 760.
Dolphm V. Bobins, 235, 240.
Don r. Lippman, 149.
Donegani v. Donegani, 137.
Dordrecht, The, 528.
Dorsey v. Dorsey, 234.
Dos Hermanos, The, 451.
Dos Santos, case of, 756.
Douglas V, Douglas, 242.
Dred Scot v. Sanford, 218.
Dree Gebroeders, The, 454.
Duke of Brunswick, The, v. King of
Hanover, 33. 162.
Dupoint V. Pichon, 339.
East India Co. i*. Campbell, 186.
Ebenezer, The, 685.
Edward, The. 678.
Edward and Mary, The, 525.
Eleanora Catherina. The, 512.
Eliza Ann, The, 419.
Elsebe, The, 505.
Emily St. Pierre, The, 527.
Enohin v. Wylie, 138.
Erstem, The, 645.
Esposito V, Bowden, 214, 446.
Este V. Smith, 143.
Estrella, The, 530, 598.
Etrusco, The, 582.
Evert, The, 668.
INDEX OF CASES CITED.
XXXI
Ewing V. Orr-Ewing, 223.
Exchange, The, 161, 598.
Express, The, 445.
Fair Amebioan, The, 452.
Fama, The, 483.
Fanny. The, 586, 709.
Farez (Francois), In re, 756.
Felicity, The, 507.
Firebrace v. Firebrace, 239.
Fifiher, In re, 186.
Fitzsimmons v. The Newport Ins.
Co., 697.
Flad Oyen, The, 7, 532.
Fleming v. Page, 483, 484.
Fletcher v. Peck, 63.
Florida, The, 581, 607.
Forbes v, Cockrane, 217, 218.
— V. Forbes, 239, 241.
Forest King, The, 701.
Forsigheid, The, 528, 529.
Fortuna, The, 210.
Foster v, Neilson, 376.
Fox, The, 543.
Francis, The, 500.
Frandska, The (Northcote v. Doug-
las), 690, 696.
Fran9oi8 Farez, In re, 756.
Franoonia, The, 29, 276.
Fiankland v. McGusty, 232.
Franklin, The, 443, 525, 678.
Frau Ilsabe, The, 690.
Frau Margaretha, The, 687.
Freke v. Lord Carbery, 33.
Freundschaft, The, 464.
Friendship, The, 681.
Frith V. Wollaston, 229.
Furtado v. Eogers, 431.
Gaetako and Mabia, The, 30.
Ga«e, The, 525.
OaUy, In the goods of, 140.
Ganz, Re, 197.
Gauntlet, The, 609.
Geipel v. Smith, 692, 701.
Genoa and its Dependencies, 504.
Georgia, The, 501.
— State of, v. Stanton, 64.
Georgiana, The, 501, 524.
Gertruyda, The, 414.
Gesellschaft Michael, The, 668.
Gladstone v. Musurus Bey, 162, 334.
Godard v. Gray, 232.
Goss V. Withers, 50*.
Grace, The Slave, 218.
Grand Para, The, 598.
Grange, The, 586.
Gray Jacket, The, 441.
Green v. Green, 2.35.
Griswold v. Waddington, 446.
Grove, Be, 239.
Guillaume Tell, The, 529.
Gumbo's case, 483.
Ghiyer v. Daniel, 239.
Haabet, The, 668.
Haldane v. Eckford, 242.
Halley, The, 229.
Hamilton v. Dallas, 241.
Hampton, The, 501.
Hampton v, McConnel, 232.
Hanger v, Abbott, 444.
Hannibal and Pomona, The, 452.
Hardner v. Woodruff, 418.
Harford v. Morris, 147.
Harmony, The, 450.
Harrison v. Sterry, 145.
Harvey v. Famie, 148, 235, 236, 239.
Haver v. Yaker, 376.
Hawksford r. Giffard, 232.
Haycraftv. U. S., 483.
Heinrich, In re, 755, 756.
Helen, The, 525, 690.
Helena, The, 62.
Henderson, Be, 232.
Henrick and Maria, The, 530.
Hill V. Good, 148.
Hilton V. Guyot, 25.
Hobbs V. Henning, 670.
Hodgson V. De B^uchesne, 238, 341.
Hoffnung, The, 699.
Holden v, Joy, 65.
Holmes v, Jennison, 186, 188.
Hoop, The, 437, 553.
Hope, The, 555.
Horatio, The, 524.
Horizon, The, 512.
Hoyt V. Gelston, 41, 600.
Huascar, The, 204. •
Hudson V. Guestier, 526.
Hullet V. King of Spain, 162.
Huntress, The, 512.
Hurtige Hane, The, 18.
Hyde v. Hyde, 149.
Ida, The, oOa, 501.
llleanon Pirates, The, 32.
Imina, The, 670, 679.
India, The Secretary of State for, v,
Sahaba, 32.
Indian Chief, The, 450, 463.
Inglis V, Sailors' Snug Harbour, 242,
244.
International, The, 609.
Invincible, The, 598.
Ionian Ships, The, 54.
Isaacson v. Durant, 244.
xxxu
INDEX OF CASES CflTED.
Jacobs v. Credit Lyonnais, 148.
Jaimcey v, Sealey, 221.
Jecker v. Montgomery, 444, 628.
Jeune Eagenie, La, 206.
John and Jane, The, 526.
John Gilpin, The, 700, 701.
Johnson v, Mcintosh, 263.
Jonge Klassina, The, 443, 464.
— Margaretha, The, 657, 668.
— Petronella. The, 694.
— Pieter, The, 685.
— Tobias, The, 668.
Joseph, The, 442.
Josephine, The, 600, 695.
Juffrow Catharina, The, 455.
— Maria Schroeder, The, 700,
703.
Julia, The, 471.
Kaine, III re, 755, 756.
Kelly r. Harrison, 50.
Kennett v. Chambers, 44, 577.
Ker V. IlUnois, 194.
Kershaw v. Kelsey, 444.
Kindersley v. Chase, 27.
King V. Foxwell, 239, 241.
King of Spain v, Oliver, 163.
King of Two SiciUes v. "Wilcox, 50.
Laconia, The, 181.
I^acroix, In the goods of, 140.
Lamar v. Browne, 504.
Lariyidre v, Morgan, 162.
Latimer v. Poteet, 65.
Lauderdale Peerage Case, 241.
Lawford v, Dayies, 149.
Leitensdorfer v. Webb, 483.
Le Mesurier v. Le Mesurier, 235.
Lennie Mutineers, The, 191.
Le Sueur v, Le Sueur, 143, 240.
Levy, He, 223.
Lisette, The, 704.
Lloyd V. Guibert, 148.
Lolly's case, 235.
Lord Nelson, The, 525.
Louis, The, 173, 206, 212, 279.
Louisa, The, 528.
— Agnes, The, 701.
Luna, The, 690.
Luther v, Borden, 480.
M. MoxnAM, The, 229.
Macartny v, G^rbutt, 336, 353.
Mackey v. Coxe, 65.
Madonna del Burso, The, 18.
Madonna della Gracia, The, 443.
Madrazo v, Willes, 214.
Magdalena, The, 597.
Magdalena Steam Navigation Co. v.
Martin, 334.
Mae;ellan Pirates, The, 199.
Mahoney v. U. S., 181.
Maisonnaire v, Keating, 555.
Major Barbour, The, 701.
Maltass v, Maltass, 239.
Mangrove Prize Money, Re, 528.
Mamla Prize cases. The, 504.
Manilla, The, 41.
Marais, Exparte^ 486.
Maria, The, 30, 543.
Marianna, The, 500, 645, 652, 685,
707.
Marianna Flora, The, 172.
Marrett, Ee, 241.
Marsland, Be, 143.
Mary, The, 526.
Mary and Susan, The, 462.
Maiy Ford, The, 526.
Matchless, The, 685.
McCardale*s case, 487.
McConnell v. Hampden, 486.
McGoon V. Scales, 133.
Mcllvaine v. Coxe's Lessee, 35.
McKee v, U. S., 653.
Melan v. The Duke of Fitzjames, 229.
Memor v, Happersett, 218.
Mentor, The, 701, 730.
Mercurius, The, 678, 693.
Messina v. Petrocochino, 181.
Meunier, In re, 189.
Mighell V, Sultan of Johore, 33, 151.
Miller v. The Besolution, 506, 555.
— V, The U. S., 201, 483.
Milligan, Ex parte, 484, 485.
Mills V. Duryee, 232.
Mississippi, State of, r. Johnson, 81.
Missouri Steamship Co., Be, 148.
Mitchell V, Harmonv, 482.
— V. U. S., 239, 241, 443.
Monroe v. Douglas, 222.
Monte Allegre, The, 601.
Montgomery v. U. S., 444.
Moodie v. The Alfred, 598.
— V. The Phoobe Ann, 598.
Moore v. Davell, 138.
— V. Hegeman, 237.
Moultrie v. Hunt, 139.
Mure V. Kaye, 186.
Murray v. The Charming Betsy, 245.
Musurus Bey i\ Gadban, 334.
Nafire V, U. S., 65.
Nancy, The, 679.
Nassau, The, 501.
Nayade, The, 419.
Naylor v, Taylor, 690.
Neeley v. Henkel, 484.
Nelson, The Lord, 525.
Neptune, The, 667.
Neptunus, The, 446, 668, 695.
INDEX OF CASES CITED.
xxxm
Nereide, The, 30. 619, 709.
Nereyda, The. 586, 598.
Neutralitet, The, 678, 703.
New Chile Co. v, Blanco, 335.
Newton, The, 164.
Niboyet v. Niboyet, 235, 241.
Nicol, de, In re, 137.
Niools, de, v. Curlier, 144.
Northcote v. Douglas (The Pran-
ciska), 690, 696.
Nostra Signora de Begona, The, 668.
Novelli V. Rossi, 232.
Nuestra Signora de la Ceuidad, The,
38.
Nuestra Signora de los Dolores, The,
431.
Nueva Anna, The, 41.
Ocean, The, 453.
Octavie, The, 360.
Odin, The, 450.
Ogden V. Saunders, 145.
Ofinde Rodriq^uez, The, 692.
Olivera v. Union Ins. Co., 702.
Omnibus, The, 500.
Oppenheim v, Bussell, 500.
Orozembo, The, 674.
Osbom V. U. S. Bank, 743.
Ostsee, The, 543.
Owachita Cotton, The, 553.
Packet de Bilboa, The, 499.
Palme, The, 470.
Panaghia Rhomba, The, 701.
Paqueto Habana, The, 25.
Pansot, Rey 194.
Parkinson v. Potter, 334, 335.
Parlement Beige, The, 33, 161.
Patria. The, 445.
Peacock, The, 506.
Peel, The Sir William, 582.
Pensamento Felix, The, 525.
Peterhoff, The, 669, 670, 687, 690,
703.
Phillips V. Allen, 145.
— V, Eyre, 229, 487.
Phoenix, The, 466.
Pinner v, Arnold, 214.
Polka, The, 530.
Pollock V. Farmers' Loan and Trust
Co., 81.
Portland, The, 464.
Potsdam, The, 702.
Price V. Dewhursts, 221.
Prigg V. Fennsylyania, 218.
Princessa, The, 683.
Prins Frederick, The, 162.
Prioleau v, U. S., 162.
Prize Causes, The, 43, 201, 417, 419.
w.
Progress, The, 519.
Protector, The, 444.
Purissima Concepcion, The, 582, 729.
B. V. Anderson, 168, 171.
— V. Chadwick. 148.
— V. Dawson, 199.
— V. Dudley, 29, 171, 276.
— V. Eyre, 487.
— V. Gould, 191.
— V. Hutehinson, 197.
— V. Jameson, 611.
— V, Keyn (The Franoonia), 29, 276.
— V. Lesley, 168.
— V. Lynch, 184.
— V. Nelson and Brand, 487.
— V, Seberg, 471.
— V. Sandoval, 610.
— V. Sattler, 168.
— V. Tubbee, 191.
— r. Wilson, 197.
— V, Zulueta, 214.
Radich v. Hutehins. 443.
Ranger, The, 668, 678.
Rapid, The, 437, 440.
Recovery, The, 30, 543.
Reform, The, 553.
Rendsborg, The, 683.
RepubUc of Peru v. Dreyfus, 41, 50.
— V. Peruvian Guano
Co., 41, 50.
— V. Weguelin, 162.
Ricord v. Bettonham, 55o.
Rin^nde Jacob, The, 678.
Robmson v. Campbell, 133.
Rosalie and Betty, The, 679.
Rose V. ffimely, 201, 222, 417.
Roth r. Roth, 149.
Russell, Lord. Trial of, 235.
Ruys V, Royal Exchange Assurance
Co., 670.
Sally, The, 164.
Sally Magee, The, 501.
Salvador, The, 609.
San Jago, The, 517.
San Roman, The, 445.
Sansom, The, 512.
Santa Brigada, The, 524, 528.
Santa Cruz, The, 424, 517.
Santa Maria, The, 600.
Santissima Trinidad, The, 170, 530,
586, 599, 612.
— alias The El Poderoso, 549.
Santos v. Illidge, 214.
Sapphire, The, 163.
Sarah Christina, The, 678.
Saul V. His Creditors, 143.
Sawyer v. Marine Fire Lis. Co., 222.
Schibsby v. Westenholz, 226, 232.
XXXIV
INDEX OF CASES CITED.
Schooner Exchange, The, v. McFad-
den and others, 161, 598.
Scotland, The, 30.
Scott V, Att.-Gen., 235, 237.
Scudder v. Bank, 149.
Sea Lion, The, 553.
Sechs Geschwistem, The, 501.
Secretary of State for India r. Sahaba,
32.
Selkrigg V. Davis, 223.
Semmes v. Hartford Ins. Co., 444.
Serhassan Pirates, The, 32.
Seymour v. London and Provincial
Marine Insurance Co., 670.
Sharpe v, Crispin, 241.
Shaw i\ Attorney- General, 236.
— V, Gould, 236.
— V. Shaw, 241.
Sibeth, ICx parte f 145.
Sill V, Worswick, 145.
Simonin v. Mallac, 147, 148.
Sirdas Gurdval Singh v. Eajah of
Tarikdate,"221.
Sir William Peel, The, 582.
Slave Grace, The, 218.
Slavers, The, 217.
Smith V. Condry, 229.
— V, Shaw, 486.
Snell v. Dwight, 444.
Snipe, The, 543.
Society for the Propagation of the
Gospel in Foreign Parts, The, v.
The Town of New Haven, 379.
Sophia, The, 729.
Sorensen v. Keg., 360.
Sottomayor v. Do Barros, 148, 149.
South African Republic v. La Com-
pagnie Franco-Beige du chemin de
fer du Nord, 33, 162.
Spratt V, Spratt, 743.
Springbok, The, 686.
St. Lawrence, The, 440.
St. Luke's Hospital v, Barkley, 334,
360.
Staadt Embden, The, 668.
Stanley v. Bemes, 138.
Stark V. Chesapeake Ins. Co., 743.
State of Georgia, The, v, Stanton, 64.
State of Mississippi v. Johnson, 81.
Statira, Le, 511.
Steamer Nassau, The, 501.
Stephen Hart, The, 686.
Stert, The, 703.
Strader v, Graham, 218.
Strother v. Lucas, 50.
Success, The, 419, 470.
Sueur, Le v, Le Sueur, 148, 240.
Susa, The, 464.
Sutton V. Sutton, 379.
Talbot v, Jansen, 597.
— V. Seeman, 512, 528.
— V. The Three Briggs, 528.
Tatnall v, Hankey, 139.
Tatton V. Mayes, 65.
Taylor v. Best, 334, 335, 339.
Terrett v. Taylor, 50.
Teutonia, The, 419, 445.
Texas v. White, 31, 33, 37, 419.
Theresa Bonita, The, 414.
Thirty Hogsheads of Sugar, The, 469.
Thompson v. Powles, 41.
Thomson v. Adv.-Gen., 140.
Thomyris, The, 685.
Thorington v. Smith, 36, 417, 418.
Thorp V, Thorp, 237.
Three Friends, The, 602.
Timan, In re, 191, 201.
Tobago, The, 500.
Tomlin V. Latter, 137.
Tootal's Trusts, Jie, 180, 181, 242.
Tovey v. Lindsay, 234.
Triheten, The, 698.
Triton, The, 506.
Trotter v. Trotter, 139.
Trueman Smith, In re, 191.
Trufort, He, 232.
Turner, Le, 501.
— V. Thompson, 235.
Twee Gebroeders, The, 580.
Twee Juffrowen, The, 668.
Twende Brodre, The, 668.
U. S. V. Arredondo, 376.
— V, Cook, 65.
— v. Crosby, 133.
— v. Davis, 188, 766.
— v. Deacon, 186.
— V, Diekelman, 151.
— V. Green, 186.
— V. Grossmayer, 444.
— V. Guillem, 462.
— V. Guinet, 597.
— V. Hand, 334.
— V. Hayward, 483.
— V. Holliday, 65.
— V, Joseph, 65.
— V. Kagama, 65.
— v. Kazinski, 600.
— V, Klintock, 201.
— Lyon et al. v. Huckabee, 418.
— v. McBae, 50.
— v. Moreno, 483,
— v. Padelford, 483.
— V, Palmer, 38, 41.
— V, Percheman, 483.
— v. Pirates, 201.
— V. Quincey, 599.
— V. Bauscher, 194.
— r. Bavara, 334.
— V. Eeybum, 600.
— V. Beynes, 376.
INDEX OP CASES CITED.
XXXV
U. S. V, Rice, 484.
— V. Bogers, 66.
— V. Smith, 199.
— 17. Wagner, 41, 162.
— V. Witey, 444.
Udny V, Udnv, 238, 239, 241.
UTquhart v. mtterfield, 241.
Vandyck v. Whitmore, 553.
Yayaeeeur v, Krupp, 162.
Venus, The, 462.
Viditz V, O'Hagan, 228.
Vigaantda, The, 464, 470.
Virginie, La, 451.
Virginiufl, The, 204.
Viveash v. Becker, 360.
Voinet v. Barrett, 232.
Von Aemam, Ex parte, 197, 755.
Vrow Anna Catharina, The, 467, 470,
582, 683.
Vrow Ho\dna, The, 670.
Vrow Judith, The, 702.
Walcot v. BotEeld, 239.
Wallace v, Attomey-Gbneral, 140.
War Onskan, The, 612.
Ward v. Smith, 444.
Ware v. Hilton, 444.
Warrender v. Warrender, 143, 234.
Warter v, Warter, 237.
Waahbum, In re, 186.
Watts V. Schrimpton, 143.
Welvaart Van Pillaw, The, 700, 704.
Whicker V. Hume, 241.
White V. Hart, 418.
Wiborg V. U. S., 602, 613.
Wight, The, 525.
Wildenhus' case, 151, 168.
William, The, 685.
William Bagalay, The, 446.
William H. Northrop, The, 701.
Williams v, Amroyd, 222.
— V. Brown, 218.
— r. Colonial Bank, 139.
Willison V. Paterson, 444.
Willoughby, Be, 244.
Wilson V, Marryatt, 142.
~ V. Wilson, 235.
Windsor, In re, 191, 197.
Wolfe Tone's case, 486.
Wolff r. Oxholm, 30, 433.
Wolton V. Gavin, 484.
Worcester v. State of Georgia, 64,
65.
Wren, The, 704.
Wright's Trusts, 143.
Ybaton v. Fry, 700.
Zeldbn Etjst, The, 687.
Zollverein, The, 30.
ELEMENTS OF
INTERNATIONAL LAW.
PART FIRST.
■ »
DEFINITION, S0UECE8, AND SUBJECTS OF
INTEENATIONAL LAW.
CHAPTER I.
DEFINITION AND SOURCES OF INTERNATIONAL LAW.
There is no legislative or judicial authority, recognised ongm of
by all nations, which determines the law that regulates J^^™**^*^
the reciprocal relations of States. The origin of this law
must be sought in the principles of justice, applicable to
those relations. While in every civil society or State
there is always a legislative power which establishes, by
express declaration, the civil law of that State, and a
judicial power which interprets that law, and applies it
to individual cases, in the great society of nations there
is no legislative power, and consequently there are no
express laws, except those which result from the conven-
tions which States may make with one another. As
nations acknowledge no superior, as they have not
organised any common paramount authority, for the
purpose of establishing by an express declaration their
international law, and as they have not constituted any
W. B
defined*
DEFINITION AND SOURCES
Part I. sort of Amphictyonic magistracy to interpret and apply
that law, it is impossible that there should be a code of
international law illustrated by judicial interpretations.
The inquiry must then be, what are the principles of
justice which ought to regulate the mutual relations of
nations, that is to say, from what authority is inter-
national law derived ?
When the question is thus stated, every publicist will
decide it according to his own views, and hence the
fundamental differences which we remark in their
« 2 writings.
Natural Law The leading object of Grotius, and of his immediate
disciples and successors, in the science of which he was
the founder, seems to have been, First^ to lay down
those rules of justice which would be binding on men
living in a social state, independently of any positive
laws of human institution ; or, as is commonly expressed,
living together in a state of nature ; and.
Secondly^ To apply those rules under the name of
Natural Law, to the mutual relations of separate com-
munities living in a similar state with respect to each
other.
With a view to the first of these objects, Grotius sets
out in his work, on the rights of war and peace {dejure
belli ac pacis^) with refuting the doctrine of those ancient
sophists who wholly denied the reality of moral distinc-
tions, and that of some modern theologians, who asserted
that these distinctions are created entirely by the arbi-
trary and revealed will of God, in the same manner as
certain political writers (such as Hobbes) afterwards re-
ferred them to the positive institution of the civil magis-
trate. For this purpose, Grotius labours to show that
there is a law audible in the voice of conscience, enjoin-
ing some actions, and forbidding others, according to
their respective suitableness or repugnance to the reason-
able and sociable nature of man. " Natural law," says
he, ^^is the dictate of right reason pronouncing that
there is in some actions a moral obligation, and in other
actions a moral deformity, arising from their respective
OP INTERNATIONAL LAW, '
suitableness or repugnance to the rational and social Chap. I.
nature, and that, consequently, such actions are either
forbidden or enjoined by God, the Author of nature.
Actions which are the subject of this exertion of reason,
are in themselyes lawful or unlawful, and are, therefore,
as such, necessarily commanded or prohibited by
God''(«). ^ 58.
The term Natural Law is here evidently used for those ?J**"f*\^^
rules of justice which ought to govern the conduct of with the law
men, as moral and accountable beings, living in a social DiTine'Law.
state, independently of positive human institutions, (or,
as is commonly expressed, living in a state of nature,)
and which may more properly be called the law of God,
or the divine law, being the rule of conduct prescribed
by Him to His rational creatures, and revealed by the
light of reason, or the Sacred Scriptures.
As independent communities acknowledge no common Natntsi Law
superior, they may be considered as living in a state of interooune
nature with respect to each other : and the obvious ^
inference drawn by the disciples and successors of Grotius
was, that the disputes arising among these independent
communities must be determined by what they call the
Law of Nature. This gave rise to a new and separate
branch of the science, called the Law of Nations, Jub
Gentium (J). § 4.
Grotius distinguished the law of nations from the nSom dig-
natural law by the different nature of its origin and ^^^^^
obligation, which he attributed to the general consent of Law, by
. Tt» I- 1- 11 Grotius.
nations. In the introduction to his great work, he says,
"I have used in favour of this law, the testimony of
philosophers, historians, poets, and even of orators ; not
that they are indiscriminately to be relied on as impartial
authority; since they often bend to the prejudices of
their respective sects, the nature of their argument, or
the interest of their cause; but because where many
minds, of different ages and countries concur in the same
(a) GroiiiiB, de Jnr. Bel. ao Pao. lib. i. tmdentood by the Bomans, see Hame's
cap. 1, § X. 1, 2. Andent Law, oh. iii., p. 47 ; Inter-
{h) With respect to the ju9 gentium as national Law, Loots, i. and ii.
b2
DBPINmON AND SOURCES
PartL sentiment, it must be referred to some general cause.
In the subject now in question, this cause must be either
a just deduction from the principles of natural justice, or
universal consent. The first discovers to us the natural
law, the second the law of nations. In order to distin-
guish these two branches of the same science, we must
consider, not merely the terms which authors have used
to define them, (for they often confound the terms natural
law and law of nations,) but the nature of the subject in
question. For if a certain maxim which cannot be fairly
inferred from admitted principles is, nevertheless, found
to be everywhere observed, there is reason to conclude
that it derives its origin from positive institution." He
had previously said, ^' As the laws of each particular State
are designed to promote its advantage, the consent of all,
or at least the greater number of States, may have pro-
duced certain laws between them. And, in fact, it
appears that such laws have been established, tending to
promote the utility, not of any particular State, but of
the great body of these communities. This is what is
termed the Law of Nations, when it is distinguished from
Natural Law " (c).
All the reasonings of Grotius rest on the distinction,
which he makes between the natural and the positive or
voluntary Law of Nations. He derives the first element
of the Law of Nations from a supposed condition of
society, where men live together in what has been called
a state of nature. That natural society has no other
superior but God, no other code than the divine law
engraved in the heart of man, and announced by the
voice of conscience. Nations living together in such a
state of mutual independence must necessarily be gov-
erned by this same law. Grotius, in demonstrating the
accuracy of his somewhat obscure definition of Natural
Law, has given proof of a vast erudition, as well as put
us in possession of all the sources of his knowledge. He
then bases the positive or voluntary Law of Nations on
(r) GrotioBi de Jar. Bel. ao Pac. Frolegom. 40, 17.
OP INTERNATIONAL LAW.
the consent of all nations, or of the greater part of them, caiap. I.
to observe certain rules of conduct in their reciprocal
relations. He has endeavoured to demonstrate the
existence of these rules by invoking the same authorities,
as in the case of his definition of Natural Law. We thus
see on what fictions or hypotheses Grotius has founded
the whole Law of Nations. But it is evident that his
supposed state of nature has never existed. As to the
general consent of nations of which he speaks, it can
at most be considered a tacit consent, like the jm non
scriptum quod consensus facit of the Roman jurisconsults.
This consent can only be established by the disposition,
more or less uniform, of nations to observe among them-
selves the rules of international justice, recognised by
the publicists. Grotius would, undoubtedly, have done
better had he sought the origin of the Natural Law of
Nations in the principle of utility, vaguely indicated
by Leibnitz (rf), but clearly expressed and adopted by
Cumberland (e), and admitted by almost all subsequent
writers, as the test of international morality (/). But
in the time that Grotius wrote, this principle which has
so greatly contributed to dispel the mist with which the
foundations of the science of International Law were
obscured, was but very little understood. The prin-
ciples and details of international morality, as distin-
guished from international law, are to be obtained not
by applying to nations the rules which ought to govern
the conduct of individuals, but by ascertaining what are
the rules of international conduct which, on the whole,
best promote the general happiness of mankind. The
means of this inquiry are observation and meditation;
the one furnishing us with facts, the other enabling us
to discover the connection of these facts as causes and
effects, and to predict the results which will follow,
whenever similar causes are again put into operation (g).
(i) LeibnitZy de usa Aotoram Publi- (/) Bontham's Frinolples of Inter-
eonun, § 18. national Law. Works, Part VIII.
p. 637. Edit. BowTing.
W Cumberland, de l^gtboB Natuwe, (p) Senior, Bdinbnrgh Reyiew, No.
cap. T. { 1. 156, pp. 310, 811.
Puffendorf.
b DEFINITION AND SOURCES
Parti. Neither Hobbes nor Puffendorf entertains the same
§ 5. opinion as Grotius upon the origin and obligatory force
Natooand ^^ *^® positivo Law of Nations. The former, in his
N^tion^B work, De Cive^ says, '' The natural law may be divided
Inserted tobe into the natural law of men, and the natural law of
Hobbes and States, commonlv called the Law of Nations. The pre-
cepts of both are the same ; but since States, when they
are once instituted, assume the personal qualities of indi-
vidual men, that law, which when speaking of individual
men we call the Law of Nature, is called the Law
of Nations when applied to whole States, nations, or
people " {h). To this opinion Puffendorf implicitly sub-
scribes, declaring that "there is no other voluntary or
positive law of nations properly invested with a true
and legal force, and binding as the command of a
superior power " {i).
After thus denying that there is any positive or
voluntary law of nations founded on the consent of
nations, and distinguished from the natural law of
nations, Puffendorf proceeds to qualify this opinion by
admitting that the usages and comity of civilized nations
have introduced certain rules for mitigating the exercise
of hostilities between them ; that these rules are founded
. upon a general tacit consent ; and that their obligation
ceases by the express declaration of any party engaged
in a just war^ that it will no longer be bound by them.
There can be no doubt that any belligerent nation which
chooses to withdraw itself from the obligation of the
Law of Nations, in respect to the manner of carrying on
war against another State, may do so at the risk of in-
curring the penalty of vindictive retaliation on the part
of other nations, and of putting itself in general hostility
with the civilized world. As a celebrated English civi-
lian and magistrate (Lord Stowell) has well observed,
"a great part of the law of nations stands upon the
usage and practice of nations. It is introduced, indeed,
by general principles, but it travels with those general
(h) Hobbes, De CItb, cap. xiv. § 4.
(») Puffendorf, De Jure Natuio et Qentiam, lib. u. cap. 8, { 23.
OP IHTTERNATIONAL LAW.
principles only to a certain extent ; and if it stops there, Chap. I.
you are not at liberty to go further, and say that mere
general speculations would bear you out in a further
progress ; thus, for instance, on mere general principles,
it is lawful to destroy your enemy ; and mere general
principles make no gi'eat difPerence as to the manner by
which this is to be effected ; but the conventional law of
mankind, which is evidenced in their practice, does make
a distinction, and allows some, and prohibits other modes
of destruction; and a belligerent is bound to confine
himself to those modes which the common practice of
mankind has employed, and to relinquish those which
the same practice has not brought within the ordinary
exercise of war, however sanctioned by its principles and
purposes " (k).
The same remark may be made as to what Puffendorf
says respecting the privileges of ambassadors, which
Grotius supposes to depend upon the voluntary law of
nations ; whilst Puffendorf says they depend, either upon
natural law, which gives to public ministers a sacred and
inviolable character, or upon tacit consent, as evidenced
in the usage of nations, conferring upon them certain
privileges which may be withheld at the pleasure of the
State where they reside. The distinction here made
between those privileges of ambassadors, which depend
upon natural law, and those which depend upon custom
and usage, is wholly groundless ; since both one and the
other may be disregarded by any State which chooses to
incur the risk of retaliation or hostility, these being the
only sanctions by which the duties of international law
can be enforced.
Still it is not the less true that the law of nations,
founded upon usage, considers an ambassador, duly re-
ceived in another State, as exempt from the local juris-
diction by the consent of that State, which consent
cannot be withdrawn without incurring the risk of reta-
liation, or of provoking hostilities on the part of the
(k) TU Had Oyen, 1 0. Bob. 140.
Law of
Nations
DEFINITION AND SOURCES
Part I. sovereign by whom he is delegated. The same thing
may be affirmed of all the usages which constitute the
Law of Nations. They may be disregarded by those
who choose to declare themselves* absolved from the
obligation of that law, and to incur the risk of retaliation
from the party specially injured by its violation, or of
0 g^ the general hostility of mankind (/).
Bynkershoek (who wrote after Puffendorf, and before
deriv'^ from Wolf and Vattcl,) derives the law of nations from reason
luage bj and usage (ez rattone et iisuj) and founds usage on the
* ^ ' evidence of treaties and ordinances (pacta ct edicta^) with
the comparison of examples frequently recurring. In
treating of the rights of neutral navigation in time of
war, he says, "Reason commands me to be equally
friendly to two of my friends who are enemies to each
other ; and hence it follows that I am not to prefer either
in war. Usage is shown by the constant, and, as it were,
perpetual custom which sovereigns have observed of
making treaties and ordinances upon this subject, for
they have often made such regulations by treaties to be
carried into effect in case of war, and by laws enacted
after the commencement of hostilities. I have said by^
as it were^ a perpetual custom ; because one, or perhaps
two treaties, which Tary from the general usage, do not
alter the law of nations " (m).
In treating of the question as to the competent judi-
cature in cases affecting ambassadors, he says, "The
ancient jurisconsults assert, that the law of nations is
that which is observed in accordance with the light of
reason, between nations, if not among all, at least cer-
tainly among the greater part, and those the most civi-
lized. According to my opinion, we may safely follow
this definition, which establishes two distinct bases of
this law ; namely, reason and custom. But in whatever
manner we may define the law of nations, and however
we may argue upon it, we must come at last to this con-
clusion, that what reason dictates to nations, and what
(/) Wheatoa'a History of the Law of (m) Bynkershoek, Qnsst. Jar. Fob.
Nations, p. 96. lib. i. cap. 10.
OP INTERNATIONAL LAW.
nations observe between each other, as a consequence of Chap. I.
the collation of cases frequently recurring, is the only
law of those who are not governed by any other —
(unicum jus sit eorum^ qui alio jure non reguntur). If all
men are men, that is to say, if they make use of their
reason, it must counsel and command them certain things
which they ought to observe as if by mutual consent,
and which being afterwards established by usage, impose
upon nations a reciprocal obligation ; without which law,
we can neither conceive of war, nor peace, nor alliances,
nor embassies, nor commerce " («). Again, he says,
treating the same question : *^ The Roman and pontifical
law can hardly furnish a light to guide our steps ; the
entire question must be determined by reason and the
usage of nations. I have alleged whatever reason can
adduce for or against the question ; but we must now see
what usage has approved, for that must prevail, since the
law of nations is thence derived " (o). In a subsequent
passage of the same treatise, he says, ^^ It is nevertheless
most true, that the States General of Holland alleged, in
1651, that, according to the law of nations, an ambas-
sador cannot be arrested, though guilty of a criminal
offence ; and equity requires that we should observe that
rule, unless we have previously renounced it. The law
of nations is only a presumption founded upon usage,
and every such presumption ceases the moment the will
of the party who is affected by it is expressed to the con-
trary. Huberus asserts that ambassadors cannot acquire
or preserve their rights by prescription ; but he confines
this to the case of subjects who seek an asylum in the
house of a foreign minister, against the will of their own
sovereign. I hold the rule to be general as to every pri-
vilege of ambassadors, and that there is no one they can
pretend to enjoy against the express declaration of the
sovereign, because an express dissent excludes the suppo-
sition of a tacit consent, and there is no law of nations
(fi) De Foro Legatomm, eap. iii. ) 10.
(o) niid., oap. Tii. i 8.
10 DEFINITION AND SOURCES
Parti, except between those who voluntarily submit to it by
o ij tacit convention " (p).
System of The public jurists of the school of Puffendorf had con-
sidered the science of international law as a branch of
the science of ethics. They had considered it as the
natural law of individuals applied to regulate the conduct
of independent societies of men, called States. To Wolf
belongs, according to Vattel, the credit of separating the
law of nations from that part of natural jurisprudence
which treats of the duties of individuals.
In the preface of his great work, he says, " That since
such is the condition of mankind that the strict law of
nature cannot always be applied to the government of a
particular community, but it becomes necessary to resort
to laws of positive institution more or less varying from
the natural law, so in the great society of nations it be-
comes necessary to establish a law of positive institution
more or less varying from the natural law of nations. As
the common welfare of nations requires this mutation, they
are not less bound to submit to the law which flows from
it than they are bound to submit to the natural law itself,
and the new law thus introduced, so far as it does not
conflict with the natural law, ought to be considered as
the common law of all nations. This law we have deemed
proper to term, with Grotius, though in a somewhat
stricter sense, the voluntary Law of Nations " (q).
Wolf afterwards says, that "the voluntary law of
nations derives its force from the presumed consent of
nations, the conventional from their express consent ; and
the consuetudinary from their tacit consent " (r).
. This presumed consent of nations (consentium gentium
prcesumptum) to the voluntary law of nations he derives
from the fiction of a great commonwealth of nations
{civitate gentium maxima) instituted by nature herself, and
of which all the nations of the world are members. As
each separate society of men is governed by its peculiar
laws freely adopted by itself, so is the general society of
(p) De FoTO Legatonun, cap. xix. [q) Wolfios, Jos Gentium, Pref. { 3.
) 6. (r) WolfiuB, Proleg. j 25.
OF INTEBNATIONAL LAW. 11
nations governed by its appropriate laws freely adopted Chap. I.
by the several members, on their entering the same.
These laws he deduces from a modification of the natural
law, so as to adapt it to the peculiar nature of that social
union, which, according to him, makes it the duty of all
nations to submit to the rules by which that union is
governed, in the same manner as individuals are bound
to submit to the laws of the particular community of
which they are members. But he takes no pains to prove
the existence of any such social imion or universal re-
public of nations, or to show when and how all the
human race became members of this union or citizens of
this republic.
Wolf differs from Grotius, as to the origin of the Differenoes of
voluntary law of nations, in two particulars : Stwem
1. Grotius considers it as a law of positive institution, wbSwi'Sie
and rests its obligation upon the general consent of l^^f^^^ ^^^
nations, as evidenced in their practice. Wolf, on the La^ o^
other hand, considers it as a law which nature has im-
posed upon all mankind as a necessary consequence of
their social union; and to which no one nation is at
liberty to refuse its assent.
2. Grotius confounds the voluntary law of nations
with the customary law of nations. Wolf maintains
that it differs in this respect, that the voluntary law of
nations is of universal obligation, whilst the customary
law of nations merely prevails between particular
nations, among whom it has been established from long
usage and tacit consent. ^ ^
It is from the work of Wolf that Vattel has drawn the ^tem of
materials of his treatise on the law of nations. He,
however, differs from that publicist in the manner of
establishing the foundations of the voluntary law of
nations. Wolf deduces the obligations of this law, as
we have already seen, from the fiction of a great
republic instituted by nature herself, and of which all
the nations of the world are members. According to
him the voluntary law of nations is, as it were, the civil
law of that great republic. This idea does not satisfy
12 DEFINITION AND SOURCES
Part I. Vattel. ^^ I do not find," says he, ^^ the fiction of such a
republic either very just or sufficiently solid to deduce
from it the rules of a universal law of nations, neces-
sarily admitted among sovereign States. I do not
recognise any other natural society between nations
than that which nature has established between all men.
It is the essence of all civil society {civitatts)^ that each
member thereof should have given up a part of his
rights to the body of the society, and that there should
exist a supreme authority capable of commanding all
the members, of giving to them laws, and of punishing
those who refuse to obey. Nothing like this can be
conceived or supposed to exist between nations. Each
sovereign State pretends to be, and in fact is, indepen-
dent of all others. Even according to Mr. Wolf, they
must all be considered as so many free individuals, who
live together in a state of nature and acknowledge no
other law than that of nature itself, and its Divine
Author "(4
According to Vattel, the Law of Nations, in its origin,
is nothing but the law of nature applied to nations.
Having laid down this axiom, he qualifies it in the
same manner, and almost in the identical terms of Wolf,
by stating that the nature of the subject to which it is
applied, being different, the law which regulates the
conduct of individuals must necessarily be modified in
its application to the collective societies of men called
nations or States. A State is a very different subject
from a human individual, from whence it results that
the obligations and rights, in the two cases, are very
different. The same general rule, applied to two sub-
jects, cannot produce the same decisions when the sub-
jects themselves differ. There are, consequently, many
cases in which the natural law does not furnish the same
rule of decision between State and State as would be
applicable between individual and individual. It is the
art of accommodating this application to the different
{9} Vattel, Droit des Gens, Preface.
OF INTEBNATIONAL LAW. 13
nature of the subjects in a just manner, according to Chap. L
right reason, which constitutes the law of nations a
particular science.
This application of the natural law, to regulate the
conduct of nations in their intercourse with each other,
constitutes what both Wolf and Vattel term the necessary
law of nations. It is necessary ^ because nations are abso-
lutely bound to observe it. The precepts of the natural
law are equally binding upon States as upon individuals,
since States are composed of men, and since the natural
law binds all men, in whatever relation they may stand
to each other. This is the law which Grotius and his
followers call the internal law of nations ^ as it is obligatory
upon nations in point of conscience. Others term it
the natural law of nations. This law is immutable, as it
consists in the application to States of the natural
law, which is itself immutable, because founded on
the nature of things, and especially on the nature of
man.
This law being immutable, and the law which it
imposes necessary and indispensable, nations can neither
make any changes in it by their conventions, dispense
with it in their own conduct, nor reciprocally release
each other from the observance of it {t).
Vattel has himself anticipated one objection to his
doctrine that States cannot change the necessary law
of nations by their conventions with each other. This
objection is, that it would be inconsistent with the
liberty and independence of a nation to allow to others
the right of determining whether its conduct was or
-was not conformable to the necessary law of nations.
He obviates the objection by a distinction which pro-
nounces treaties made in contravention of the necessary
law of nations, to be invalid, according to the internal
law, or that of conscience, at the same time that they
may be valid by the external law ; States being often
obliged to acquiesce in such deviations from the former
{t) Droit des CknS) I^r^liininaires, {} vi. yii. viii. iz.
14 DEFINITION AND SOURCES
Parti, law in cases where they do not affect their perfect
rights (w).
From this distinction of Vattel, flows what Wolf had
denominated the voluntary law of nations, {jtis gentium
voluniartumj) to which term his disciple assents, although
he differs from Wolf as to the manner of establishing
its obligation. He, however, agrees with Wolf in con-
sidering the voluntary law of nations as a positive law,
derived from the presumed or tacit consent of nations to
consider each other as perfectly free, independent, and
equal, each being the judge of its own actions, and
responsible to no superior but the Supreme Ruler of the
universe.
Besides this voluntary law of nations, these writers
enumerate two other species of international law. These
are: —
1. The conventional law of nations, resulting from
compacts between particular States, As a treaty binds
only the contracting parties, it is evident that the con-
ventional law of nations is not a universal, but a par-
ticular law.
2. The customary law of nations, resulting from
usage between particular nations. This law is not
universal, but binding upon those States only which
have given their tacit consent to it.
Vattel concludes that these three species of inter-
national law, the voluntary^ the conventional^ and the
customary^ compose together the positive law of nations.
They proceed from the will of nations ; or (in the words
of Wolf) ^Hhe voluntary y from their presumed consent;
the conventional^ from their express consent; and the
customary^ from their tacit consent " {x).
It is almost superfluous to point out the confusion in
this enumeration of the different species of international
law, which might easily have been avoided by reserving
the expression " voluntaiy law of nations," to designate
the genus^ including all the rules introduced by positive
(m) Droit des G^enSy Pr^IiminAireBy («) Droit des C^ens, PrfliminftireB,
§ ix. • } xxTii. ; Wolf, Ph>leg. { xxv.
OF INTERNATIONAL LAW. Iff
consent, for the regulation of international conduct, and Chap. I.
divided into the two species of conventional law and
customary law, the former being introduced by treaty,
and the latter by usage ; the former by express consent,
and the latter by tacit consent between nations (y). § ^q
According to Heffter, one of the most recent and dis- ^^^^
tinguished public jurists of Germany, "the law of
nations jus gentium j in its most ancient and most exten-
sive acceptation, as established by the Roman juris-
prudence, is a law (Recht) founded upon the general
usage and tacit consent of nations. This law is applied,
not merely to regulate the mutual relations of States,
but also of individuals, so far as concerns their respective
rights and duties, having everywhere the same character
and the same effect, and the origin and peculiar form
of which are not derived from the positive institutions
of any particular State.'^ According to this writer, the
JUS gentium consists of two distinct branches :
1. Human rights in general, and those private rela-
tions which Sovereign States recognise in respect to
individuals not subject to their authority.
2. The direct relations existing between those States
themselves.
In the modem world, this latter branch has exclu-
sively received the denomination of law of nations,
Volkerrechty Droit des GenSj Jus Gentium. It may more
properly be called external public law, to distinguish it
from the internal public law of a particular State. The
first part of the ancient jus gentium has become con-
founded with the municipal law of each particular
nation, without at the same time losing its original and
essential character. This part of the science concerns,
exclusively, certain rights of men in general, and those
private relations which are considered as being under
the protection of nations. It has been usually treated
of under the denomination oi private international law.
§10a.
This division of the subject into public and private international law Diatinotion
between
(y) Vattel, Droit des Gens, edit, de Finheiro Fendra, torn. iii. p. 22.
16 DEFINITION AND SOUECES
Part I. is now very generally aocepted. According to Sir Bobert Phillimore,
publio and ^S^^ arising under the former class are called absolute, or rights
private inter- Btricti juris ^ ''and their breach constitutes a casus helli, and justifies in
national law. ^^ Iq^j. resort a recourse to war," whereas private international law,
or international comity, as it is sometimes called, confers no absolute
rights. Its rules are founded upon convenience, and intended to
facilitate the intercourse between the subjects of different States.
**For a want of comity towards the individual subjects of a foreign
State, reciprocity of treatment by the State whose subject has been
injured, is, after remonstrance has been exhausted, the only legitimate
remedy" («).
Heffter does not admit the term international law
(droit international) lately introduced and generally
adopted by the most recent writers. According to
him this term does not suflSciently express the idea
of the JUS gentium of the Roman jurisconsults. He
considers the law of nations as a law common to all
mankind, and which no people can refuse to acknow-
ledge, and the protection of which may be claimed by
all men and by all States. He places the foundation of
this law on the incontestable principle that wherever
there is a society, there must be a law obligatory on all
its members; and he thence deduces the consequence
that there must likewise be for the great society of
nations an analogous law.
*^ Law in general (Recht im Allegemeinen) is the external
freedom of the moral person. This law may be sane*
tioned and guaranteed by a superior authority, or it
may derive its force from self-protection. The ju8
gentium is of the latter description. A nation associating
itself with the general society of nations, thereby
recognises a law common to all nations by which its
international relations are to be regulated. It cannot
violate this law, without exposing itself to the danger
of incurring the enmity of other nations, and without
exposing to hazard its own existence. The motive
which induces each particular nation to observe this
law depends upon its persuasion that other nations will
(s) Pfaillimore, Int. Law, vol. 1. { xri.
OF INTERNATIONAL LAW. 17
observe towards it the same law. The ju$ gentium is caiap. L
founded upon reciprocity of will. It has neither law-
giver nor supreme judge, since independent States
acknowledge no superior human authority. Its organ
and regulator is public opinion : its supreme tribunal is
history, which forms at once the rampart of justice and
the Nemesis by whom injustice is avenged. Its sanction,
or the obligation of all men to respect it, results from the
moral order of the universe, which will not suffer nations
and individuals to be isolated from each other, but con-
stantly tends to unite the whole family of mankind in
one great harmonious society " (a).
Is there a uniform law of nations ? There certainly There !« no
is not the same one for all the nations and States of the ^Vof"*^
world. The public law, with slight exceptions, has ^*<^^«^-
always been, and still is, limited to the civilized and
Christian people of Europe or to those of European
origin. This distinction between the European law of
nations and that of the other races of mankind has long
been remarked by the publicists. Grotius states that
the Jus gentium acquires its obligatory force from the
positive consent of all nations, or at least of several. " I
say of several, for except the natural law, which is also
called the ju^ gentium^ there is no other law which is
common to all nations. It often happens, too, that what
is the law of nations in one part of the world is not so
in another, as we shall show in the proper place " {b).
So also Bynkershoek, in the passage before cited, says
that *^ the law of nations is that which is observed, in
accordance with the light of reason, between nations, if
not among all, at least certainly among the greater part^ and
those the most civilized^^ {c). Leibnitz speaks of the volun-
tary law as established by the tacit consent of nations.
"Not," says he, "that it is necessarily the law of all
(a) Heffter, Das Eoropaische Vol- et Deo Legialatore, lib. ii. cap. xix.
kerreoht, } 2. n- g-
_- , , , (3) De Jur. Bel. ao. Pac. lib. i. cap. 1,
The Jeained Jesuit Saurez has antici- * ^iv 4
pated this view of the moral obligation {p) Bynkershoek, De Foro Legatomm.
of the j%u gentium. Sanres, de Legibns Vid, wpra.
W. C
18 DEFINITION AND SOURCES
Part I. nations and of all times, since the Eui'opeans and the
Indians frequently differ from each other concerning
the ideas which they have formed of international law,
and even among us it may be changed by the lapse of
time, of which there are numerous examples. The basis
of international law is natural law, which has been
modified according to times and local circumstances " (d).
Montesquieu, in his Esprit des Lm^ says, that " every
nation has a law of nations — even the Iroquois, who
eat their prisoners, have one. They send and receive
ambassadors; they know the laws of war and peace;
the evil is, that their law of nations is not founded upon
true principles " (e).
There is then, according to these writers, no universal
law of nations, such as Cicero describes in his treatise
De Republican binding upon the whole human race —
which all mankind in all ages and countries, ancient and
modem, savage and civilized. Christian and Pagan, have
recognised in theory or in practice, have professed to
§ 12. ^^®y> ^^ ^^v^ ^ f ^c* obeyed (/).
jm and Ux. An eminent French writer on the science of which wo
propose to treat, has questioned the propriety of using
the term droit des gens (law of nations) as applicable to
those rules of conduct which obtain between independent
societies of men. He asserts ^^ that there can be no droit
(right) where there is no hi (law) ; and there is no law
where there is no superior: without law, obligations,
properly so called, cannot exist ; there is only a moral
obligation resulting from natural reason ; such is the case
between nation and nation. The word gens^ imitated
from the Latin, does not signify in the French language
either people or nations " {g).
The same writer has made it the subject of serious
reproach to the English language that it applies the
term law to that system of rules which governs, or ought
(i) LeibnitZy Cod. Jup. Gent, diplom. Rob. 172 ; The Eurtige Sane, 3 C. Rob.
Prtf. 826.
.. .^ ..,*.,.., > C^) Rayneval, Institations da droit de
W TSMptA dee Low, hy. i. oh. 8. ^ ^.^^ ^ ^^ ^^ ^^ I ^^ j^^
(/) lU Mmhtma Del Sutm, 4 0. p. yiii.
OF INTERNATIONAL LAW. 19
to govern^ the conduct of nations in their mutual inter- Chap. I.
course. His argument is^ that law is a rule of conduct,
deriving its obligation from sovereign authority, and
binding only on those persons who are subject to that
authority; — that nations, being independent of each
other, acknowledge no common sovereign from whom
they can receive the law ; — that all the relative duties
between nations result from right and wrong^ from con-
vention and usage, to neither of which can the term law
be properly applied ; — that this system of rules had been
called by the Roman lawyers the jus gentium^ and in all
the languages of modem Europe, except the English
language, the right of nations^ or the laws of war and
peace (A).
That very distinguished legal reformer, Jeremy Ben-
tham, had previously expressed the same doubt how far
the rules of conduct which obtain between nations
can with strict propriety be called laws (i). And
one of his disciples has justly observed, that lawSj
properly so called, are commands proceeding from
a determinate rational being, or a determinate body
of rational beings, to which is annexed an eventual
evil as the sanction. Such is the law of nature, more
properly called the law of God, or the divine law ; and
such are political human laws, prescribed by political
superiors to persons in a state of subjection to their
authority. But laws imposed by general opinion ai'e
styled laws by an analogical extension of the term.
Such are the laws of honour imposed by opinions current
in the fashionable world, and enforced by appropriate
sanction. Such, also, are the laws which regulate the
conduct of independent political societies in their mutual
relations, and which are called the law of nations, or
international law. This law obtaining between nations
is not positive law ; for every positive law is prescribed
(A) Droit des geiu, Fr. Diritio delle Dereoho des gentofl. Span.
genii, ItaL Dizeito das Q«iitee, Por-
tug. YhYkemtAA, Oerm, Volkenregt, (») Bentham, Morak and Legislation,
Ihtteh, Folkeret, Dan, Folkr&tt, Swt^, vol. ii. p. 266. Ed. 1823.
20 DEFDCmOS ASD SOrBCES
Past L b J a giyen siqwriov or soTCfeign to a pei^ion or persons
in a state of ^abjection to its author. The role con-
eenung the conduct of fiorereign States, considered as
related to each other, is termed law by its analogy to
po^itiTe law, being imposed upon nations or sovereigns,
not by the positive command of a superior authority, but
by opinions generally current among nations. The
duties which it imposes are enforced by moral sanctions :
by fear on the part of nations, or by fear on the part of
soyereigns, of provoking general hostility, and incurring
its probable evils, in case they should violate maxims
generally received and respected (k ■-
This law has commonly been called the Jtis gentiwn in
the Latin, droit d<^ gens in the French, and law of nations
in the English language. It was more accurately termed
the/M inter genteSj the law between or among nations, for
the first time, by Dr. Zouch, an English civilian and
writer on the science, distinguished in the celebrated
controversy between the civil and conmion lawyers
during the reign of Charles II., as to the extent of the
Admiralty jurisdiction. He introduced this term as
more appropriate to express the real scope and object of
this law (/). An equivalent term in the French language
was subsequently proposed by Chancellor D' Aguessean,
as better adapted to express the idea properly annexed to
that system of jurisprudence commonly called le droit
de4 gens J but which, according to him, ought properly to
be termed le droit entre les gens (w). The term international
law has been since proposed by Mr. Bentham as well
adapted to express in our language, " in a more signifi-
cant manner that branch of jurisprudence, which com-
monly goes under the name of laic ofnations^ a denomina-
tion so uncharacteristic, that were it not for the force of
custom, it would rather seem to refer to internal or
municipal jurisprudence'' (n\ The tenns international law
.i Austin, ProTinfie of Jiiiii]snideiKi6 > (EoYns de B* A^^neaami, tome ii.
determined, pp. 147, 207. p. 337. Ed. 1773.
[I Zauxh, Juris ei judioi liecialiSY •,") Bentham, Mania and L^giaUtioii,
rire /irriff imtrr f^t€*. Land. 1650. toL ii. p. 2o6.
OF INTERNATIONAL LAW. 21
and droit intemaUonal have now taken root in the English Chap. L
and French languages, and are constantly used in all
discussions connected with the science, and we cannot
agree with Heffter in proscribing them. o 23
According to Savigny, " there may exist between diffe- Opipion of
rent nations the same community of ideas which contributes
to form the positive unwritten law {das positive Recht) of
a particular nation. This community of ideas, founded
upon a common origin and religious faith, constitutes
international law as we see it existing among the Christian
States of Europe, a law which was not unknown to the
people of antiquity, arid which we find among the Romans
under the name of jus feciale. International law may
therefore be considered as a positive law, but as an im-
perfect positive law, {eine unvollend^te Rechtsbildung^) both
on account of the indeterminateness of its precepts, and
because it lacks that solid basis on which rests the posi-
tive law of every particular nation, the political power
of the State and a judicial authority competent to enforce
the law. The progress of civilization, founded on
Christianity, has gradually conducted us to observe a law
analogous to this in our intercourse with all the nations
of the globe, whatever may be their religious faith, and
without reciprocity on their part " {o).
It may be remarked, in confirmation of this view, that
the more recent intercourse between the Christian nations
of Europe and America and the Mohammedan and
Pagan nations of Asia and Africa indicates a disposition,
on the part of the latter, to renounce their peculiar
international usages and adopt those of Christendom.
The rights of legation have been recognised by, and
reciprocally extended to, Turkey, Persia, Egypt, and the
States of Barbary. The independence and integrity of
the Ottoman Empire have been long regarded as forming
essential elements in the European balance of power,
and, as such, have recently become the objects of con-
ventional stipulations between the Christian States of
(o) Savigny, System des heutigmi Bdmuchen Rechts, 1 B*d, 1 Buch.
Eap. ii. § 11.
22 DEFINITION AND SOURCES
Part I. Europe and that Empire, which may be considered as
bringing it within the pale of the public law of the
former (jo).
The same remark may be applied to the recent
diplomatic transactions between the Chinese Empire and
the Christian nations of Europe and America, in which
the former has been compelled to abandon its inveterate
anti-commercial and anti-social principles, and to acknow-
ledge the independence and equality of other nations in
the mutual intercourse of war and peace.
§13a.
iQtemational The gradual process by which the Chinese Empire has been brought
Christian^^^' " *^ acknowledge the independence and equality of other nations''
nations. dates from the mission of Lord Macartney to Pekin in 1792, occasioned
by a long series of acts of oppression perpetrated by the Chinese on
the merchants of the East India Company trading at Canton. A
second mission under Lord Amherst in 1816 failed to reach the
Emperor owing to the refusal of the British Ambassador to perform
the kow-tow. In 1834 the British government sent out a resident
minister to Canton to superintend the foreign trade thrown open by
the lapse of the East India Company's monopoly. The war of 1840,
forced upon Great Britain by a persistent policy of outrage to her
subjects, resulted in four treaty ports besides Canton being opened to
commerce. But it was not until the ratification in 1860 of the Treaty
of Tientsin of 1858, foUowing upon the capture of Pekin by the English
and French troops, that regular diplomatic intercourse was established
between China and the foreign powers. By this instrument the
Emperor of China agreed to the residence in his capital of a repre-
sentative of the Queen of England with a proper establishment and
freedom from the obligation to perform any ceremony derogatory to
his position; provision was made for the establishment of an European
consular service, and for the residence of a Chinese minister at the
Court of St. James. A similar treaty was concluded with Prance,
and in course of time with the United States, with the other European
nations, and with Japan.
Of the ability and capacity of China to form binding international
engagements there can be no doubt, but how far she has even now
entered within the pale of public law is another matter. All jurisdic-
tion civil and criminal over foreigners within the bounds of the Chinese
Empire is carefully reserved to tribunals of their own nationality, and
{p) Wheaton's Hist. Law of Nations, p. 683.
OP INTEBNATIONAL LAW, 23
the refusal or inability of China to adopt the roles of war prescribed Chap. I.
bjr the rules of civilized States forms a g^ave if not an insuperable bar
to her full recognition as a subject of international law. In the words
of Professor Holland: ''The Ohinese have adopted only the rudi-
mentazy and ineyitable conceptions of international law. They have
shown themselves to be well versed in the ceremonial of embassy and
the conduct of diplomacy. To a respect for the laws of war they have
not yet attained." It is true that China was invited by the Czar to
send representatives to the Hague Conference of 1899, and that she is
a party to the Convention for securing the pacific regulation of inter-
national disputes and to some of the subsidiary conventions, induding,
oddly enough, that for the application to maritime warfare of the
principles of the Convention of Geneva. But the gross contempt for
the comity of nations shown by the assault on the Pekin Legations
in the following year, and the murder of the German minister and the
Chancellor of the Japanese Legation, have gone far towards depriving
her of what credit and status she had acquired.
Japan, prior to 1854, had succeeded in maintaining absolute
political isolation as regards non-Asiatic powers. In that year
Commodore Perry on behalf of the United States, and subse-
quently Admiral Stirling on behalf of Great Britain, concluded conven-
tions for regulating the admission of ships bearing their respective
flags into certain ports of the Empire of Japan. In 1858, a treaty
of " Peace, Friendship and Commerce " was concluded between Great
Britain and Japan, and in the same year the consular jurisdiction
over British subjects trading or residing in the latter country was
established. Similar treaties were concluded with the United States,
with France and with Holland. Since the Bevolution of 1868 the
powers owning the obligations of international law have, without
exception, entered into diplomatic relations with Japan. In 1886
Japan gave its accession to the Geneva Convention. In 1894, after
prolonged negotiations, the European and American Governments
agreed, largely on the initiative of Great Britain, to the abolition at
the expiration of five years of the consular jurisdictions, and since
1899 aU persons of whatever nationality within the confines of Japan
have been subject to the Japanese tribunals ; as a return for this all
limitations imposed upon foreigners in respect to trade, travel and
residence, have been removed. In the latter year Japan was invited
to the Hague Conference, and her representatives signed the various
conventions there adopted. In the Chinese war of 1894, with the
grave exception of the Port Arthur massacre, Japan had striven
scrupulously to comply with the highest civilized standards. Her
soldiers were equally conspicuous for efficiency and humanity during
the military operations which followed the Boxer rising in 1900, To
24 DEFINITION AND SOUECKS
Fart I. ^®' prompt despatch of a division of 21,000 splendidly equipped
troopa, the relief of the Legations may be largely attributed. In
1902 an offensive and defensive treaty of alliance was concluded
between Great Britain and Japan. In these circumstances it is
impossible to dispute her right to rank among the powers who are,
without reservation, subject to international law (^).
Definition of International law, as understood among civilized
Sw. ^ nations, may be defined as consisting of those rules of
conduct which reason deduces, as consonant to justice,
from the nature of the society existing among in-
dependent nations; with such definitions and modifi-
p 15. cations as may be established by general consent (r).
Sources of The various sources of international law in these
law. different branches are the following : —
1. Text writers of authority, showing what is the
approved usage of nations, or the general opinion re-
specting their mutual conduct, with the definitions and
modifications introduced by general consent.
Without wishing to exaggerate the importance of
these writers, or to substitute, in any case, their autho-
rity for the principles of reason, it may be affirmed that
they are generally impartial in their judgment. They
are witnesses of the sentiments and usages of civilized
nations, and the weight of their testimony increases
every time that their authority is invoked by statesmen,
and every year that passes without the rules laid down
in their works being impugned by the avowal of contrary
principles.
2. Treaties of peace, alliance, and commerce declar-
ing, modifying, or defining the pre-existing international
law.
What has been called the positive or practical law of
nations may also be inferred from treaties; for though
{q) See HaU'fl International Law, 6th Hla, 144, 168.
edition, pp. 41-2; Holland*s Studies in (r) Madison, Examination of the
' International Law, p. 112 ; Hertslet's British Doctrine which subjects to Cap-
Commercial Treaties, ix. p. 977, x. pp. ture a Keutral Trade not open in Time
468, 1075 ; Wharton's Digest, }§ 67, 68, of Peace, p. 41. London Ed. 1806.
OF INTERNATIONAL LAW. 25
one or two treaties, varying from the general usage and Chap. I.
custom of nations, cannot alter the international law, yet
an almost perpetual succession of treaties, establishing a
particular rule, will go very far towards proving what
that law is on a disputed point. Some of the most
important modifications stnd improvements in the modem
law of nations have thus originated in treaties (s).
" Treaties," says Mr. Madison, " may be considered
under several relations to the law of nations, according
to the several questions to be decided by them.
"They may be considered as simply repeating or
affirming the general law; they may be considered as
making exceptions to the general law, which are to be a
particular law between the parties themselves ; they may
be considered explanatory of the law of nations on
points where its meaning is otherwise obscure or un-
settled, in which they are, first, a law between the
parties themselves, and next, a sanction to the general
law, according to the reasonableness of the explanation,
and the number and character of the parties to it; lastly,
treaties may be considered a voluntary or positive law of
nations" (#).
3. Ordinances of particular States prescribing rules
for the conduct of their commissioned cruisers and prize
tribunals.
The marine ordinances of a State may be regarded
not only as historical evidences of its practice with
regard to the rights of maritime war, but also as show-
ing the views of its jurists with respect to the rules
generally recognized as conformable to the universal law
of nations. The usage of nations, which constitutes the
law of nations, has not yet established an impartial
tribunal for determining the validity of maritime
captures. Each belligerent State refers the jurisdiction
over such cases to the courts of admiralty established
(«) Bynkershoek, Queest. Jar. Pub. Reports, p. 113; The Faqttete Eabana,
lib. i. cap. 10. And for the yalae at- 175, ibid., p. 700.
tached to text writers in tbe American (t) Jiiadison, Examination of the
Ciourts, see RUton y. Guyot^ 159 U. S. British Doctrine, &c., p. 39.
26 DEFINITION AND SOURCES
^M^I- under its own authority within its own territory, with a
final resort to a supreme appellate tribunal, under the
direct control of the executive government. The rule
by which the prize courts thus constituted are bound to
proceed in adjudicating such cases, is not the municipal
law of their own country, but the general law of nations,
and the particular treaties by which their own country is
bound to other States. They may be left to gather the
general law of nations from its ordinary sources in the
authority of institutional writers; or they may be
furnished with a positive rule by their own sovereign, in
the form of ordinances, framed according to what their
compilers understood to be the just principles of inter-
national law.
The theory of these ordinances is well explained by
an eminent English civilian of our own times. ^* When,"
says Sir William Grsmt, " Louis XIV. published his famous
Ordinance of 1681, nobody thought that he was imder-
taking to legislate for Europe, merely because he col-
lected together and reduced into the shape of an ordi-
nance the principles of marine law as then imderstood
and received in France. I say as understood in France,
for although the law of nations ought to be the same in
every country, yet as the tribunals which administer the
law are wholly independent of each other, it is impossible
that some differences shall not take place in the manner
of interpreting and administering it in the different
countries which acknowledge its authority. Whatever
may have been since attempted, it was not, at the period
now referred to, supposed that one State could make or
alter the law of nations, but it was judged convenient to
establish certain principles of decision, partly for the
purpose of giving a uniform rule to their own courts, and
partly for the purpose of apprising neutrals what that
rule was." The French courts have well and properly
understood the effect of the ordinances of Louis XIV.
They have not taken them as positive rules binding upon
neutrals ; but they refer to them as establishing legiti-
mate presumptions, from which they are warranted to
OF INTERNATIONAL LAW. 27
draw the conclusion, which it is necessary for them to caiap. I.
arriye at, before they are entitled to pronounce a sentence
of condemnation (u).
4. The adjudications of international tribunals, such
as boards of arbitration and courts of prize.
As between these two sources of international law,
greater weight is justly attributable to the judgments of
mixed tribunals, appointed by the joint consent of the
two nations between whom they are to decide, than to
those of admiralty courts established by and dependent
on the instructions of one nation only.
5. Another depository of international law is to be
found in the written opinions of official jurists, given
confidentially to their own governments. Only a small
portion of the controversies which arise between States
become public. Before one State requires redress from
another, for injuries sustained by itself, or its subjects,
it generally acts as an individual would do in a similar
situation. It consults its legal advisers, and is guided
by their opinion as to the law of the case. Where that
opinion has been adverse to the sovereign client, and has
been acted on, and the State which submitted to be
bound by it was more powerful than its opponent in the
dispute, we may confidently assume that the law of
nations, such as it was then supposed to be, has been
correctly laid down. The archives of the department of
foreign affairs of every country contain a collection of
such documents, the publication of which would form a
valuable addition to the existing materials of international
law (a:).
(») Kindertl^ t. CkoMf dedded July rally. Valin also published, in 1763, a
22, 1801, and reported from the MS. separate IraiU des H-iaes, whioh oon-
in MaiBhalL on Insurance, toI. i. 425. tains a complete collection of the French
The commentary of Valin upon the prize ordinances down to that period,
mazine ordinance of Louis XIV., pub- {x) Senior, Edinburgh Bey. No. 156,
lished in 1760, contains a most yaluable art. 1, p. 311.
body of maritime law, from which the The written opinions delivered by Sir
English writers and judges, especially Leoline Jenkins, Judge of the High
Lord Mansfield, haye borrowed very Court of Admiralty, in the reign of
freely, and which is often dted by Charles II., in answer to questions sub-
Sir W. Scott (Lord Stowell) in his mitted to him by the E[ing or by the
judgments in the High Court of Admi- Privy Council, relating to prize causes,
28
DEFINITION AND SOURCES
f>rtL 6. The history of the wars, negotiations, treaties of
peace, and other transactions relating to the public inter-
course of nations, may conclude this enumeration of the
sources of international law.
§15a.
The authority Jurists accustomed to the Common Law of England and America,
writera where judicial decisions form a binding precedent, and are authoritatiye
expositions of the law, are, as a rule, inclined towards resting inter-
national law on practice and precedent, and prefer to rely upon the
decision of a court or the act of a goyemment, rather than upon theory
or the dicia of text-writers, however unanimous or eminent the writers
may be. On the other hand, in France and other countries where the
whole law is contained in a code, and where the decisions of the courts
only settle the matter in dispute between the parties, and form no
binding precedent, jurists place very great reliance on the theoretical
speculations of text- writers, and frequently consider the rules they lay
down as the highest authority. It is not too much to say that the
influence of speculative writers in England is comparatively small. In
the days of Grotius, when his own works, and a few other treatises,
were almost the only source from which anything on the subject could
be derived, text-writers had the greatest reverence paid to their
opinions. But now that precedents are to be found upon so many
points, a text-writer who ignores them, and appeals to theory or to
were published as an Appendix to and Opinions on Constitutional Law.
Wynne's Life of that eminent civilian. Some of these relate to international law.
(2 Yols. fol. London, 1724.) They form '* Amongst the most interestiog legal
a rioh collection of precedents in the products of our day are the manuals
maritime law of nations, the value of of the usages of war which a great
which is enhanced by the circumstance number of civilized States are now
that the greater part of these opinions issuing to their officers in the field . . .
were given when England was neutral, perhaps the most singular feature of the
and was consequentiy interested in manuals is the number of rules adopted
maintaioing the right of neutral com- in them, which have been literally bor«
merce and navigation. The dedsions rowed from the De Jure Belli et FaeUV
they contain are dictated by a spirit of Maine, I. L. pp. 27, 130 ; see also
impartiality and equity, which does the ibid., p. 168. The earliest of theee
more honour to their author as they manuals was issued for the use of its
were addressed to a monarch who gave army by the United States Government
but littie encouragement to those vir* towards the close of the war of Secession,
tues, and as Jenkins himself was too and it has largely served as a model for
much of a courtier to practise them, its successors. The manual in use in the
except in his j udicial capacity. Madison, British Army is said by Sir Henry Maine
Examination of the British Doctrine, to have been drawn up by Lord Thring.
&o., p. 113. London edit. 1806. The The signatories of the Hague Gonven-
opinions of American Attorneys- General tion on the laws and customs of war
are published. Mr. Forsyth has also undertook to make the provisions of that
published a collection of some of the instrument part of the instructions fur-
opinions of English law officers given nished by them to their land forces;
at various times, under the titie of Cases infra, p. 556.
OP INTERNATIONAL LAW.
29
other text-writers instead of to facts, must not expect to receive any Chap. I.
great attention in this country. " Writers on international law," says
Lord Chief Justice Oockbum, " however valuable their labours may be
in elucidating and ascertaining the principles and rules of law, cannot
make the law. To be binding, the law must have received the assent
of the nations who are to be bound by it. This assent may be express,
as by treaty or the acknowledged concurrence of governments, or may
be implied from established usage " (y).
On the other hand, it has recently been pointed out that '^the
founders of international law, though they did not create a sanction,
created a law-abiding sentiment. They diffused among sovereigns,
and the literate classes in communities, a strong repugnance to the
neglect or breach of certain rules regulating the relations and actions
of States " (z). And it is very doubtful if the judgments of Sir
Alexander Cockbum, and those who agreed with him in the Franconia
Casey can be taken as correctly representing the law of England;
for the opinion of the minority in that case has been since not only
enacted, but declared by Parliament to have been always the law (a).
In America also, at any rate, international law is regarded as founded
upon natural reason and justice, the opinions of writers of known
wisdom, and the practice of civilized nations, and is to be respected as
part of the law of the land (5). n «Kt.
Several treaties have been entered into of late years for the sole Bulesof law
purpose of laying down rules of international law which shall bind the "^ treaties-
contracting parties. Such, for instance, are the Declarations of Paris,
1856, and of St. Petersburg, 1868, and the Geneva Convention, 1864.
In others, as in the Treaty of Washington, 1871, rules of law have
been inserted among the other provisions. Of these international
agreements the most recent, and perhaps the most important, are the
conventions concluded by the members of the Peace Conference
assembled at the Hague in 1899, to which repeated reference will be
found in these pages. n « ^
The principles laid down in marine ordinances must not always be Manne ordi-
assumed to have an universal application. "They furnish, however," ^^S^Siy
says Sir R. Phillimore, •' decisive evidence against any State which universal,
afterwards departs from the principles which it has thus deliberately
invoked; and in every case thus clearly recognize the fact that a
system of law exists, which ought to regulate and control the inter-
national relations of every State "(c). But since these ordinances
are ex parte instruments, they ought not to be enforced if at variance
with the established usage of nations, for no State has the right of
(y) jB. t. Keyn (The Franconia), 2 Ex. {h) Wharton, Dig. } 8. See also Heff-
^' 2^2- ter, ed. 1883, note by Geffcken, § 2,
(z) Maine, Intemational Law, p. 51. »
\a) E. Y. Dudley, 14 Q. B. D. 273, ^* *
281, per Lord Coleridge, L. C. J. (c) Phillimore, vol. i. § 67.
30 DEFINITION AND SOURCES OP INTERNATIONAL LAW.
Part I. laying down rules which shall bind other States that haye not con-
TTTT sented to them (rf).
ComtB of' Courts of Admiralty are courts of the law of nations (0). It is the
Admizalty. duty of the judge presiding in such courts '' not to deliver occasional
and shifting opinions to serve present purposes of particular national
interest, but to administer with indifference that justice which the law
of nations holds out, without distinction, to independent States, some
happening to be neutral and some beUigerent " (/). The records of
the English and American Courts of Admiralty are peculiarly valuable,
from their containing the judgments of such eminent men as Lord
Stowell and Dr. Lushington, Kent and Story.
(rf) JTolf v. Oxholm, 6 M. & S. 92 ; eovery, 6 0. Rob. 848.
n# ITereide, 9 Cranoh, 388 ; The Zoll- (/) Per Lord Stowell, in The Maria,
verein, 2 Jur. N. S. 429 ; S. C, Swa. 96 ; 1 C. Rob. 860 ; Calyo, Droit Int. toI. i.
Cope ▼. Dohertp, 4 E. ft J. 890. p. Ill ; Halleok, p. 68. But Bee The
(e) Reply to Flnuaian Memorial, 1763. Scotland^ 106 U. 8. 24 ; The Gaetano a»td
Harg. Coll. Jnr. vol. ii. p. 180 ; The JRe^ Maria, 7 P. D. 187, 143.
31
CHAPTER II.
NATIONS AND SOVEREIGN STATES.
§16.
The peculiar subjects of international law are Nations, Subjects of
and those political societies of men called States. u,w!^^ ^
Cicero, and, after him, the modem public jurists, § 17.
J 15 cij. J. \ ^ T. J Tx- • X- i Definition of
define a State to be a body politic, or society of men, a state.
united together for the purpose of promoting their mutual
safety and advantage by their combined strength (a).
This definition cannot be admitted as entirely accurate
and complete, unless it be understood with the following
limitations : —
1. It must be considered as excluding corporations,
public or private, created by the State itself, under
whose authority they exist, whatever may be the pur-
poses for which the individuals composing such bodies
politic may be associated.
Thus the great association of British merchants incor-
porated, first, by the crown, and afterwards by Parlia-
ment, for the purpose of carrying on trade to the East
Indies, could not be considered as a State, even whilst it
exercised the sovereign powers of war and peace in that
quarter of the globe without the direct control of the
crown, and still less can it be so considered since it has
been subjected to that control. Those powers are exer-
cised by the East India Company in subordination to
the supreme power of the British Empire, the external
sovereignty of which is represented by the company
[a) Oic. de Bep. 1. i. $ 25. Gkotius, torn. ii. part 1, oh. 4. Heffter, liy. 1,
de Jnr. Bel. ao. Pao. Ub. i. cap. i. § xiv. { le, p, 35. Texas y. White, 7 Wallace,
No. 2. Vattel, Praim. § 1, et Hv. 1, ^^^
oh. 1, } 1. Barlamaqniy Droit natnrel,
82 NATIONS AND SOVEREIGN STATES.
Part I. towards the native princes and people, whilst the British
government itself represents the company towards other
foreign sovereigns and States (i).
2. Nor can the denomination of a State be properly-
applied to voluntary associations of robbers or pirates,
the outlaws of other societies, although they may be
united together for the purpose of promoting their own
mutual safety and advantage (c).
3. A State is also distinguishable from an unsettled
horde of wandering savages not yet formed into a civil
society. The legal idea of a State necessarily implies
that of the habitual obedience of its members to those
persons in whom the superiority is vested, and of a fixed
abode, and definite territory belonging to the people by
whom it is occupied.
4. A State is also distinguishable from a Nation, since
the former may be composed of different races of men,
all subject to the same supreme authority. Thus the
Austrian, Prussian, and Ottoman Empires, are each com-
posed of a variety of nations and people. So, also, the
same nation or people may be subject to several States,
as is the case with the Poles, subject to the dominion of
Austria, Prussia, and Russia, respectively.
§ 17a.
Nations and The Jews and the Gipsies are undoubtedly nations, but they cannot
States. |)e said to form States. The idea of a nation implies community of
race, which is generally shown by community of language, manners,
and customs {d), A State, on the other hand, implies the union of a
(b) See The Secreiary of State for India East Africa Company, 1888.
V. Sahaba, 13 Moo. P. G. 22. The com- (c) • • • << neo oGstos piratamm aat
panj's powers and authority were largely latronum aivitas est, etiam si forti
curtailed in 1834, and finally abolished squalitatem quandam inter se servent,
in 1859. For the relation of the Empire sine qu& nnllus ccetus posset consistere."
of India to International Law, see Pro- Grotius, de Jur. Bel. ac. Pao. lib. iii.
feasor Westlake, Chapters on the Prin- cap. iii. § ii. No. 1. Thus the Malay
dples of International Law, p. 211. and Sooloo pirates of Borneo and the
Among existing bodies which hold a Eastern Archipelago were no doubt
position in some measure analogous to united for their own mutual safety and
that formerly held by the East India advantage, but they did not form States.
Company may be mentioned the North The Serhauan Firatea, 2 W. Rob. 354 ;
Borneo Company, incorporated by Boyal The IlUanon Piratett ^ Moo. P. C. 471.
Charter 1881 ; the British East Africa Nor did the Buccaneers of the 17th
Company, 1888 ; the New Guinea Com- oentuzy.
pany of Berlin, 1885 ; and the German (^ Cairo, Droit Int. vol. i. { 29.
NATIONS AND SOVEREIGN STATES. S3
number of indiyidoals in a fixed territory, and under one central Chap. II.
authority. Austria-Hungary is a State, but as Prince GortchakofE
once sarcastically remarked, *' it is a government, and not a nation.''
In the constitution of the United States, the term State most fre- § l7h.
quently expresses the combined idea of people, territory, and govern- Meanmg of
ment. A State, in the ordinary sense of the constitution, is a political American
community of free citizens, occupying a territory of defined boundaries, Oonatitution.
and organized under a government sanctioned and limited by a written
constitution, and established by the consent of the governed. It is
the union of such States, under a common constitution, which forms
the distinct and greater political unit, designated by that constitution
as the United States, and makes of the people and States composing
it one people and one country (e),
0 18.
Sovereign princes may become the subjects of inter- Sovereign
national law, in respect to their personal rights, or rights g^-^*^!
of property, growing out of their personal relations with j^^ationai
States foreign to those over whom they rule, or with the
sovereigns or citizens of those foreign States. These
relations give rise to that branch of the science which
treats of the rights of sovereigns in this respect (/).
Private individuals, or public and private corporations, individuids,
may in like manner, incidentally, become the subjects of uom,"^""
this law in regard to rights growing out of their inter- J^^JJionai
national relations with foreign sovereigns and States, or ^^•
their subjects and citizens. These relations give rise to
that branch of the science which treats of what has been
termed private international law, and especially of the
conflict between the municipal laws of different States.
But the peculiar objects of international law are those The tetms
direct relations which exist between nations and States. statTifSi^.
Wherever, indeed, the absolute or unlimited monarchial o^iC^wct
form of government prevails in any State, the person of ^iforiMiu*'for
the prince is necessarily identified with the State itself : the latter.
VEtat a? est mat. Hence the public jurists frequently use
the terms sovereign and State as synonymous. So also
{0) Per Chief Jnstioe Chase, in Tpxos tnent Beige, 6 F. D. 197 ; MigheU y.
▼. White, 7 WaUace, 721. Sultan of Johore, L. R. (1894) 1 Q. B.
(/) See Duke ofBruneioick v. King of 149 ; South Jfriean Mepublic v. La Oom-
EanofMr, 2 H. of L. Cae. 1 ; The Char- pagnie Franco-Beige du Chemin de Fer du
kieh, L. R. 4 A. & B. 87 ; 7:^ Parle- Nord, K R. (1898) 1 Oh. 190.
W. T^
84
XATIOS8 A5I> SOYXatOOS STATES.
PaztL
Intenud
External
§21.
HoTBTeigntYf
hoir aoquind.
tibe tenn sovereign is Bometimes used in a metaphorical
sense merely to denote a State, whatever may be the
form of its government, whether monarchial or repub-
lican, or mixed.
Sovereignty is the supreme power by which any State
is governed. The supreme power may be exercised
either internally or externally.
Internal sovereignty is that which is inherent in the
people of any State, or vested in itn ruler, by its muni-
cipal constitution or fundamental laws. This is the
object of what has been called internal pubKc law, droit
public interne^ but which may more properly be termed
constitutional law.
External sovereignty consists in the independence of
one political society, in respect to all other political
societies. It is by the exercise of this branch of
sovereignty that the international relations of one
political society are maintained, in peace and in war,
with all other political societies. The law by which it
is regulated has, therefore, been called external public
law, droit public ezterney but may more properly be termed
international law.
The recognition of any State by other States, and its
admission into the general society of nations, may
depend, or may be made to depend, at the will of those
other States, upon its internal constitution or form of
government, or the choice it may make of its rulers.
But whatever be its internal constitution, or form of
government, or whoever may be its rulers, or even if it
be distracted with anarchy, through a violent contest for
the government between different parties among the
people, the State still subsists in contemplation of law,
until its sovereignty is completely extinguished by the
final dissolution of the social tie, or by some other cause
which puts an end to the being of the State.
Sovereignty is acquired by a State, either at the
origin of the civil society of which it is composed, or
when it separates itself from the community of which
NATIONS AND SOVEREIGN STATES. 35
it previously formed a part, and on which it was depen- Chap. II.
dent (^).
This principle applies as well to internal as to external
sovereignty. But an important distinction is to be
noticed, in this respect, between these two species of
sovereignty. The internal sovereignty of a State does
not, in any degree, depend upon its recognition by other
States. A new State, springing into existence, does not
require the recognition of other States to confirm its
internal sovereignty. The existence of the State de facto
is sufficient, in this respect, to establish its sovereignty
dejure. It is a State because it exists.
Thus the internal sovereignty of the United States of
America was complete from the time they declared them-
selves *'free, sovereign, and independent States,'' on the
4th of July, 1776. It was upon this principle that the
Supreme Court determined, in 1808, that the several
States composing the Union, so far as regards their
municipal regulations, became entitled, from the time
when they declared themselves independent, to all the
rights and powers of sovereign States, and that they did
not derive them from concessions made by the British
King. The treaty of peace of 1782 contained a recog-
nition of their independence, not a grant of it. From
hence it resulted, that the laws of the several State
governments were, from the date of the declaration of
independence, the laws of sovereign States, and as such
were obligatory upon the people of such State from the
time they were enacted. It was added, however, that
the Court did not mean to intimate the opinion, that
even the law of any State of the Union, whose constitu-
tion of government had been recognised prior to the 4th
of July, 1776, and which law had been enacted prior to
that period, would not have been equally obligatory (A).
*' A de jure goTemment is one which, in the opinion of the person Dejure and
using the phrase, ought to possess the powers of sovereignty, though ^f'^f>
(^) Klilber, Droit des Gens modeme (A) M^Hvaine t. Coxe't Lessee, 4
derEurope, \ 23. Oranch, 212. VHiarton, Digr. $} 6, 150.
d2
38 NATIONS AND SOVEREIGN STATES.
Part I. ^^ ^® ^^® ^^ ™^7 ^ depriTed of them. A de/aeto goyemment is one
which is really in poaaession of them, although the possession may be
wrongful or precarious " (t).
There are several degrees of what is called de facto government.
Such a government in its highest degree assumes, a character very
doeely resembling that of a lawful government. This is when the
usurping government expels the regular authorities from their custo-
mary seats and functions, and establishes itself in their place, and so
becomes the actual government of a country. The distinguishing
characteristic of such a government is, that adherents to it in war
against the government de jure do not incur the penalties of treason ;
and, under certain limitations, obligations assumed by it on behalf of
the country, or otherwise, will in general be respected by the govern-
ment dejure when restored. The government of England under the
Commonwealth is an example of such a de facto government.
There is another species of de facto government, and it is one which
may be perhaps aptly called a government of paramount force. Its
distinguishing characteristics are : (1) That its existence is maintained
by active militaij power, within the territories, and against the
rightful authority of an established and lawful government ; and (2)
that while it exists, it must necessarily be obeyed in civil matters by
private citizens who, by acts of obedience, rendered in submission to
such force, do not become responsible, as wrong-doers, for those acts,
though not warranted by the laws of the rightful government. The
government of the Confederate States was one of this class. The
rights and obligations of a belligerent were conceded to it in its
military character, very soon after the war began, from motives of
humanity and expediency by the United States. The whole territory
controlled by it was thereafter held to be enemy's territory, and the
inhabitants of that territory were held in most respects for enemies.
But it was never recognised as an independent power {k).
The external Sovereignty of any State, on the other
hand, may require recognition by other States in order
to render it perfect and complete. So long, indeed, as
the new State confines its action to its own citizens, and
to the limits of its own territory, it may well dispense
with such recognition. But if it desires to enter into
that great society of nations, all the members of which
recognise rights to which they are mutually entitled, and
duties which they may be called upon reciprocally to
(i) Hontagae Bernard, NeutraHty of (;t) ThoHngtim v. 8mUh, 8 Wallace,
Great Britain during American Oivil o^ii
War, p. 108.
NATIONS AND SOVEREIGN STATES. 37
fulfil, such recognition becomes essentially necessary to Chap. n.
the complete participation of the new State in all the
advantages of this society. Every other State is at
liberty to grant, or refuse, this recognition, subject to
the consequences of its own conduct in this respect : and
until such recognition becomes universal on the part of
the other States, the new State becomes entitled to the
exercise of its external sovereignty as to those States
only by whom that sovereignty has been recognised (/). o 22.
The identity of a State consists in its having the Mentity of a
same origin or commencement of existence; and its
difference from all other States consists in its having a
different origin or commencement of existence. A State,
as to the individual members of which it is composed, is
a fluctuating body; but in respect to the society, it is one
and the same body, of which the existence is perpetually
kept up by a constant succession of new members.
This existence continues until it is interrupted by some
change affecting the being of the State (m).
If this change be an internal revolution, merely alter- How affected
ing the municipal constitution and form of government, revohition.
the State remains the same ; it neither loses any of its
rights, nor is discharged from any of its obligations (n).
The habitual obedience of the members of any political
society to a superior authority must have once existed in
order to constitute a sovereign State. But the temporary
suspension of that obedience and of that authority, in
consequence of a civil war, does not necessarily extin-
guish the being of the State, although it may affect for
a time its ordinary relations with other States.
Until the revolution is consummated, whilst the civil Conduct of
war involving a contest for the government continues, towards
other States may remain indifferent spectators of the i^voived^hi ^^
controversy, still continuing to treat the ancient govern- ^^ ^'*^-
(/) See post, i 27d. JThite, 7 Wallace, 729.
(m) Grotiiis, de Jur. Bel. ac. Pac. lib. (n) Grotius, lib. ii. cap. 9, § 8.
ii. cap. 9, } 3. Rntberforih's Inst. b. ii. Batherfortb, b. ii. 0. 10, { 14. Poffen-
c. 10, {§ 12, 13. Heffter, Das Euro- dorf, de Jar. Nat. et Gept. lib. yiii.
peiache Volkeireoht, { 24. Texas v. cap. 12, §§ 1—3.
38
9ATIOX3 ASD SOYEKaGX STATED.
PartL
Parties to
cirii war
entitlf:*i •»
rij^.t^ r/f war
ajraiitet each
other.
$24.
Mentitj of a
HVkte, how
affected bj-
external
TJolence.
Bjtbe jomt
effect of
interaaland
external
riolence
coDfirmcd l)T
treatj.
mc-nt as soTereign, and the goremnient de facto as a
society entitled to the rights of war against its enemy ;
or may esiK>iLse the cao.se of the party which they believe
to have jnstice on iu ride. In the first case, the foreign
State fulfils all its obligations under the law of nations ;
and neither party has any right to complain, provided
it maintains an impartial nentraKty. In the latter, it
becomes, of course, the enemy of the party against whom
it declares itself, and the ally of the other ; and as the
positive law of nations makes no distinction, in thLs
respect, between a just and an unjust war, the inter-
vening State becomes entitled to all the rights of war
again^t the opposite party (o).
If the foreign State profes.se:? neutrality, it is bound
to allow impartially to both belligerent parties the free
exercise of those rights which war gives to public enemies
against each other ; such as the right of blockade, and
of capturing contraband and enemy's property (p). But
the exercise of those rights, on the part of the revolting
colony or province against the metropolitan country, may
be modified by the obligation of treaties previously
existing between that country and foreign States (q).
If, on thtf other hand, the change be effected by
external violence, as by conquest confirmed by treaties
of peace, its effects upon the being of the State are to be
determined by the stipulations of those treaties. The
conquered and ceded country may be a portion only, or
the whole of the vanquished State. If the former, the
original State still continues; if the latter, it ceases to
exist. In either case, the conquered territory may be
incorporated into the conquering State as a province, or
it may be united to it as a co-ordinate State with equal
sovereign rights.
Such a change in the being of a State may also be
produced by the conjoint effect of internal revolution
'o) Vattel, Droit des Gens, liv. il.
ch. 4, § 56. Martens, Precis dn Droit
dea Gens, liv. iii. ch. 2, §} 79—62.
Letten of Historicus, p. 29 ; Halleck,
p. 71.
610 ; Thf DitiHa Pa^iora, 4 Id. 63 ; The
2<rtustra SiffHora df la Curidady Id. 602.
{g) See past. Part IV. ch. 3, $ 414.
Bights of War aa to Nentials.
NATIONS AND SOVEREIGN STATES. 39
and foreign conquest, subsequently confirmed, or modi- Chap. n. *
fied and adjusted by international compacts. Thus the
House of Orange was expelled from the Seven United
Provinces of the Netherlands, in 1797, in consequence of
the French Revolution and the progress of the arms of
France, and a democratic republic substituted in the
place of the ancient Dutch constitution. At the same
time the Belgic provinces, which had long been united
to the Austrian monarchy as a co-ordinate State, were
conquered by France, and annexed to the French re-
public by the treaties of Campo Formio and Luneville.
On the restoration of the Prince of Orange, in 1813, he
assumed the title of Sovereign Prince, and afteiwards
King of the Netherlands ; and by the treaties of Vienna,
the former Seven United Provinces were united with
the Austrian Low Countries into one State, under his
sovereignty (r).
Here is an example of two States incorporated into
one, so as to form a new State, the independent existence
of each of the former States entirely ceasing in respect
to the other ; whilst the rights and obligations of botli
still continue in respect to other foreign States, except so
far as they may be affected by the compacts creating the
new State.
In consequence of the revolution which took place in
Belgium, in 1830, this country was again severed from
Holland, and its independence as a separate kingdom
acknowledged and guaranteed by the five gi^eat powers
of Europe, — Austria, France, Great Britain, Prussia, and
Russia. Prince Leopold of Saxe-Coburg having been
subsequently elected king of the Belgians by the national
Congress, the terms and conditions of the separation were
stipulated by the treaty concluded on the 15th of No-
vember, 1831, between those powers and Belgium, which
was declared by the conference of London to constitute
the invariable basis of the separation, independence,
neutrality, and state of territorial possession of Belgium,
(r) Wheston*s Hist. Law of Nations, p. 492.
40 KATIOMS AHD SOVEREIGN STATES.
Parti, subject to sach modifications as might be the result of
direct negotiation between that kingdom and the Nether-
§26. lands (4
ProTince or If the rcvolution in a State be effected by a province
mgitoinde- OT colouy shaking off its sovereignty, so long as the
Sow coQ.' independence of the new State is not acknowledged by
oS^^^lmga other powers, it may seem doubtful, in an international
^***«^ point of view, whether its sovereignty can be considered
as complete, however it may be regarded by its own
government and citizens. It has already been stated,
that whilst the contest for the sovereignty continues, and
the civil war rages, other nations may either remain pas-
sive, allowing to both contending parties all the rights
which war gives to public enemies ; or may acknowledge
the independence of the new State, forming with it treaties
of amity and commerce ; or may join in alliance with one
party against the other. In the first case, neither party
has any right to complain so long as other nations main-
tain an impartial neutrality, and abide the event of the
contest. The two last cases involve questions which
seem to belong rather to the science of politics than of
international law ; but the practice of nations, if it does
not furnish an invariable rule for the solution of these
questions, will, at least, shed some light upon them. The
memorable examples of the Swiss Cantons and of the
Seven United Provinces of the Netherlands, which so
long levied war, concluded peace, contracted alliances,
and performed every other act of sovereignty, before
their independence was finally acknowledged, — ^that of
the first by the German empire, and that of the latter by
Spain, — go far to show the general sense of mankind on
this subject (^).
The acknowledgment of the independence of the
United States of America by France, coupled with the
assistance secretly rendered by the French court to the
revolted colonies, was considered by Great Britain as an
(«) Wheaton'B Hist Law of Nations, (i) Uoi^s Life of John of Olden-
pp. 538—565. Bamereld, du^. i.
NATIONS AND SOYEBEIUN 8TAT£8. 41
unjustifiable aggression, and, under the circumstances, Chap. n.
it probably was so (u). But had the French court con- "
ducted itself with good faith, and maintained an im-
partial neutrality between the two belligerent parties, it
may be doubted whether the treaty of commerce, or even
the eventual alliance between France and the United
States, could have furnished any just ground for a de-
claration of war against the former by the British
Government. The more recent example of the acknow-
ledgment of the independence of the Spanish American
provinces by the United States, Great Britain, and other
powers, whilst the parent country still continued to
withhold her assent, also concurs to illustrate the general
understanding of nations, that where a revolted province
or colony has declared and shown its ability to maintain
its independence, the recognition of its sovereignty by
other foreign States is a question of policy and prudence
only.^ ^ §27.
This question must be determined by the sovereign Kecognition
legislative or executive power of these other States, and pendraLlby
not by any subordinate authority, or by the private statee!^"^^^
judgment of their individual subjects. Until the inde-
pendence of the new State has been acknowledged, either
by the foreign State where its sovereignty is drawn in
question, or by the government of the country of which
it was before a province, courts of justice and private
individuals are bound to consider the ancient state of
things as remaining unaltered (x).
On the outbreak of a rebellioix or insoirection in any country, it is Keroimitiott
primd facte the duty of foreign States to take no part in the matter, and of beUiger
to allow events to follow their own course. But the facts of the case
frequently render it necessary for other nations to take cognizance of
(«] Wheaton's Hist. Law of Nations, Ad. Bep. 1, App. iv. Note D ; Sofft y.
Ft iii. { 12, pp. 220—294. Ch. de Oehton, 3 Wheaton, 324 ; U, 8. v.
Martens, NonvelleB Ganses o^^brea da Fahner, ib. 634. I%s Nueva Anna, 6
Droit dee Gens, tome i. pp. 370>-498. Wheaton, 193 ; Thompton y. BmleB, 2
It was the oanse of war being declared Simons, 194 ; XT. 8. y. Wagner, L. B.
by England. Historicos, p. 82. 2 Gh. 582 ; Republic of Feru y. Feruvian
(x) City of Berne y. Bank of England^ Guano Co,, 36 Ch. B. 489, 497 ; Bepublie
9 Vesey, 347 ; The Manitta, Edwards, ofFeru y. Dreyfue, 38 Gh. B. 348, 369.
42 NATIONS AND SOVEREIGN STATES.
Part I. til© existence of the insurrection. When countrieB are intimately con-
nected with each other, through situation or commerce, a revolt of any
magnitude in one, materially a£Eects the rights and interest of the
others, and entails upon them the necessity of pursuing some definite
course of conduct towards the disturbed State. This may be done
either by recognising the insurgents as belligerents, or by acknowledg-
ing them to be independent. There is, however, a very material dis-
tinction between the state of facts which will call for the former, and
S 27b *^** which will justify the latter mode of recognition.
Belligerency. When a rebellion has assumed such proportions that it may, without
abuse of language, be called a war, and when it is carried on by some
species of organized government or authority, in full possession of the
territory where it claims to exercise authority, neutral States may then
recognise such revolted government as a belligerent. This is simply
the assertion of a fact, and ought in no case to give offence to the
parent State. It is no violation of neutrality. It informs the subjecta
of the neutral officially that war exists, and that they must observe
towards the combatants the duties that international law imposes.
''The question,'' said Lord Eussell, ''for neutral nations to consider
is, what is the character of the war, and whether it should be regarded
as a war carried on between parties severally in a position to wage war,
and to claim the rights and to perform the obligations attaching to
belligerents ? " (y) By a recognition of belligerency the neutral accepts
and recognises within its jurisdiction the flag of the revolted govern-
ment, the commissions it issues, and the decisions of prize courts sitting
within its territory, not as being emanations and symbols of sove-
reignty, but as proceeding from an organized body of persons who, so
far as waging war goes, are able to act as a sovereign State (2). When
the struggle is carried on by sea as well as by land, the interests of
neutral commerce render a recognition of belligerency absolutely neces-
sary. Without it the struggle is not, in the eye of international law,
a war, and if not a war, there is no obligation on the part of neutrals
to respect any blockade, or to allow their merchant- vessels to be stopped
and searched on the high seas by the cruisers of either party. In-
evitable collisions would ensue,, which would not improbably drag
neutral nations into the conflict. Moreover, the higher considerations
of humanity require a de facto war to be acknowledged as such. If
the conflict continues entirely unrecognised as a war, every insurgent
is liable to be executed as a rebel or traitor on land, and as a pirate
on the sea. A recognition of belligerency is not simply a benefit con-
ferred upon insurgents ; it gives the parent State belligerent rights,
which it would not otherwise possess, and relieves it from all responsi-
(y) Lord Russell to Lord Lyons, 6th Ghreat Britain during Amerioan Ciril
Hay, 1861. Pari. Papers K. America, War, p. 116. See also Blnntaohli in
1873 (No. 2), p. 79. Bevue de Droit Intematumal, 1870,
(z) Montague Bernard, Neutrality of pp. 456, 466.
NATIONS AND SOVEREIGN STATES. 43
bilitj for acts done in the revolted temtOTy, or by the insurgent Chap. 11.
authorities (a). TTZ
The United States have loudly and continually asserted that the Rerognition
recognition of the belligerency of the Confederates by Great Britain of the
was an unfriendly act ; but the right to accord it is not, and cannot be, states.^™
denied. "A nation," said the President, in his annual message to
Congress in 1869, *4s its own judge when to accord the rights of
belligerency, either to a people struggling to free themselves from a
government they believe to be oppressive, or to independent nations at
war with each other " (^). The course pui'sued by the British Govern-
ment is not only justified by having been followed by all the chief
maritime States, but was, under the circumstances, the only proper
course. Hostilities commenced in April, 1861 ; on the 13th of April
Fort Sumter had fallen, and on the 19th President Lincoln declared the
ports of the seven provinces to be blockaded. No official copy of the
proclamation of the blockade was received in England till the 1 0th of
May, and Her Majesty's Proclamation of Neutrality, recognising the
Confederates as belligerents, was not issued until the 14th of that
month (c). When the intimate relation between the two countries is
considered, it seems hardly possible to deny the propriety of this
recognition. The rebellion ** sprang forth suddenly from the parent
brain, a Minerva in the full panoply of war," and the Supreme Court
of the United States decided it was a war from the commencement of
hostilities (d). The very fact of declaring a blockade was a virtual
admission of the existence of a war ; and after this, what objection
could there be to foreign nations recognising it ? («). o 27d
Avery different state of facts must exist before neutrals are justified Bocogrnition
in recognising an insurgent province as independent. " When a sove- ^ i^depen-
reign State, from exhaustion, or any other cause, has virtually and
substantially abandoned the struggle for supremacy, it has no right to
complain if a foreign State treat the independence of its former sub-
jects as de facto established. When, on the other hand, the contest is
not absolutely or permanently decided, a recognition of the inchoate
independence of the insurgents by a foreign State, is a hostile act
towards the sovereign State, which the latter is entitled to resent as a
breach of neutrality and friendship "(/). It is to the facts of the case
that foreign nations must look. The question with them ought to be,
{a) Wheaton, by Dana, n, 15, Pari. Report of Nentrality Laws Ck)mmi88ion,
Papers N. America, 1873 (No. 2), p. 75, 1869, p. 74. It is dated 13th May.
Pari. Papers N. America, 1876 (No. 3), {d) The Frize Causet, 2 Black. 669.
p. 19. Whiting, War Powers under the (tf) Becog^ition of belligerency. See
TJ. S. Constitution (43rd ed.), p. 333. further, Wharton, Dig. { 69.
{b) Annual Message to Congress, (/) Letters of Historicus (Sir W.
1869. See Pail. Papers N. America, Haroourt), p. 9. See Phillimore, vol. ii.
1872 (No. 2), p. 17. { xiii. Despatch of Canning, State
{f) See Sir A. Cookbum's Beasona Papers, rol. xii. pp. 913—4. Speeches
for Dissenting from Genera Award, of Lord Lansdowne and Lord Liyeipool,
Pari. Papers, 1873 (No. 2), pp. 73, 81. Hansard, vol. x. p. 970.
44
NATIONS AND SOVEBEION STATES.
Parti.
§27e.
Independence
of Greece and
Belgium.
§27f.
Texas and
Hongary.
is there a bond fide contest going on ? If it has virtuallj ceased, the
recog^tion of the insurgents is then at their discretion. It was upon
this principle that England and the other powers acted, in recognising
the independence of the South American Republics.
The action of some of the European powers towards GFreece in 1827,
and Belgium in 1830, was not a simple recognition of independence,
and does not come within the preceding rule. In both cases the powers
intervened to settle the disputes, and without this assistance the insur-
gents would not have succeeded. In the case of Greece, the interren-
tion was based on the ground of humanity, and for the suppression of
piracy and anarchy. In that of Belgium, the powers, by their own act
at .the treaty of Vienna, had united that country to Holland ; but
finding the union incompatible, they intervened to dissolve it.
The recognition of the independence of Texas by the United States,
although it preceded that of other nations, did not take place until
1837, and all substantial struggle with Mexico was over early
in 1836 (^). But in the case of the Hungarian revolt of 1849, the
conduct of the United States, in investing an agent in Europe with
power to declare the willingness of his government promptly to
recognise the independence of Hungary in the event of her ability to
maintain it, was unjustifiable towards Austria. The sympathy which
the American people undoubtedly felt for the Hungarians should not
have been thus expressed officially, more especially as the geographical
situation of both countries prevented the United States being in any
way concerned in the matter (A). Mr. Dana says that, ** as a point of
international law, the transaction has little significance''; and he adds
that 'Hhe episode belongs rather to history, as indicating the policy
and feeling of the United States'* (t ). This might be so if the American
Union were an insignificant State ; but it can scarcely be denied that
if insurgents learn that the government of such a great power as the
United States gives them its full sympathy, and is prepared to recognise
their independence at the earliest possible moment, this may give the
rebellion a very different complexion, and is almost sure to strengthen
the hands of the rebels, and make it more difficult for the parent State
to maintain its sovereignty (^}.
International The international effects produced by a change in the
chM^*hi*he P<5rson of the sovereign, or in the form of government of
person of the g^j^y gtato mav be considered: —
sovereign, or -^ ^ . • i-i-
intheintemal I. As to its treaties of alhance and commerce.
the state. II. ItS public dobts.
(^) KeniMi V. ChamberSf 14 Howard,
SB. Annnaire des deux Mondea, 1837,
p. 745. Webflter's Works, vol. vi.
p. 414.
(A) Letters of HiBtoiicua, p. 5. Pre-
sident Taylor's Annual Message to Con-
gress, 1849.
(t) Wheaton, hy Dana, n. 18, p. 47.
(k) Beoognition of sovereignty. See
further Wharton, Dig. §§ 70, 71.
NATIONS AND SOVEREIGN STATES. 45
III. Its pubHc domain, and private rights of property. Chap. II.
IV. As to wrongs or injuries done to the government
or citizens of another State.
§29.
I. Treaties are divided by text writers into personal Treaties.
and real. The former relate exclusively to the persons
of the contracting parties, such as family alliances and
treaties guaranteeing the throne to a particular sovereign
and his family. They expire, of course, on tlie death of
the king or the extinction of his family. The latter relate
solely to the subject-matters of the convention, indepen-
dently of the persons of the contracting parties. They
continue to bind the State, whatever intervening changes
may take place in its internal constitution, or in the
persons of its rulers. The State continues the same, not-
withstanding such change, and consequently the treaty
relating to national objects remains in force so long as
the nation exists as an independent State. The only
exception to this general rule, as to real treaties, is where
the convention relates to the form of government itself,
and is intended to prevent any such change in the in-
ternal constitution of the State (/).
The correctness of this distinction between personal
and real treaties, laid down by Vattel, has been ques-
tioned by more modem public jurists as not being logi-
cally deduced from acknowledged principles. Still it
must be admitted that certain changes in the internal
constitution of one of the contracting States, or in the
person of its sovereign, may have the effect of annulling
pre-existing treaties between their respective govern-
ments. The obligation of treaties, by whatever denomi-
nation they may be called, is founded, not merely upon
the contract itself, but upon those mutual relations be-
tween the two States, which may have induced them to
enter into certain engagements. Whether the treaty be
termed real or personal, it will continue so long as these
relations exist. The moment they cease to exist, by
(/) Vattel, Droit des Gens, Uy. ii. oh. 12, {§ 183-197.
46 NATIONS AND SOVEREIGN STATES.
Part I. means of a change in the social organisation of one of
the contracting parties, of such a nature and of such
importance as would have prevented the other party
from entering into the contract had he foreseen this
change, the treaty ceases to be obligatory upon him.
Binding effect On the separation of Belgium and Holland, the United States
of treaties. deemed themselves justified in withdrawing from an agreement to
accept the King of the Netherlands as umpire on the north-east
boundary question. When Texas joined the United States, Erance
and England intimated that she did not thereby cease to be bound by
her treaties with them (m) ; and a like intimation was given by Gbeat
Britain to France respecting Tunis, on the French occupation of that
country (»).
The United States regards its treaties with Algiers as terminated by
the French conquest of 1831, its treaties with Hanover as terminated in
consequence of incorporation with Prussia in 1866, those with Nassau as
terminated for the same reason in 1846, and its treaties with the Two
Sicilies as terminated by absorption of that kingdom into Italy (o).
S 30
PubUc debta. II. As to public dobts — whether due to or from the
revolutionised State — a mere change in the form of
government or in the person of the ruler, does not affect
their obligation. The essential form of the State, that
which constitutes it an independent community, remains
the same; its accidental form only is changed. The
debts being contracted in the name of the State, by its
authorised agents, for its public use, the nation continues
liable for them, notwithstanding the change in its in-
ternal constitution (/>). The new government succeeds
to the fiscal rights, and is bound to fulfil the fiscal obli-
gations of the former government.
It becomes entitled to the public domain and other
property of the State, and is bound to pay its debts
previously contracted (q).
(m) Wheaton, by Dana, note 17, p. 2, 3. But see Hiiber, Die Staaten sac-
48; Loid Aberdeen to Mr. Eliot, Sid ceesionen, and the report of the conunis-
Beo. 1845. Bion appointed by the Bzitiah Gbvem-
(«) Pari. Papers, Tunis, Nos. 3 and 7 "^^* *® enquire into the yarions conoee.
(1881) ; see p. 63, infra. ^^^"^ granted by the TransTaal Gk>Tem-
/ \ •an.-«*^« TVo. «« AQ ttA ment. Pari. Papers, South Africa, 1901
(o) Wharton, Dig. pp. 63, 64. ^ *~ ^
(p) Grotius, de Jur. Bel. ac Pac. lib. (q) Heffter, Das Europaische Volker-
ii. cap. 9, i yiii. 1—3. Puffendoif, de reoht, { 24. Bona non inteUignntur
Jnr. Nat. et Gent. lib. Tiii. cap. 12, H 1 , nisi dedaoto aere alieno.
NATIONS AND SOVEREIGN STATES. 47
Most treatieB relating .to the transfer of territory contain a clause Chap. II.
providing for the payment of the debts of the territory ceded. Thus, 7~rr
when Holland and Belgium were united in 1814, it was provided that parent of
the new Kingdom of the Netherlands should be responsible for the debts of
debts of both countries (r). When Schleswig, Holstein, and Lauen- J^J'^
burg were ceded by Denmark, in 1864, to Austria and Prussia, it treaty,
was agreed between the parties that the debts of the Danish monarchy
should be divided between Denmark and the ceded provinces, in pro-
portion to the population of the two parts («). On the acquisition by
Italy of the Papal States, in 1864, and of Venice in 1866, she, in each
case, took upon herself the debts of those provinces (/). In some cases
territory has been transferred free from the general debt of the State
it belonged to. This was the case when Saxe-Cobourg ceded Lichton-
burg to Prussia in 1834, and when Austria, Sardinia, and some of the
other Italian States, rectified their boundaries in 1844 («). On the
cession of Alsace and Lorraine by France, in 1871, Germany refused to
take npon herself any share of the French national debt {x). By the
treaty of Berlin, 1878, the portions of Turkish territory given to Servia
and Montenegro were charged with a share of the Turkish debt. The
portions giten to Eussia were not so charged, being taken as part
payment of a war indemnity demanded by Eussia from Turkey (y).
After the war of 1898 the United States declined to assume any part
of the Cuban debt, acting on the principle that, as incorporation of
Cuba within the Union was not intended, they merely occupied the
temporary position of a liquidator.
III. As to the public domain and private rights of pro- PubUc domain
perty. If the revolution be successful, and the internal righSo?^^
change in the constitution of the State is finally confirmed P'op®^^-
by the event of the contest, the public domain passes to
the new government; but this mutation is not necessarily
attended with any alteration whatever in private rights
of property.
It may, however, be attended by such a change : it is
competent for the national authority to work a trans-
mutation, total or partial, of the property belonging to
the vanquished party; and if actually confiscated, the
fact must be taken for right. But to work such a transfer
of proprietary rights, some positive and unequivocal act
of confiscation is essential.
If, on the other hand, the revolution in the govem-
(r) Art. YI. of the Treaty. See (m) Hertslet, Map of Europe, vol ii.
Hertalet, Map of Europe, vol. L p. 38. pp. 948 and 1052.
(«) Annual Beg. 1864, p. 236. {x) Calvo, yol. iii. p. 244.
(0 Hertelet, Map of Europe, pp. 1628, (j^) Pari. Papers, Turkey (No. 44),
1721. 1878, and Turkey (No. 22), 1878.
48 NATIONS AND SOVEREIGN STATES.
Parti, ment of the State is followed by a restoration of the
ancient order of things, both public and private property,
not actually confiscated, revert to the original proprietor
on the restoration of the legitimate government, as in the
case of conquest they revert to the former owners, on the
evacuation of the territory occupied by the public enemy.
The national domain, not actually alienated by any in-
termediate act of the State, returns to the sovereign
along with the sovereignty. Private property, tempo-
rarily sequestered, returns to the former owner, as in the
case of such property recaptured from an enemy in war
on the principle of the jus postlimimi.
But if the national domain has been alienated, or the
private property confiscated by some intervening act of
the State, the question as to the validity of such transfer
becomes more difficult of solution.
Even the lawful sovereign of a country may, or may
not, by the particular municipal constitution of the State,
have the power of alienating the public domain. The
general presumption, in mere internal transactions with
his own subjects, is, that he is not so authorized (s). But
in the case of international transactions, where foreigners
and foreign governments are concerned, the authority is
presumed to exist, and may be inferred from the general
treaty-making power, unless there be some express limi-
tation in the fundamental laws of the State. So, also,
where foreign governments and their subjects treat with
the actual head of the State, or the government defaciOy
recognised by the acquiescence of the nation, for the
acquisition of any portion of the public domain or of
private confiscated property, the acts of such government
must, on principle, be considered valid by the lawful
sovereign on his restoration, although they were the acts
of him who is considered by the restored sovereign as an
usurper (a). On the other hand, it seems that such aliena-
tions of public or private property to the subjects of the
(2) Paffondorf, de Jur. Nat. et Gent. (^j Grotius, de Jur. Bd. ao Pao. Ub. u.
lib. viii. cap. 12, §{ 1—8. Vattel, Droit
dee Gena, Hv. i. chap. 21, {§ 260, 261. "***• '*' ' '^-
NATIONS AND SOTEREIGN STATES. 49
State, may be annulled or confirmed, as to their internal Chap. II.
effects, at the will of the restored legitimate sovereign,
guided by such motives of policy as may influence his
counsels, reserving the legal rights of bonce fidei pur-
chasers under such alienation to be indemnified for
ameliorations {b).
Where the price or equivalent of the property sold or
exchanged has accrued to the actual use and profit of the
State, the transfer may be confirmed, and the original
proprietors indemnified out of the public treasury, as was
done in respect to the lands of the emigrant French
nobility, confiscated and sold during the revolution. So,
also, the sales of the national domains situate in the
German and Belgian provinces, united to France during
the revolution, and again detached from the French terri-
tory by the treaties of Paris and Vienna in 1814 and
1815, or in the countries composing the Rhenish con-
federation in the kingdom of Italy, and the Papal States,
were, in general, confirmed by these treaties, by the
Germanic Diet, or by the acts of the respective restored
sovereigns. But a long and intricate litigation ensued
before the Germanic Diet, in respect to the alienation of
the domains in the countries composing the kingdom of
Westphalia. The Elector of Hesse Cassel and the Duke
of Brunswick refused to confirm these alienations in
respect to their territory, whilst Prussia, which power
had acknowledged the King of Westphalia, also acknow-
ledged the validity of his acts in the countries annexed
to the Prussian dominions by the treaties of Vienna {c).
§Sla.
'' I apprehend it,'' said Yice-Ohancellor JameB, '' to be dear public Opinion of
uniyersal law, that any government which de facto Bucceeds to any *™^»
other goyemmenty whether by revolution or restoration, conquest or
reconquest, succeeds to all the public property, to everything in the
nature of public property, and to all rights in respect of the public
property of the displaced power, whatever may be the nature or
(h) Kliiber, Droit des Gens, sec. ii. p&isohe Volkerrecht, { 188. Elnber,
oh. 1 , I 258. ofPentliohes Recht des deutschen Bondes,
(e) Oonyersations Lezikon, art. Do- § 169. Botteok nnd Welcker, Staats-
mawm'^verJcauf, Heffter, Das Eoro- Lexikon, art. Lomainm-hatrfkr,
W. B
60
NATIONS AND SOVEREIGN STATES.
Part I. origin of the title of auch displaced power. This right of succession is
a right not paramount, but derived through the suppressed authority,
and can only be enforced in the same way, and to the same extent, and
subject to the same correlative obligations and rights, as if that autho-
rity had not been suppressed, and was itself seeking to enforce it " {d).
Wrongs and
mjnries.
§33.
Sovereign
States
defined.
IV. As to wrongs or injuries done to the government
or citizens of another State ; — ^it seems, that, on strict
principle, the nation continues responsible to other States
for the damages incurred for such wrongs or injuries,
notwithstanding an intermediate change in the form of
its government, or in the persons of its rulers. This
principle was applied in all its rigour by the victorious
allied powers in their treaties of peace with France in
1814 and 1815. More recent examples of its practical
application have occurred in the negotiations between the
United States and France, Holland, and Naples, relating
to the spoliations committed on American commerce
under the government of Napoleon and the vassal States
connected with the French p]mpire. The responsibility
of the restored government of France for those acts of
the preceding ruler was hardly denied by it, even during
the reigns of the Bourbon kings of the elder bi^nch,
Louis XVIII. and Charles X. ; and was expressly ad-
mitted by the present government (Louis Philippe's) in
the treaty of indemnities concluded with the United
States, in 1831. The application of the same principle
to the mcMures of confiscation adopted by Murat in the
kingdom of Naples was contested by the restored govern-
ment of that country ; but the discussions which ensued
were at last terminated, in the same manner, by a treaty
of indemnities concluded between the American and
Neapolitan governments.
A Sovereign State is generally defined to be any nation
or people, whatever may be the form of its internal con-
(<i) U. S, ▼. MeXM, L. B. 8 Eq. 75 ;
Temtt T. Taylor, 9 Cranoh, 60 ; Kelly r.
ffarriton, 2 Johnson^s Cases, 29 ; Calvin^ $
COM, 7 Coke Rep. 27 ; Strother v. Lucm,
12 Peters, 410 ; King of the I\co Siciliea
T. Wifeox, 1 Simons, N. S. 302 ; RepHblir
of Peru y. Feruviam Guano Co,, 36 Ch. D.
489 ; Republic of Peru y. Jheyfu», 38 Gh.
D. 348 ; Wharton, Dig. {{ 6, 5a ; Nelson,
Friyato International Law, pp. 406, 407,
408.
NATIONS AND SOVEBEIGN STATES. 61
stitution, which governs itself independently of foreign Chap. 11.
powers (e).
This definition, unless taken with great qualifications,
cannot be admitted as entirely accurate. Some States
are completely sovereign and independent, acknowledg-
ing no superior but the Supreme Ruler and Governor of
the universe. The sovereignty of other States is limited
and qualified in various degrees.
§ 83a.
"By a Sovereign State, we mean," says Prof. Montague Bernard (/), Equality of
" a community or number of persons permanently organised under a w^oreign
sovereign government of their own ; and by a sovereign government
we mean a government, however constituted, which exercises the power
of making and enforcing law within a community, and is not itself
subject to any superior government. These two factors, one positive,
the other negative — the exercise of power, and the absence of superior
control — compose the notion of sovereignty, and are essential to it."
All Sovereign States are equal in the eye of inter-
national law, whatever may be their relative power.
The sovereignty of a particular State is not impaired by
its occasional obedience to the commands of other States,
or even the habitual influence exercised by them over its
councils. It is only when this obedience, or this in-
fluence, assumes the form of express compact, that the
sovereignty of the State, inferior in power, is legally
affected by its connection with the other. Treaties of
equal alliance, freely contracted between independent
States, do not impair their sovereignty. Treaties of un-
equal alliance, guarantee, mediation, and protection, may
have the effect of limiting and qualifying the sovereignty
according to the stipulations of the treaties. « ^
States which are thus dependent on other States, in s«ni-8ove-
respect to the exercise of certain rights, essential to the
perfect external sovereignty, have been termed semi-
sovereign States (ff).
(e) Vattel, Droit des Gens, liy. i. Gobbett, L. G. p. 4.
ohap. I, § 4. iff) Kluber, Broit des Gens modeme
(/) Neutrality of Ghreat Britain dnr- de TEurope, { 24. Heffter, Das Euro-
ing American Giyil War, p. 107 ; see paisohe Volkerreoht, § 19.
e2
52 9ATI0S8 AKD SOVEKEIGSI STATES.
Part L Thiu the city of Craoow, in Poland, with its territory,
Citjof was declared by the Congress of Vienna to be a per-
petnally free, independent, and nentral State, onder the
protection of Russia, Aostria, and Prussia (A).
By the final Act of the Congress of Vienna, Art. 9, the
three great powers, Austria, Russia, and Prussia, mutually
engaged to respect, and cause to be respected, at all times,
the neutrality of the free city of Cracow and its territory ;
and they further declared that no armed force should ever
be introduced into it under any pretext whatever.
It was at the same time reciprocally understood and
expressly stipulated that no asylum or protection should
be granted in the free city or upon the territory of
Cracow to fugitives from justice, or deserters from the
dominions of either of the said high powers, and that
upon a demand of extradition being made by the com-
petent authorities, such individuals should be arrested
and delivered up without delay under sufficient escort to
§ 36. the guard chained to receive them at the frontier (i).
oi^io^ By the convention concluded at Paris on the 5th of
November, 1815, between Austria, Great Britain, Prussia,
and Russia, it is declared (Art. 1) that the islands of
Corfu, Cephalonia, Zante, St. Maura, Ithaca, Cerigo and
Paxo, with their dependencies, shall form a single, free,
and independent State, under the denomination of the
United States of the Ionian Islands. The second article
provides that this State shall be placed under the imme-
diate and exclusive protection of His Majesty the King
of the United Kingdom of Great Britain and Ireland,
his heirs and successors. By the third article it is pro-
vided that the United States of the Ionian Islands shall
regulate, with the approbation of the protecting power,
(A) Acte da Congr^ de Vienne da 9 the city of Cracow was annexed to the
Jain, 1815, Arts. 6, 9, 10. Empire of Aostria. The goTemments
((] Martens, Noayeaa Recoeil, tome of Great Britain, France, and Sweden
ii. p. 386. KKiber, Acten des Wiene protested against this proceeding as a
Congresses, Band V. { 138. Bj a Con- violation of the Federal act of 1815.
yention, signed at Vienna, Nov. 6, 1846, See Hertslet, Kap of Earope, vol. ii.
between Bassia, Austria, and Ftoasia, pp. 1065, 1073.
NATIONS AND SOVEREIGN STATES. ^^
th^ir interior organization : and to give all parts of this Chap. II>
organization the consistency and necessary action, His
Britannic Majesty will devote particular attention to the
legislation and general administration of those States.
He will appoint a Lord High Commissioner, who shall be
invested with the necessary authority for this purpose.
The fourth article declares, that, in order to carry into
effect without delay these stipulations, the Lord High
Commissioner shall regulate the forms of convoking a
legislative assembly, of which he shall direct the opera-
tions, in order to frame a new constitutional charter for
the State, to be ratified by His Britannic Majesty. The
fifth article stipulates that, in order to secure to the
inhabitants of the United States of the Ionian Islands
the advantages resulting from the high protection under
which they are placed, as well as for the exercise of the
rights incident to this protection. His Britannic Majesty
shall have the right of occupying and garrisoning the
fortresses and places of the said States. Their military
forces shall be under the orders of the commander of the
troops of His Britannic Majesty. The sixth article pro-
vides that a special convention with the government of
the United States of the Ionian Islands shall regulate,
according to their revenues, the object relating to the
maintenance of the fortresses and the payment of the
British garrisons, and their numbers in the time of peace.
The same convention shall also ascertain the relations
which are to subsist between this armed force and the
Ionian government. The seventh article declares that the
merchant flag of the Ionian Islands shall bear, together
with the colours and arms it bore previous to 1807, those
which His Britannic Majesty may grant as a sign of the
protection under which the United Ionian States are
placed ; and to give more weight to this protection, all
the Ionian ports are declared, as to honorary and military
rights, to be under the British jurisdiction; commercial
agents only, or consuls charged only with the care of
commercial relations, shall be accredited to the United
States of the Ionian Islands ; and they shall be subject
64 NATIONS AND SOVEEEIGN STATES.
Part I. to the same regulations to which consuls and commercial
agents are subject in other independent States, (k).
On comparing this act with the stipulations of the
treaty of Vienna relating to the republic of Cracow, a
material distinction will be perceived between the nature
of the respective sovereignty granted to each of these
two States. The ^^ free, independent, and strictly neutral
city of Cracow" was completely sovereign, though under
the protection of Austria, Prussia, and Russia; whilst
the Ionian Islands, although they formed ^* a single free
and independent State," under the protection of Great
Britain, were closely connected with the protecting power
both by the treaty itself and by the constitution framed
in pursuance of its stipulations, in such a manner as
materially to abridge both its internal and external
sovereignty. In practice, the United States of the
Ionian Islands were not only constantly obedient to the
commands of the protecting power, but they were
governed as a British colony by a Lord High Commis-
sioner named by the British crown, who exercised the
entire executive, and participated in the legislative,
power with the Senate and legislative Assembly, under
the constitution of the State (/).
Sta^ of " During the Crimean war two Ionian vessels were captured by British
Ionian ships on a voyage to Taganrog, and their condemnation was demanded
on the ground that lonians were in the same position as British sub-
jects as regards trade with the enemy. The Court held that the status
of the Ionian Islands, and their relation to Great Britain, were regu-
lated exclusively by the Treaty of Paris, 1815. That Great Britain had
the power to make peace or war for them, but that the intention
to place them in a state of war must be clearly expressed, as they did
not become so ea; necessitate from Great Britain being at war. The
ships were therefore released, as the lonians, being deemed neither
British subjects nor allies, were entitled to trade with Bussia during
the war, England never having expressly declared the Islands to be at
war with Eussia (m). The Ionian Islands were ceded to Greece in
1864, and have since ceased to exist as a semi-sovereign State (n).
(A;) Martens, NouveauRecaeil, tome ii. (m) The I<mian shipsy 1 Spinks, 193.
p. 663. See also Forsyth, Cases and Opinians,
(I) Martens, Precis dii Droit des p. 472.
Gens, liy. i. oh. 2, } 20. Note 0, 3me (») Hertslet, Map of Europe, vol. iii.
Edition. p. 1610.
citizenB.
NATIONS AND SOVEREIGN STATES. 55
Besides the free city of Cracow and the United States Chap. II.
of the Ionian Islands, several other semi-sovereign or § 36.
dependent States are recognised by the existing public TOVOTei^"
law of Europe. These are : — ®^*^-
1. The principalities of Moldavia, Wallachia, and
Servia, under the suseraineU of the Ottoman Porte and
the protectorate of Russia, as defined by the successive
treaties between these two powers, confirmed by the
Treaty of Adrianople, 1829 (o).
§S8a.
The Eusaian protectorate over these provinces ceased in 1854, and Cession of
the privileges accorded to them by the Sultan were thenceforward p^Jtootorate.
placed under the collective guarantee of the five great Powers (;?). By Union of
a convention entered into in 1858, between Turkey and the Powers, Moldavia and
Moldavia and Wallachia were placed under the suzerainty of the *°
Saltan, but carried on their own administration freely, and exempt
from any interference of the Sublime Porte, within the limits stipulated
by the agreement of the guaranteeing Powers with the Suzerain Court.
An annual tribute was paid to Turkey by each province. The execu-
tive power was vested in a Hospodar, and in the event of any of the
immunities of the principalities being violated, the Hospodar was first
to represent this to the Suzerain Power, and if not attended to, ho
might then communicate with the guaranteeing Powers. The Hospodar
was represented at Constantinople by diplomatic agents ( Capou-Kiaga)
accepted by the Porte (y). In 1861, Moldavia and Wallachia were
formed into one Principality, called Boumania. In 1877, Eoumania
joined Eussia in the war with Turkey, and at the end of this war she
declared herself independent of the Porte. This independence was
recognised and confirmed by the Powers in the Treaty of Berlin, and
Eoumania is now no longer a semi-sovereign, but has become an inde-
pendent State (r), and was declared a monarchy in 1881. c gg^^
The history of Servia has been very similar. After various abortive Servia and
efforts she at length attained to complete independence, which the ^o»t«»®gro.
Powers confirmed at the same time as that of Eoumania («), and in
1882 the prince assumed the title of king. The Treaty of Berlin also
declared Montenegro to be an independent State (/)•
A new semi-sovereign State was created by this Treaty, to which the Bulgaria,
name of Bulgaria was given. It has a local government and a
national militia, but is tributary to the Sultan. The prince is elected
(o) Wheaton's Hist, of the Law of vol. ii. p. 1829.
Nations, pp. 666-660. M Treaty of Berlin, Art. xliii. Pari.
{p) Hertalet, Map of Enrope by V' ;
Treaty, vol. ii. p. 1226. Vb^^b, Turkey, 1878, No. 44, p. 25.
to) Convention of 19th Aug. 1868. W Art. xxxiv.
Hertslet, Map of Europe by Treaty, (0 Art. zzvi.
66
NATIONS AND SOVEREIGN STATES.
Part I. by the people, but oonfirmed by the Forte with the assent of the
"" Powers. The Sultan is not permitted to keep his anxjy in the
proyince (t#).
Monaco. 2. TliG Principality of Monaco, which had been under
the protectorate of France from 1641 until the French
Revolution, was replaced under the same protection by
the Treaty of Paris, 1814, (Art. 3,) for which was sub-
stituted that of Sardinia by the Treaty of Paris, 1815,
(Art. ly){x).
In 1861, the Prince of Monaco sold a portion of his territoiy to
France, and the principality now consists of little more than the town
of Monaco itself. It still continues as a semi-sovereign State (y).
PoUzsa.
The former
Oermanio
Empire.
Egypt.
3. The republic of Polizza in Dahnatia, under the
protectorate of Austria (sr).
4. The former Germanic Empire was composed of a
great number of States, which, although enjoying what
was called territorial superiority, (Landeshoheity) could not
be considered as completely sovereign, on account of
their subjection to the legislative and judicial power of
the emperor and the empire. These were all absorbed
in the sovereignty of the States composing the late Ger-
manic Confederation, with the exception of the Lordship
of Kniphausen, on the North Sea, which retained its
former feudal relation to the Grand Duchy of Oldenburg,
and might, therefore, have been considered as a semi-
sovereign State (a).
6. Egypt had been held by the Ottoman Porte, during
the dominion of the Mamelukes, rather as a vassal
State than as a subject province. The attempts of
Mehemet AH, after the destruction of the Mamelukes, to
convert his title as a prince- vassal into absolute indepen-
(m) Arts. i. to xii. See also as to this
Treaty §{ 70a et »eq, infra.
(x) Martens, Noaveaa Recneil, tom.
ii. pp. 6, 687.
(y) Hertalet, Map of Europe by
Treaty, toI. ii. p. 1462.
(f ) Martens, Vt^c&a da Droit des Qens,
liv. i. oh. 2, \ 20. There is no longer
any question as to Polizza. It is now
abeorbed into Austria. Heffter, { 20,
n. 2 ; Wheaton, by Lawrence, n. 26.
(a) Heflter, Das Europaisohe Vdlker-
redht^ { 19.
NATIONS AND SOVEREIGN STATES. 67
dence of the Sultan, and even to extend his sway over Chap. II.
other adjoining provinces of the empire, produced the
convention concluded at London the 15th July, 1840,
between four of the great European powers, — Austria,
Great Britain, Prussia, and Russia, — to which the Ottoman
Porte acceded. In consequence of the measures subse-
quently taken by the contracting parties for the execu-
tion of this treaty, the hereditary Pashalick of Egypt was
finally vested by the Porte in Mehemet Ali, and his lineal
descendants, on the payment of an annual tribute to the
Sultan, as his suzerain. All the treaties and all the laws
of the Ottoman Empire were to be applicable to Egypt,
in the same manner as to other parts of the empire. But
the Sultan consented that, on condition of the regular
payment of this tribute, the Pasha should collect, in the
name and as the delegate of the Sultan, the taxes and
imposts legally established, it being, moreover, under-
stood that the Pasha should defray all the expenses of the
civil and military administration ; and that the military
and naval force maintained by him should always be con-
sidered as maintained for the service of the State (A).
§S6o.
The international position of Egypt prior to the British occupation Present 9t(Uu9
was discussed by Sir R. Phaiimore in the Admiralty Court. After ^^ ^^P*-
examining all the firmans of the Forte, and the other authorities on
the subject, his lordship said that '*the result of the historical inquiry
as to the status of ELis Highness the Khedive is as follows : That in
the firmans, whose authority upon this point appears to be paramount,
Egypt is invariably spoken of as one of the provinces of the Ottoman
Empire ; that the Egyptian army is regulated as part of the military
force of the Ottoman Empire ; that the taxes are imposed and levied
in the name of the Porte ; that the treaties of the Porte are binding
upon Egypt, and that she has no separate /«« legationis; that the flag
for both the army and the navy is the flag of the Porte. All these
facts, according to the unanimous opinion of accredited writers, are
inconsistent and incompatible with those conditions of sovereignty
i^hich are necessary to entitle a country to be ranked as one among the
great community of States " (c). The Khedive has, since the judgment
in this case was delivered, obtained from the Sultan a new firman,
granting him some powers of sovereignty he did not before possess,
(h) Wbeaion, Hist. Law of Natioius, {e) The Charkieh, L. B. 4 A. & £.
n». 672—583. 84.
58 NATIONS AND SOVEREIGN STATES.
Part I. the absence of which was commented on by Sir B. Phillimore {d). A
■ ~" contingent of Egyptian troops was sent to serre with the Turkish Army
in the Hussian war of 1877.
In 1879 the then Khedive (Ismail) was deposed by an Imperial
Irade, and his son, Tewfik, was appointed in his room. Under the
new Khedive the Dual Control of Great Britain and France, exercised
through resident controllers, entitled to sit at the council of ministers,
was revived. In 1881 disturbances and disorder, consequent upon a
nationalist ferment, aided by military revolt, compelled Great Britain,
after an offer of co-operation to France had been declined, and Turkey
hesitating, to intervene, with armed forces, for the restoration of order
and in support of Tewfik. By October the country was in posses-
sion of the British army of occupation, — the rebel soldiers having been
defeated at Tel-el-Kebir, — and was under the de facto control of the
Queen's government. By a decree of the 18th January, 1883, the
Dual Control was abolished. In 1884, Great Britain proposed that the
country should be neutralized («).
In August, 1885, Sir Henry Drummond Wolff was sent to Con-
stantinople on a special mission having reference to the affairs of
Egypt. It was the wish of Her Majesty's government to recognise in
its full significance the position which is secured to the Sultan as
sovereign of Egypt by treaties and other instruments having a force
under international law. But the general object of the mission was,
in the first instance, to secure for this country the amount of influence
which is necessary for its own imperial interests, and, subject to that
condition, to provide a strong and efficient Egyptian government, as
free as possible from foreign interference. Especial attention was
drawn to the unsatisfactory position of Egyptian finance, upon which
the facilities for foreign interference, furnished by the international
obligations attaching to so many branches of Egyptian administration,
Anirlo- depend (/). As a first result of this mission, by a convention, which
Turkish was signed at Constantinople on the 24th October, 1885, and ratified
Oct.^l886*°* ^^ *^® ^^^ November in the same year, it was agreed, between Her
Majesty and the Sultan, (1) that each of them respectively should
send a High Commissioner to Egypt; (2) that the Ottoman High
Commissioner should consult with the Khedive, or with a functionary
designated by His Highness, upon the best means for tranquillizing
the Soudan by pacific measures, the two to keep the English High
Commissioner currently informed of the negotiations, and as the
measures to be decided upon would form part of the general settle-
ment of Egyptian affairs, such measures were to be adopted and
placed in execution in agreement with the English High Commis-
sioner; (3) that the two High Commissioners should re-organize, in
{d) Phillimore, vol. iii., Introduction. (/) Lord Salisbury's Instmotions to
Journal dea D^aU, 7tli July, 1873. Sir H. D. Wolff. Pari. Paper, Egypt,
{(f) Holland, European Concert, chap. No. 1 (1886). As to the latter point,
iv. see Holland, loo. cit.
NATIONS AND SOVEREIGN STATES. 59
concert with the Khedive, the Egyptian army ; (4) and, in the same Chap. II.
way, examine all branches of the Egyptian administration, and intro-
duce the modifications they might consider necessary within the limits
of the firmans ; (5) that the international engagements contracted by
the Khedive should be approved by the Ottoman government in so far
as they should not be contrary to the privileges granted by the
firmans; (6) that so soon as the two High Commissioners should
have established that the security of the frontiers and the good
working and stability of the Egyptian government were assured,
they should present a report to their respective governments, who
would then consult as to the conclusion of a convention regulating
the withdrawal of the British troops from Egypt in a convenient
period (y).
It has been observed that by this convention the legitimate
sovereignty of the Sultan was recognised by Great Britain, and the
de facto occupation by England was acknowledged and legalized by
the recognition of the Imperial Ottoman government ; while the forces
of both were to be utilized for the purposes of a permanent settle-
ment (A).
On the conclusion of this convention. Sir Henry Drummond WolfE
was appointed British High Commissioner. A Commissioner was
appointed on behalf of the Sultan ; and the two proceeded to Egypt.
After satisfying himself as to what — taking into consideration the
peculiar features of the Egyptian question, and the policy of Her
Majesty's government, who have repeatedly disclaimed all idea of
annexing Egypt, or of establishing a Protectorate, but are anxious to
preserve the rights of the Sultan, and the interests of other countries,
and, in concert with Europe, to secure, except as regards the transit of
troops in regulated numbers, the territorial inviolability of Egypt —
was really required for the permanent safety and prosperity of the
country, the British Commissioner returned to Constantinople, in his
character of Envoy Extraordinary, and resumed negotiations with a
view to the conclusion of an ulterior convention, by which these ends
might be secured. Some delay was caused by changes of government Anglo-
in England, and in other ways, but on the 22nd May, 1887, a convention Turkiah
was signed at Constantinople, between Great Britain and Turkey, by ifay, 1887.*
which it was agreed that at the expiration of three years from the
date of the convention, the British troops should be withdrawn from
Egypt, unless the appearance of danger in the interior or from without
should render necessary the adjournment of the evacuation, when the
British troops were to withdraw immediately after the disappearance
of this danger. On the withdrawal of the British troops, Egypt was
to enjoy the advantages of the principle of territorial immunity
(*' Burete territoriale "), and on the ratification of the present conven-
er) Pari. Paper, Egypt, No. 1 (1886). (A) sir H. D. Wolff to Lord SaHs-
Hertdfit, Map of Europe by Treaty,
Tol.iiLp.3274. ^^- Ibid. No. 66.
60 NATIONS AND SOVEREIGN STATES.
Part I. tion the Qreai Powers were to be inyited to sign an Act reoognising
and guaranteeing the inviolability of Egyptian territory ; under which
Act no Power should have the right, in any circumstance, to land
troops on Egyptian territory, except in the event of obstruction in the
Suez Canal, when the passage of 1,000 men at one time might be
effected by the most rapid means and route. But the Ottoman govern-
ment might land troops to repel apprehended invasion, or in case of
internal disorder; and a similar right was reserved to the British
government. If at the expiration of the three years stipulated in the
convention for the withdrawal of the British troops, one of the Great
Mediterranean Powers should not have accepted it, this was to be con-
sidered as an appearance of danger from without justifying the post-
ponement of evacuation. The adhesion of the signatories of the
Berlin Treaty, and subsequently of other governments having arrange-
ments with the Khediviate, was to be invited (t'j. The Sultan, under
pressure from other Powers, failed to ratify the convention within the
stipulated period of one month, or within an extended period allowed
by Great Britain, and it consequently fell through (k). The legality
of the British occupation is therefore remitted to the convention
of 1885.
In July, 1887, in the course of negotiations with reference to the
Suez Canal Convention, M. Waddington gave expression to the hope
of the French government that the whole of Egypt might some day be
neutralized (/) ; and this is a solution of the question which would,
apparently, meet with the approval of the Powers. But as Ghreat
Britain insists on the reservation of a right of re-occupation in
certain contingencies, and of a right of regulated transit for any Great
Power in case the canal is blocked, there are obvious difficulties in the
way of an arrangement with France, for the latter country, which has
a hold on Egyptian affairs through the Mixed Administrations, and
whose traditional interest was strengthened by the part taken by
Frenchmen in the construction of the Suez Canal, has hitherto declined
to assent to neutralization except on the condition that Egypt shall be
a forbidden land to all European troops (m).
Ahd'ul' In a cause, instituted in 1885, decided in the Privy Council in 1888,
Memh V. Qjj appeal from Her Majesty's Supreme Consular Court at Constan-
tinople, Egypt was regarded as part of the Ottoman dominions.
''Cairo," it was said, '*is in no sense British soil; it is the posses-
sion of a foreign government, and subject to the sovereignty of the
Porte," and in the Order of Council establishing Consular Courts of
August 8, 1899, Egypt is expressly mentioned as being included in the
" dominions of the Sublime Ottoman Porte." But while no legal act
has affected the titular sovereignty of the Porte, the course of events
since the last edition of this book has gone some way towards weakening
(•) Pari. Paper, Egypt, No. 7 (1887). (0 Pari- Paper, Egypt, No. 1 (1888).
(m) Pari. Paper, Effrpt No. 7 (1887).
^®®^- Agreement of April, 1904, Appendix J.
NATIONS AND SOVEREIGN STATES. ^l
the tie. The padfication of the Soudan has been carried out without Clhap. II-
any reference to the Sultan, and its administration, after the overthrow of
the Khalifa, was organized on the basis of an agreement made between
the British and Egyptian governments in January, 1899, nor has the
Sultan's co-operation been invited in the organization of the army and
the various departments of the public service. On the other hand, the
attempt made in June, 1893, by the present Khedive, Abbas Hilmi,
to assert his freedom from foreign control was repressed by Lord
Cromer in a manner which emphasised his dependency on the protect-
ing Power, and he was made to understand that no changes in the
personnel of the Administration would be permitted without a previous
agreement with the Agent of Gbeat Britain, whose very title proclaims
his anomalous position (n). § 3g^,
Another semi-sovereign State is the Republic of San Marino, which Republics of
was formerly under the protection of the Holy See, but which is now ^^ Andorre.
under that of Italy (o). Andorre, which is sometimes included among
semi-sove^ign States, is a small independent republic situate on the
Pyreneean frontier, between France and Spain ( p),
§37.
Tributary States, and States having a feudal relation Tributary and
to each other, are still considered as sovereign, so far as
their sovereignty is not affected by this relation. Thus,
it is evident that the tribute, formerly paid by the prin-
cipal maritime powers of Europe to the Barbary States,
did not at all affect the sovereignty and independence of
the. former. So also the King of Naples had been a
nominal vassal of the Papal See, ever since the eleventh
century; but this feudal dependence, abolished in 1818,
was never considered as impairing the sovereignty of the
Kingdom of Naples (q).
The political relations between the Ottoman Porte and ReUtiong
betweeo the
the Barbary States are of a very anomalous character, ottoman
Their occasional obedience to the commands of the B^bary
Sultan, accompanied with the irregular payment of ^^'
(n) Abd'Ul'Measih v. Farra^ 13 App. p. 1508.
Gas. 431, 438, per Lord Watson, deUver- Cp) n}id. yol. ii. p. 1510. State
ing the judgment of the Judicial Com- Papers, vol. xxx. p. 1217. An interest-
mittee, London Gfazette, Aug. 11, 1899. ing historioal account of San Marino
For a French yiew of the English occu- and Andorre will be found in Calvo, ii.
patlon, see *< Situation de L'Egypte et } 72. That learned writer sajs, that
du Soudan juiidique et politique,'* by the true place of Andorre is among
Dr. Jules Cocheris (Paris, 1903). independent protected States.
(o) Convention of 22nd March, 1862. (g) Ward's Hist, of the Law of Na-
8ee Hertslet, Map of Europe, toI. ii. tions, vol. ii. p. 69.
62
NATIONS AND SOVEREIGN STATES.
fftrt I. tribute, does not prevent them from being considered by
the Christian powers of Europe and America as inde-
pendent States, with whom the international relations of
war and peace are maintained, on the same footing as
with other Mohammedan sovereignties. During the
Middle Ages, and especially in the time of the Crusades,
they were considered as pirates :
'' Bngia ed Algieri, infami nidi di oorsari/'
as Tasso calls them. But they have long since acquired
the character of lawful powers, possessing all those
attributes which distinguish a lawful State from a mere
association of robbers (r). *^ The Algerines, Tripolitans,
Tunisians, and those of Salee," says Bynkershoek, " are
not pirates, but regular organised societies, who have
a fixed territory and an established government, with
whom wo are alternately at peace and at war, as with
other nations, and who, therefore, are entitled to the
same rights as other independent States. The European
sovereigns often enter into treaties with them, and the
States-General have done it in several instances. Cicero
defines a regular enemy to be : Qui habet rempublicamj
curiam^ wrarium^ comenmm et concordiam ctviumj rationem
aliquant^ si res itSt, tulisset, pacts et foederis. (Philip. 4, c.
14.) All these things are to be found among the barba-
rians of Africa ; for they pay the same regard to treaties
of peace and alliance that other nations do, who generally
attend more to their convenience than to their engage-
ments. And if they should not observe the faith of
treaties with the most scrupulous respect^ it cannot be well
required of them ; for it would be required in vain of
other sovereigns. Nay, if they should even act with
more injustice than other nations do, they should not, on
that account, as Huberus very properly observes, (De
Jure Civitat. 1. iii. c. 5, § 4, n. ult.) lose the rights and
privileges of sovereign States («).
(r) Sir L. Jenkins's Works, toI. ii. (•) Bynkershoek, Qusest. Jnr. Fab.
p. 791. The Helena, 4 C. Rob. 5. lib. i. cap. zyii.
NATIONS AND SOVEREIGN STATES. 68
Algiers wsls conquered by France in 1831. Tunis has been occu- Chap. II.
pied by the same power since 1881, and is administered by French 7"ri
officials under a convention concluded with the Bey in 1883. The pjeLnt
Sublime Porte protested against this occupation, as it had previously position of
against the virtual protectorate assumed by France for some years g^tea!^
before. But the French government refused to recognise a claim
which had had no effective assertion for two centuries. The Tunisian
occupation gave rise to an apprehension of French designs on Tripoli,
and led to a diplomatic correspondence, in which the British Foreign
Secretary (Lord Granville) asserted Tripoli to be an integral part of
the dominions of the Sultan of Turkey, and this proposition was
assented to on the part of France as indisputable (t).
. § 38.
The political relation of the Indian nations on this North
continent towards the United States is that of semi- Indians.
sovereign States, under the exclusive protectorate of
another power. Some of these savage tribes have
wholly extinguished their national fire, and submitted
themselves to the laws of the States within whose terri-
torial limits they reside ; others have acknowledged, by
treaty, that they hold their national existence at the will
of the State; others retain a limited sovereignty, and
the absolute proprietorship of the soil. The latter is the
case with the tribes to the west of Georgia (w).
Thus, the Supreme Court of the United States deter-
mined, in 1831, that, though the Cherokee nation of
Indians, dwelling within the jurisdictional limits of
Georgia, was not a " foreign State " in the sense in
which that term is used in the Constitution, nor entitled,
as such, to proceed in that Court against the State of
Georgia, yet the Cherokees constituted a State^ or a
distinct political society, capable of managing its own
affairs, and governing itself, and that they had uni-
formly been treated as such since the first settlement of
the country. The numerous treaties made with them
by the United States recognise them as a people capable
of maintaining the relations of peace and war, and
(i) Pari. Papers, Timis, Nos. 1—8 Sultan. Pari. Papers, wpra; Cairo, ii.
(1881) ; Annual Register, 1882, 1883. ^ 75,
It is by no means dear that Tunis is not
legaUy under the sorereignty of the M Fletcher r, P«?^, 6 Cranch, 146.
64 NATIONS AND SOVEREIGN STATES.
Part I. responsible in their political capacity. Their relation
to the United States was nevertheless peculiar. They
were a domestic dependent nation ; their relation to us
resembled that of a ward to his guardian ; and they
had an unquestionable right to the lands they occupied,
until that right should be extinguished by a voluntary
cession to our government (x).
The same decision was repeated by the Supreme
Court, in another case, in 1832. In this case, the Court
declared that the British crown had never attempted,
previous to the Revolution, to interfere with the national
affairs of the Indians, farther than to keep out the
agents of foreign powers, who might seduce them into
foreign alliances. The British government purchased
the alliance and dependence of the Indian nations by
subsidies, and purchased their lands, when they were
willing to sell, at the price they were willing to take,
but it never coerced a surrender of them. The British
crown considered them as nations, competent to main-
tain the relations of peace and war, and of governing
themselves under its protection. The United States,
who succeeded to the rights of the British crown, in
respect to the Indians, did the same, and no more ; and
the protection stipulated to be afforded to the Indians,
and claimed by them, was understood by all parties as
only binding the Indians to the United States, as de-
pendent allies. A weak power does not surrender its
independence and right to self-government by asso-
ciating with a stronger and taking its protection. This
was the settled doctrine of the Law of Nations, and the
Supreme Court therefore concluded and adjudged, that
the Cherokee nation was a distinct community, occu-
pying its own territory, with boundaries accurately
described, within which the laws of Georgia could not
rightfully have any force, and into which the citizens of
{x) The Cherokee Nation y. The State of 308, where tlie History of the CherokeeB
Georgia^ 5 Peters, 1. See also The State jg traced in the judgment of the Court ;
of Georgia y. Stant^, 6 Wallace, 71 ; ^^^^,^^ ^ ^^^^^ ^^ ^ . g p^ ^^^
ne Cherokee Trust Fund*, mV.Q,2SH, "^ ^
NATIONS AND SOVEREIGN STATES. 65
that State had no right to enter but with the assent of Chap. II.
the Cherokees themselves, or in conformity with treaties,
and with the Acts of Congress (y).
§38a.
More recent cases have established that the Indians residing within Present status
the limits of the United States are subject to their authority and form S*i^®
a dependent political commuxiity. The Federal power can govern
Indians by Act of Congress, the States having no control so long as
Indians retain their tribal organization, and do not separate themselves
from their tribe (z). An Act of Congress of the year 1872 declares,
that "no Indian nation or tribe within the territory of the United
States shall be acknowledged or recognised as an independent nation,
tribe, or power, with whom the United States may contract by treaty ;
but no obligation of any treaty lawfully made and ratified with any
such Indian nation or tribe prior to March 3rd, 1871, shall be hereby
invalidated or impaired " (a). The Indians are, however, protected in
the territories retained by them. Thus, every person who makes a
settlement on any lands secured or granted by treaty with the United
States to any Indian tribe, is liable to a penalty of 1,000 dollars (i).
No one but an Indian may trade in their territory without a licence (c),
and even hunting there is prohibited (c?). For purposes, also, of
private international law, American Courts regard Indians, and white
men naturalised within an Indian tribe, residing on Indian reserves,
as members of alien nationalities (e). o aav
Corea was regarded by the Chinese government until quite recently Relations of
as a vassal kingdom of that empire, though the claim was from time ^"^? ^^
to time repudiated by the Corean king. On the outbreak of the Chino- Asiatic
Japanese war in 1894, Corea renounced the Chinese suzerainty, and in kingdoms.
January, 1896, formally declared herself independent. In October,
1897, the king of Corea proclaimed himself emperor (/). By the
treaty of 9th June, 1885, between France and China, the foreign
intercourse of Annam was to be through France, but the question of
Chinese suzerainty was left unsettled (y). By the Anglo-Chinese
(y) Kent's Comment, on American {b) Ibid. ch. ill. sect. 2118 ; JForeeeter
Law, vol. iii. p. 383 (12th ed.). t. State of Oeorgia, 6 Peters, 615 ; Clark
(z) XT, S. V. Itoffers, 4 Howard, 672 ; t. Smith, 13 Peters, 195 ; Latimer v.
Maekey v. Coxe, 18 Howard, 104 ; HoU Poleet, 14 Peters, 4 ; XT, S» v. Joseph, 4
den T. Joif, 17 Wallace, 211 ; U. 8. v. Otto, 614.
HoUiday, 3 Wallace, 407 ; Abbott's {c) Ibid. ch. iy. sect. 2138.
National Digest, yoI. iii. tit. Indians ; {d) Ibid. sect. 2137. See also the
Crow Dog, In re, 109 TJ. S. 656 ; The cases of Holden v. Joy, 17 Wallace,
Cherokee Trust Funds, ubi supra; U, S. 211 ; U. S. v. Cook, 19 Wallace, 691 ;
T. Kagama, 118 U. S. 376; The Cherokee Wharton, Dig. $ 208; Calvo, Bk. 11.
Nati<m v. Southern Kansas Rail, Co., 135 § 69.
U. S. 641 ; Talton v. Mayes, 163 U. S. (e) Wharton, loc. cit.; Naftre v. W, S»,
372. 164 U. S. 667.
(a) U. S. Eevised Statutes, Title (/) Annual Register, 1895, 1897.
zxviii. Indians, ch. 2, sect. 2079. {ff) Annual Register, 1886, p. 834.
W. F
66
NATIONS AND SOVXStEION STATES.
Fart I.
§38o.
Statofl of the
Froteoted
PrinceB; and
of Caba.
Convention, signed at Pekin on the 24tli July, 1886, England agrees
that the highest authority in Burmah shall send to Pekin the cus-
tomary decennial missions to present articles of local produce, the
members of the mission to be of Burmese race; but China agrees,
that in all matters whatsoever appertaining to the authority and rule
which England is now exercising in Burmah, England shall be free to
do whatever she deems fit and proper (A). The Chinese claim to
suzerainty in Tibet is fully recognised by Great Britain in the con-
vention for carrying out the frontier delimitation of that country (»).
In British India j;here are more than 600 Native States, whose rulers
are known as Protected Princes. Of their precise relations to the
suzerain power it is not easy to give a satisfactoiy definition, nor are
they regulated by any uniform code of rules. The Protected Princes
are strictly precluded from forming any connection or engagement
either among themselves or with foreign powers. In the words of Sir
William Lee Warner, *' They cannot enter into a treaty of extradition
with their neighbours without the intervention of the British authority ;
they cannot receive commercial agents ; they are even unable to allow
Europeans or Americans to enter their service without the consent of
the paramount power; they have no direct intercourse with the
consular agents or representatives of foreign nations accredited to the
government of India ; and they cannot receive from foreign sovereigns
decorations or orders except under the regulations prescribed for
British subjects.'' But they are not subject to legislation by the
Governor-General in Council or by the Legislative Councils of the
Presidency in which they are situated, nor is the law of British India
administered within their borders. They enjoy and exercise under the
sanction of the British government the functions and attributes of
internal sovereignty, but they are bound to receive the Kesident or
Agent appointed by the Viceroy. The Indian government has f ormaUy
declared that the principles of international law have no bearing upon
the relations between itself and the Native States under the suzerainty
of the king. Whether this declaration is rigidly correct or is completely
followed in practice may perhaps be doubted, but it is clear that the
Native Princes of India have no international status in the sense in
which it is used in this volume {k).
Since the treaty of June 12, 1901, by which Cuba was made over to the
Cuban people, it has occupied a position with respect to the United States
which seems to bring it within the category of Protected States, though
differing entirely from those described in the last paragraph. It is
precluded from entering into any treaty with a foreign power which can
endanger its independence ; and it imdertakes to contract no debt for
(A) Hertalct, Com. Treaties, xviii.
p. 299 ; and see ibid. xix. 163, zz. 233.
(i) Ibid, xviii. 288.
(k) See Lee Warner, ** Protected
Princes of India " ; the quotation in the
text is at p. 245 ; Professor Westlake,
" Chapters on the Principles of Inter-
national Law" ; Notification published
by the GrOTemment of India, Aug. 21,
1891.
NATIONS AND SOVEREIGN STATES. 67
which the current revenue will not suffice, and to concede to the United Chap. 11.
States the right of intervention and the use of its harbours as naval
stations (/).
^ or'
under a common sovereign prince, or by a federal com- ™"**^ ^^^'
pact. , . §40.
1 . If this union under a common sovereign is not an ^^rtonai
<■• .-•., . union nnder
incorporate union, that is to say, if it is only personal the same
in the reigning sovereign ; or even if it is real^ yet if the ®^^®~**^'
different component parts are united with a perfect
equality of rights, the sovereignty of each State remains
unimpaired (m).
Thus, the kingdom of Hanover was formerly held by
the king of the United Kingdom of Great Britain and
Ireland, separately from his insular dominions. Han-
over and the United Kingdom were subject to the same
prince, without any dependence on each other, both
kingdoms retaining their respective national rights of
sovereignty. It was thus that the king of Prussia was
also sovereign prince of Neufchatel, one of the Swiss
Cantons ; which did not, on that account, cease to main-
tain its relations with the Confederation, nor was it
united with the Prussian monarchy (n).
So, also, the kingdoms of Sweden and Norway are
united under one crowned head, each kingdom retaining
its separate constitution, laws, and civil administration,
the external sovereignty of each being represented by
the king. § 41,
The union of the different States composing the ^^^
Austrian monarchy is a real union. The hereditary »me
dominions of the House of Austria, the kingdoms of
Hungary and Bohemia, the Lombardo- Venetian king-
dom, and other States, are all indissolubly united under
(/) Axmnal Register, 1901 ; fifty-sUth Volkeneoht, { 20.
CongreflB, o. 803 ; StatatesatLai^, vol. (n) This soTeireignty- was renounced
xxzi. p. 897. by the King of Fmssia in 1857, and
(m) Grotins, de Jar. Bel. ao Fae. Nenfchatel has since formed part of the
lib. ii. cap. 9, {} 8,9. Eliiber, Droit Swiss Confederation, on the same footing
des Gkofl modeme de TEnrope, Part I. as the other cantons. See Hertslet,
cap. 1, } 27. 'Heffter, Das Enzopaisohe Map of Europe, toI. ii. p. 1317.
f2
sovereign.
63 HATIOXS AND SOVEREIGN STATES.
Parti, the same sceptre, bat with distinct fundamental laws,
and other political institutions.
It appears to be an intelligible distinction between
such a union as that of the Austrian States, and all other
anions which are merely personal under the same crowned
head, that, in the case of a real union, though the
separate sovereignty of each State may still subsist
internally, in respect to its co-ordinate States, and in
respect to the imperial crown ; yet the sovereignty of
each is merged in the general sovereignty of the empire,
as to their international relations with foreign powers.
The political unity of the States which compose the
Austrian Empire forms what the German publicists call a
community of States ( Gesammfstaat) ; a community which
reposes on historical antecedents. It is connected with
the natural progress of things, in the same way as the
empire was formed, by an agglomeration of various
nationalities, which defended, as long as possible, their
ancient constitutions, and only yielded, finally, to the
overwhelming influence of superior force.
S41a.
CoDstitotum Since the year 1867, the Austro-Himgarian monarchy, as it is now
^ the Anstro- called, forms a bipartite State, consisting of a German, or "Cisleithan"
monaivhj. monarchy, and a Magyar, or ^'Transleithan" kingdom, the former
officially designated as Austria, and the latter as Hungary. Each of
the two countries has its own parliament, ministers, and government,
while the connecting ties between them are comprised in the person of
the hereditary sovereign in a common army, navy, and diplomacy, and
in a controlling body known as the delegations. The delegations form
a parliament of 120 members, one-half of whom are chosen by, and
represent, the legislature of Austria, and the oth^r half that of
Hungary, the Upper House of each returning 20, and the Lower
House 40 delegates. On subjects affecting the common affairs, the
delegations hare a decisive vote, and their resolutions require neifher
the confirmation nor the approbation of the representative assemblies
in which they have their source. The jurisdiction of the delegations
is limited to foreign affairs and war and the finance involved therein,
and their final vote on these points is binding upon the whole empire.
A commercial union also subsists between the two countries, which has,
however, to be renewed every ten years and is dependent on identical
acts of the two legislatures (o).
(o) The Statesman's Year Book, 1903. see The Aostro - Hungarian Empire.
ICartin. Tit. Anstria-Hongary. And Baron de Worms (1877).
NATIONS AND SOVEREIGN STATES. 69
2. An incorporate union is such as that which subsists Chap. n.
between Scotland and England, and between Great §42.
Britain and Ireland ; forming out of the three kingdoms Sio2^"*^
an empire, united under one crown and one legislature,
although each may have distinct laws and a separate
administration. The sovereignty, internal and external,
of each original kingdom is completely merged in the
United Kingdom, thus formed by their successive unions. « -«
3. The union established by the Congress of Vienna, Union
between the empire of Russia and the kingdom of RoISTand
Poland, is of a more anomalous character. By the final ^**^*^^-
act of the congress, the duchy of Warsaw, with the
exception of the provinces and districts otherwise disposed
of, was reunited to the Russian Empire; and it was
stipulated that it should be irrevocably connected with
that empire by its constitution, to be possessed by his
Majesty the Emperor of all the Russias, his heirs and
successors in perpetuity, with the title of King of
Poland ; his Majesty reserving the right to give to this
State, enjoying a distinct administration, such interior
extension as he should judge proper ; and that the
Poles, subject respectively to Russia, Austria, and
Prussia, should obtain a representation and national
institutions, regulated according to that mode of political
existence which each government, to whom they belong,
should think useful and proper to grant ( jt?).
In pursuance of these stipulations, the Emperor charter
Alexander granted a constitutional charter to the kingdom thrEmperor
of Poland, on 15th (27th) November, 1815. By the ^^^fdom
provisions of this charter, the kingdom of Poland was ig^f "^^ ^
declared to be united to the Russian Empire by its
constitution ; the sovereign authority in Poland was to
be exercised only in conformity to it ; the coronation of
the King of Poland was to take place in the Polish
capital, where he was bound to take an oath to observe
the charter. The Polish nation was to have a perpetual
representation, composed of the king and the two cham-
{p) Hertalet, Map of Europe, vol. i. p. 216.
70 HATI0H8 A9D fiOTEKEIGH 8TATE8.
Fart I. bers forming the Diet ; in which body the legislative
power was to be vested, including that of taxation. A
distinct Polish national army and coinage, and distinct
military orders were to be preserved in the kingdom.
^^^^^ III consequence of the revolution and reconquest of
NichoiM, Poland by Russia, a manifesto was issued by the Emperor
^^^ Nicholas, on the Uth (26th) of February, 1832, by
which the kingdom of Poland was declared to be per-
petually united (reuni) to the Russian Empire, and to
form an integral part thereof; the coronation of the
emperors of Russia and kings of Poland hereafter to take
place at Moscow, by one and the same act ; the Diet to
be abolished, and the army of the empire and of the
kingdom to form one army, without distinction of
Russian or Polish troops ; Poland to be separately ad-
ministered by a Governor-General and Council of Ad-
ministration, appointed by the emperor, and to preserve
its civil and criminal code, subject to alteration and
revision by laws and ordinances prepared in the Polish
Council of State, and subsequently examined and con-
firmed in the Section of the Council of State of the
Russian Empire, called The Section for the affairs of
Poland; consultative Provincial States to be established
in the different Polish provinces, to deliberate upon such
affairs concerning the general interest of the kingdom of
Poland as might be submitted to their consideration;
the Assemblies of the Nobles, Communal Assemblies, and
Council of the Waiwodes to be continued as formerly.
Great Britain and France protested against this measure
of the Russian government, as an infraction of the spirit
§ 44^ if not of the letter of the treaties of Vienna ( j).
^^^^ 4. Sovereign States permanently united together by a
federal compact, either form a system of confederated
Slates (properly so called), or a supreme federcd government j
which has been sometimes called a compositive State (r).
{q) Wheaton's History of the Law of pacts are rery appzopriatelj QxpnMBod
Nationa, p. 434. Hertalet, Map of Eu- in the German lang^nage, by the ie«
rope, Tol. iu. p. 1685, note. spectlTe tenna of Staatenbmd and Bm^
(r) These two species of federal com- deutaat.
NATIONS AND SOVEREIGN STATES. 71
In the first case, the several States are connected Chap-H.
together by a compact, which does not essentially S46.
differ from an ordinary treaty of equal alliance. Con- 8tatefl,^h
sequently the internal sovereignty of each member of I^oto*^
the union remains unimpaired ; the resolutions of the «>ver«gnty-
federal body being enforced, not as laws directly binding
on the private individual subjects, but through the
agency of each separate government, adopting them, and
giving them the force of law within its own jurisdiction.
Hence it follows, that each confederated individual
State, and the federal body for the affairs of common
interest, may become, each in its appropriate sphere,
the object of distinct diplomatic relations with other
nations. « ^
In the second case, the federal government created by spireme
the act of union is sovereign and supreme, within the gorenimentor
sphere of the powers granted to it by that act ; and the sSS?"*^^
government acts not only upon the States which are
members of the confederation, but directly on the
citizens. The sovereignty, both internal and external,
of each several State is impaired by the powers thus
granted to the federal government, and the limitations
thus imposed on the several State governments. The
compositive State, which results from this leetgue, is
alone a sovereign power. o ^y
Germany, as it was constituted under the name of the 9®"?2?*^°
Germanic Confederation, presented the example of a tion.
system of sovereign States, united by an equal and
permanent Confederation. All the sovereign princes
and free cities of Germany, including the Emperor of
Austria and the King of Prussia, in respect to their
possessions which formerly belonged to the Germanic
Empire, the King of Denmark for the duchy of Holstein,
and the King of the Netherlands for the grand duchy of
Luxembourg, were united in a perpetual league, under
the name of the Germanic Confederation, established by
the Federal Act of 1815, and completed and developed
by several subsequent decrees.
The object of this union was declared to be the preser-
72 NATIONS AND SOVEREIGN STATES.
Parti, vation of the external and internal security of Germany,
the independence and inviolability of the confederated
States. All the members of the Confederation, as such,
were entitled to equal rights. New States might be
admitted into the union by the unanimous consent of the
members (s).
The affairs of the union were confided to a Federative
Diet, which sat at Frankfort-on-the-Maine, in which the
respective States were represented by their ministers
with a voting power proportionate to the importance of
each State.
Austria presided in the Diet, but each State had a
right to propose any measure for deliberation.
The Diet was formed into what was called a General
Assembly {Plenum)^ for the decision of certain specific
questions.
Every question to be submitted to the general
assembly of the Diet was first discussed in the ordi-
nary assembly, where it was decided by a majority of
votes. But in the general assembly {in pleno^) two-thirds
of all the votes were necessary to a decision. The
ordinary assembly determined what subjects were to be
submitted to the general assembly. But all questions
concerning the adoption or alteration of the fundamental
laws of the Confederation, or organic regulations estab-
lishing permanent institutions, as means of carrying into
effect the declared objects of the union, or the admission
of new members or concerning the affairs of religion,
were submitted to the general assembly; and, in all
these cases, absolute unanimity was necessary to a final
decision (0.
The Diet had power to establish fundamental laws
for the Confederation, and organic regulations as to its
foreign, military, and internal relations (u ).
All the States guaranteed to each other the possession of
(«) Aote final da Congr^^ de Vienne, 1, 6.
art. 53, 64, 65. Deutaohe Bundes acte, (/) Acte final, art. 58. Wiener
vom 8 Jum» 1815, art 1. Wiener SohlasB-Acte, art. 12—15.
SohluM^Aote, Tom 15 Hai, 1820, art. («) Aote final, art. 62.
NATIONS AND SOVEREIGN STATES. 78
their respective dominions within the union, and engaged Chap. II.
to defend, not only entire Germany, but each individual
State, in case of attack. When war was declared by the
Confederation, no State could negotiate separately with
the enemy, nor conclude peace or an armistice, without
the consent of the rest. Each member of the Confedera-
tion might contract alliances with other foreign States,
provided they were not directed against the security of
the Confederation, or the individual States of which it
was composed. No State could make war upon another
member of the union, but all the States were bound to
submit their differences to the decision of the Diet. This
body was to endeavour to settle them by mediation ; and
if unsuccessful, and a juridical sentence became necessary,
resort was to be had to an austregal proceeding,
(Aiisiraffal Instancy) to which the litigating parties were
bound to submit without appeal (u;).
In case of rebellion or insurrection, or imminent
danger thereof in one or more States of the Confedera-
tion, the Diet might interfere to suppress such insurrec-
tion or rebellion, as threatening the general safety of the
Confederation.
The decrees of the Diet were executed by the local
governments of the particular States of the Confedera-
tion, on application to them by the Diet for that purpose,
excepting in those cases where the Diet interfered to
suppress an insurrection or rebellion in one or more of
the States ; and even in these instances, the execution
was to be enforced, so far as practicable, in concert with
the local government against whose subjects it was
directed (y).
The Diet had also power to regulate the commercial
intercourse between the different States, and the free
navigation of the rivers belonging to the Confederation,
as secured by the Treaty of Vienna (£?). « ^
Notwithstanding the great mass of powers thus given of tfie
to the Diet, and the numerous restraints imposed upon sovereignty of
the states of
(x) Acte final, art. 63. (s) Bandes Aote, art. 19. Acte final,
(y) Wiener Sehlvsa-Aote, art. 32. art. 108— 117<
74 NATIONS AND SOVEREIGN STATES.
Part I. the exercise of internal sovereignty, by the individual
the Germanic States of which the union was composed, it does not
COTfedera- appear that the Germanic Confederation could be dis-
tinguished in this respect from an ordinary equal alli-
ance between independent sovereigns, except by its
permanence, and by the greater number and complica-
tion of the objects it was intended to embrace. In
respect to their internal sovereignty, the several States
of the Confederation did not form, by their union, one
compositive State, nor were they subject to a common
sovereign. Though what were called the fundamental
laws of the Confederation were framed by the Diet,
which had also power to make organic regulations re-
specting its federal relations ; these regulations were
not, in general, enforced as laws directly binding on the
private individual subjects, but only through the agency
of each separate government adopting them, and giving
them the force of laws within its own local jurisdiction.
All the members of the Confederation, as such, were
equal in rights; and the occasional obedience of the
Diet, and through it of the several States, to the com-
mands of the two great preponderating members of the
Confederation, Austria and Prussia, or even the habitual
influence exercised by them over its councils, and over
the councils of its several States, did not, in legal con-
templation, impair their internal sovereignty, or change
n M^ the legal character of their union.
Of the In respect to the exercise by the confederated States
soTereigntyof of their cxteiTial sovereignty, we have already seen that
theeeStateB. ^j^^ power of Contracting alliances with other States,
foreign to the Confederation, was expressly reserved to
all the confederated States, with the proviso that such
alliances were not directed against the security of the
Confederation itself, or that of the several States of
which it was composed. Each State also retained its
rights of legation, both with respect to foreign powers
and to its co-States (a). Although the diplomatic rela-
(a) Eliiber, Offentliohes Bedht dee Deutsohen BundeB, {{ 461, 463.
NATIONS AND SOVEREIGN STATES. 7S
tions of the Confederation with the five great European Chap. n.
Powers, parties to the Final Act of the Congress of
Vienna, 1815, were habitually maintained by permanent
legations from those powers to the Diet at Frankfort,
yet the Confederation itself was not habitually repre-
sented by public ministers at the courts of these, or any
other foreign powers ; whilst each confederated State
habitually sent to, and received such minister from other
sovereign States, both within and without the Confede-
ration. It was- only on extraordinary occasions, such,
for example, as the case of a negotiation for the conclu-
sion of a peace or armistice, that the Diet appointed
plenipotentiaries to treat with foreign powers (b). « ^
Such of the confederated States as had possessions states with
without the limits of the Confederation, retained the be^ndthe
authority of declaring and carrying on war against any uon!*^"*'
power foreign to the Confederation, independently of
the Confederation itself, which remained neutral in
such a war, unless the Diet should recognise the exist-
ence of a danger threatening the federal territory. The
sovereign members of the Confederation, having posses-
sions without the limits thereof, were the Emperor of
Austria, the King of Prussia, the King of the Nether-
lands, and the King of Denmark. Whenever, therefore,
any one of these sovereigns undertook a war in his
character of a European power, the Confederation, whose
relations and obligations were unaffected by such war,
remained a stranger thereto ; in other words, it remained
neutral, even if the war was defensive on the part of the
confederated sovereign as to his possessions without the
Confederation, unless the Diet recognised the existence
of a danger threatening the federal territory (c).
In other cases of disputes, arising between any State
of the Confederation and foreign powers, and the former
asked the intervention of the Diet, the Confederation
might interfere as an ally, or as a mediator ; might exa-
(b) Kliiber, § US, { 152 a. Wiener (o) Wiener SchloBS-Aote, art. 46, 47.
ScUnsB-Acte. i 49. Kluber, OfPentUchee Recht des Deut-
echen Bundes, § 152 f.
76
NATIONS AND SOVEREIGN STATES.
Parti.
Tbe Germanio
Confedera-
tion a
system of
confederated
States.
§61a.
German
unity.
mine the respective complaints and pretensions of the
contending parties. If the result of the investigation
was, that the co-State was not in the right, the Diet
would make the most serious representations to induce it
to renounce its pretensions, would refuse its interference,
and, in case of necessity, would take all proper means
for the preservation of peace. If, on the contrary, the
preliminary examination proved that the confederated
State was in the right, the Diet would employ its good
offices to obtain for it complete satisfaction and secu-
rity (d).
It follows, that not only the internal but the external
sovereignty of the several States composing the Germanic
Confederation, remained unimpaired, except so far as it
might be aflPected by the express provisions of the funda-
mental laws authorizing the federal body to represent
their external sovereignty. In other respects, the several
confederated States remained independent of each other,
and of all States foreign to the Confederation. Their
union constituted what the German public jurists call a
Sfaatenbundy as contradistinguished from a Bundesstaat;
that is to say, a supreme Federal Government (^).
The growing power of the Germanic Confederation, and the desire
of establishing German imity, gave rise to the project of creating an
empire that should embrace the whole German race. In 1848, a
congress assembled at Frankfort for the purpose of discussing this
scheme, but nothing was then effected. Since that date the idea has
been frequently revived, but the rivalry of Austria and Prussia, and
the ambition and jealousy of the minor States long prevented its
being carried out.
The war of 1864 entered into by Austria and Prussia against Ben-
mark, tended materially to promote German unity ; and the subsequent
{d) Wiener Sohlnse-Acte, art. 35^49.
Eliiber, § 462.
{e) Kliiber, {§ 103a, 176, 248, 460,
461, 462. Heffter, das Eoropaiadie
Volkerrecht, § 21.
The Treaty of Paris, 1814, art. 6,
declares: '*Les 6tat8 de TAllemagfiie
scront ind^pendans et nnis par nn lien
fM6ratif."
The Final Act of the Congress of
Vienna, 1815, art. 54, declares i—'^Le
but de oette Conf 6deiation est le main-
tien de la s{Lret6 ext^rienre et int^rieme
de TAllemag^ne, de Tind^ndance et de
rinyiolabilite de ses ^ts oonfed^r^s."
For farther details respecting the
Gennanio Gonsfcitation, see Wheaton's
Histozy of tbe Law of Nations, pp. 465
et aeq.
NATIONS AND SOVEREIGN STATES. 77
war of 1866, between Austria and Prussia, resulted in the dissolution Chap. II.
of the Germanic Confederation, and the establishment of the North
Grerman Confederation. Austria was thereby excluded from partici- German Con-
pating in the affairs of Germany (/), and Prussia placed at the head federation.
of a national movement. This Confederation consists of the kingdoms
of Prussia and Saxony, the Grand Duchies of Mecklenburg-Schwerin,
Mecklenburg-Strelitz, Oldenburg, and Saxe- Weimar, the Duchies of
Anhalt, Saxe-Meiningen, Saxe-Coburg, and Saxe-Altenburg, some
smaller States, and the free cities of Hamburg, Bremen, and Lubeck {g).
These States agreed to enter into a perpetual confederation for the
defence of the Federal territory, and of the rights prevailing therein,
as well as for fostering the welfare of the German people. ^ m.
After the war of 1870-71 with France, the idea of unity received its The German
fullest development. The kingdoms of Bavaria and Wurtemburg, the war ^S
and the Grand Duchies of Baden and Hesse, were united to the North Franoe.
German Confederation, and the whole received the name of the German
Empire (A). Within this Confederate territory the empire exercises
the right of legislation according to the tenor of the Constitution, and
with the effect that the imperial laws take precedence of the laws of
the States (t). Legislation is carried on by a Council of the Con-
federation, and an Imperial Diet(^). The Council consists of the
representatives of the members of the Confederation, amongst whom
the votes are divided in such manner that Prussia has, with the former
votes of Hanover, Electoral Hesse, Holstein, Nassau and Frankfort,
seventeen votes, Bavaria six, Saxony four, Wurtemburg four, Baden
three, Hesse three, Mecklenburg-Schwerin two, Brunswick two, and
seventeen smaller States, one each {I). The totality of such votes can
only be given in one sense, and there are fifty-eight votes in all.
The Presidency of the Confederation belongs to the King of Prussia,
who bears the name of German Emperor, and who represents the
empire internationally, declares war, makes peace, enters into treaties,
and receives ambassadors. The consent of the Council is necessary
for declaring war, unless the territory of the empire is actually
attacked (m). The Imperial Diet is elected by universal and direct
election (n), and its proceedings are public (o). The army and navy
of the whole empire are single forces under the conmiand of the
Emperor {p).
Thus, Ghermany has now become a compositive State, and the inde-
pendence of its various members is merged in the sovereignty of the
(/) Hertelet, Hap of Europe by (») Art. ii. of the Constitution of the
Tr^ty, vol. iii. p. 1699. German Empire.
iff) State Papers, vol. Ivii. p. 296. J^) f^' T*
Hertdet, Map of Europe by Treaty, y,,'^\
vol. m. p. 1807. ; V A _x
(») Art. XX.
(A) Hertslet, Map of Europe, vol. iii. (o) Art. xxii.
p. 1930. (p) Arts. liii. and Ixiii.
7iB NATIONS AND SOVEREION STATES.
Part I. empire ; though the regnant heads of the several States retain their
TT: personal position as Sovereigns.
The Zoll- ^^ ^' ^^® drawbacks to the Oermanic Confederation of 1815 was
yerein. the preservation by each State of its own custom-houses and imposts.
This was found to interfere so materiallj with the development of
trade, that the Diet endeavoured to frame some legislative scheme for
regulating the whole customs duties of the union, and for abolishing
internal custom-houses within its territories. The Diet failed in its
attempt, but the idea was gradually carried out by independent action
on the part of several of the States. In 1827, Bavaria and Wurtem-
burg signed a treaty suppressing the custom-houses between them-
selves, adopting a uniform tarifE of duties, and dividing the receipts
proportionally (9). This was the first treaty of the kind, and was
soon followed by others with the same object, e.y., by Prussia with
Anhalt and Hesse-Darmstadt, and by Saxony with Hesse-Cassel|
Brunswick, Nassau, and some smaller States.
The customs association to which Prussia belonged was called the
ZoUveretn, and by the year 1855, the exertions of that State had ab-
sorbed into this league the whole of Germany, except Austria, the
two Mecklenburg Duchies, Holstein, and the Hanse Towns (r). In
1867, the ZoUverein was re-constituted by a treaty which came into
force on the 1st of January, 1868, and was to continue till the Slst of
December, 1877. In 1868, the Mecklenburg Duchies and Lubeck
joined the league, which, as Austria had then been excluded from the
affairs of Germany, embraced all the German Empire except the free
towns of Hamburg and Bremen. The constitution of the German
Empire of 1871 expressly kept in force the treaty of July, 1867, and
confirmed the right of Hamburg and Bremen to remain as free ports
outside the customs frontier, until they should apply to be admitted
therein («). This application was made in 1888, and HcLmburg and
Bremen entered into the ZoUverein in October of that year (t).
§62.
XJnited States The Constitution of the United States of America is of
a very different nature from that of the Germanic Con-
federation. It is not merely a league of sovereign States
for their common defence against external and internal
violence, but a supreme federal government, or compo-
site State, acting not only upon the sovereign members
of the Union, but directly upon all its citizens in their
individual and corporate capacities. It was established,
as the constitutional act expressly declares, by " the
{q) Martena, KouveauReoueil,vol.vii. let, Map of Europe, vol. iii. pp. 1939,
p. 167. State Papers, vol. ziv. p. 803. 1941. Statesman's Manual, 1877, tit.
(r) Calvo, Tol. i. § 63, p. 166. Gennany.
{») Arts. zl. and zzziy. See Herts- {t) Annual Register, 1888.
NATIONS AND SOVEBEIQN STATES. 79
people of the United States, in order to form a more Chap. 11.
perfect union, establish justice, ensure domestic tran-
quillity, provide for the common defence, promote the
general welfare, and secure the blessings of liberty- to
them and their posterity." This constitution, and the
laws made in pursuance thereof, and treaties made under
the authority of the United States, are declared to be the
supreme law of the land; and that the judges in every
State shall be bound thereby, anything in the consti-
tution or laws of any State to the contrary notwith-
standing. . §63.
The legislative power of the Union is vested in a Legislative
Congress, consisting of a Senate, the members of which ^nTon.*^
are chosen by the local legislatures of the several States,
and a House of Representatives, elected by the people
in each State. This Congress has power to levy taxes
and duties, to pay the debts, and provide for the com-
mon defence and general welfare of the Union; to
borrow money on the credit of the United States; to
regulate commerce with foreign nations, among the
several States, and with the Indian tribes ; to establish a
uniform rule of naturalization, and uniform laws on the
subject of bankruptcy throughout the Union; to coin
money, and fix the standard of weights and measures ;
to establish post-offices and post-roads; to secure to
authors and inventors the exclusive right to their
writings and discoveries ; to punish piracies and felonies
on the high seas, and offences against the law of nations ;
to declare war, grant letters of marque and reprisal, and
regulate captures by sea and land ; to raise and support
armies ; to provide and maintain a navy ; to make rules
for the government of the land and naval forces ; to exer-
cise exclusive civil and criminal legislation over the
district where the seat of the federal government is
established, and over all forts, magazines, arsenals, and
dockyards belonging to the Union, and to make all laws
necessary and proper to carry into execution all these
and the other powers vested in the federal government
by the constitution.
ExeeatiTe
power.
80 KATIOK8 AND SOTEREIGN STATES.
Part L To give effect to this mass of soyereign authorities,
§64. the executive power is vested in a President of the
United States, chosen by electors appointed in each
State in such manner as the legislature thereof may-
direct. The judicial power extends to all cases in law
and equity arising under the constitution, laws, and
treaties of the Union, and is vested in a Supreme Court,
and such inferior tribunals as Congress may establish.
The federal judiciary exercises under this grant of power
the authority to examine the laws passed by Congress
and the several State legislatures, and, in cases proper
for judicial determination, to decide on the constitu-
tional validity of such laws. The judicial power also
extends to all cases affecting ambassadors, other public
ministers, and consuls; to all cases of admiralty and
maritime jurisdiction; to controversies to which the
United States shall be a party ; to controversies between
two or more States ; between a State and citizens of
another State ; between citizens of different States ; be-
tween citizens of the same State claiming lands under
grants of different States ; and between a State, or the
citizens thereof, and foreign States, citizens, or subjects.
§64a.
Legislatioii in Mr. Dana considers the language of this clause likely to mislead
States'" foreign readers. He denies the existence of any tribunal which has
special and direct power to decide questions of constitutional law. The
Supreme Court is the court of final resort, from whose decision there
is no appeal ; but, like all other courts, it only decides the questions
of law that litigants bring before it. The American Constitution is a
code of positive law ; and is, moreover, the law having the highest
authority in the Union. Acts of Congress do not correspond to
English Acts of Parliament. The latter are supreme ; and the only
business of an English Court, when an Act comes before it, is to fix
upon it the interpretation which the legislature is supposed to have
intended. In America, a litigant may appeal to the Supreme Court
against an Act of Congress, and the Court may declare whether the
Act is constitutional or not. If the Court pronounces an Act to be
unconstitutional, it remains on the statute book, but is inoperative,
unless the Court at a subsequent time reverses its own decision (m).
Story, in his Commentary on the Constitution, says, " In measures
(tt) Wheaton, by Dana, note 31, p. 79.
NATIONS AND SOVEREIGN STATES. 81
exclusively of a political, legislative, or executive character, it is plain Chap. 11.
that, as the supreme authority as to these questions belongs to the " " ~
leg^slatire and executive departments, they cannot be re-examined
elsewhere. But where the question is of a different nature, and
capable of judicial inquiry and decision, there it admits of a very
different consideration. It is in such cases that there is a £nal and
common arbiter provided by the Constitution itself, to whose decisions
all others are subordinate; and that arbiter is the supreme judicial
authority of the Courts of the Union. No mode is provided by which
any superior tribunal can re-examine what the Supreme Court has
itself decided" («).
In 1866, an application was made to the Supreme Court to restrain
the President from carrying into effect an Act of Congress alleged to
be unconstitutional ; but the Court decided that such a proceeding was
not within their jurisdiction. In 1895, the Supreme Court decided that
the income tax imposed by the Tariff Act of the previous year was un-
constitutional, and the amounts already paid under it were refunded.
This decision involved a loss to the revenue estimated at 30,000,000/.
per annum (y).
§66.
The treaty-making power is vested exclusively in Treaty-
the President and Senate; all treaties negotiated with ^wer.^
foreign States being subject to their ratification. No
State of the Union can enter into any treaty, alliance,
or confederation ; grant letters of marque and reprisal ;
coin money ; emit bills of credit ; make any thing but
gold and silver coin a tender in the payment of debts ;
pass any bill of attainder, ex post facto law, or law
impairing the obligation of contracts ; grant any title of
nobility ; lay any duties on imports or exports, except
such as are necessary to execute its local inspection laws,
the produce of which must be paid into the national
treasury ; and such laws are subject to the revision and
control of Congress. Nor can any State, without the
consent of Congress, lay any tonnage duty ; keep troops
or ships of war in time of peace ; enter into any agree-
ment or compact with another State or with a foreign
power ; or engage in war unless actually invaded, or in
(x) Story on the Constitution of the and Truit Co,, 158 U. S. Beports,
United Statee, vol. i. p. 266 (4th ed.). ^^l. A full account of the American
judicial system will be found in Bryoe's
(y) State of Missis*ij9pi v. Johmony 4 American Commonwealth, chaps. 22
Wallace, 475 ; Fbttoek y. Farmer' i Loan and 42.
W. G
82
KATIONS AND SOVEREIGN STATES.
Parti.
§66.
The American
union is a
supreme
feaeial
gOTemment.
§67.
Switts Con-
federation.
such imminent danger as does not admit of delay. The
Union guarantees to every State a republican form of
govemmenty and engages to protect each of them against
invasion, and, on application of the legislature, or of the
executive, when the legislature cannot be convened,
against domestic violence.
It is not within the province of this work to determine
how far the internal sovereignty of the respective States
composing the Union is impaired or modified by these
constitutional provisions. But since all those powers,
by which the international relations of these States are
maintained with foreign States, in peace and in war, are
expressly conferred by the constitution on the federal
government, whilst the exercise of these powers by the
several States is expressly prohibited, it is evident that
the external sovereignty of the nation is exclusively
vested in the Union. The independence of the respec-
tive States, in this respect, is merged in the sovereignty
of the federal government, which thus becomes what the
German public jurists call a Bundesstaat
The Swiss Confederation, as remodelled by the federal
pact of 1815, consists of a union between the then
twenty-two Cantons of Switzerland; the object of which
is declared to be the preservation of their freedom,
independence, and security against foreign attack, and
of domestic order and tranquillity. The several Cantons
guarantee to each other their respective constitutions
and territorial possessions. The Confederation has a
common army and treasury, supported by levies of men
and contributions of money, in certain fixed proportions,
among the different Cantons. In addition to these
contributions, the military expenses of the Confederation
are defrayed by duties on the importation of foreign
merchandise, collected by the frontier Cantons, according
to the tariff established by the Diet, and paid into the
common treasury. The Diet consists of one deputy
from every Canton, each having one vote, and assembles
every year, alternately, at Berne, Zurich, and Lucerne,
which are called the directing Cantons {vorort). The
NATIONS AND SOVEREIGN STATES. ^3
Diet has the exclusive power of declaring war, and Chap. II.
concluding treaties of peace, alliance, and commerce,
with foreign States. A majority of three-fourths of the
votes is essential to the validity of these acts ; for all
other purposes, a majority is sufficient. Each Canton
may conclude separate military capitulations and treaties,
relating to economical matters and objects of police,
with foreign powers ; provided they do not contravene
the federal pact, nor the constitutional rights of the
other Cantons. The Diet provides for the internal and
external security of the Confederation; directs the
operations, and appoints the commanders of the federal
army, and names the ministers deputed to other foreign
States. The direction of afiPairs, when the Diet is not
in session, is confided to the directing Canton (vorort)y
which is empowered to act during the recess. The
character of directing Canton alternates every two
years, between Zurich, Berne, and Lucerne. The Diet
may delegate to the directing Canton, or vororty special
full powers, under extraordinary circumstances, to be
exercised when the Diet is not in session ; adding, when
it thinks fit, federal representatives, to assist the vororf
in the direction of the affairs of the Confederation. In
case of internal or external danger, each Canton has a
right to require the aid of the other Cantons ; in which
case, notice is to be immediately given to the vorortj in
order that the Diet may be assembled, to provide the
necessary measures of security {z).
The compact, by which the sovereign Cantons of Conrtitution
Switzerland are thus imited, forms a federal body, cLnf^ero"*
which, in some respects, resembles the Germanic Con- ^3i^S^
federation, whilst in others it more nearly approximates ^« Germanic
to the American Constitution. Each Canton retains its tion and of
. . , . , . • J P n J i_? the United
original sovereignty unimpaired, for all domestic pur- states.
poses, even more completely than the German States;
but the power of making war, and of concluding treaties
of peace, alliance, and commerce, with foreign States,
(z) MartenB, Noayean Becaefl, torn. viii. p. 173.
g2
84
NATIONS AND SOVEBEIGN STATES.
Fart I.
§69.
Abortive
attempts,
since 1830, to
change the
federal paot
of 1815.
§59a.
Changes in
the Swiss
Constitution
in 1848 and
1874.
being exclusively vested in the federal diet, all the foreign
relations of the country necessarily fall under the cogniz-
ance of that body. In this respect, the present Swiss Con-
federation differs materially from that which existed
before the French Revolution of 1789, which was, in
effect, a mere treaty of alliance for the common defence
against external hostility, but which did not prevent the
several Cantons from making separate treaties with each
other, and with foreign powers (a).
Since the French Revolution of 1830, various changes
have taken place in the local constitutions of the different
Cantons, tending to give them a more democratic
character; and several attempts have been made to
revise the federal pact, so as to give it more of the
character of a supreme federal government, or Bundesstaat^
in respect to the internal relations of the Confederation.
Those attempts have all proved abortive; and Switzer-
land still remains subject to the federal pact of 1815,
except that three of the original Cantons, — Basle, Unter-
walden, and Appenzel, — have been dismembered, so as
to increase the whole number of Cantons to twenty-five.
But as each division of these three original Cantons is
entitled to half a vote only in the Diet, the total number
of votes still remains twenty-two, as under the original
Federal pact (ft).
In 1848, the Swiss Constitution was remodelled, but the essential
principles of the pact of 1815 were maintained. The Cantons re-
tained their sovereignty, except where it was limited by the con-
stitution; they exercised all rights that were not conferred on the
Federal Government. All political alliances between the Cantons
were forbidden; but they were entitled to enter into conventions
among themselves for regulating matters appertaining to legislation,
the Administration of Justice, &c., subject to the approval of the
Federal authority. The Federal Council represented the Cantons in
their relation to foreign States. The rights of declaring war, of
making peace, and of entering into treaties were vested, as before,
exclusively in the Federal (Jovernment. The supreme authority of
the Union was vested in a Federal assembly, consisting of two houses —
(a) Merlin, B^pertoire, tit. Min%8tr$
Public,
{b) Wheaton, Hist. Law of Nations,
pp. 494—496.
NATIONS AND SOVEREIGN STATES. 85
a national council elected directly by the people, and a oonncil of States Chap. 11.
composed of two deputies from each Canton. The Federal Council
was composed of seven persons chosen from all the citizens eligible f oi
the National Council, but no two members of it were to come from the
same Canton. They retained their office for three years, and from
among them a President was annually to be chosen, but they were
precluded from sitting in either House of the Federal Legislature.
This body constituted the executiye authority of the Confederation (c).
In 1874 the Swiss Constitution was again revised, and some serious
changes were made. The power of the Federal Government was
greatly strengthened, and the maintenance and control of the army was
conferred upon it (d). Switzerland has now ceased to be a system of
confederated States {Staatenbund\ and has become a compontive State
{Bundessiaat) {e).
(<?) See Cairo, Uy. ii. § 56. (#) Statesman's Tear-Book, Art. Swit-
{d) Axmnal Beg. 1874, p. 288. Galvo, zerland.
loc. oit.
86
PART SECOND,
ABSOLUTE INTERNATIONAL RIGHTS OF STATES.
CHAPTER I.
RIGHT OF SELF-PRESERVATION AND INDEPENDENCE.
Righto of The rights which sovereign States enjoy with regard
^te^^^ith to one another may be divided into rights of two sorts :
^^^^^ ^^^ primitive^ or absolute rights; conditional^ or hypothetical
rights (a).
Every State has certain sovereign rights, to which it
is entitled as an independent moral being; in other
words, because it is a State. These rights are called the
absolute international rights of States, because they are
not limited to particular circumstances.
The rights to which sovereign States are entitled,
under particular circumstances, in their relations with
others, may be termed their conditional international
rights; and they cease with the circumstances which
gave rise to them. They are consequences of a quality
of a sovereign State, but consequences which are not per-
manent, and which are only produced under particular
circumstances. Thus war, for example, confers on belli-
gerent or neutral States certain rights, which cease with
„ g- the existence of the war.
Right of 'aeH- Of the absolute international rights of States, one of
preserva on. ^j^^ most essential and important, and that which lies at
(a) Kliiber, Droit des Gens modeme de TEurope, i 36.
RIGHT OF SELF-PBESEKVATION AND INDEPENDENCE. 87
the foundation of all the rest, is the right of self-preser- Chap. I.
vation. It is not only a right with respect to other
States, but a duty with respect to its own members, and
the most solemn and important which the State owes to
them. This right necessarily involves all other inci-
dental rights, which are essential as means to give effect
to the principal end. « ^
Among these is the right of self-defence. This again Ryht of wu-
involves the right to require the military service of all modified by
its people, to levy troops and maintain a naval force, to ri^ht? of
build fortifications, and to impose and collect taxes for if^ t^lZ\
all these purposes. It is evident that the exercise of
these absolute sovereign rights can be controlled only by
the equal correspondent rights of other States, or by
special compacts freely entered into with others, to
modify the exercise of these rights.
In the exercise of these means of defence, no inde-
pendent State can be restricted by any foreign power.
But another nation may, by virtue of its own right of
self-preservation, if it sees in these preparations an occa-
sion for alarm, or if it anticipates any possible danger
of aggression, demand explanations ; and good faith, as
well as sound policy, requires that these inquiries, when
they are reasonable and made with good intentions,
should be satisfactorily answered (b).
Thus, the absolute right to erect fortifications within
the territory of the State has sometimes been modified
by treaties, where the erection of such fortifications has
been deemed to threaten the safety of other communities,
or where such a concession has been extorted in the pride
of victory, by a power strong enough to dictate the con-
ditions of peace to its enemy. Thus, by the Treaty of
Utrecht, between Great Britain and France, confirmed
by that of Aix-la-Chapelle, in 1748, and of Paris, in 1763,
the French Government engaged to demolish the fortifi-
cations of Dunkirk. This stipulation, so humiliating to
France, was effaced in the treaty of peace concluded
{b) Heffter, § 40.
88
RIGHT OF SELF-PRESERVATION
Part II. between the two countries, in 1783, after the war of the
American Revolution. By the treaty signed at Paris, in
1815, between the Allied Powers and France, it was
stipulated that the fortifications of Huningen, within the
French territory, which had been constantly a subject of
uneasiness to the city of Basle, in the Helvetic Confede-
ration, should be demolished, and should never be re-
newed or replaced by other fortifications, at a distance of
not less than three leagues from the city of Basle (c).
After the separation of Belgium and Holland in 1830, the Powers
agreed that as the neutrality of Belgium had been guaranteed, she
ought to change the system of military defence which had been
adopted for the Kingdom of the Netherlands, and the Belgian
fortresses of Menin, Ath, Mons, Fhilippeville and Marienberg were
accordingly selected for demolition (c?). In 1856 Eussia agreed that
the Aland Islands in the Baltic should not be fortified, and that
no military or naval establishment should be maintained ihere (0).
Eussia and Turkey also agreed at the Peace of Paris, 1856, not to
maintain any military-maritime arsenals on the coast of the Black
Sea, but this clause of the treaty was abrogated in 1871 (/).
Belgian
foresees.
The Aland
Islands.
§63.
Bight of in-
tervention or
interference.
The right of every independent State to increase its
national dominions, wealth, population, and power, by
all innocent and lawful means ; such as the pacific
acquisition of new territory, the discovery and settle-
ment of new countries, the extension of its navigation
and fisheries, the improvement of its revenues, arts,
agriculture, and commerce, the increase of its military
and naval force; is an incontrovertible right of sove-
reignty, generally recognised by the usage and opinion
of nations. It can be limited in its exercise only by the
equal correspondent rights of other States, growing out
of the same primeval right of self-preservation. Where
the exercise of this right, by any of these means, directly
affects the security of others, — as where it immediately
interferes with the actual exercise of the sovereign rights
of other States, — there is no difficulty in assigning its
(e) Martens, Beoneil des Traits, torn,
ii. p. 469.
(d) Protocol of 17th April, 1831. See
Hertslet, Map of Europe, toI. ii. pp. 866
and 882.
{e) n>id. vol. ii. p. 1272.
(/) Art. xiii. See Hertslet, toI. is.
p. 1256 ; Yol. iii. p. 1920.
AND INDEPENDENCE. 89
precise limits. But where it merely involves a supposed Chap. I.
contingent danger to the safety of others, arising out of
the undue aggrandisement of a particular State, or the
disturbance of what has been called the balance of power,
questions of the greatest difficulty arise, which belong
rather to the science of politics than of public law.
The occasions on which the right of forcible inter-
ference has been exercised in order to prevent the undue
aggrandisement of a particular State, by sucli innocent
and lawful means as those above mentioned, are com-
paratively few, and cannot be justified in any case,
except in that where an excessive augmentation of its
military and naval forces may give just ground of alarm
to its neighbours. The internal development of the
resources of a country, or its acquisition of colonies and
dependencies at a distance from Europe, has never been
considered a just motive for such interference. It seems
to be felt with respect to the latter, that distant colonies
and dependencies generally weaken, and always render
more vulnerable the metropolitan State. And with
respect to the former, although the wealth and popula-
tion of a country is the most effectual means by which
its power can be augmented, such an augmentation is
too gradual to excite alarm. To which it must be added
that the injustice and mischief of admitting that nations
have a right to use force for the express purpose of
retarding the civilization and diminishing the prosperity
of their inoffensive neighbours, are too revolting to
allow such a right to be inserted in the international code.
Interferences, therefore, to preserve the balance ol
power, have been generally confined to prevent a
sovereign, already powerful, from incorporating con-
quered provinces into his territory, or increasing his
dominions by marriage or inheritance, or exercising a
dictatorial influence over the councils and conduct of
other independent States (ff).
g AQo
Sir W. Harcourt says of intervention : " It is a high and summaiy i^^d aspeot
of inter-
(p) Senior, Edinb. Bev. No. 156, art. I, p. 329. ventioii.
90 RIGHT OF SELF-PEESEEVATION
Part II. procedure which may sometimes snatch a remedy beyond the reach of
law. Nevertheless it must be admitted that in the case of interven-
tion, as in that of revolution, its essence is illegality, and its justifica-
tion is its success. Of all things at once the most unjustifiable and
the most impolitic is an unsuccessful intervention " (A). Chateau-
briand^ in a celebrated speech in the French Chamber, asserted that
'^no government has a right to interfere in the affairs of another
government, except in the case where the security and immediate
interests of the first government are compromised " (»). It seems
impossible to lay down any distinct rules with regard to intervention.
As stated in the text, the subject belongs to politics rather than to
public law. It cannot be distinctly stated what combination of cir-
cumstances menaces the security of any State, or tends to disturb the
balance of power, and what does not. Statesmen must be g^ded by
the knowledge they possess of the intentions of other countries, and
by what they deem necessary for the security of their own, and in the
present condition of Europe there seems little probability of any rules
regarding intervention being attended to, even if they could be
satisfactorily drawn up {k).
Each member of the great society of nations being
entirely independent of every other, and living in what
has been called a state of nature in respect to others,
acknowledging no common sovereign, arbiter, or judge ;
the law which prevails between nations being deficient
in those external sanctions by which the laws of civil
society are enforced among individuals; and the per-
formance of the duties of international law being com-
pelled by moral sanctions only, by fear on the part of
nations of provoking general hostility, and incurring its
probable evils in case they should violate this law ; an
apprehension of the possible consequences of the undue
aggrandisement of any one nation upon the indepen-
dence and the safety of others, has induced the States of
modern Europe to observe, with systematic vigilance,
every material disturbance in the equilibrium of their
respective forces. This preventive policy has been the
pretext of the most bloody and destructive wars waged
in modem times, some of which have certainly origi-
(A) Letters of Historious, p. 41. Nations, p. 98 ; Amari, Konyel expcm^
(t) See Halleck, p. 86 ; Alison, Hist. dn prinoipe de non-intenrention ; Bevue
of Europe, ch. 12, § 41 ; Monitenr, de Droit Int. 1873, p. 352.
ISth Feb. 1823 ; Manning, Law of (A) See Calvo, vol. I bk. iii.
AND INDEPENDENCE. »1
Bated in well-founded apprehensions of peril to the dutp. I.
independence of weaker States, but the greater part
hare been founded upon insufficient reasons, disguising
the real motives by which princes and cabinets have
been influenced. Wherever the spirit of encroachmeut
has really threatened the general security, it has com-
monly broken out in such overt acts as not only plainly
indicated the ambitious purpose, but also furnished sub-
stantive grounds in themselves sufficient to justify a
resort to arms by other nations. Such were the grounds Wan of Uie
of the confederacies created, and the wars undertaken to *^""*
check the aggrandisement of Spain and the house of
Austria, under Charles V. and his successors ; — an object
finally accomplished by the treaty of Westphalia, which
so long constituted the written public law of Europe.
The long and violent struggle between the religious
parties engendered by the Reformation in Germany,
spread throughout Europe, and became closely con-
nected with political interests and ambition. The great
Catholic and Protestant powers mutually protected the
adherents of their own faith in the bosom of rival
States. The repeated interference of Austria and Spain
in favour of the Catholic faction in France, Germany,
and England, and of the Protestant powers to protect
their persecuted brethren in Germany, France, and the
Netherlands, gave a peculiar colouring to the political
transactions of the age. This was still more heightened
by the conduct of Catholic France under the ministry of
Cardinal Richelieu, in sustaining, by a singular refine-
ment of policy, the Protestant princes and people of
Germany against the house of Austria, while she was
persecuting with unrelenting severity her own subjects
of the reformed faith. The balance of power adjusted
by the peace of Westphalia was once more disturbed
• by the ambition of Louis XIV., which compelled the
Protestant States of Europe to unite with the house of
Austria against the encroachments of France herself,
and induced the allies to patronise the English Revolu-
tion of 1688, whilst the French monarch interfered to
92
RIGHT OF SELF-PRESEEVATION
Fart II. support the pretensions of the Stuarts. These great
transactions furnished numerous examples of inter-
ference by the European States in the affairs of each
other, where the interest and security of the interfering
powers were supposed to be seriously affected by the
domestic transactions of other nations, which can hardly
be referred to any fixed and definite principle of inter-
national law, or furnish a general rule fit to be observed
in other apparently analogous cases (/).
Warsof tiio The samc remarks will apply to the more recent, but
Revolution, not less important events growing out of the French
Revolution. They furnish a strong admonition against
attempting to reduce to a rule, and to incorporate into
the code of nations, a principle so indefinite and so
peculiarly liable to abuse, in its practical application.
The successive coalitions formed by the great European
monarchies against France subsequent to her first revo-
lution of 1789, were avowedly designed to check the
progress of her revolutionary principles and the exten-
sion of her military power. Such was the principle of
intervention in the internal affairs of France, avowed by
the Allied Courts, and by the publicists who sustained
their cause. France, on her side, relying on the inde-
pendence of nations, contended for non-intervention as
Alliance of a right. The efforts of these coalitions ultimately re-
EupopL?^** suited in the formation of an alliance, intended to be
powers. permanent, between the four great powers of Russia,
Austria, Prussia, and Great Britain, to which France
subsequently acceded, at the Congress of Aix-la-Chapelle,
in 1818, constituting a sort of superintending authority
in these powers over the international affairs of Europe,
the precise extent and objects of which were never very
accurately defined. As interpreted by those of the con-
tracting powers, who were also the original parties to
the compact called the Holy Alliance, this union was
intended to form a perpetual system of intervention
among the European States, adapted to prevent any
[1) Wheaton, Hiat. Law of Nations, Pt. I. §i 2, 3, pp. 80—88.
AND INDEPENDENCE. 93
such change in tlie internal forms of their respective Chap. I.
governments, as might endanger the existence of the
monarchical institutions which had been re-established
under the legitimate dynasties of their respective reign-
ing houses. This general right of interference was
sometimes defined so as to be applicable to every case
of popular revolution, where the change in the form of
government did not proceed from the voluntary con-
cession of the reigning sovereign, or was not confirmed
by his sanction, given under such circumstances as to
remove all doubt of his having freely consented. At
others, it was extended to every revolutionary move-
ment pronounced by these powers to endanger, in its
consequences, immediate or remote, the social order of
Europe, or the particular safety of neighbouring States.
The events which followed the Congress of Aix-la-
Chapelle prove the inefficacy of all the attempts that
have been made to establish a general and invariable
principle on the subject of intervention. It is, in fact,
impossible to lay down an absolute rule on this subject ;
and every rule that wants that quality must necessarily
be vague, and subject to the abuses to which human
passions will give rise, in its practical application.
The measures adopted by Austria, Russia, and Prussia, conlreas'of
at the Congress of Troppau and Laybach, in respect to ofL^i^^.^
the Neapolitan Revolution of 1820, were founded upon
principles adapted to give the great Powers of the
European continent a perpetual pretext for interfering
in the internal concerns of its different States. The
British government expressly dissented from these prin-
ciples, not only upon the ground of their being, if
reciprocally acted on, contrary to the fundamental laws
of Great Britain, but such as could not safely be
admitted as part of a system of international law. In
the circular despatch, addressed on this occasion to all
its diplomatic agents, it was stated that, though no
government could be more prepared than the British
government was to uphold the right of any State or
States to interfere, where their own immediate security
94 RIGHT OP SEI.F-PRESERVATION
Part II. or essential interests are seriously endangered by the
internal transactions of another State, it regarded the
assumption of such a right as only to be justified by the
strongest necessity, and to be limited and regulated
thereby; and did not admit that it could receive a
general and indiscriminate application to all revolu-
tionary movements, without reference to their immediate
bearing upon some particular State or States, or that it
could be made, prospectively, the basis of an alliance.
The British government regarded its exercise as an
exception to general principles of the greatest value and
importance, and as one that only properly grows out of
the special circumstances of the case; but it at the same
time considered, that exceptions of this description never
can, without the utmost danger, be so far reduced to
rule, as to be incorporated into the ordinary diplomacy
« gg of States, or into the institutes of the Law of Nations (m).
Congress of The British government also declined being a party
to the proceedings of the Congress held at Verona, in
1822, which ultimately led to an armed interference by
France, under the sanction of Austria, Russia, and
Prussia, in the internal affairs of Spain, and the over-
throw of the Spanish Constitution of the Cortes. The
British government disclaimed for itself, and denied to
other powers, the right of requiring any changes in the
internal institutions of independent States, with the
menace of hostile attack in case of refusal. It did not
consider the Spanish Revolution as affording a case of
that direct and imminent danger to the safety and
interest of other States, which. might justify a forcible
interference. The original alliance between Great
Britain and the other principal European powers, was
specifically designed for the re-conquest and liberation
of the European continent from the military dominion
of France ; and having subverted that dominion, it took
the state of possession, as established by the peace,
(m) Lord CasUereagh's Ciroolar Despatohy Jan. 19, 1821. Annual Register,
Yol. Ixii. Part n. p, 787.
AND INDEPENDENCE. 95
under the joint protection of the alliance. It never was, Chap. I.
however, intended as an union for the government of
the world, or for the superintendence of the internal
affairs of other States. No proof had been produced to
the British government of any design, on the part of
Spain, to invade the territory of France ; of any attempt
to introduce disaffection among her soldiery ; or of any
project to undermine her political institutions ; and, so
long as the struggles and disturbances of Spain should
be confined within the circle of her own territory, they
could not be admitted by the British government to
afford any plea for foreign interference. If the end of
the eighteenth and the beginning of the nineteenth
century saw all Europe combined against France, it
was not on" account of the internal changes which
France thought necessary for her own political and civil
reformation ; but because she attempted to propagate,
first, her principles, and afterwards her dominion, by
the sword (w). « g^
Both Great Britain and the United States, on the same War between
occasion, protested against the riglit of the Allied Powers A^erfcwi
to interfere, by forcible means, in the contest between ^^^^®""
Spain and her revolted American Colonies. The British
government declared its determination to remain strictly
neutral, should the war be unhappily prolonged; but
that the junction of any foreign power, in an enterprise
of Spain against the colonies, would be viewed by it as
constituting an entirely new question, and one upon
which it must take such decision as the interests of
Great Britain might require. That it could not enter
into any stipulation, binding itself either to refuse or
delay its recognition of the independence of the colonies,
nor wait indefinitely for an accommodation between
Spain and the colonies ; and that it would consider any
foreign interference, by force or by menace, in the
(») Confidential Minnie of Lord Gas- lie Doeummts^ p. 94. Mr. Seoretaiy
ilereagh on the Affairs of Spain, oom- Canning's Letter to Sir G. Stuart^ 28th
mnnicated to the Allied Conrts in May, Jan. 1823, p. 114. Same to the Same,
1822. Annnal Begister, vol. Ixy. ; Pub' Slst Maroh, 1823, p. 141.
^o RIGHT OF SELF-PRESERVATION
Part n. dispute between them, as a motive for recognising the
latter without delay (o).
The United States government declared that it should
consider any attempt, on the part of the allied European
powers, to extend their peculiar political system to the
American continent, as dangerous to the peace and safety
of the United States. With the existing colonies or
dependencies of any European power they had not
interfered, and should not interfere ; but with respect to
the governments, whose independence they had recog-
nised, they could not view any interposition for the
purpose of oj)pressing them, or controlling in any other
manner their destiny, in any other light than as a
manifestation of an unfriendly disposition towards the
United States. They had declared their Neutrality in
the war between Spain and those new governments, at
the time of their recognition ; and to this neutrality they
should continue to adhere, j^rovidcd no change should
occur, which, in their judgment, should make a corre-
sponding change, on the part of the United States, in-
dispensable to their own security. The late events in
Spain and Portugal showed that Europe was still un-
settled. Of this important fact no stronger proof could
be adduced than that the Allied Powers should have
thought it proper, on any principle satisfactory to them-
selves, to have interposed by force in the internal
concerns of Spain. To what extent such intei'positions
might be carried, on the same principle, was a question
on which all independent powers, whose governments
differed from theirs, were interested, — even those most
remote, — ^and none more so than the United States.
The policy of the American government, in regard to
Europe, adopted at an early stage of the war which had
so long agitated that quarter of the globe, nevertheless
remained the same. This policy was, not to interfere
in the internal concerns of any of the European powers ;
(o) Memorandum of Conference be- Register, vol. Ixvi. p. 99. Fublie JDocu-^
tween Mr. Secretary Ganning and Prince ^^;, i^^
Polignao, 9th October, 1823. Annual
AND INDEPENDENCE. 87
to consider the government, de facio^ as the legitimate Chap. I.
government for them ; to cultivate friendly relations
with it, and to preserve those relations by a frank, firm,
and manly policy; meeting, in all instances, the just
claims of every power, — submitting to injuries from
none. But, with regard to the American continents,
circumstances were widely different. It was impossible
that the Allied Powers should extend their political
system to any portion of these continents, without
endangering the peace and happiness of the United
States. It was therefore impossible that the latter should
behold such interposition in any form with indif-
ference ( jo).
§ 67a.
This policy of the United States has acquired tlie name of 'Hhe The Monroe
Ifonroe doctrine," from its having received its most explicit enuncia- doctrine.
tion in President Monroe's seventh annual message to Congress in
1823. *'In the wars of the European powers/' said the President,
*^in matters relating to themselves we have never taken anj part, nor
does it comport with our policy to do so. It is only when our rights
are invaded or seriously menaced, that we resent injuries or make
preparations for our defence. With the movements in this hemisphere
we are of necessity more intimately connected, and by causes which
must be obvious to all enlightened and impartial observers. The
political system of the Allied Powers is essentially different in this
respect from that of America. This difference proceeds from that
which exists in their respective governments. . . . We owe it,
therefore, to candour and to the amicable relations existing between
the United States and those powers to declare that we should consider
any attempt on their part to extend their system to any portion of this
hemisphere, as dangerous to our peace and safety" (^). This formula
must be now regarded as a permanent part of the foreign policy of the
United States, but it still exists only as a ^* doctrine," and has not been
incorporated into any legislative enactment or into any convention (r).
Later developments of the Monroe doctrine have carried it to a
length, and have produced results which were scarcely foreseen by its
founder. President Monroe, it is true, went so far in an earlier part
of the same message as to assert, as *' a principle in which the rights
(jP) President Monroe's Message to man*s Mannal, vol. i. p. 556. Galvo,
Congress, 2nd December, 1823. An- Droit International, Bk. HE. \\ 143,
nnal Begister, vol. Izy. ^M\c J)oeu» ^mm
menu, p. 193.
{q) President's Annnal Message to W Calvo, loo. dt. ; Wharton, Dig.
Congress, 2nd Dec. 1823. See States- H 45, 57.
W. H
98 BIGHT OF SELF-PRESERVATION
Part n. ft^d interests of the United States are involyed, that the American
continents, by the free and independent condition which they have
assumed and maintain, are henceforth not to be considered as subjects
for future colonization by any European powers." This was extended
by President Grant, who in 1870 declared that for the future *'no
territory on this continent shall be regarded as a subject of transfer to
an European power." Secretary Olney, in his dispatch of July 20th,
1895, laid it down as an axiom that ''any permanent political union
between an European and American State was unnatural and inex-
pedient." As Lord Salisbury hinted in his reply, this general con-
demnation would apply to the connection between Canada, between
the West Indian Islands, Honduras, Guiana, and Great Britain, a
power which actually possesses more territory upon the continent of
North America than do the United States themselves. Finally, in the
course of the protracted negotiations arising out of the boundary
dispute between Great Britain and Venezuela, President Cleveland
gave a startling illustration of the lengths to which the Monroe doctrine
might be pushed. In his message of December 17th, 1895, he claimed
for the United States the right to ''take measures to determine with
sufficient certainty for its justification what is the true divisional line
between Venezuela and British Guiana " ; for this purpose a Com-
mission, consisting solely of United States representatives, was to take
evidence and report, and on receipt of the report it would be the duty
of the United States '* to resist by every means in its power, as a wilful
aggression upon its rights and interests, the appropriation to Great
Britain of any lands or the exercise of gOYcmmental jurisdiction over
any territory which after investigation we have determined of right to
belong to Venezuela." The tone of the message naturally excited
much resentment in Great Britain, and was regretted by a large section
of public opinion in the United States. Happily, an accommodating
spirit was manifested on both sides, and in the closing days of 1896
an Arbitration Treaty was concluded, whose award, made in October,
1899, set the disputed boundary finally at rest («).
In accordance with the principle upon which the Monroe doctrine is
based the United States has persistently refused to incur international
obligations outside its own hemisphere. It authorized the attendance
of its delegate at the West African Conference at Berlin, 1885, but
declined to ratify the General Act, which would have imposed upon its
government a duty in respect of the territorial integrity and neutrality
of distant regions where it has no established interests or control of
any kind. And in ratifying the General Act of the Brussels Conference
for the suppression of the slave trade, in 1892, the United States repre-
sentative caused it to be recorded that his goyemment disclaimed any
intention to indicate any interest whatever in the possessions or pro-
(«) For the application of the Monroe doctrine to the projected Panama and
Nicarag^n oanab, see potif § 2066.
AND INDEPENBEKCK. 99
tectorateB established or daimed in Africa by the other powers (/). Chap. I.
Since, however, its annexation of Hawaii in 1898, and the cession to it
of the Philippine Islands by Spain in the same year, it has become in-
creasingly difficult for the United States to retain its policy of isolation.
Its conunercial interests in China have forced it into taking joint action
with the other great powers, its forces were represented both in the
garrison of the Pekin Legations and in the subsequent military occu-
pation. It is most unlikely that the United States will consent to stand
aside when next the Chinese Question forces its way to the front.
. . §68.
Great Britain had limited herself to protesting against Britwh
the interference of the French government in the internal iS the^I^e
affairs of Spain, and had refrained from interposing by ^ f826?^
force, to prevent the invasion of the peninsula by France.
The constitution of the Cortes was overturned, and
Ferdinand VII. restored to absolute power. These
events were followed by the death of John VI., King of
Portugal, in 1825. The constitution of Brazil had pro-
vided that its crown should never be united on the same
head with that of Portugal ; and Dom Pedro resigned
the latter to his infant daughter. Dona Maria, appointing
a regency to govern the kingdom during her minority,
and at the same time, granting a constitutional charter
to the European dominions of the House of Braganza.
The Spanish government, restored to the plenitude of
its absolute authority, and dreading the example of the
peaceable establishment of a constitutional government
in a neighbouring kingdom, countenanced the pretensions
of Dom Miguel to the Portuguese crown, and supported
the efforts of his partisans to overthrow the regency and
the charter. Hostile inroads into the territory of Portu-
gal were concerted in Spain, and executed with the con-
nivance of the Spanish authorities, by Portuguese troops,
belonging to the party of the Pretender, who had de-
serted into Spain, and were received and succoured by
the Spanish authorities on the frontiers. Under these
circumstances, the British government received an appli-
cation from the regency of Portugal, claiming, in virtue
of the ancient treaties of alliance and friendship subsist-
ed Wharton, Dig. } 51 ; Hertdet, Map of Africa by Treaty No. 22.
h2
100 RIGHT OP SELF-PRESERVATION
Part n. ing between the two crowns, the miKtary aid of Great
Britain against the hostile aggression of Spain. In ac-
ceding to that application, and sending a corps of British
troops for the defence of Portugal, it was stated by the
British minister that the Portuguese Constitution was
admitted to have proceeded from a legitimate source, and
it was recommended to Englishmen by the ready accept-
ance which it had met with from aU orders of the Portu-
guese people. But it would not be for the British nation
to force it on the people of Portugal, if they were un-
willing to receive it ; or if any schism should exist among
the Portuguese themselves, as to its fitness and congeni-
ality to the wants and wishes of the nation. They went
to Portugal in the discharge of a sacred obligation, con-
tracted under ancient and modern treaties. When there,
nothing would be done by them to enforce the establish-
ment of the constitution ; but they must take care that
nothing was done by others to prevent it from being
fairly carried into effect. The hostile aggression of
Spain, in countenancing and aiding the party opposed to
the Portuguese Constitution, was in direct violation of
repeated solemn assurances of the Spanish cabinet to the
British government, engaging to abstain from such inter-
ference. The sole object of Great Britain was to obtain
the faithful execution of those engagements. The former
case of the invasion of Spain by France, having for its
object to overturn the Spanish Constitution, was essen-
tially different in its circumstances. France had given to
Great Britain cause of war, by that aggression upon the
independence of Spain. The British government might
lawfully have interfered, on grounds of political expe-
diency ; but they were not bound to interfere, as they
were now bound to interfere on behalf of Portugal, by
the obligations of treaty. War might have been their
free choice, if they had deemed it politic, in the case of
Spain ; interference on behalf of Portugal was their duty,
unless they were prepared to abandon the principles of
national faith and national honour (w).
(u) Mr. Canning's SpeeoH in the Honse of Commons, llth December, 1826.
Annual BegiBter, vol. Ixviii. p. 192.
AND INDEPENDENCE. 101
The interference of the Christian powers of Europe, in Chap. I.
favour of the Greeks, who, after enduring ages of cruel §69.
oppression, had shaken off the Ottoman yoke, affords a ^^'^®'^*^®
further illustration of the principles of international law ^^^J^"**^*"!
^ t- powers of
authorizing such an interference, not only where the Europe, in
interests and safety of other powers are immediately Oreeks.
affected by the internal transactions of a particular State,
but where the general interests of humanity are infringed
by the excesses of a barbarous and despotic government.
These principles are fully recognized in the treaty for
the pacification of Greece, concluded at London, on the
6th of July, 1827, between France, Great Britain, and
Russia. The preamble of this treaty sets forth, that the
three contracting parties were "penetrated with the
necessity of putting an end to the sanguinary contest,
which, by delivering up the Greek provinces and the
isles of the Archipelago to all the disorders of anarchy,
produces daily fresh impediments to the commerce of the
European States, and gives occasion to piracies, which
not only expose the subjects of the high contracting
parties to considerable losses, but, besides, render neces-
sary burdensome measures of protection and repression."
It then states that the British and French governments,
having received a pressing request from the Greeks to
interpose their mediation with the Porte, and being, as
well as the Emperor of Russia, animated by the desire
of stopping the effusion of blood, and of arresting the
evils of all kinds which might arise from the continuance
of such a state of things, had resolved to unite their
efforts, and to regulate the operations thereof by a formal
treaty, with the view of re-establishing peace between
the contending parties, by means of an arrangement,
which was called for as much by humanity as by the
interest of the repose of Europe. The treaty then pro-
vides, (art. 1,) that the three contracting parties should
offer their mediation to the Porte, by a joint declaration
of their ambassadors at Constantinople ; and that there
should be made, at the same time, to the two contending
parties, the demand of an immediate armistice, as a pre-
102 BIGHT OP SELF-PBESBRVATION
Part n. liminary condition indispensable to opening any negotia-
tion. Article 2nd provides the terms of the arrangement
to be made, as to the civil and political condition of
Greece, in consequence of the principles of a previous
understanding between Great Britain and Russia. By
the 3rd article it was agreed, that the details of this ar-
rangement, and the limits of the territory to be included
under it, should be settled in a separate negotiation
between the high contracting powers and the two con-
tending parties. To this public treaty an additional and
secret article was added, stipulating that the high con-
tracting parties would take immediate measures for estab-
lishing commercial relations with the Greeks, by sending
to them and receiving from them consular agents, so long
as there should exist among them authorities capable of
maintaining such relations. That if, within the term of
one month, the Porte did not accept the proposed armis-
tice, or if the Greeks refused to execute it, the high
contracting parties should declare to that one of the two
contending parties that should wish to continue hostili-
ties, or to both, if it should become necessary, that the
contracting powers intended to exert all the means, which
circumstances might suggest to their prudence, to give
immediate effect to the armistice, by preventing, as far
as might be in their power, all collision between the
contending parties. The secret article concluded by
declaring, that if these measures did not suflSce to induce
the Ottoman Porte to adopt the propositions made by
the high contracting powers, or if, on the other hand, the
Greeks should renounce the conditions stipulated in their
favour, the contracting parties would nevertheless con-
tinue to prosecute the work of pacification on the basis
agreed upon between them ; and, in consequence, they
authorized, from that time forward, their representatives
in London to discuss and determine the ulterior measures
to which it might become necessary tj resort.
The Greeks accepted the proffered mediation of the
three powers, which the Turks rejected, and instructions
were given to the commanders of the allied squadrons to
AND INDEPENDENCE. 103
compel the cessation of hostilities. This was effected by Chap. I.
the result of the battle of Navarino, with the occupation
of the Morea by French troops ; and the independence
of the Grreek State was ultimately recognized by the
Ottoman Porte, under the mediation of the contracting
powers. If, as some writers have supposed, the Turks
belong to a family or set of nations which is not bound
by the general international law of Christendom, they
have still no right to complain of the measures which the
Christian powers thought proper to adopt for the pro-
tection of their religious brethren, oppressed by the
Mohammedan rule. In a rader age, the nations of
Europe, impelled by a generous and enthusiastic feeling
of sympathy, inundated the plains of Asia to recover the
Holy Sepulchre from the possession of infidels, and to
deliver the Christian pilgrims from the merciless oppres-
sions practised by the Saracens. The Protestant princes
and States of Europe, during the sixteenth and seven-
teenth centuries, did not scruple to confederate and
wage war, in order to secure the freedom of religious
worship for the votaries of their faith in the bosom of
Catholic communities, to whose subjects it was denied.
Still more justifiable was the interference of the Christian
powers of Europe to rescue a whole nation, not merely
from religious persecution, but from the cruel alternative
of being transported from their native land, or extermi-
nated by their merciless oppressors. The rights of
human nature wantonly outraged by this cruel warfare,
prosecuted for six years against a civilized and Christian
people, to whose ancestors mankind are so largely in-
debted for the blessings of arts and of letters, were but
tardily and imperfectly vindicated by this measure.
"Whatever," as Sir James Mackintosh said, "a nation
may lawfully defend for itself, it may defend for another
people, if called upon to interpose." The interference
of the Christian powers, to put an end to this bloody
contest, might, therefore, have been safely rested upon
this ground alone, without appealing to the interests of
commerce and of the repose of Europe, which, as well as
104 RIGHT OF SELF-PRESERVATION
Part II. the interests of humanity, are alluded to in the treaty,
as the determining motives of the high contracting
§ 70. parties {z).
of Austria*^ We have already seen, that the relations which have
m. Britain, prevailed between the Ottoman Empire and the other
France,' and Europoan Statos havo only recently brought the former
internal withiu the palo of that public law by which the latter
Ottoman ^ are governed, and which was originally founded on that
^pue, in community of manners, institutions and religion, which
distinguish the nations of Christendom from those of the
Mohammedan world (y). Yet the integrity and inde-
pendence of that empire have been considered essential
to the general balance of power, ever since the crescent
ceased to be an object of dread to the western nations of
Europe. The above-mentioned interference of three of
the great Christian powers in the affairs of Greece had
been complicated by the separate war between Russia
and the Ottoman Empire, which was terminated by the
treaty of Adrianople, in 1829, followed by the treaty of
alliance between the two empires, of Unkiar-Skelessi, in
1833. The casus foederis of the latter treaty was brought
on by the attempts of Mehemet Ali, Pasha of Egypt, to
assert his independence, and of the Porte, which sought
to recover its lost provinces. The stattis quoj which had
been established between the Sultan and his vassal by
the arrangement of Kutayah, in 1833, under the media-
tion of France and Great Britain, on which the peace of
the Levant depended, and with it the peace of Europe
was supposed to depend, was thus constantly threatened
by the irreconcilable pretensions of the two great divi-
sions of the Ottoman Empire. The war again broke
out between them in 1839, and the Turkish army was
{x) Anotlier treaty -was concluded at February, 1830, and accepted by Greece
London, between the Bame three powers, and the Ottoman Porte. King Otho
on the 7th of May, 1832, by which the was expelled in 1862, and, after some
election of Prince Otho of Bavaria, as difficulty in finding any one to fill
King of Greece, was confirmed, and the his place, Prince George of Denmark
sovereignty and independence of the new mounted the Greek throne and took the
kingdom guaranteed by the contracting title of King of the Hellenes in March,
paities, according to the terms of the 1863.
protocol signed by them on the 3rd of {y) Vide supra j {13.
AND INDEPENDENCE. 105
overthrown in the decisive battle of Nezib, which was Chap. I.
followed by the desertion of the fleet to Mehemet Ali,
and by the death of Sultan Mahmoud II.
In this state of things, the western powers of Europe
thought they perceived the necessity of interfering to
save the Ottoman Empire from the double danger with
which it was threatened; by the aggressions of the Pasha
of Egypt on one side, and the exclusive protectorate of
Russia on the other. A long and intricate negotiation
ensued between the five great European powers, from
the voluminous documents relating to which the follow-
ing general principles may be collected, as having re-
ceived the formal assent of all the parties to the negotia-
tions, however divergent might be their respective views
as to the application of those principles.
1. The right of the five great European powers to
interfere in this contest was placed upon the gi'ound of
its threatening, in its consequences, the general balance
of power and the peace of Europe. The only difference
of opinion arose as to the means by which the desirable
end of preventing all future conflict between the two
contending parties could best be accomplished.
2. It was agreed that this interference could only take
place on the formal application of the Sultan himself,
according to the rule laid down by the Congress of Aix-
la-Chapelle, in 1818, that the five great powers would
never assume jurisdiction over questions concerning the
rights and interests of another power, except at its re-
quest, and without inviting such power to take part in
the conference.
3. The death of Sultan Mahmoud being imminent,
and the dangers of the Ottoman Empire having increased
by a complication of disasters, each of the five powers
declared its determination to maintain the independence
of that empire, under the reigning dynasty; and as a
necessary consequence of this determination, that neither
of them should seek to profit by the present state of
things to obtain an increase of territory or an exclusive
influence.
Question.
106 BIGHT OF SELF-PRESERVATION
Part n. The negotiations finally resulted in the conclusion of
the convention of the 15th July, 1840, between four of
the great European powers, Austria, Great Britain,
Prussia, and Russia, to which the Ottoman Porto ac-
ceded, and in consequence of which Mehemet Ali was
compelled to relinquish the possession of all the provinces
held by him, except Egypt, the hereditary Pachalic of
which was confirmed to him, according to the conditions
contained in the separate article of the convention (z).
§ 70a.
The Eastern The Ottoman Empire has been an endless souroe of disturbance to
the peace of Europe ever since this treaty of 1840. It occupies a
peculiar and anomalous position, and all attempts to establish a per-
manent and satisfactory relation between this State and the other
European powers have as yet proved failures. The situation of the
inhabitants of European Turkey is in many respects unfortunate. The
majority are Christians belonging to various nationalities, and sub-
jected to the dominant and Mohammedan race of the Turks, from
whom they are alienated by differences not only of religion and race,
but of language, manners, and customs. The Turks are not a
civilizing people. They are a nation of soldiers, who care little for the
peaceful pursuits of trade, literature, and science ; while many of their
subjects are capable of attaining to the highest forms of civilization.
The result has been that the governing race in Turkey have remained
nearly stationary, while many of their subjects, and all the neighbour-
ing States, have been rapidly progressing. The government of the
Porte is negligently, and in some cases oppressively, carried on. Most
of its Christian subjects are connected by the ties of religion and
nationality with some of the inhabitants of the neighbouring countries,
who are generally prepared to sympathise vidth and encourage them
in any efforts to throw off the authority of the Porte. The result of
this state of things has been to leave Turkey in Europe in a condition
of chronic disturbance. Insurrections have been numerous, and,
owing to the encouragement received by the insurgents from outside,
have in some cases been very difficult to quell. In several instances
these insurrections have led other European States to interfere between
the Porte and its subjects, either on the ground that the Porte would
not redress the wrongs of which the insurgents justly complained, or
that the treatment of the Christians by the Mohammedans was such as
could not bo tolerated. The mere fact of the subjects of Turkey
calling themselves Christians, although the term Christianity means
something very different there to what it does in the west of Europe,
has caused them to receive much more sympathy and support than in
many cases they really deserved.
(z) Wheaton, Hist, of the Law of Nations, pp. 663—683. State Fbpens, vol.
xxviii. p. 342.
AND INDEPENDENCE, IW
These interferences, so long as force was not iised to coerce the Chap. I.
goyemxnent of the Sultan, may be justified in international law.
Turkey is certainly an independent sovereign State, and primd facie no
other States have a right to interfere in its internal afiPairs. But it is
not an independent State in the sense that England and France are
independent. It owes its independence in recent times to the support
it has received from the great powers, and this consequently gives
those powers some right to require that its government shall be
properly administered. But this right is not so extensive as to justify
the use of force, and this is so not only on general principles, but by
express declaration in treaties.
The unfortunate error underlying all attempts to improve the con-
dition of European Turkey has been to suppose that, because this
countiy was situated in Europe, it was therefore capable of being
benefited by European institutions and the introduction of European
modes of thought and action. But this is not the case. The Turks
and many of their subjects are Orientals, and quite different from
Europeans ; and institutions which have proved most beneficial in
England and France are very likely to have quite an opposite effect
when established in Turkey. No institutions can be advantageous to
a country imless they are adapted to the habits and ideas of the
people.
The unsatisfactory condition of Turkey makes it probable that, if
left to herself, her empire in Europe might gradually crumble away,
leaving the country split up into small and defenceless communities.
But her geographical situation would make such a result dangerous to
the peace of Europe. If the authority of the Sultan were removed,
his territories might pass into the hands of Bussia, Austria, or some
other great State, and this might seriously alter the balance of power
in Europe. The great importance of keeping Constantinople and the
Straits of the Bosphorus and Dardanelles in the hands of a non-
aggressive State, and of preventing Bussia from planting her autho-
rity there, and converting the Black Sea into a Bussian lake, has led
the Western Powers, and especially England, to support and strengthen
the authority of the Porte as much as possible. This was the policy
that brought about the Crimean War ; and until the Treaty of Berlin
was executed, the maintenance in its integrity of the Ottoman Empire
was one of the most firmly established principles of public law. Nor
has the principle been yet abandoned. The Treaty of Berlin, though
depriving the Sultan of a considerable portion of his European terri-
tories, professes to strengthen and consolidate the remainder, so as to
leave him as powerful as the reduced area of his authority will allow
him to be. *'The Treaties of Paris and of Berlin resemble one another
in that both alike are a negation of the right of any one power, and
an assertion of the right of the powers collectively to regulate the
solution of the Eastern Question" (a).
(a) Holland, European Concert, p. 221.
108 RIGHT OF SELF-PEESERVATION
Part II. By the Treaty of Paris, 1856, which closed the Crimean War,
— England, Austria, France, Prussia, Eussia, and Sardinia declared
The Treaty of "*^® Sublime Porte admitted to participate in the advantages of the
Paris. public law and system of Europe. Their Majesties engage, each on his
part, to respect the independence and the territorial integrity of the
Ottoman Empire ; guarantee in common the strict observance of their
engagement; and will, in consequence, consider any act tending to
its violation as a question of general interest." A separate treaty to
the same effect was entered into between England, France, and
Austria, on the 15th April, 1856 (6). Thus, on two separate occasions
in 1856, the great powers solemnly agreed to support the Ottoman
Empire, and maintain it in its integrity. And it was further stipu-
lated in the Treaty of Paris that "if there should arise between the
Sublime Porte and one or more of the other signing powers, any
misunderstanding which might endanger the maintenance of their
relations, the Sublime Porte and each of such powers, before having
recourse to the use of force, shall afford the other contracting parties the
opportunity of preventing such an extremity by means of their media-
tion" (c). The condition of the Christian subjects of the Porte was
also considered in the Treaty ; and a firman, issued by the Sultan for
" ameliorating their condition without distinction of religion or race,"
was communicated to the contracting parties. At the same time it
was distinctly acknowledged that this firman ''cannot, in any case^
give to the said powers the right to interfere, either collectively or
separately, in the relations of His Majesty the Sultan with his subjects,
nor in the internal administration of his empire" {d). The international
status of Turkey was thus clearly defined. She was recognised as a
sovereign State, whose maintenance was deemed necessary for the
welfare of Europe ; and the only right over her internal administration
acquired by the powers was that already referred to, of pressing their
advice on the Porte as to its methods of governing, but not of insisting
§ 70c. by force of arms that this advice should be followed.
The Treaty The first attempt to overthrow the Treaty of Paris took place in
tion of ' 1870. On the 31st of October in that year, Eussia addressed a note to
London, 1871. England on the subject of the neutralization of the Black Sea, the
terms of which had been defined in the Treaty of 1856. In this note,
Prince Gortchakoff asserted the principle of neutralization to be no
more than a theory. ** The Treaty of 1856," wrote the Prince, "has,
moreover, not escaped the modifications to which most European trans-
actions have been exposed, and in the face of which it would be
difiicult to maintain that the written law, founded upon the respect
for treaties as the basis of public right, and regulating the relations
between States, retains the moral validity which it may have possessed
at other times." He then enumerated some alleged infractions of the
(h) Hertslet, Map of Europe, yoI. ii. {e) Art. viil. See Appendix F., post,
pp. 1266, 1280. P- 777.
(rf) Art. ix.
AND IKDEPENDENCE. 109
treaty, and continued : '* Our iUostrioas Master cannot admit, dejure, Chap. I.
that treaties violated in seyeral of their essential and general clauses —
should remain binding in other clauses directly affecting the interests
of his empire." He concluded by stating that ''His Majesty, the
Czar, restores to the Sultan the full exercise of his rights in this
respect, resuming the same for himself " (e). Such a proceeding was
utterly subyersive of all international morality. If treaties solemnly
entered into could be set aside at the mere wish of one of the contract-
ing parties, all public faith was at an end ; and no security could be
felt as to the binding effect of any treaty whatever. To this note
Lord Ghranville replied, on the part of England, that it had always been
held, that the right of cancelling a treaty belongs only to the Govern-
ments who have been parties to the original instrument, and that
whether the desire of Bussia to be freed from the Treaty of Paris were
reasonable or not, she could not by her own act abrogate any of its
terms. He stated that Her Majesty's Government could not give their
sanction to the course announced by Prince Gortchakoff, which he
characterised as a very dangerous precedent as to the validity of inter-
national obligations {/),
On the 22nd of November, 1870, a conference to discuss the matter
was proposed by Prussia, and ultimately it was agreed that Pleni-
potentiaries from the signatory powers should meet in London.
Before discussing the actual point raised by Eussia, viz., the de-
neutralization of the Black Sea, it was deemed advisable to put
forward the following declaration: **The Plenipotentiaries of North
Germanv, of Austria-Hungary, of Great Britain, of Eussia, and of
Turkey, assembled to-day in Conference, recognise that it is an
essential principle of the law of nations that no power can liberate
itself from the engagements of a treaty, nor modify the stipulations
thereof, unless with the consent of the contracting powers by means of
an amicable arrangement " (^). It is melancholy to think that the
most civilized powers of the world should have considered it necessary
to put forward such a declaration in the year 1871. It shows that
international law, however much talked of and appealed to, has not
yet acquired that moral force by which alone the welfare of nations in
their mutual intercourse can be secured. After solemnly enunciating
this elementaiy principle, the powers then proceeded to comply with
the demands of Eussia, which had first been put forward in direct
opposition to it, and a new treaty relative to the Black Sea was
entered into. n ..^
The binding force of the Treaty of Paris was shaken, but not insurrection
destroyed, in 1871 ; in 1875 fresh complications of the Eastern ^ Herze-
Question commenced. Early in that year an insurrection broke
out in Herzegovina, which lasted throughout the year, and gained
(e) Hertslet, Map of Europe, vol. iii. (^) Hertslet, Map of Europe, vol. iii.
P- 1893. p. 1904.
(/) Ibid. p. 1898.
110 RIGHT OF SELF-PRESERVATION
Part II. ground by receiving encouragement from Servia and Montenegro.
Various efiPorts were made by the other powers to reconcile the
diflFerences between the Porte and its subjects. The first collective
attempt was initiated by Austria, and put forward in a document
which has since become known as the Andrassy Note. This was
issued on the 30th of December, 1 875, and was agreed to by the
other powers ; but its terms were deemed inadmissible by Turkey,
and it was finally rejected altogether. The Andrawsy Note having
proved a failure, another proposal was put forward in May, 1876,
known as the Berlin Memorandum. This was issued by Austria,
Eussia, and (Germany, and was agreed to by France and Italy. But
England declined to join in pressing the acceptance of the proposals
contained in it upon the Porte, and in a despatch dated 19th May,
1876, Lord Derby explained the reasons for this refusal Her
Majesty's Government were of opinion that the course recommended
would tend to strengthen instead of quelling the insurrection ; that
the Porte did not possess the funds necessary for doing what was
asked of it; that some of the points proposed would reduce the
Sultan's authority to nullity in the disturbed districts ; and that if the
insurgents knew that the powers would intervene further in their
behalf if they continued the insurrection after the suggested
armistice was over, they would be perfectly certain to continue the
insurrection. This scheme also f eU through without being productive
of any result.
Before the next attempt at pacification was made, the whole aspect
of the question had changed. The ** Bulgarian Atrocities/' a series of
massacres of Christians by Mohammedans, caused by the fear of an
universal rising of the former, had been perpetrated, and had caused the
feeling of Europe to be for the time unfavourable to Turkey. War
had broken out between Turkey and Servia ; a large Bussian force was
being assembled on the borders of Boumania ; and the insurrec-
tion in Herzegovina somehow ceased to exist and dropped out of all
8 70a notice.
Conference of ^ Conference for the settlement of the whole question was then
Constan- proposed by England. The Conference did meet, but its proposals,
^ ' although considerably modified during the discussions, were ulti-
mately rejected by Turkey as inconsistent with her independence. On
the 31st of March, 1877, a final protocol was submitted to the Porte,
in which the powers expressed a hope that Turkey would ameliorate
the condition of her Christian subjects,, and that, should she fail in
this, " they (the powers) think it right to declare that such a state of
affairs would be incompatible with their interests and those of Europe
in general. In such a case they reserve to themselves to consider in
common as to the means which they may deem best fitted to secure
the well-being of the Christian populations, and the interests of the
general peace " (A). The Porte, in its reply, regretted that it had not
(A) Pari. Papers, Turkey, No. 9 (1877), p. 2.
AND INDEPENDENCE. Ill
been iimted to take part in the deliberations preoeding the protocol, Chap. I.
although they affected its vital interests, and it therefore felt
*' imperiously obliged to assert itself against the authority of such a
precedent " (»). « --j^
Up to this time the powers had acted strictly in accordance with Outbreak of
international law, but a different course was now adopted. On the J"" 7>*^
19th of April, Eussia issued a circular note, in which it was announced
that her government had exhausted all the means in its power to bring
about a lasting pacification of Turkey. That as these had failed, the
Czar was resolved to undertake this work himself, and had therefore
given his armies the orders to cross the frontiers of Turkey ; in other
words, had declared war (A). To this Lord Derby replied on the 1st
of May, that ''the course on which the Bussian government had
entered .... is in contravention of the stipulation of the Treaty of
Paris, 1856, by which Bussia and the other signatory powers engaged,
each on its own part, to respect the independence and territorial
integrity of the Ottoman Empire." That by so doing the Czar had
separated himself from the European concert hitherto maintained, and
had violated the Declaration of London, 1871 (/). Nevertheless, the
war proceeded, and resulted in the overthrow ^t Turkey. Boumania
and Servia threw off the sovereignty of the Porte, joined Bussia in
the war, and declared themselves independent. On the 3rd of March,
1878, a preliminary treaty of peace was signed between the belligerents
at San Stephano. As this treaty made immense alterations in the
existing state of things, and as its whole tenor and most of its clauses
affected the arrangements made by the Treaty of Paris, it was dearl}^
not obligatory upon the parties to the earlier treaty, other than Bussia
and Turkey. The Treaty of Paris had been signed by all the great
powers, and their united action could alone dissolve or alter any part
of it. Accordingly the Austrian government proposed that a Con-
ference or Cong^ss (which Lord Beaconsfield considered synonymous
terms) should meet to discuss the treaty of San Stephano, and ratify or
reject such of its provisions as might be thought best. The Bussian
government raised several technical objections to communicating the
whole of this treaty to the Congress, but finally, through the firm
attitude of England, it was agreed that a Congress should meet at
Berlin and freely discuss every clause (m). n ^q
Before the final consent of Bussia was obtained, a secret under- Secret agree-
Btanding was entered into between her and England, by which the Sf^i* ^l -fv
latter agreed not to oppose certain of the demands of Bussia at the fiusda and
Congress. This was divulged by a shorthand writer in the temporary Turkey,
employment of the Foreign Office, and published in an evening
newspaper, and its effect was somewhat to lower the prestige
(•) Pari. Papers, Turkey, No. 12 (1877), (0 IWd. p. 3.
p. 5. (m) See Lord Salisbury's Despatch of
(*) Pari. Papers, Turkey, No. 18 Ist April, 1878. Pari. Papers, Turkey,
(1877), p. 2. No. 27 (1878).
Berlin.
il2 RIGHT OF SELF-PRESERVATION
Part II. England had recently gained ae the champion of international law. But
the understanding itself contained nothing contrary to that law. The
fact that England would not resist certain Bussian proposals would not
prevent other governments from doing so if they thought fit. And if,
when these matters came to be actually discussed, England would not
oppose them, there could be no objection to informing Bussia on this
point beforehand, especially as without some such understanding it
seemed probable that the Congress would not meet at all. Another
secret agreement, but this time formulated into a treaty, was made
between England and Turkey. By it England undertook, if Eussia
retained Batoum, Ardahan, Kars, or any of them, and made any future
attempt to take possession of any of the Sultan's territories in Asia, to
join the Sultan in defending those territories by force of arms. In
return, the Sultan promised to introduce such reforms into the country
as might be agreed upon, and consented to assign the island of Cyprus
to be occupied and administered by England. This convention was
c tjfQY^ only to last while Bussia retained her conquests in Armenia (n).
Congress of The Congress met at Berlin, and on the 13th of July, 1878, a final
treaty for the settlement of the whole question was agreed to. This
entirely superseded those parts of the treaty of San Stephano which
the Congress considered to concern the powers, leaving in force only
twelve clauses of minor importance, relating to law- suits in Turkey,
prisoners, ratification, the indemnity, and so on (o), and materially altered
the stipulations of the Treaty of Paris. Boumania, Servia, and Monte**
negro were declared independent, and certain portions of territory were
added to each. A new principality, under the name of Bulgaria, was
formed out of the region lying between the Danube and the Balkans.
It was declared autonomous and tributary under the sovereigntyof the
Sultan, but with a Christian government and a national militia ; and
its position is somewhat similar to that occupied by Boumania and
Servia before the war. An anomalous province, called Eastern Bou-
melia, was formed south of the Balkans. The Sultan was left the right
of defending the frontiers of this province, but internal order was to
be maintained by a native gendarmerie assisted by a local militia.
Begular troops were not to be allowed to remain in it unless called for
by the Christian Governor-General. The portion of Bessarabia at the
mouth of the Danube, taken from Bussia and given to Boumania in
1856, was restored to Bussia. Bosnia and Herzegovina were to be
occupied and administered by Austria (j?). The rectification of the
Turko-Greek frontier was permitted by the 13th Protocol to follow
the valley of the Selmyrias on the iEgean side to that of Calamos on
the side of the Ionian Sea. In Asia the territories of Ardahan, Kars,
and Batoum were taken from Turkey and given to Bussia. And,
(n) Pari. Papers, Turkey, No. 36 (Z') A law including these provinces
(1878). in the Austrian Customs-Union was
(o) Holland, European Concert, p. passed on 20th December, 1879. Hol-
222. land, loc. cit.
AND INDEPENDENCE. 113
finally, the Treaties of Paris, 1856, and of London, 1871, vere Chap. I.
maintained in all such proyisions as were not abrogated by these
stipulations. p jq-.
The negotiations between Turkey and Oreece with respect to the Greek
delimitation of the new frontier showed only that the two States were ^"*'*'^^''*
in a position of disagreement. The intervention of the Signatory
Powers became necessary in 1880, and by the middle of the following
year they succeeded in gaining the acceptance by both States of the
frontier as laid down by an International Commission appointed in
1880 for that purpose, giving to Greece the Province of Thessaly and
partofEpirus(y). g 7qj
Prince Alexander of Battenberg was elected ruler of Bulgaria on Bulgaria,
the 29th April, 1879, and assented to by the Powers in accordance
with the Treaty. After some discussion the Principality made good
its claim to communicate with the Sultan through the Foreign Office at
the Porte, and not through a '^ bureau for the privileged provinces."
The Organic Law, provided for by Art. lY., was adopted on 28 th
April, 1879; was suspended by the Prince 10th May, 1881; but
re-established 19th September, 1883 (r).
In the autumn of 1885 a revolution, the object of which was to get Union with
rid of the expensive system of double administration established by itoumdia.
the Treaty, took place in Eastern Eoumelia. The Governor-General
was arrested and sent under escort to Sophia. The Prince of Bulgaria,
at the invitation of a Provisional Government, betook himself to
Philippoli. He announced to the Sultan his assumption of the
Goyemment and the union of the two countries at the desire of the
people («). He expressly recognised the suzerainty of the Imperial
Ottoman Government; but, nevertheless, issued a proclamation in
which he described himself as Alexander I., by the grace of God and
the national will, Prince of the two Bulgarias, both Northern and
Southern. The Porte protested, and appealed to Art. XYI. of the
Treaty ; but before taking active measures awaited the result of the
deliberations of the Powers. The Czar forbade the Bussian officers in
the Bulgarian army to enter Boumelia, and, later, commanded them
to resign. The Signatories ccmdemned any violation of the Treaty,
and formally announced their intention to make their desire for peace
respected in the Balkan States. Meanwhile popular excitement ran
high in Greece (/) and Servia. Each country complained of the
disturbance of the balance of power in the peninsula, and claimed a
territorial aggrandisement equal to that obtained by Bulgaria. On
{q) Holland, Earopean Concert, pp. blished by the San Stephano Treaty,
25, 26, 27 ; Pari. Paper, Ghreece, No. 2 which wag to hare extended to the
(1886). iEgean.
(r) Holland, Earopean Concert, pp. (0 The Greeks alleged that the Bui-
279, 282, 283. gars, a people without any past or
(«) This union was not the reoon- fntore, were in a minority in Eastern
Btroction of the Great Bulgaria esta- Boumelia (Thrace).
W. I
114 RIGHT OF SELF-PRESERVATION
Part II. the 14th November, notwithstanding recommendations in favour ol
peace made by the Gh^at Powers at Athens and at Belgrade, the
Servian King proclaimed war against the Principality, and, on the
same day, the Servian army, provoked, as was said, by repeated
Bulgar attacks on Servian outposts on Servian territory, crossed the
frontier into Bulgaria.
On the receipt of the official declaration of war on the part of
Servia, Prince Alexander telegraphed to the Sultan that he had at
once taken measures for the defence of Bulgaria, and asked the
co-operation of his Suzerain for the protection of the Empire. About
the same time His Highness signed a decree regulating the manner in
which the Eastern Boumelia representatives for the Great National
Assembly were to be selected. The King of Servia disclaimed any
intention of doing anything which would detract from the rights of
the Sultan. The Bulgarians were at first worsted and driven back to
their principal position at Slivnitza, covering the plain of Sophia.
Prince Alexander, in the meantime, quitted Poumelia, and withdrew
Bulgarian troops from that province. On and about 1 7th November,
a series of fights near Slivnitza resulted in the rapid retirement of the
Servian forces towards their own frontier. The Prince again addressed
the Sultan. He had completely evacuated Eastern Boumelia. He
and his army were defending the integrity of Ottoman territory, and
asked His Majesty's co-operation. On 22nd November, the Porte
proposed an armistice, and that an Imperial Commissioner should be
sent to Eastern Boumelia. The Prince rejected the first proposal
while Servians remained on Bulgarian soil, and deprecating the
execution of the second as likely to jeopardise the tranquillity of the
province, suggested its postponement till after the conclusion of peace.
On 26th November the Bulgars entered Servia, and the next day
occupied Pirot. Their progress, however, was stayed by an Austrian
intimation to the Prince that if he advanced further into Servian
territory ho would be met by Austrian troops. In the beginning of
December two Ottoman delegates proceeded to Eastern Boumelia. On
21st December an armistice was signed imtil Ist March, 1886, and
ultimately the hostile forces withdrew into their respective territories
under the supervision of a commission composed of the Austrian
military attache at Belgrade, and the military attaches of the other
Great Powers at Vienna (m).
Treaty of On 3rd March, 1886, a treaty of peace, containing the single article,
Bucharest. «* Peace is re-established between the Kingdom of Servia and the
Principality of Bulgaria from the date of the signature of the present
Treaty," was signed at Bucharest by the agents of Turkey, Servia,
and Bulgaria. The ratifications were exchanged on the 17th of the
same month (:r).
On the 6th April, 1886, the Conference of Ambassadors of the Great
(«) Pari. Papers, Turkey, No. 1 (1886): /,) Pari. Papers, Turkey, No. 2 (1886).
Ibid. Turkey, No. 2 (1886), ^ y J>
AND INDEPENDEXCK. 115
Powers and TurlcisL Plenipotentiaries, whicli, with an intermission of Chap. I.
four months, had been sitting at Constantinople during the continuance
of the movement in Eastern Eoumelia, adopted a protocol, by which
(I) the Governor-Generalship of Eastern Eoumelia was to be entrusted Eastern
to the Prince of Bulgaria, in accordance with Article XVII. of the ProW.*^
Treaty of Berlin; (2) as long as the administration of Eastern
Koumelia and that of the Principality of Bulgaria should remain in
the hands of one and the same person, the Mussulman villages situated
in the Canton of Kirdjali, as well as the Mussulman villages situated in
the Ehodope district, were to be separated from Eastern Eoumelia ;
and this in lieu of the right of the Sublime Porte, as laid down in the
first paragraph of Article XV. of the Treaty of Berlin (y) ; the neces- .
Baiy delimitation to be carried out by a Turco-Bulgarian Commission ;
(3) a Tiirco -Bulgarian Commission was to be directed to examine the
Organic Statute of Eastern Eoumelia, and to modify it, with due
regard to the exigencies of the situation and local requirements. All
the interests of the Imperial Ottoman treasury were likewise to be
taken into consideration. The labours of this latter Commission were
to be completed in four months, and the result submitted to the
sanction of the Conference. Until these modifications should have
been sanctioned, the task of administering the province, in accordance
with the forms demanded by the then present condition of affairs, was
to be entrusted to the wisdom and fidelity of the Prince ; (4) all other
dispositions of the Treaty of Berlin relative to the Principality of
Bulgaria and to Eastern Eoumelia were declared maintained and in
force (z).
A few days later Prince Alexander, who had contended for a personal Later history
nomination of himself in place of "the Prince of Bulgaria," but had ®* Bulgaria,
been defeated in this respect by Eussian opposition, announced his
submission to the international act, and his readiness to nominate
delegates to the commissions (a). The state of siege in Eastern
Eoumelia was raised, and preparations for the elections were proceeded
with. The Special Budget drawn up by the Sophia Government, how-
ever, was the cause of much discontent in Eoumelia; the Prince's
civil list being increased by the addition of the salary before paid to
the Governor-General, and the total expenditure of the province show-
ing a large increase, exclusive of the tribute to the Porte. The Prince
did not disguise his intention, so far as lay in his power, to amalgamate
and render homogeneous the Bulgarians north and south of the
Balkans ; and in his speech delivered at the opening of the Sobranje in
June, alluded to the complete union of the two provinces, as proved by
the meeting of a single Chamber. The Turkish Commissioners for the
revision of the Organic Statute arrived at Sophia in the beginning of
August. The first meeting of the Commission took place on the 12th
(y) That is, of the right to gazrisoii Hertslet, Map of Europe, No. 611.
the Balkans. (a) ParLFaper8,Tarkey,No.2(1886);
(s) Pari. B&pen, Tsrkey, Ko. 2 (1686) ; Ibid. Turkey, No. 1 (1887).
l2
116 RIGUT Oi^ SELF-PRESERVATION
Paxt II. of that month; but there seemed little likelihood of agreement.
Military preparations were once more renewed in both Servia and
Bulgaria, and the Bulgarian troops were sent to the frontier. On the
22nd a coup d'etat was perpetrated at Sophia. The Prince was seized
by a party of military rebels and forcibly removed to Bussian territory.
The Porte announced that it held the authors of any disturbance
responsible for events, and declared its intention to decide and act in
concert with the Great Powers. The Prince, being released by the
orders of the Eussian Government, returned to Bulgaria, but resigned
his position and retired from the country on the 7th September:
declaring that the Protocol of Constantinople had broken his back,
and had given the opposition an opportunity of working against him,
by the fact of his having been made a Turkish functionary (6).
The Powers were agreed that a successor should be chosen in
accordance with the provisions of the Berlin Treaty. Elections were
held in both Bulgaria and Eastern Eoumelia for a Great National
Assembly. In the opinion of Bussia these elections were illegal, and
that country consequently ignored both the Assembly and the Govern-
ment. On the 29th October diplomatic intercourse was resumed
between Belgrade and Sophia (c). In November the Eussian agent and
consuls quitted Bulgaria and Eastern Eoumelia. After much corre-
spondence between the Powers and the Porto, and tentative movements
in other directions, the Sobranje, on 4th July, 1887, elected Prince
Ferdinand of Coburg as Prince of Bulgaria {d). The Prince, shortly
afterwards, accepted the position and entered the country, where he
still remains. His election was not confirmed by the Porte and the
o ^Q]^ Signatory Powers until March, 1896.
Greeoe. The representations of the Signatory Powers did little to hinder the
warlike preparations of Greece (0), whose attitude constituted a
menace to the peace of Europe, and, but for the strenuous appeals of
the Powers to the Porte to maintain a pacific and conciliatory attitude,
was likely to precipitate a war, the consequences of which, however
incalculable in other directions, could not fail to be calamitous to
(jhreece(/). On the morning of 24th January, 1886, the Greek
squadron left Salamis Bay. On the following day a collective note was
delivered at Athens stating that, in the absence of any just cause for
war on the part of Greece against Turkey, and in view of the injury
which would be caused by it to the commerce of other nations, a naval
attack by Greece on Turkey would not be permitted by the Great
Powers. Austria-Hungary, Germany, Great Britain, Italy, and
Eussia sent ships of war to Suda Bay to compel conformance with the
note. France agreed in the general policy, but could not contemplate
acts of hostility by French ships agednst Greece, and opined that a clear
(h) Pari. PapeiB, Turkey, No. 1 (1887). Ibid. No. 2 (1886) ; Ibid. No. 1 (1887) ;
(c) Ibid. Ibid. No. 2 (1887) ; Greece, No. 2 (1886).
(d) Pari. Papers, Turkey,No. 2 (1887). (/) Parl.Papere, Greece, No. 2 (1886);
{e) Pari. Papers, Turkey, No. 1 (1886) ; Ibid. No. 8 (1886).
AND INDEPENDENCE. 117
intimation to Greece that if sbe wore out the patience of the Ottoman Chap. I.
forces she would be left to face the result unaided in any way, would
be sufficient to indace a return to a x>eaceful demeanour. The Greek
reply to the note protested against any limitation of the free dis-
position of their naval forces as incompatible with the independence of
the State and the rights of the Crown. On the 1 3th April, the con-
clusion of the arrangement with regard to Eastern Houmelia (y) was
communicated to the Greek Premier, with the expression of a hope
that Greece would comply with the unanimous wish of Europe for the
maintenance of peace. The disarmament being still delayed, certain
ships of the allied squadron were sent to the Pirtcus. On the 6th May,
a final note was presented inyiting the assurance, in the course of a
week, that orders had been promulgated to place the Hellenic land
and sea forces on a peace footing. The answer being tmsatisfactoiy,
the representatives of the Powers and the Turkish Minister left Athens
on the following day. On May 8th, the Charges d' Affaires commimi-
cated a notice of the blockade of the east coast of Greece and the
entrance to the Gulf of Corinth against all ships under the Greek flag.
Any ship under the Greek flag endeavouring to violate the blockade
was to be liable to detention (h). The Greek troops having retired
from the frontier by the end of the month, and Greece having notified
her Ministers at the Courts of the Powers of her actual proceedings in
the way of disarmament, and the process of demobilization proceeding
rapidly, the blockade was raised on June 7th. Shortly afterwards the
Ministers of the Powers returned to Athens (t). c ygj^
On 6th March, 1889, Milan, King of Servia, abdicated in favour of Servia.
his son, Alexander, a boy of twelve, and resigned his power into the
hands of a council of regency. Since that date the kingdom has been
in a disturbed and unsettled condition, culminating in the atrocious
murder of King Alexander and his consort Queen Draga by the
chiefs of a military conspiracy on the 29th day of May, 1903.
The present occupant of the Servian throne, King Peter Kara-
georgevitch, is believed to hold it on a tenure scarcely more secure
than his predecessor. o wq^
During the Servo-Bulgarian war 300,000 Turkish troops stood idle on European
the frontiers of Eoumelia. If the Sultan had not been condemned to intervention
in loe
inactivity by the fear of complications with the Great Powers, and by BalkanB and
public opinion in both Eussia and Great Britain, which would not C^reeoe.
have tolerated the entry of Ottoman troops into the provinces as con-
templated by the XYIth Article of the Berlin Treaty, there is little
doubt but that he could have compelled both the population of the
province and Prince Alexander to the observance of the Treaty (k).
In the same way, if uncontrolled by Europe, the animosities and
(^) Ante, } 70]. (») Pari. Paper, Greece, No. 4 (1886).
(k) Pari. Papers, Turkey, No. 1 (1886) ;
(A) ParL Papers, Greeoe, No. 1, No. 2, j^^ -^^ ^ ^^gggj . j^^ y^, ^ ^jgg^j .
No. 8, No. 4 (1886). IWd. No. 2 (1887),
1897.
113 RIGHT OF SELF-PliE.SEEVATlON
FartU. jealousies of Greeks, Bulgars, Serbs, and Macedonians preventing
them from acting in concert and leading to internecine conflicts, might
quickly lead to the re-imposition of the Turkish yoke upon her former
provinces, or, more probably, to an international conflict for the parti-
tion of Turkey, disturbing the peace of the world, and fatal to the
independence of these little States. It is upon these and similar
considerations that the intervention in the affairs of, and dominant
control by Europe of the former provinces of Turkey, "which owe their
existence as States to European treaties, is now, for the most part,
justified (/).
Greek war of The inability of the Porte to maintain order in Crete, and to restrain
the Christian and Mohammedan from cutting one another's throats, led,
in February, 1897, to the intervention of Greece, which, in spite of
the protests of the Powers, landed an armed force on the island, and
established a local administration in the name of the King of the
Hellenes. By a joint note the Powers assured Greece that, while
Crete could not be annexed in the present circumstances, they were
resolved, since Turkey had delayed the execution of the reforms settled
in concert with them, to endow Crete with an effective local autonomy,
which should ensure her a separate government under the suzerainty
of the Sultan. Greece declined to withdraw her troops so long as
the Christian population was in danger, and the Powers replied by
proclaiming a blockade of the Cretan ports, and despatching (March 18)
a mixed force of 3,600 men to occupy the island. Meanwhile war was
becoming imminent on the Thessalian frontier, and the Powers warned
both governments that if either country assumed the aggressive in no
case would the aggressor be allowed to derive any permanent advantage
from the result of his action. On April 8, Greek bands crossed the
frontier; on the 11th Turkey declared war, and was completely
victorious in a succession of engagements, re-occupying practically
the whole of Thessaly. Thereupon the Powers compelled the Sultan
to grant an armistice, and further intervened to carry out what has
become an unwritten law — that territory once wrenched from the Turk
can never be permitted to revert to Mohammedan jurisdiction. Though
she had not been the aggressor in the terms of the note of the Powers,
Turkey was not allowed to retain her conquests in Thessaly, but some
slight strategic modifications of frontier, in favour of the Ottoman
Empire, were allowed. The sole penalty enforced upon Greece was
the payment of a moderate indemnity and the temporary occupation
of her territory until its payment. The Treaty of Peace made no
provision for the settlement of Crete, which was placed under a
temporary administrative Commission, consisting of the admirals of
the French, English, Eussian and Italian fleets. Anarchy and disorder,
however, continued to reign until in 1898 the Porte was finally
compelled to withdraw the whole of its troops and functionaries. In
(0 Pari. Papers, cited preceding note; Pari. Paper, Greece, No. 2 (1886) ; Ibid.
No. 4 (1886).
AND INDEPENDENCE. 119
the same year tke four Powers constituted the island an autonomous Chap. I.
State under a High Commissioner appointed by them, subject to the
suzerainty of the Sultan, but without tribute. Prince George of
Greece was the first Commissioner, appointed for a term of three years,
which was renewed in 1901,
The steps which are now being taken by Eussia and Austria, with
the sanction of the other Great Powers, to enforce a scheme of reforms
in Macedonia form the latest instance of European intervention on
behalf of the subjects of the Porte and of the maintenance of peace in
the south-east of Europe (m).
8 71
The interference of the five great European powers interference
represented in the conference of London, in the Belgic ^earEuro-
Revolution of 1830, affords an example of the application fiuhe^Bd^o
of this right to preserve the general peace, and to adapt J^f'^^^^®'
the new order of things to the stipulations of the treaties
of Paris and Vienna, by which the kingdom of the
Netherlands had been created. We have given, in
another work, a full account of the long and intricate
negotiations relating to the separation of Belgium from
Holland, which assumed alternately the character of a
pacific mediation and of an armed intervention, accord-
ing to the varying circumstances of the contest, and
which was finally terminated by a compromise between
the two great opposite principles which so long threatened
to disturb the established order and general peace of
Europe. The Belgic Revolution was recognized as an
accomplished fact, whilst its legal consequences were
limited within the strictest bounds, by refusing to
Belgiimoi the attributes of the rights of conquest and of
postliminy, and by depriving her of a great part of the
province of Luxembom'g, of the left bank of the Scheldt,
and of the right bank of the Mouse. The five great
powers, representing Europe, consented to the separa-
tion of Belgium fron\ Holland, and admitted the former
among the independent States of Europe, upon condi-
tions which were accepted by her and have become the
bases of her public law. • These conditions were subse-
quently incorporated into a definite treaty, concluded
(m) See Annual Begister, 1897 ; Statesman's Year Book, 1903..
120 RIGHT OF SELF-PRESERVATION
Partn. between Belgium and Holland in 1839, by which the
independence of the former was finally recognized by
• the latter (w).
independ'enoe Evcry State, as a distinct moral being, independent
?n respite of cvcry othcr, may freely exercise all its sovereign
g*^7rmm^t. rights in any manner not inconsistent with the equal
rights of other States. Among these is that of establish-
ing, altering, or abolishing its own municipal constitution
of government. No foreign State can lawfully interfere
with the exercise of this right, unless such interference
is authorized by some special compact, or by such a clear
case of necessity as immediately affects its own inde-
pendence, freedom, and security. Non-interference is
the general rule, to which cases of justifiable interference
form exceptions limited by the necessity of each par-
n yg ticular case.
Mediation of The approved usage of nations authorizes the proposal
forthT settle- by one State of its good oflSces or mediation for the
Sternal ^ Settlement of the intestine dissensions of another State.
ofTstotef When such offer is accepted by the contending parties,
it becomes a just title for the interference of the mediat-
ing power.
Titles of Such a title may also grow out of positive compact
and guaranty, previously cxistiug, such as treaties of mediation and
guaranty. Of this nature was the guaranty by France
and Sweden of the Germanic Constitution at the peace
of Westphalia in 1648, the result of the thirty years'
war waged by the princes and States of Germany for the
preservation of their civil and religious liberties against
the ambition of the House of Austria.
The Republic of Geneva was connected by an ancient
alliance with the Swiss Cantons of Berne and Zurich, in
consequence of which they united with France, in 1738,
in offering the joint mediation of the three powers to the
contending political parties by which the tranquillity of
the republic was disturbed. The result of this mediation
was the settlement of a constitution, which giving rise
(ft) Wheaton'B Hist, of the Law of Nations, pp. 538—555.
AND INDEPENDENCE. 121
to new disputes in 1768, they were again adjusted by Chap. L
the intervention of the mediating powers. In 1782, the
French government once more united with these Cantons
and the court of Sardinia in mediating between the
aristocratic and democratic parties ; but it appears to be
very questionable how far these transactions, especially .
the last, can be reconciled with the respect due, on the
strict principles of international law, to the just rights
and independence of the smallest, not less than to those
of the greatest States (o).
The present constitution of the Swiss Confederation
was also adjusted, in 1813, by the mediation of the great
allied powers, and subsequently recognized by them at
the Congress of Vienna as the basis of the federative com-
pact of Switzerland. By the same act the united Swiss
Cantons guarantee their respective local constitutions of
government (j»).
So also the local constitutions of the different States
composing the Germanic Confederation may be guaran-
teed by the Diet on the application of the particular
State in which the constitution is established ; and this
guarantee gives the Diet the right of determining all
controversies respecting the interpretation and execution
of the constitution thus established and guaranteed (q).
And the Constitution of the United States of America
guarantees to each State of the federal Union a republican
form of government, and engages to protect each of them
against invasion, and, on application of the local autho-
rities, against domestic violence (r).
§78a.
In 1862, a proposition was made by France to England and Sussia, Prised
that the three countries should offer their friendly mediation to the the AmScim
contending parties in the American civil war. The moment was deemed civil war.
inopportune by Bussia, and England declined to accede to the proposal.
(o) Flafisan, Hifitoire de la Diplomatie 1820, art. 62. Corpus Juris GenQanici,
FraD9ai8e, torn. v. p. 78 ; torn. vii. von Mayer, torn. ii. p. 196. As to the
pp. 27, 297. present constitation of Germany, see
{p) Acte Final du Congies de Vienne, { 61a, ante.
art. 74. (r) Constitution of the United States,
{q) Wiener Schlass-Acte, rom 15 Mai, art. 3.
122 RIGHT OF SELF-PRESERVATION
Part H. ** According to the information we possess," wrote Prince Qortchacow
to M. D'Oubil, Eussian charge d'affaires in Paris, on the 27th Oct., 1862,
" we are led to believe that a combined movement of France, England,
and Russia, however conciliatory it might be, and with whatsoever
precautions it might be surrounded, if it came with an official and col-
lective character, would incur the risk of bringing about a result
opposed to the pacificatory end which the three Courts desire" («). The
proposal would have been declined had it been made. It was thought
in the Northern States that the policy of France was hostile to the
Union, and that the proposed mediation was only a preliminary step
to the acquisition by France of those parts of the dismembered Union
which had formerly belonged to her (/).
§ 74. . .
independenco This pcif ect independence of every sovereign State, in
Lrw^tto*^ respect to its political institutions, extends to the choice
ite^nderaf ^^ ^^ *^^^ Supreme magistrate and other rulers, as well as to
the form of government itself. In hereditary govern-
ments, the succession to the crown being regulated by
the fundamental laws, all disputes respecting the succes-
sion are rightfully settled by the nation itself, indepen-
dently of the interference or control of foreign powers.
So also in elective governments, the choice of the chief
or other magistrates ought to be freely made, in the
manner j^rescribed by the constitution of the State,
without the intervention of any foreign influence or
g y- authority (w).
Exceptions The ouly cxccptions to the application of these general
^co^pwiT rules arise out of compact, such as treaties of alliance,
right^of l^er- guarantee, and mediation, to which the State itself whoso
vention. conccms are in question has become a party ; or formed
by other powers in the exercise of a supposed right of an
intervention growing out of a necessity involving their
own particular security, or some contingent danger
affecting the general security of nations. Such, among
others, were the wars relating to the Spanish succession
in the beginning of the eighteenth century, and to the
Bavarian and Austrian successions, in the latter part of
the same century. The history of modem Europe also
affords many other examples of the actual interference
(») U. S. Dipl. Cor. 1863, yol. ii. War, vol. iu. p. 439.
p. 769. (m) Vattel, Droit des Gens, liy. i. ch.
(t) Draper, Hist, of American Civil 6, }§ 66, 67.
AND INDEPENDENCE. 123
of foreign powers in the choice of the sovereign or chief Chap. I.
magistrate of those States where the choice was consti-
tutionally determined by popular election, or by an
elective council, such as in the cases of the head of the
Germanic Empire, the King of Poland, and the Roman
pontiff ; but in these cases no argument can be drawn
from the fact to the right. In the particular case, how-
ever, of the election of the Pope, who is the supreme
pontiff of the Roman Catholic Church, as well as a tem-
poral sovereign, the Emperor of Austria, and the Kings
of France and Spain, have, by ancient usage, each a
right to exclude one candidate (x). ^
The quadruple alliance, concluded in 1834 between Quadruple
France, Great Britain, Spain, and Portugal, affords a ?834?^tween
remarkable example of actual interference in the ques- BriSiS' ^^^^
tions relating to the succession to the crown in the two f**^*^*^* ^^^
latter kingdoms, growing out of compacts to which they
were parties, formed in the exercise of a supposed right
of interference for the preservation of the peace of the
Peninsula, as well as the general peace of Europe.
Having already stated in another work the historical
circumstances which gave rise to the quadruple alliance,
as well as its terms and conditions, it will only be neces-
sary here to recapitulate the leading principles, which
may be collected from the debate in the British Parlia-
ment, in 1835, upon the measures adopted by the British
Government to carry into effect the stipulations of the
treaty.
1. The legality of the order in council permitting
British subjects to engage in the military service of the
Queen of Spain, by exempting them from the general
operation of the Act of Parliament of 1819, forbidding
them from enlisting in foreign military service, was not
{z) Kluber, Droit dee Gens Modeme doubtful whether it amounted to more
de rEorope, Pt. II. tit. 1, ch. 2, { 48. than a protest to the effect that theeleo-
ThiB right of veto ia said to have been ^.^^ ^^ ^^^^^^ Rampolla would be one
exercised by an Austrian cardmal, on ^, ^ . , . , , ,
behalf of his emperor, at the conclave *^* ^^*"* ^^"^^ ^ ^^*^1« ^ ^«^1-
held in August, 1903, to choose a sue- co^®- See Quarterly Review, Oct. 1903,
cesser to Pope Leo XIII. ; but it seems vol. 198, p. 443,
124 RIGHT OF SELF-PRESERVATION
Part II. called in question by Sir Robert Peel and the other
speakers on the part of the opposition. Nor was the
obligation of the treaty of quadruple alliance, by which
the British Government was bound to furnish arms and
the aid of a naval force to the Queen of Spain, denied
by them. Yet it was asserted, that without a declaration
of war, it would be with the greatest difficulty that the
special obligation of giving naval aid could be fulfilled,
without placing the force of such a compact in opposition
to the general binding nature of international law.
Whatever might be the special obligation imposed on
Great Britain by the treaty, it could not warrant her in
preventing a neutral State from receiving a supply of
arms. She had no right, without a positive declaration
of war, to stop the ships of a neutral country on the high
seas.
2. It was contended that the suspension of the foreign
enlistment law was equivalent to a direct military inter-
ference in the domestic affairs of another nation. The
general rule on which Great Britain had hitherto acted
was that of non-interference. The only exceptions
admitted to this rule were cases where the necessity was
urgent and immediate; affecting, either on account of
vicinage, or some special circumstances, the safety or
vital interests of the State. To interfere on the vague
ground that British interests would be promoted by the
intervention; on the plea that it would be for their
advantage to see established a particular form of govern-
ment in Spain, would be to destroy altogether the general
rule of non-intervention, and to place the independence
of every weak power at the mercy of its formidable
neighbours. It was impossible to deny that an act which
the British Government permitted, authorizing British
soldiers and subjects to enlist in the service of a foreign
power, and allowing them to be organized in Great
Britain, was a recognition of the doctrine of the propriety
of assisting by a military force a foreign government
against an insurrection of its own subjects. When the
Foreign Enlistment Bill was under consideration in the
AND INDEPENDENCE. 125
House of Commons, the particular clause which em- Chap. I.
powered the king in council to suspend its operation was
objected to on the ground, that if there was no foreign
enlistment act, the subjects of Great Britain might
volunteer in the service of another country, and there
could be no particular ground of complaint against them ;
but that if the king in council were permitted to issue an
order suspending the law with reference to any belligerent
nation, the government might be considered as sending
a force under its own control.
Lord Palmerston, in reply, stated: — 1. That the object
of the treaty of quadruple alliance, as expressed in the
preamble, was to establish internal peace throughout the
Peninsula, including Spain as well as Portugal ; the
means by which it was proposed to effect that object was
the expulsion of the infants Don Carlos and Dom Miguel
from Portugal. When Don Carlos returned to Spain, it
was thought necessary to frame additional articles to the
treaty in order to meet the new emergency. One of
these additional articles engaged His Britannic Majesty
to furnish Her Catholic Majesty with such supplies of
arms and warlike stores as Her Majesty might require,
and further to assist Her Majesty with a naval force.
The writers on the law of nations all agreed that any
government, thus stipulating to furnish arms to another,
must be considered as taking an active part in any
contest in which the latter might be engaged ; and the
agreement to furnish a naval force, if necessary, was a
still stronger demonstration to that effect. If, therefore,
the recent order in council was objected to on the ground
that it identified Great Britain with the cause of the
existing government of Spain, the answer was, that, by
the additional articles of the quadruple treaty, that
identification had already been established, and that one
of those articles went even beyond the measure which
had been impugned.
2. As to what had been alleged as to the danger of
establishing a precedent for the interference of other
countries, he would merely observe, that in the first
place this interference was founded on a treaty arising
126 RIGnt OF SELF-PRESERVATION
^ftrt II. out of the acknowledged right of succession of a sovereign,
decided by the legitimate authorities of the country-
over which she ruled. In the case of a civil war pro-
ceeding either from a disputed succession, or from a
prolonged revolt, no writer on international law denied
that other countries had a right, if they chose to exercise
it, to take part with either of the two belligerent parties.
Undoubtedly it was inexpedient to exercise that right
except under circumstances of a peculiar nature. That
right, however, was general. If one country exercised
it, another might equally exercise it. One State might
support one party, another the other party : and whoever
embarked in either cause must do so with their eyes open
to the full extent of the possible consequences of their
decision. He contended, therefore, that the measure
under consideration established no new principle, and
that it created no danger as a precedent. Every case
must be judged by the considerations of prudence which
belonged to it. The present case, therefore, must be
judged by similar considerations. All that he maintained
was, that the recent proceeding did not go beyond the
spirit of the engagement into which Great Britain had
entered, that it did not establish any new principle, and
that the engagement was quite consistent with the law
§76a. of nations (^).
Intervention In 1861, there occurred a remarkable intervention in the afpairs of
Mexico, which is thus described in the Queen's Speech on the opening
of Parliament: **The wrongs committed by various parties and by
successive governments in Mexico upon foreigners resident within
Mexican territory, and for which no satisfactory redress could be
obtained, have led to the conclusion of a convention between Her
Majesty, the Emperor of the French, and the Queen of Spain, for the
purpose of regulating a combined operation on the coast of Mexico,
with a view to obtain that redress which has hitherto been with-
held " (2). The contracting powers ** engaged not to seek for them-
selves, in the employment of the contemplated coercive measures, any
acquisition of territory, or any special advantage, nor to exercise in the
internal affairs of Mexico any influence of a nature to prejudice the
right of the Mexican nation to choose and constitute the form of its
^vemment " (a).
(y) Wheaton's Hist. Law of Nations, (n) Convention of Oct. 31, 1861, art. ii>
pp. 623 — 638.
(z) Annual Register, 1862, p. 5. Hertslet's Treaties, vol. xii. p. 476.
in Mexico in
1861.
AND INDEPENDENCE. 127
The main reason for this intervention was to obtain the payment of Chap. I.
debts contracted by the Mexican Government. The amount due to
England was very large, while that owing to France was comparatively
small, yet the Emperor Napoleon thought fit to go much farther than
simply obtaining satisfaction for the claims of France. He set up the
xmfortimate Maximilian as Emperor of Mexico, and then, withdrawing
the French troops, left him to maintain his throne by his ' own
resources, and to be finally tried by court-martial and shot by the
subjects upon whom he had been forced. England and Spain refused
to assist France in these proceedings, and withdrew from the interven-
tion when their claims had been satisfied. The United States wore
invited to join the allies, but declined, and it subsequently appeared
that France was desirous of setting up a powerful Latin State on the
continent of America in opposition to the United States (6). M. Calvo
justly says that this intervention ** constitue pour les puissances qui
s'y sent laisso entralner un precedent aussi peu digne d'eloges que
f uneste d leur consideration et d leurs intorets ^^ (c). But it should be
remembered that the British demands included a claim for redress on
account of the breaking into the house of the British Legation on
16th November, 1860, and the removal thence of 152,000/. sterling
bonds, and on account of the murder of a British subject on 3rd April,
1859 (rf). gyg^
The maintenance of a French garrison in Eome was an altogether iho French
anomalous proceeding. In 1856, the Emperor Napoleon occupied ^rriaon in
Bome. His troops were kept there on the ground that the Pope
required to be protected in the exercise of his spiritual functions as
head of the Catholic Church. The garrison was partly withdrawn in
1864 (tf), but returned in 1868, owing to the aggressive attitude of the
revolutionary party in Italy, and the invasion of the Papal States by
Garibaldi. However, on the 19th of August, 1870, the French troops
evacuated Bome, and what was left of the Papal States was afterwards
incorporated into the kingdom of Italy, leaving the Pope nothing but
the Vatican (/). But it was not until 1874 that the last trace of the
French occupation disappeared from Bome. Up to that date the
Orenoque, a French ship of war, was moored off Civita Vecchia,
ostensibly to assist the Pope should he be in difficulties, and she was
not removed until the 12th of October in that year (^),
(*) See PhiUimore, vol. i. p. 507. (d) Wharton's Dig. p. 312.
(c) Droit International, bk. iii. § 191. {e) Hertslet, Map of Europe, vol. ii.
The view of the United Statea will be p. 1627.
found stated in Wharton's Dig. §} 68, (/) Ibid. p. 1628.
818. iff) Annual Register, 1874, p. 193.
128 EIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Part n.
CHAPTER II.
RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
§77.
Exciaeive EvERY independent State is entitled to the exclusive
legislation?^ powcr of legislation, in respect to the personal rights and
civil state and condition of its citizens, and in respect to
all real and personal property situated veithin its territory,
whether belonging to citizens or aliens. But as it often
happens that an individual possesses real property in a
State other than that of his domicile, or that contracts
are entered into and testaments executed by him, or that
he is interested in successions ab intestato^ in a country
different from either ; it may happen that he is, at the
same time, subject to two or three sovereign powers; to
that of his native country or of his domicile, to that of
the place where the property in question is situated, and
to that of the place where the contracts have been made
or the acts executed. The allegiance to the sovereign
power of his native country exists from the birth of the
individual, and continues till a change of nationality. In
the two other cases he is considered subject to the laws,
but only in a limited sense. In the foreign countries
where he possesses real property, he is considered a non-
resident landowner [sujet forain) ; in those in which the
contracts are entered into, a temporary resident {sujet
passaffer). As, in general, each of these different countries
is governed by a distinct legislation, conflicts between
their laws often arise ; that is to say, it is frequently a
question which system of laws is applicable to the case.
Private The collection of rules for determining the conflicts
law. between the civil and criminal laws of different States, is
called private international law, to distinguish it from
SIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 129
public international law, which regulates the relations of Chap. II.
States (a). 7^
The first general principle on this subject results imme- Conflict of
diately from the fact of the independence of nations.
Every nation possesses and exercises exclusive sovereignty
and jurisdiction throughout the full extent of its territory.
It follows, from this principle, that the laws of every
State control, of right, all the real and personal property
within its territory, as well as the inhabitants of the terri-
tory, whether bom there or not, and that they affect and
regulate all the acts done, or contracts entered into within
its limits.
Consequently, '^ every State possesses the power of
regulating the conditions on which the real or personal
property, within its territory, may be held or transmitted ;
and of determining the state and capacity of all persons
therein, as well as the validity of the contracts and other
acts which arise there, and the rights and obligations
which result from them ; and, finally, of prescribing the
conditions on which suits at law may be commenced and
carried on within its territory " (b).
The second general principle is, ^' that no State can,
by its laws, directly affect, bind, or regulate property
beyond its own territory, or control persons who do not
reside within it, whether they be native-born subjects or
not. This is a consequence of the first general principle ;
a different system, which would recognize in each State
the power of regulating persons or things beyond its
territory, would exclude the equality of rights among
different States, and the exclusive sovereignty which
belongs to each of them " (c).
From the two principles, which have been stated, it
follows that all the effect, which foreign laws can have
in the territory of a State, depends absolutely on the ex-
press or tacit consent of that State. A State is not obliged
(a) FobHx, Droit International Piive, {b) FoeUx, Droit International Priye,
{ 3. Story, Conflict of Laws, {§ 9, 10, { 9.
11. Kent, Comm. vol. ii. p. 39. West-
lake, § 1. W Il>id. § 10.
W. K
130 RIGHTS OF CIVIL AND CRIMli^AL LEGISLATION.
Part II. to allow the application of foreign laws within its territory,
but may absolutely refuse to give any effect to them. It
may pronounce this prohibition with regard to some of
them only, and permit others to be operative, in whole
or in part. If the legislation of the State is positive
either way, the tribunals must necessarily conform to it.
In the event only of the law being silent, the courts may
judge, in the particular cases, how to follow the foreign
laws, and to apply their provisions. The express consent
of a State, to the application of foreign laws within its
territory, is given by acts passed by its legislative autho-
rity, or by treaties concluded with other States. Its tacit
consent is manifested by the decisions of its judicial and
administrative authorities, as well as by the writings of
§ 79. its publicists.
M^to^reim^ There is no obligation, recognised by legislators,
iaw8. public authorities, and publicists, to regard foreign
laws; but their application is admitted, only from con-
siderations of utility and the mutual convenience of
States — ex comitate^ oh reciprocam utilitatem. The public
good and the general interests of nations have cause to
be accorded, in every State, an operation more or less
extended to foreign laws. Every nation has found its
advantage in this course. The subjects of every State
have various relations with those of other States ; they
are interested in the business transacted and in the pro-
perty situate abroad. Thence flows the necessity, or at
least utility, for every State, in the proper interest of its
subjects, to accord certain effects to foreign laws, and
to acknowledge the validity of acts done in foreign
countries, in order that its subjects may find in the
same countries a reciprocal protection for their interests.
There is thus formed a tacit convention among nations
for the application of foreign laws, founded upon reci-
procal wants. This understanding is not the same
everywhere. Some States have adopted the principle
of complete reciprocity, by treating foreigners in the
same manner as their subjects are treated in the country
to which they belong ; other States regard certain rights
SIGHTS OP aVIL AND CRIMINAL LEGISLATION^ 181
to be SO absolutely inherent in the quality of citizens as CbAf.JL
to exclude foreigners from them; or they attach such
an importance to some of their institutions, that they
refuse the application of every foreign law incompatible
with the spirit of those institutions. But, in modem
times, all States have adopted, as a principle, the appli-
cation within their territories of foreign laws; subject,
however, to the restrictions which the rights of sove-
reignty and the interests of their own subjects require.
This is the doctrine professed by all the publicists who
have written on the subject (d).
"Above all things," says President Bohier, "we must
remember that, though the strict rule would authorize us
to confine the operation of laws within their own terri-
torial limits, their application has, nevertheless, been
extended, from considerations of public utility, and
oftentimes even from a kind of necessity. But, when
neighbouring nations have permitted this extension, they
are not to be deemed to have subjected themselves to a
foreign statute; but to have allowed it, only because
they have found in it their own interest by having, in
similar cases, the same advantages for their own laws
among their neighbours. This effect given to foreign
laws is founded on a kind of comity of the law of nations;
by which different peoples have tacitly agreed that they
shall apply, whenever it is required by equity and
common utility, provided they do not contravene any
prohibitory enactment " (e).
Huberus, one of the earliest and best writers on this Rniesiaid
subject, lays down the following general maxims, as hX™.
adequate to solve all the intricate questions which may
arise respecting it : —
1. The laws of every State have force within the limits
of that State, and bind all its subjects.
2. All persons within the limits of a State are con-
{d) Caldwell v. Vanvlisaigen^ 9 Haie^ {e) Bohier, ObflervationB but la cou-
425. tame de Bourgogne, oh. 23, §§ 62, 63,
p. 457.
k2
132 HiaHTS OF CIVIL AND CRIMINAL LEGISLATION.
Part n. sidered as subjects, whether their residence is permanent
or temporary.
3. By the comity of nations, whatever laws are carried
into execution within the Kmits of any State, are con-
sidered as having the same effect everywhere, so far as
they do not occasion a prejudice to the rights of other
States and their citizens.
From these maxims, Huberus deduces the following
general corollary, as applicable to the determination of
all questions arising out of the conflict of the laws of
different States, in respect to private rights of persons
and property.
All transactions in a court of justice, or out of court,
whether testamentary or other conveyances, which are
regularly done or executed according to the law of any
particular place, are valid, even where a different law
prevails, and where, had they been so transacted, they
would not have been valid. On the other hand, trans-
actions and instruments which are done or executed
contrary to the laws of a country, as they are void at
first, never can be valid ; and this applies not only to
those who permanently reside in the place where the
transaction or instrument is done or executed, but to
those who reside there only temporarily; with this
exception only, that if another State, or its citizens,
would be affected by any peculiar inconvenience of an
important nature, by giving this effect to acts performed
in another country, that State is not bound to give effect
to those proceedings, or to consider them as valid within
« gj its jurisdiction (/).
ifxiocirei Thus, real property is considered as not depending
altogether upon the will of private individuals, but as
having certain qualities impressed upon it by the laws of
that country where it is situated, and which qualities
remain indelible, whatever the laws of another State, or
the private dispositions of its citizens, may provide to
the contrary. That State, where this real property is
(/) Hubenu, Fneleot. torn. ii. Hb. i. tit. 3, de Confliota Legum.
RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 183
situated, cannot suffer its own laws in this respect to be Chap. II.
changed by these dispositions, without great confusion
and prejudice to its own interests. Hence it follows,
that the law of a place where real property is situated
governs exclusively as to the tenure, the title, and the
descent of such property (ff).
This rule is applied, by the international jurispinidence
of the United States and Great Britain, to the forms of
conveyance of real property, both as between different
parts of the same confederation or empire, and with
respect to foreign countries. Hence it is that a deed or
will of real property, executed in a foreign country, or
in another State of the Union, must be executed with the
formalities required by the laws of that State where the
land lies (h).
But this application of the rule is peculiar to American
and British law. According to the international juris-
prudence recognized among the different nations of the
European continent, a deed or will, executed according
to the law of the place where it is made, is valid ; not
only as to personal, but as to real property, wherever
situated ; provided the property is allowed by the lex loci
rei sites to be alienated by deed or will ; and those cases
excepted, where that law prescribes, as to instruments for
the transfer of real property, particular forms, which can
only be observed in the place where it is situated, such
as the registry of a deed or the probate of a will {i).
§ 81a.
The main reason for this divergence lies in the fact that continental ^^.^ ^^'
conveyancing has always supposed public acts as the rule, and made rence.
but a comparatively sparing use of the private documents which con-
stitute Anglo-American titles. The inconvenience arising from the
inability to dispose of land imless the owner was in the lex situs,
naturally led to the rule that conveyances of immoveables are rendered
valid by the lex loci actus. On the other hand, the Anglo-American
law preseribes formalities which may be performed anywhere, and are
(^) Huberufl, liv. i. tit. 8, do Conflictii v. Scales, 9 Wallace, 23 ; Freke v. Lord
Leg. { 15. Carberry, L. B. 16 Eq. 461 ; Adams v.
(A) JRobifuon v. Camphell, 3 Wheaton, Clutterbuek, 10 Q. B. D. 403 ; Wharton,
212 ; U. S, T. Crosby, 7 Cranch, 116. § 372.
Coppin T. Coppin, 2 P. W. 291 ; JBrodie (i) FobUx, Droit International Priv^,
V. Barry, 2 Vee. & Beamee, 127 ; MeOoon } 52 ; Hnbems, ubi supra.
134 RIGHTS OF CIVIL IlSV CRIMINAL LEGISLATION.
Part II. iiot contrary to the law of any nation, and it therefore justly refuses to
give effect to transfers of land, unless such formalities have been
complied with {k). However, no one maintains that a form expressly
imposed as an exclusive one by the lex situs, can ever be dispensed
with. Thus the French law of the 23rd March, 1865, requires
immoveable property in France to be transferred inter vivos by a
transcription in the bureau des hypoth^ques, and no transfer is valid
without such transcription (/).
This diversity of opinion is now of no great importance, because the
laws of most European States have adopted the principle that land is
subject to the lex rei sites. This is done expressly by the codes of France,
Belgium, Spain, Holland, Prussia, Austria, Saxony, Italy and Greece (m).
Another point to be decided by the lex rei sites is the character of the
property, that is, whether it be realty or not, for every nation may
impress upon property in its dominions any character it pleases (n).
§82.
Droit The municipal laws of all J^uropean countries formerly
ati atfte. prohibited aliens from holding real property within the
territory of the State. During the prevalence of the
feudal system, the acquisition of property in land in-
volved the notion of allegiance to the prince within whose
dominions it lay, which might be inconsistent with that
which the proprietor owed to his native sovereign. It
was also during the same rude ages that the jus albinagii
or droit d^aubaine was established ; by which all the pro-
perty of a deceased foreigner (moveable or immoveable)
was confiscated to the use of the State, to the exclusion
of his heirs, whether claiming ab intestatoy or imder a
will of the decedent (o). In the progress of civilization,
this barbarous and inhospitable usage has been, by de-
grees, almost entirely abolished. This improvement has
been accomplished either by municipal regulations, or by
international compacts founded upon the basis of reci-
(A) Westlake, § 82. International Law, pp. 147, 148.
(l) Ibid. § 87. Tripier, Codes Fran- (o) Du Gang© (GIobs. Med. iEvi, yooe
^ais, p. 1618. Albinagium et Albani) derives the term
{m) France, Ciyil Code, h 3 ; Belgium, from advena. Other etymologists de-
id. art. y. sub-s. 1 ; Holland, dr. gen. live it from alibi tiattu. During the
^ 7 ; Spain, Civil Code, § 5 ; Prussia, Middle Age, the Soots were called
Allegemeines Landreoht, Emleitung, Albani in France, in common with aU
§ 28 ; Austria, Code Civil, art. 3 ; other aliens ; and as the Gothic term
Saxon Civil Code, § 10; Italj, Civil Albanach is even now applied bj the
Code, Disposition preliminaire, art. 7 ; Highlanders of Scotland to their race, it
Civil Code of Greece, art. 5. may have been transferred by the oon-
(n) Story, § 447. Nelson, Private tinental nations to all foreigners.
BIGHTS OP CIVIL AND CRIMINAL LEGISLATION. 135
procity. Previous to the French Revolution of 1789, the Chap. n.
droit d^aubatne had been either abolished or modified
by treaties between France and other States; and it
was entirely abrogated by a decree of the Constituent
Assembly in 1791, with respect to all nations, without
exception and without regard to reciprocity. This gra-
tuitous concession was retracted, and the subject placed
on its original footing of reciprocity by the Code-
Napoleon, in 1803 ; but this part of the Civil Code was
again repealed, by the Ordinance of the 14th July, 1819,
admitting foreigners to the right of possessing both real
and personal property in France, and of taking by
succession ab intestatoy or by will, in the same manner
with native subjects (p).
The analogous usage of the droit de dStraction^ or droit
de retraite (jusdetractiis), by which a tax was levied upon
the removal from one State to another of property ac-
quired by succession or testamentary disposition, has also
been reciprocally abolished in most civilized countries.
The stipulations contained in the treaties of 1778
and 1800, between the United States and France, for
the mutual abolition of the droit d^aubatne and the droit
de detraction between the two countries, have expired
with those treaties; and the provision in the treaty
of 1794, between the United States and Great Britain,
by which the citizens and subjects of the two countries,
who then held lands within their respective territories,
were to continue to hold them according to the nature
and tenure of their respective estates and titles therein,
was limited to titles existing at the signature of the
treaty, and is rapidly becoming obsolete by the lapse
of time (q). But by the stipulations contained in a great
number of subsisting treaties, between the United States
and various powers of Europe and America, it is pro-
(p) Botteok und Welcker, Staata- Jur. Confred. GermaxiiciP, torn. li. p. 17.
Lexicon, art. QoBtreeht, Band 6, § 862. Merlin, Repertoire, tit. Auhtine,
Vattel, Uv. ii. oh. iiii. ^ 112-114.
Kliiber, Droit dea Gena, Pt. n. tit. 1, W K«n*'" (kmnk. vol. ii. pp. 67—69
ch. ii. ^ 32, 33. Von Majer, Corp. (6th ed.).
136 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION^
Part n. vided, that " where on the death of any person holding
real estate within the territories of the one party, such
real estate would, by the laws of the land, descend on a
citizen or subject of the other, were he not disqualified
by alienage, such citizen or subject shall be allowed a
reasonable time to sell the same, and to withdraw the
proceeds without molestation, and exempt from all duties
of detraction on the part of the government of the re-
spective States (r).
§82a.
Bights of It is only of late years that the right of holding lands on the same
1^^ to hold conditions as subjects has been conceded to foreigners by most
various countries. In Belgium this was effected by the law of the 27th of
States. April, 1865 (*). Eussia conceded the privilege in 1860 (t). Some of
the Swiss cantons do not even now permit foreigners to hold real
property without the express permission of the Cantonal Government,
imless there be a treaty to that effect (u), Austria (x)^ the Nether-
lands (y), and Sweden (z), only accord the right on condition of reci-
procity in the foreigner's country. The constitution of the German
Empire provides, that every person belonging to one of the con-
federated States is to be treated in every other of the confederated
States as a bom native, and to be permitted to acquire real estate (a).
But as regards other countries, the laws of Bavaria, Prussia, Saxony,
and Wurtemburg, exact for their own subjects, when abroad, the
same rights they extend to foreigners in their own dominions (&). In
Italy, Denmark, and Greece, aliens are under no disabilities in this
respect (c). The ownership of land in the United States is regulated
by the laws of each indiyidual State of the Union. Some of the States
impose no restrictions on foreigners {d) ; others require residence and
an oath of allegiance {e) ; in others a declaration of an intention to
become a naturalized citizen of the United States is necessary {/),
Feudal principles were maintained so long in England, that until the
year 187&, an alien was incapable of holding land for more than
twenty-one years, that is, he could not purchase a freehold. This,
(r) Treaty of 1828 between the United (a) Art. iii. Hertslet, Map of Europe,
States and Prossia, art. 14. Elliott, vol. iii. p. 1931.
Am. Diplom. Code, vol. i. p. 388. See {b) Report of Naturalization Gommis-
U. S. Diplom. Cor. 1873, vol. ii. p. 1415. aion, 1869, pp. 114, 124, 129, 138.
{») Report of Naturalization Com- [e) Ibid. p. 116. Italian Civil Code,
mission, 1869, p. 116. Art. iii. Civil Code of Greece, Art. 5.
{t) Ibid. p. 128. yd) Ohio, Michigan, BlinolB.
(m) Ibid. p. 131. [e) Vermont, N. and S. Carolina.
{x) CivU Code of Austria, § 33. (/) Connecticut, Maine, Delaware,
{y) Civil Code of the Netherlands, Maryland, Virginia, Tennessee, Arkan-
}§ 884, 957. sas, Indiana, Missouri. See Rep. of
(z) Swedish Statute of Inheritance, Nat. Comm. p. 131 ; and U. S. Diplom.
*«ArfdaBalken," ch. 16, § 2. Cor. 1873, p. 1414.
BIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 137
however, was remedied by the Naturalization Act, 1870 (y), which Chap. II.
relieved aliens of most of their disabilities, and, as regards land,
placed them on the same footing as subjects (A). » oou
There is no uniform rule among nations by which the nationality of Effect of birth
a person may be determined from the place of his birth. England, ^ ▼axioua
America, and the majority of South American States claim all who are
bom within their dominions as natural-born subjects or citizens, what-
ever may have been the parents' nationality; but in the case of
England the child may elect to revert to the nationality of his parents.
And it seems that in practice the United States do not claim as citizens
children born of parents whose residence is merely transitory {{), A
child born in Denmark is considered a Dane while he remains in the
country (k). Birth in Portugal confers Portuguese nationality, unless
the father was at the time in the service of a foreign State, or unless
the child formally renounces it (/).
Complete Dutch nationality is acquired by birth in Holland, if the
parents are established there, but is abandoned on proof being given
that such a practice is contrary to the laws of the parents' country of
origin. In Sweden the children of aliens who have resided in the
country without intermission from birth to the attainment of their
twenty-second year become citizens at that age, but they can avoid
naturalization on proof that they possess civil rights in another
country (m). In Italy, when an alien has established his domicile in
the kingdom uninterruptedly for ten years, his child is considered a
citizen, but residence for commercial purposes does not suffice to confer
this status (n). If a child is born in any other European country, he
does not acquire its national character, but follows that of his father,
if legitimate, and that of his mother, if illegitimate (o). However, in
Baden (/?), Belgium (y), France (r), Greece (*), and Spain (^), children
of alien parents bom there are enabled to acquire the nationality of
the country by a declaration, made within a year after their coming of
age, of their wish to do so. Under recent legislation (u), French
nationality can be thus acquired by alien children themselves bom in
(^) 33 & 34 Yiot. 0. 14, 8. 2. 1894 ; Martenfi, Noav. Beo. G6n. 2me
(A) Bloxam v. Favre, 9 P. D. 130. Aa Ser. xx. p. 823.
to British oolonies and dependencies, see (n) Giyil Code of Italy, lib. i. tit. i.
Bep. of Nat. Gomm. 1869, p. 137. art. 8.
(i) Cah'in'8 case, 2 State Tr. 639 ; (o) Bep. of Nat. Gomm. pp. 141—
Donegani v. Dwegani, 3 Koapp, P. G. 149.
63 ; Re Adam, 1 Moo. P. G. 460. Four- (p) Baden Landrecht, art. 9.
teenth Amendment to TJ. S. Gonstitu- (^j oivil Gode of Belgiran, art. 9.
tion, TJ. S. Statutes at Large, vol. xv. La^ of 27th Sept. 1836, art. 2.
p. 706 ; and Wharton's Dig«Bt, § 183 ^^j ^ ^^ ^ ^ ^ ^^ j. .
(*) G. Brook to Sir G. L. Wyke, 26th ^ i 6 9
July, 1868, Nat. Gomm. Bep. p. 143. * '^' ., ^ , . ^
(0 Givil Gode of Portugal, tit. iii. W ^'"^ ^^ ^* ^"«^«' ^^^^ ^7, 19-
art. 18, No. 2. (0 Royal Becree, 17th Not. 1852.
(m) Law of 28th July, 1850, F. O. (w) Law of 29th Jan. and 7th Feb.
No. 44, art. 1; Swedish law of Got. 1851, art. 1; Law of 28th June, 1889.
188 EIGHTS OF CIYIL AND CRIMINAL LEGISLATION.
Part n. France, irrespective of whether their parents were born there or not.
If either of the parents were bom in France, such children are now
regarded as French subjects from their birth ; but if only the mother
was bom there the children may declare for retention of their foreign
nationality in the year following the attainment of their majority (x),
§83.
lex d<mmiii. As to personal property, the lex domicilii of its owner
prevails over the law of the country where such property
is situated, so far as respects the rule of inheritance : —
Mobilia ossibus inhcerentj personam sequuntur. Thus the law
of tlie place, where the owner of personal property was
domiciled at the time of his decease, governs the succes-
sion ab intestato as to his personal effects wherever they
may be situated {y). Yet it had once been doubted, how
far a British subject could, by changing his native domi-
cile for a foreign domicile without the British empire,
change the rule of succession to his personal property in
Great Britain ; though it was admitted that a change of
domicile, within the empire, as from England to Scot-
land, would have that effect {z). But these doubts have
been overruled in a more recent decision by the Court of
Delegates in England, establishing the law, that the
actual foreign domicile of a British subject is exclusively
to govern, in respect to his testamentary disposition of
personal property, as it would in the case of a mere
foreigner (a).
So also the law of a place where any instrument,
relating to personal property, is executed, by a party domi-
ciled in that place, governs, as to the external form, the
interpretation, and the effect of the instrument: Locus
regit actum. Thus, a testament of personal property, if
(x) Laws of 28th June, 1889, and tit. Loi, < 6, No. 8. Foelix, Droit In-
23rd July, 1893, and on the subject ternational Priv^, { 37.
generally, see Cogordan, LaNationaUt6 ^^^ p^ g^ j ^,^^^^ .^ ^^^^^ ^^
au point de vue des rapports inter- ^^^„^^^ ^ ^j^^^, ^^^ ^^^ ^^ j;,
nationaux, . Wharton, § 685.
(y) Hubems, Praeleot. torn, u, lib. i.
tit. 3, de Conflict. Leg. }§ 14, 15. Byn- («) SianUy v. Btmet, 3 Haggard,
kershoek, Qusest. Jur. Pub. lib. i. cap. Eoclee. pp. 393 — 466 ; Mawe v. J>at€ll^
. 16. See also an opinion given by Grotiua 4 ibid. 346, 364; Brenurr, Freeman, 10
as counsel in 1613, Henry's Foreign Mo. P. O. 306; £nohin v. JF^iit, 31
Law, App. p. 196. Merlin, Repertoire, L. J. Ch. 402.
RWHTS OF CIVIL AND CRIMINAL LEGISLATION. 139
executed according to the formalities required by the law Chap, n.
of the place where it is made, and where the party-
making it was domiciled at the time of its execution, is
valid in every other country, and is to be interpreted
and given effect to according to the lex loci.
This principle, laid down by all the text-writers, was
recently recognized in England in a case where a native
of Scotland, domiciled in India, but who possessed herit-
able bonds in Scotland, as well as personal property
there, and also in India, having executed a will in India,
ineffectual to convey Scottish heritage ; and a question
having arisen whether his heir-at-law (who claimed the
heritable bonds as heir) was also entitled to a share of
the moveable property as legatee under the will. It was
held by Lord Chancellor Brougham, in delivering the
judgment of the House of Lords, affirming that of the
Court below, that the construction of the will, and the
legal consequences of that construction, must be deter-
mined by the law of the land where it was made, and
where the testator had his domicile, that is to say, by the
law of England prevailing in that country; and this,
although the will was made the subject of judicial inquiry
in the tribunals of Scotland ; for these Courts also are
bound to decide according to the law of the place where
the will was made (b).
§ 83a.
The law of the domicile only regulates universal assignments of The lex domi-
moveable property, as on marriage or death, and because this is the **'^^
only source from which a rule common to property situated in various univereal
countries can be derived. But when the title to a particular chattel is s'^^'eflaioiui.
concerned, in a case not involving any universal assignment, the law of ^^Jf© aa
its situation is absolute (c). In England no change of domicile will to wills,
avoid or affect a wiU which was valid by the law of the testator's
domicile at the time of its execution (d). Some of the United States
have adopted a different rule. Thus, in New York the law of the
testator's last domicile is held to govern the will («). The payment of
(b) Trotter v. Trotter, 3 Wilson & Tatnall v. Hankey, 2 Moo. P. C. 342.
Shaw, 407. Nebon, Private Intemational Law,
(e) Cammel v. SetoeU, 5 H. ft N. 728 ; p. 192.
WiUiamt v. CoUmial Bank, 38 Ch. D. {d) 24 k 25 Viot. c. 114, s. 3.
388. See as to powers of appointment (<•) Moultrie v. Hunt, 23 N. Y. 394 ;
respecting property in a foreign oonntiy, Wharton, { 586a.
140 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Part II. legacy duty is regulated by the lex domicilii; and, in general, the
liability to pay succession duty or no is determined by the same test.
But the domicile of the settlor is not, in this latter respect, conclusiye.
There may be such a settlement made of the property as to give it a
British character, and then the duty will be payable whatever the
§ 83b. domicile of the settlor (/).
Wi^of The Wills Act of 1861 prorides that, "Every will or other
Bubjects made testamentary disposition made out of the United Kingdom by a
abroad. British subject (whatever may be the domicile of such person at the
time of making the same, or at the time of his or her death) shall, as
regards personal estate, be deemed to be well executed for the purpose
of being admitted in England and Ireland to probate, and in Scotland
to confirmation, if the same be made according to the forms required,
either by the law of the place where the same was made, or by the
law of the place where such person was domiciled when the same was
made, or by the laws then in force in that part of Her Majesty's
dominions where he had his domicile of origin " (y). In 1874, Lacroix,
a Frenchman by birth, but naturalized in England, made a will in
Paris in the English form, relating to his property in England only.
By the law of France, the will of a naturalized British subject made
in France according to the forms required by the law of England, is
Waia made in valid in France, whatever may be the domicile of the testator at the
* ^ ' time of his death, or at the time of making the will. The will of
Lacroix was therefore admitted to probate under this statute, as being
valid according to the law of the place where it was made (A). The
same statute provides that ** Every will or other testamentary instru-
ment made within the United Kingdom by any British subject (what-
ever may be the domicile of such person at the time of making the
same, or at the time of his or her death), shall, as regards personal
estate, be held to be well executed, and shaU be admitted in England
and Ireland to probate, and in Scotland to confirmation, if the same
be executed according to the forms required by the laws for the time
being in force in that part of the United Kingdom where the same is
made" (s). Under this section the will of an Italian who was natura-
lized in England, who made his will in England, and then returned to
and was domiciled in Italy at the time of his death, was admitted to
probate in England. The section was held to apply equally to native-
bom as to naturalized British subjects {k).
Personal The Sovereign power of municipal legislation also ex-
'"^' tends to the regulation of the personal rights of the
(/) Thomson v. Adv.-Gm., 12 01. & (^) 24 & 26 Vict. o. 114, s. 1.
F. 1 ; Nelson, 376 ; Wallace v. Attorney- (A) Jn the goods of Lacroix, 2 P. D. 96.
General, L. B. 1 Ch. 1 ; Attorney-Gene- ,.> «. i^ «« tt. .
ral V. ^«,pi.n, L. R. 5 H. L. 624 ; In W ^* * ^^ V«*. c. 114. .. 2.
re Cigala's Trust, 7 Ch. D. 351. (A:) In the goods of Gaily, 1 P. D. 438.
RIGHTS OP CIVIL AKD CRIMINAL LEGISLATION. 141
citizens of the State, and to everything affecting their Chap. EL
civil state and condition.
It extends (with certain exceptions) to the supreme
police over all persons within the territory, whether
citizens or not, and to all criminal offences committed
by them within the same (l).
Some of these exceptions arise from the positive law
of nations, others are the effect of special compact.
There are also certain cases where the municipal laws
of the State, civil and criminal, operate beyond its ter-
ritorial jurisdiction. These are,
I. Laws relating to the state and capacity of persons. Laws reiaidng
In general, the laws of the State, applicable to the civil and capacity
condition and personal capacity of its citizens, operate maroperate
upon them even when resident in a foreign country. ter^H^riaU
Such are those universal personal qualities which take
effect either from birth, such as citizenship, legitimacy,
and illegitimacy ; at a fixed time after birth, as minority
and majority ; or at an indeterminate time after birth,
as idiocy and lunacy, bankruptcy, marriage, and divorce,
ascertained by the judgment of a competent tribunal.
The laws of the State affecting all these personal qualities
of its subjects travel with them wherever they go, and
attach to them in whatever country they are resident {m).
This general rule is, however, subject to the following
exceptions : —
1. To the right of every independent sovereign State Naturaiiza-
to naturalize foreigners and to confer upon them the
privileges of their acquired domicile.
Even supposing a natural-bom subject of one country
cannot throw off his primitive allegiance, so as to cease
to be responsible for criminal acts against his native
country, it has been determined, both in Great Britain
and the United States, that he may become by residence
(I) Hubenu, torn. ii. liy. i. tit. 3, de Habems, torn. ii. 1. i. tit. 3, de Conflict.
Conflict. Leg, § 2. Leg. § 12. Abd-uUMeaHh y. Farroy 13
(m) Pardeasns, Droit Commercial, Pt. App. Cas. 431» 438 ; Its Pricey Tomlin y.
VI. tit. 7, di. 2, i 1, FoBliz, Droit In- LatUta, (1900) 1 Ch. 442 ; and see In re
temational Friy6, liy. i. tit. i. § 31. de Nieol, (1900) A. C. 21.
142 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Partn. and naturalization in a foreign State entitled to all the
commercial privileges of his acquired domicile and citizen-
ship. Thus, by the treaty of 1794, between the United
States and Great Britain, the trade to the countries
beyond the Cape of Good Hope, within the limits of the
East India Company's Charter, was opened to American
citizens, whilst it still continued prohibited to British
subjects : it was held by the Court of King's Bench that
a natural-bom British subject might become a citizen of
the United States, and be entitled to all the advantages
of trade conceded between his native country and that
foreign country; and that the circumstance of his return-
ing to his native country for a mere temporary purpose
o gg would not deprive him of those advantages (n).
Regulation of 2. The sovcrcign right of every independent State to
situated in a rogulato the property within its territory constitutes
another exception to the rule.
Thus, the personal capacity to contract a marriage, as
to age, consent of parents, &c., is regulated by the law
of the State of which the party is a subject; but the
effects of a nuptial contract upon real property (mmobilia)
in another State are determined by the lex loci rei sitw.
Huberus, indeed, lays down the contrary doctrine, upon
the ground that the foreign law, in this case, does not
affect the territory immediately, but only in an incidental
manner, and that by the implied consent of the sovereign,
for the benefit of his subjects, without prejudicing his or
their rights. But the practice of nations is certainly
different, and therefore no such consent can be implied
to waive the local law which has impressed certain in-
delible qualities upon immoveable property within the
„ g- territorial jurisdiction (a).
Penonai As to personal property (mobilia) the lex loci contractAs^
or lex domicilii^ niay, in certain cases, prevail over that of
the place where the property is situated. Huberus holds
that not only the marriage contract itself, duly cele-
(») WiUon V. Marryatt, 1 Bos. & Pull. (o) Kent, Comment, vol. ii. pp. 182,
43; 7 T. R. 31. See further on thie ,„^ ,^^, _.^ ,
J. x'^.i. :i ^xi. V X 186, n. (6th edit.),
sabject at the end of the chapter. ' ^ '
property
RIGHTS OF CIViL AND CRIMINAL LEGISLATION. 143
brated in a given place, is valid in all other places, but Chap. II.
that the rights and effects of the contract, as depending
upon the lez loctj are to be equally in force every-
where (ji?). If this rule be confined to personal property,
it may be considered as confirmed by the unanimous
authority of the public jurists, who unite in maintaining
the doctrine that the incidents and effects of the marriage
upon the property of the parties, wherever situated, are
to be governed by the law of the matrimonial domicile,
in the absence of any other positive nuptial contract (q).
But if there be an express ante-nuptial contract, the
rights of the parties under it are to be governed by the
lex loci contractus (r).
§ 87a.
The matrimonial domicile has been defined to be *^ the actual domi- Matrimonial
cile of the husband at the time of the marriage, but it may possibly, *^°°"^®-
when persons marry with the avowed intention of immediately settling
in some country where the husband is not actually domiciled, mean not
the actual, but the intended, domicile of the husband " («). " The mar-
riage contract," said Lord Brougham, **is emphatically one which
parties make with an immediate view to the usual place of their resi-
dence " (t). The matrimonial domicile is not changed by an aban-
donment of one party by the other (u). It seems fairly established
that the law of the matrimonial domicile will always govern personal
property acquired before marriage (x) ; and instruments relating to it,
such as marriage settlements, are to be construed according to that
law (y). But when the matrimonial domicile is changed after mar-
riage, there is a difference of opinion as to what effect this will have
upon personal property acquired after such change of domicile. Story
lays it down that when there has been a change, the law of the actual,
and not of the matrimonial, domicile will govern as to all future acquisi-
tions of personal property, if the laws of the place where the rights are
ip) Habenu, 1. i. tit. 3, de Conflict. 157. See £e Sttmr y. Le Stmtr, 1 P. D.
L^. § 9. 139.
{q) Foelix, § 66. Weetlake, §. 366. ^^^ PhiUimore, vol. iv. {.445. JTaitM
Field, International Code, § 576. ^ Schrimpton, 21 Beavan, 97 ; TTr^A^'*
(r) lU Couche v. Savetier, 3 Johnson, j,^^^^ 2 K. & J. 596. Westlake,
Ch. Rep. 211. jggg Dioey,p. 651.
(«) Dicey, Conflict of Laws, p. 649 ;
and see Field, International Code, { 577 (*f) Atutruther y. Adair, 2 Mylne &
(2nd ed.). Story, Conflict of Laws, K. 613; £9teT. Smitht 18 Beavan, 112;
} 193. Wharton, \ 190. Saul y. Sis CredUors, 6 Martin, N. S.
(t) Warrender y. Warrender, 2 CI. & 569; JDe Zana v. Moore, 14 Howard, 253 ;
Fin. 488. Colliss y. Seoior, L. B. 19 Eq. 334 ; JSs
(») Bonati y. TFeUh, 24 Now York, MarOand, 55 L. J. Ch. 581.
144 RIGHTS OP CIVIL AND CRIMINAL LEGISLATION.
Part II. sought to be enforced do not prohibit such arrangements (z). On the
other hand, in England the law of the matrimonial domicile, in the
absence of express contract, regulates the rights of the husband and
wife in the moveable property belonging to either of them at the time
of their marriage, or acquired by either of them during the marriage.
The French law is to the same effect (a).
§88.
Effect of By the general international law of Europe and
diBoharge and America, a certificate of discharge obtained by a bank-
asaig^ees Tupt in the country of which he is a subject, and where
ooimSy.^'^ the contract was made and the parties domiciled, is valid
to discharge the debtor in every other country ; but the
opinions of jurists and the practice of nations have been
much divided upon the question, how far the title of his
assignees or syndics will control his personal property
situated in a foreign country, and prevent its being
attached and distributed under the local laws in a
different course from that prescribed by the bankrupt
code of his own country. According to the law of most
European countries, the proceeding which is commenced
in the country of the bankrupt's domicile draws to itself
the exclusive right to take and distribute the property.
The rule thus established is rested upon the general
principle that personal (or moveable) property is, by a
legal fiction, considered as situated in the country where
the bankrupt had his domicile. But the principles of
jurisprudence, as adopted in the United States, consider
the lex loci ret sites as prevailing over the lex domicilii in
respect to creditors, and that the laws of other States
cannot be permitted to have an extra-territorial opera-
tion to the prejudice of the authority, rights, and inte-
rests of the State where the property lies. The Supreme
Court of the United States has therefore determined,
that both the government under its prerogative priority,
(s) Confliot of Laws, \ 187. Barge, oision of the House of Lords in Le
Col. and For. Laws, pt. i. ch. 7, § 8. Nieoh v. Curlier y (1900) A. 0. p. 21,
Wharton, § 198. grave it judicial sanction. For the French
(a) The above definition of the English law, see Fcelix, p. 9 1 . This is approved
law was published by Professor West- of by Sir B. Phillimore, vol. iv. { 447,
lake. Private International Law (3rd and acoords with the opinion of Savigny.
ed.), p. 68, some time before the de- Guthrie, p. 293.
RIGHTS OF CIVIL AND CRIMIKAL LEGISLATION. 145
and private creditors attaching under the local laws, are Chap. 11.
to be preferred to the claim of the assignees for the
benefit of the general creditors under a foreign bankrupt
law, although the debtor was domiciled and the contract
made in a foreign country (b). ^ gg
3. The general rule as to the application of personal The utxim
statutes yields in some cases to the operation of the lex often caosee
7 . . . ^ exoeptdoBS to
wet COntf'acmS. thiarnle.
Thus a bankrupt's certificate under the laws of his own
country cannot operate in another State to discharge him
from his debts contracted with foreigners in a foreign
country (c). And though the personal capacity to enter
into the nuptial contract as to age, consent of parents,
and prohibited degrees of affinity, &c., is generally to be
governed by the law of the State of which the party is a
subject, the marriage ceremony is always regulated by
the law of the place where it is celebrated ; and if valid
there, it is considered as valid everywhere else, unless
made in fraud of the laws of the country of which tlie
parties are domiciled subjects.
II. The municipal laws of the State may also ope- jatEw
rate beyond its territorial jurisdiction, where a contract ^^"*^''^^^''
made within the territory comes either directly or inci-
dentally in question in the judicial tribunals of a foreign
State.
A contract, valid by the law of the place where it is
made, is, generally speaking, valid everywhere else.
The general comity and mutual convenience of nations
have established the rule, that the law of that place
governs in every thing respecting the form, interpreta-
tion, obligation, and efiEect of the contract, wherever the
(b) Bell's Commentaries on the Law of the lex fori f but will allow due operation
Scotland, vol. ii. pp. 681—687. Rose's and effect to a bankraptcy in the forum
Gases in Bankruptcy, vol. i. p. 462. of the domicile. £x parte Sibethj 14 Q.
Kent's Comment, vol. ii. pp. 393, 404— B.B. ill; £x parte Dever, 18 Q. B. D.
408, 459 (6th edit.) ; Harrison v. Stcrri/f 660 ; Sill v. JForswiek, and notes thereto,
5 Cranch, 289; Offd^n y. Saunders^ 12 NelsoD, Priyate International Law,
Wheaton, 163. Westlake, ch. ix. Story, pp. 153, UZ et seq,
{{ 403—416. The English Court will
administer the estate in accordance with W ThMlip* v. Allm, 8 B. & C. 477.
W. 1.
146
RIGHT8 OP CIVIL AND CRIMINAL LEGISLATION.
§91.
Exceptions to
its operation.
Part II. authority, rights, and interests of other States and their
citizens are not thereby prejudiced {d).
This qualification of the rule suggests the exceptions
which arise to its application. And,
1. It cannot apply to cases properly governed by the
le.v loci ret sitce (as in the case, before put, of the effect of
a nuptial contract upon real property in a foreign State),
or by the laws of another State relating to the personal
state and capacity of its citizens.
2. It cannot apply where it would injuriously conflict
with the laws of another State relating to its police, its
public health, its commerce, its revenue, and generally
its sovereign authority, and the rights and interests of its
citizens.
Thus, if goods are sold in a place where they are not
prohibited, to be delivered in a place where they are pro-
hibited, although the trade is perfectly lawful by the lex
loci contractus^ the price cannot be recovered in the State
where the goods are deliverable, because to enforce the
contract there would be to sanction a breach of its own
commercial laws. But the tribunals of one country do not
take notice of, or enforce, either directly or incidentally,
the laws of trade or revenue of another State, and there-
fore an insurance of prohibited trade may be enforced in
the tribunals of any other country than that where it is
prohibited by the local laws {e).
Huberus holds that the contract of marriage is to be
governed by the law of the place where it is celebrated,
excepting fraudulent evasions of the law of the State to
which the party is subject (/). Such are marriages con-
tracted in a foreign State, and according to its laws, by
persons who are minors, or otherwise incapable of contract-
English law. ing, by the law of their own country. But according to the
Foreign
marriages
(<Q See Hubems, 1. ii. tit. 3, de Con-
flict. Leg. \\\,
{e) Pardessus, Droit Commercial, pt.
vi. tit. 7, ch. 2, § 3. Emerigon, Traits
d' Assurance, torn. i. pp. 212—215. Park
on Insurance, p. 34 1 , 6th ed . The moral
equity of this rule has been stronglj
questioned by Bynkershoek and Pothier.
Also by Story, { 257. Westlake, { 149.
Heffter, § 3C ; but it is admitted to be
oorreci.
(/) De Conflict. Leg. 1. c.
RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 147
international marriage law of the British Empire, a clan- Chap. II.
destine marriage in Scotland, of parties originally domi-
ciled in England, who resort to Scotland, for the sole pur-
pose of evading the English marriage act, requiring the
consent of parents or guardians, is considered valid in the
English Ecclesiastical Courts. This jurisprudence is said
to have been adopted upon the ground of its being a part
of the general law and practice of Christendom, and that
infinite confusion and mischief would ensue, with respect
to legitimacy, succession, and other personal and pro-
prietary rights, if the validity of the marriage contract
was not determined by the law of the place where it was
made. The same principle has been recognized between
the different States of the American Union, upon similar
grounds of public policy (ff).
On the other hand, the age of consent required by the French law.
French Civil Code is considered, by the law of France,
as a personal quality of French subjects, following them
wherever they remove ; and, consequently, a marriage
by a Frenchman, within the required age, will not be
regarded as valid by the French tribunals, though the
parties may have been above the age required by the law
of the place where it was contracted (h). „ ^^
3. Wherever, from the nature of the contract itself, or Execution of
the law of the place where it is made, or the expressed ^othw *^
intention of the parties, the contract is to be executed in °*''™*^-
another country, everything which concerns its execution
is to be determined by the law of that country. Those
writers who affirm that this exception extends to every-
thing respecting the nature, the validity, and the inter-
pretation, appear to have erred in supposing that the
authorities are at variance on this question. They will
be found, on a critical examination, to establish the
distinction between what relates to the validity and
interpretation, and what relates to the execution of the
iff) Earford v. Morris, ii. Haggard's {h) Merlin, B^pertoire, tit. Loi, § 6.
ConsiBt. Rep. pp. 428—433. Kent's ToulUer, Droit Eran^aia, torn. i. No. 118,
Commentariee, vol. ii. p. 93. ^^6. Simonin y. Maliac, 2 Swa. & Tr.
l2
148
RIGHTS OF CIVIL AND CRIMINAL LBaiSLATION.
Part 11. contract. By the usage of nations, the former is to be
determined by the lex loci contractAsy the latter by the
law of the place where it is to be carried into execu-
tion (^).
§93a.
Engiifih law.
§93b.
The law of
the domicile
regpilates the
capacity of
the pazties to
many.
Srooky. Brook,
By the law of England, wliat is to be the law by which a contract,
or any part of it, is to be governed or applied, must always be a
matter of construction of the contract itself, as read by the light of the
subject-matter and of the surrounding circumstances {k),
** There can be no doubt," said Lord Campbell, " of the general
rule that a foreign marriage, valid according to the law of a country
where it is celebrated, is good everywhere. But while the forms of
entering into the contract of marriage are to be regulated by the lex
loci contractUsy the law of the country in which it is celebrated, the
essentials of the contract depend upon the lex domicilii, the law of the
country in which the parties are domiciled at the time of the marriage,
and in which the matrimonial residence is contemplated. Although
the forms of celebrating the foreign marriage may be different from
those required by the law of the country of domicile, the marriage
may be good everywhere. But if the contract of marriage is such, in
essentials, as to be contrary to the law of the country of domicile, and
it is declared void by that law, it is to be regarded as void in the
country of domicile, though not contrary to the law of the country in
which it was celebrated "(/). It is quite obvious that no civilized
State can allow its subjects or citizens, by making a temporary visit to
a foreign country, to enter into a contract, to be performed in the
place of domicile, if the contract is forbidden by the law of the place
of domicile as contrary to religion, or morality, or any of its funda-
mental institutions.
In 1840, W. L. Brook married Charlotte Armitage in England. In
1847, Mrs. Brook died, and in 1850 W. L. Brook married Emily
Armitage, the lawful sister of his deceased wife, at Wandsbeck, in
Denmark, according to the laws of Denmark. At the time of the
marriage Brook and Emily Armitage were domiciled in England, and
had merely gone to Denmark on a temporary visit. The question
arose whether this marriage could be recognized as valid in England.
The law of Denmark does not prohibit the marriage of a widower
with his deceased wife's sister, but the law of England does (m). The
House of Lords held that the parties, being at the time domiciled in
(t) Fcelix, Droit International Priv^,
}74.
(k) Lloyd V. Ouibert, L. R. 1 Q. B.
1 15 ; Nelflon, Private Inteniational Law,
p. 247 ; Jacohs v. Credit Zyonnais, 12 Q.
B. D. 589, 599 ; £e Missouri Steamship
Co,, 5 T. L. R. 438.
{I) Brook V. Brook, 9 H. of L. Gas.
207 ; Sottomayor v. Be Barros, 3 P. D.
1. See also, Simonin v. Mallae, 2 Sw.
& Tr. 67 ; Harvey v. Famie, 8 App.
Cas. 43, 50. And see Dicey, Ckmflict of
Laws, Chap. XXVI.
(m) Mill V. Good, Vanghan, 302 ; B.
V. Chadwick, 11 Q. B. 173, 205.
BIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 149
England, their capacity to marry, and the consequent yalidity of their Chap. 11.
marriage, was to be decided by English law. " A marriage between
a man and the sister of his deceased wife," said Lord Campbell,
"being Danish subjects domiciled in Denmark, may be good all over
the world, and this might likewise be so even if they were native bom
English subjects, who had abandoned their English domicile and
were domiciled in Denmark. But I am by no means prepai*ed to say
that the marriage now in question ought to be, or would be, held valid
in the Danish courts, proof being given that the parties were British
subjects domiciled in England, that England was to be their matri-
monial residence, and that by the law of England such a marriage is
prohibited as being contrary to the law of God " (n). Every State has
a perfect right to decide what marriages it will deem contra honoa
mores, and what marriages it will prohibit within its jurisdiction. If
such marriages are entered into abroad by its domiciled subjects, their
validity will not be recognized in the State prohibiting them. o gg^
When a marriage is polygamous or incestuous by the law of the Folygamoiu
place where it is drawn in question, its validity will not be recog- *»dince8tuous
nized in such place, although the marriage may have been lawful
where celebrated. There can be no question as to what is a poly-
gamous marriage. Marriage, as understood in Christendom, has
been defined to be the voluntary union for life of one man and one
woman, to the exclusion of all others (o). In 1866, Lord Penzance
refused to recognize a Mormon marriage as valid in England. The
marriage was a species of compact entered into between the parties in
Utah, but it was such that the law of England could not take notice
of it, so as to decree a restitution of conjugal rights {p). But what
amounts to an incestuous marriage is by no means so clear. Marriages
between blood relations in the lineal ascending or descending line,
and marriages between brother and sister in the collateral line,
whether of the whole or of the half-blood, are universally regarded as
incestuous {q). Beyond this there is no rule upon which nations are
^^^^' g 93d.
As regards clandestine Scotch marriages, it is now enacted that **no ciaudestine
irregular marriage contracted in Scotland by declaration, acknowledg- Scotch
ment, or ceremony, shall be valid, unless one of the paities had at the ™*"^&®^-
date thereof his or her usual place of residence there, or had lived in
Scotland twenty-one days next preceding such marriage " (r). c gg^^
By the Foreign Marriage Act of 1892, it is provided that all Marriages of
British
snbjects
(«) Brook Y,Brooky 9 'H.oiL.Caa, 212. the marriage laws of the British Empire, abroad.
(o) Ifpde y. Syde^ L. B. 1 P. & B. see Report of Boyal Ck>mmie8ion on the
130 ; see also Se Bethell, 38 Ch. D. 220 ; Marriage Laws, 1868, and a retnm
and Brinkhy y. The Attomey- General made to the House of Commons in 1894.
(1890), P. D. 76. Pari. Papers, H. C. (1894), 144, 145,
(p) Hyde y. Hyde, uhi supra. 323, 324.
(q) Story, Conflict of Laws, § 114; (r) 19 & 20 Vict. c. 96. ZatpfordY.
see also Sottomayor v. De Barrot, 6 P. D. Davies, 47 L. J. P. D. & A. 38 ; L. R.
94 ; Both y. Both, 104 HI. 36. As to 4 P. D. 6.
150 EIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Part II. marriages between parties of whom one at least is a British subject,
and solemnized in the manner therein provided in any foreign country
or place by a marriage officer within the meaning of the Act, shall be
as valid in law as if the same had been solemnized in the United
Kingdom with a due observance of aU forms required by law. The
Act applies to embassy and consular marriages, and marriages cele-
brated on board ships of war on foreign stations. The *' marriage
officer " is not required to solemnize a marriage if in his opinion the
solemnization would be inconsistent with international law or the
comity of nations («).
Lex fort, 4^ ^s evcrj Sovereign State has the exclusive right of
regulating the proceedings in its own courts of justice,
the lex loci contractus of another country cannot apply to
such cases as are properly to be determined by the lex
fori of that State where the contract is brought in
question.
Thus, if a contract made in one country is attempted
to be enforced, or comes incidentally in question, in the
judicial tribunals of another, everything relating to the
forms of proceeding, the rules of evidence, and of limita-
tion, (or prescription,) is to be determined by the law of
the State where the suit is pending, not of that where the
contract is made {t).
§95.
Foreign 8ove- III. The municipal institutions of a State may also
amteiaador, Operate bcyoud the limits of its territorial jurisdiction,
SiTh^*' in the following cases:—
territory of
another state. 1. The pcrsou of a foreign sovereign, going into the
territory of another State, is, by the general usage and
comity of nations, exemj^t from the ordinary local juris-
diction. Kepresenting the power, dignity, and all the
sovereign_attKLbutes of his own nation, and going into
the -territory of another State, under the permission
which (in time of peace) is implied from the absence of
any prohibition, he is not amenable to the civil or criminal
(«) 6b & 66 Vict. c. 23. For previous (t) Kent's Commentaries, vol. ii. p. 459
legislation on the subject, see schedule (6th ed.). Foelix, Droit International
to the Act containing the statutes re- Priv^, § 76. Don v. Lippman^ 6 CI. & F.
pealed. 1 ; Scudder v. Bank, 91 TJ. S. 406.
BIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 161
jurisdiction of the country where he temporaiily re- Clhap. n.
sides (w).
2. The person of an ambassador, or other public
minister, whilst within the territory of the State to which
he is delegated, is also exempt from the local jurisdiction.
His residence is considered as a continued residence in
his own country, and he retains his national character,
unmixed with that of the country where he locally
resides (t^).
3. A foreign army or fleet, marching through, sailing
over, or stationed in the territory of another State, with
whom the foreign sovereign to whom they belong is in
amity, are also, in like manner, exempt from the civil
and criminal jurisdiction of the place (z).
If there be no express prohibition, the ports of a
friendly State are considered as open to the public armed
and commissioned ships belonging to another nation,
with whom that State is at peace. Such ships are exempt
from the jurisdiction of the local tribunals and authorities,
whether they enter the ports under the license implied
from the absence of any prohibition, or under an express
permission stipulated by treaty. But the private vessels
of one State, entering the ports of another, are not
exempt from the local jurisdiction, unless by express
compact, and to the extent provided by such compact (y).
The above principles, respecting the exemption of The case of
vessels belonging to a foreign nation from the local *" ^**^^'
jurisdiction, were asserted by the Supreme Court of the
United States, in the celebrated case of The Exchange, a
vessel which had originally belonged to an American
citizen, but had been sbized and confiscated at St. Sebas-
tien, in Spain, and converted into a public armed vessel
by the Emperor Napoleon, in 1810, and was reclaimed
(m) Bynkerahoek, de Foro Legat. cap. W Casaregifl, Diac. 136, 174.
iu. § 13, cap. ix. § 10 ; and aee Mighell (yj jj^^g^ ^taUs v. Diekelman, 2 Otto,
^^. ^Sultan of Johor,, (1894) 1 Q. B. ^^O; 92 U. 8. 620; WildmhuB^ Case,
(p) Vide infra, pt, iii. oh. 1. ^^0 U. S. 1.
152 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Part II. l>y tte original owner, on her arrival in the port of
Philadelphia.
In delivering the judgment of the Court in this case,
Mr. Chief Justice Marshall stated that the jurisdiction of
courts of justice was a branch of that possessed by the
nation as an independent sovereign power. The juris-
diction of the nation, within its own territory, is
necessarily exclusive and absolute. It is susceptible of
no limitation not imposed by itself. Any restriction
upon it, deriving validity from an external source, would
imply a diminution of its sovereignty to the extent of
the restriction, and an investment of that sovereignty, to
the same extent, in that power which could impose such
restriction.
All exceptions, therefore, to the full and complete
power of a nation, within its own territories, must be
traced up to the consent of the nation itself. They could
flow from no other legitimate source.
This consent might be either express or implied. In
the latter case it is less determinate, exposed more to the
uncertainties of construction ; but, if understood, not less
obligatory.
The world being composed of distinct sovereignties,
possessing equal rights and equal independence, whose
mutual benefit is promoted by intercourse with each
other, and by an interchange of those good offices which
humanity dictates and its wants require, all sovereigns
have consented to a relaxation in practice, under certain
peculiar circumstances, of that absolute and complete
jurisdiction, within their respective territories, which
sovereignty confers.
This consent might, in some instances, be tested by
common usage, and by common opinion growing out of
that usage. A nation would justly be considered as
violating its faith, although that faith might not be
expressly plighted, which should suddenly, and without
previous notice, exercise its territorial jurisdiction in a
manner not consonant to the usages and received obliga-
tions of the civilized world.
BIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 1S3
This perfect equality and absolute independence of Chap. n.
sovereigns, and this common interest impelling them to
mutual intercourse, has given rise to a class of cases, in
which every sovereign is understood to waive the exercise
of a part of that complete, exclusive territorial jurisdic-
tion, which has been stated to be the attribute of every
nation,
§97.
1. One of these was the exemption of the person of Exemption of
."I • n J. J J. J • •j.i • i» • ^^® person of
the sovereign from arrest or detention withm a foreign the foreign
territory'. ?^:;1hVi
If he enters that territory with the knowledge and J^^'^^^*^^^^"-
license of its sovereign, that license, although containing
no express stipulation exempting his person from arrest,
was universally understood to imply such stipulation.
Why had the whole civilized world concurred in this
construction ? The answer could not be mistaken. A
foreign sovereign was not understood as intending to
subject himself to a jurisdiction incompatible with his
dignity and the dignity of his nation, and it was to
avoid this subjection that the license had been obtained.
The character of the person to whom it was given, and
the object for which it was granted, equally required
that it should be construed to impart full security to the
person who had obtainqd it. This security, however,
need not be expressed ; it was implied from the circum-
stances of the case.
Should one sovereign enter the territory of another,
without the consent of that other, expressed or implied,
it would present a question which did not appear to be
perfectly settled, a decision of which was not necessary
to any conclusion to which the Court might come in the
case under consideration. If he did not thereby expose
himself to the territorial jurisdiction of the sovereign
whose dominions he had entered, it would seem to be
because all sovereigns impliedly engage not to avail
themselves of a power over their equal, which a romantic
confidence in their magnanimity had placed in their
hands.
154 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Part II. 2. A second case, standing on the same principles with
§ 98. the first, was the immunity which all civilized nations
^^*^^^ ^* allow to foreign ministers.
r^^^^^th* local Whatever might be the principle on which this immu-
jurifldictioD. nity might be established, whether we consider the
minister as in the place of the sovereign he represents,
or by a political fiction suppose him to be extra-
territorial, and therefore, in point of law, not within
the jurisdiction of the sovereign at whose court he
resides ; still the immunity itself is granted by the
governing power of the nation to which the minister is
deputed. This fiction of extra-territoriality could not
be erected and supported against the will of the sove-
reign of the territory. He is supposed to assent to it.
This consent is not expressed. It was time that in
some countries, and in the United States among others,
a special law is enacted for the case. But the law ob-
viously proceeds on the idea of prescribing the punish-
ment of an act previously unlawful, not of granting to a
foreign minister a privilege which he would not other-
wise possess. The assent of the local sovereign to the
very important and extensive exemptions from territorial
jurisdiction which are admitted to attach to foreign
ministers, is implied from the consideration, that, with-
out such exemptions, every sovereign would hazard his
own dignity by employing a public minister abroad. His
minister would owe temporary and local allegiance to a
foreign prince, and would be less competent to the objects
of his mission. A sovereign committing the interests
of his nation with a foreign power to the care of a person
whom he has selected for that purpose, cannot intend
to subject his minister in any degree to that power ; and,
therefore, a consent to receive him implies a consent
that he shall possess those privileges which his principal
intended he should retain, privileges which are essential
to the dignity of his sovereign, and to the duties he is
bound to perform.
In what cases a public minister, by infracting the laws
of the country in which he resides, may subject himself
RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
165
territory.
to other punishment than will be inflicted by his own Cihap. n.
sovereign, was an inquiry foreign to the present purpose.
If his crimes be such as to render him amenable to the
local jurisdiction, it must be because they forfeit the
privileges annexed to his character ; and the minister,
by violating the conditions under which he was received
as the representative of a foreign sovereign, has surren-
dered the immunities granted on those conditions ; or,
according to the true meaning of the original consent,
has ceased to be entitled to them. « ^
3. A third case, in which a sovereign is undei'stood to Exemption
cede a portion of his territorial jurisdiction, was where juiSdictionof
he allows the troops of a foreign prince to pass through ^^^^'^^^
his dominions. I^"J^*^®
In such case, without any express declaration waiving
jurisdiction over the army to which this right of passage
has been gmnted, the sovereign who should attempt to
exercise it would certainly be considered as violating his
faith. By exercising it the purpose for which the free
passage was granted would be defeated, and a portion of
the military force of a foreign independent nation would
be diverted from those national objects and duties to
which it was applicable, and would be withdrawn from
the control of the sovereign whose power and whose
safety might greatly depend on retaining the exclusive
command and disposition of this force. The grant of
a free passage, therefore, implies a waiver of all jurisdic-
tion over the troops during their passage, and permits
the foreign general to use that discipline and to inflict
those punishments which the government of his army
may require.
But if, without such express permission, an army
should be led through the territories of a foreign prince,
might the territorial jurisdiction be rightfully exercised
over the individuals composing that army ?
Without doubt, a military force can never gain immu-
nities of any other description than those which war
gives, by entering a foreign territory against the will of
its sovereign. But if his consent, instead of being ex-
156 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Part n. pressed by a particular license, be expressed by a general
declaration that foreign troops may pass through a speci-
jfied tract of country, a distinction between such general
permission and a particular license is not perceived. It
would seem reasonable, that every immunity which
would be conferred by a special license, would be, in
like manner, conferred by such general permission.
It was obvious that the passage of an army through
a foreign territory would probably be, at all times, incon-
venient and injurious, and would often be imminently
dangerous to the sovereign through whose dominions it
passed. Such a passage would break down some of
the most decisive distinctions between peace and war,
and would reduce a nation to the necessity of resisting
by war an act not absolutely hostile in its character, or of
exposing itself to the stratagems and frauds of a power
whose integrity might be doubted, and who might enter
the country under deceitful pretexts. It is for reasons
like those that the general license to foreigners to enter
the dominions of a friendly power is never understood
to extend to a military force ; and an army marching
into the dominions of another sovereign, without his
special permission, may justly be considered as commit-
ting an act of hostility ; and, even if not opposed by
force, acquires no privileges by its irregular and improper
conduct. It might, however, well be questioned whether
any other than the sovereign of the State is capable of
deciding that such military commander is acting without
0 100. ^ license.
Exemption of jj^t the Tulc which is applicable to armies did not
of war, appear to be equally applicable to ships of war entering
^iS^fany the ports of a friendly power. The injury inseparable
^^expTOM^^' from the march of an army through an inhabited country,
^^Mdon. ^^^ *^® dangers often, indeed generally, attending it, do
not ensue from admitting a ship of war, without special
license, into a friendly port. A different rule, therefore,
with respect to this species of military force, had been
generally adopted. If, for reasons of State, the ports of
a nation generally, or any particular ports be closed
RIGHTS OP CIVIL AND CRIMINAL LEGISLATION. 1^7
against vessels of war generally, or against the vessels of Chap. II.
any particular nation, notice is usually given of such de-
termination. If there be no prohibition, the ports of a
friendly nation are considered as open to the public ships
of all powers with whom it is at peace, and they are sup-
posed to enter such ports, and to remain in them while
allowed to remain, under the protection of the govern-
ment of the place.
The treaties between civilized nations, in almost every
instance, contain a stipulation to this effect in favour of
vessels driven in by stress of weather or other urgent
necessity. In such cases the sovereign is bound by com-
pact to authorize foreign vessels to enter his ports, and
this is a license which he is not at liberty to retract.
If there be no treaty applicable to the case, and the
sovereign, from motives deemed adequate by himself,
permits his ports to remain open to the public ships of
foreign friendly powers, the conclusion seems irresistible
that they enter by his assent. And if they enter by his
assent necessarily implied, no just reason is perceived for
distinguishing their case from that of vessels which enter
by express assent.
The whole reasoning, upon which such exemption had
been implied in the case of a sovereign or his minister,
applies with full force to the exemption of ships of war
in the case in question.
"It is impossible to conceive," said Vattel, "that a
prince who sends an ambassador, or any other minister,
can have any intention of subjecting him to the authority
of a foreign power ; and this consideration furnishes an
additional argument, which completely establishes the
independence of a public minister. If it cannot be rea-
sonably presumed that his sovereign means to subject
him to the authority of the prince to whom he is sent, the
latter, in receiving the minister, consents to admit him
on the footing of independence ; and thus there exists
between the two princes a tacit convention, which gives
a new force to the natural obligation " (^).
(«) Vattel, Droit des Gens, liv. 4, oh. 7, § 92.
158
raOHTS OF CIVIL AND CRIMINAL LEOISLATION.
Partn.
§101.
iDistinction
between
pnblio and
private
yesselB.
Equally impossible was it to conceive, that a prince
who stipulates a passage for his troops, or an asylum for
his ships of war in distress, should mean to subject his
army or his navy to the jurisdiction of a foreign sovereign.
And if this could not be presumed, the sovereign of the
port must be considered as having conceded the privi-
lege to the extent in which it must have been understood
to be asked.
According to the judgment of the Supreme Court of
the United States, where, without treaty, the ports of a
nation are open to the public and private ships of a
friendly power, whose subjects have also liberty, without
special license, to enter the country for business or amuse-
ment, a clear distinction was to be drawn between the
rights accorded to private individuals, or private trading
vessels, and those accorded to public armed ships which
constitute a part of the military force of the nation.
When private individuals of one nation spread them-
selves through another as business or caprice may direct,
mingling indiscriminately with the inhabitants of that
other ; or when merchant vessels enter for the purposes
of trade, it would be obviously inconvenient and dangerous
to society, and would subject the laws to continual infrac-
tion, and the government to degradation, if such indi-
viduals did not owe temporary and local allegiance, and
were not amenable to the jurisdiction of the country.
Nor can the foreign sovereign have any motive for
wishing such exemption. His subjects, then, passing
into foreign countries, are not employed by him, nor are
they engaged in national pursuits. Consequently there
are powerful motives for not exempting persons of this
description from the jurisdiction of the country in which
they are found, and no motive for requiring it. The
implied license, therefore, under which they enter, can
never be construed to grant such exemption.
But the situation of a public armed ship was, in all
respects, different. She constitutes a part of the military
force of her nation, acts under the immediate and direct
command of the sovereign, is employed by him in
KIOHTS 01? CIVIL AND CRIMINAL LEGISLATION. 159
national objects. He has many and powerful motives Chap. n.
for preventing those objects from being defeated by the
interference of a foreign State. Such interference cannot
take place without seriously affecting his power and his
dignity. The implied license, therefore, under which
such vessel enters a friendly port may reasonably be con-
strued, and it seemed to the Court ought to be construed,
as containing an exemption from the jurisdiction of the
sovereign, within whose territory she claims the rites
of hospitality.
Upon these principles, by the unanimous consent of
nations, a foreigner is amenable to the laws of the place ;
but certainly, in practice, nations had not yet asserted
their jurisdiction over the public armed ships of a foreign
sovereign entering a port open for their reception.
Bynkershoek, a public jurist of great reputation, had
indeed maintained that the property of a foreign sove-
reign was not distinguishable, by any legal exemption,
from the property of an ordinar}' individual ; and had
quoted several cases in which courts of justice had exer-
cised jurisdiction over cases in which a foreign sovereign
was made a party defendant (a).
Without indicating any opinion on this question, it
might safely be affirmed that there is a manifest distinc-
tion between the private property of a person who
happens to be a prince and that military force which
supports the sovereign power, and maintains the dignity
and independence of a nation. A prince, by acquiring
private property in a foreign country, may possibly be
considered as subjecting that property to the territorial
jurisdiction ; he may be considered as so far laying down
the prince and assuming the character of a private indi-
vidual (i); but he cannot be presumed to do this with
respect to any portion of that armed force which upholds
his crown and the nation he is intrusted to govern.
The only applicable case cited by Bynkershoek was
that of the Spanish ships of war, seized in 1668, in
{a) Bynkershoek, de Foio Legat. {b) The Charkieh, L. B. 4 A. & E.
cap. i. 87,
160
RIGHTS OF CIVIL AND CRIMINAL LEaiSLATION.
Part n. Flushing, for a debt due from the King of Spain, In
that case the States-General interposed; and there is
reason to believe, from the manner in which the trans-
action is stated, that either by the interference of govern-
ment, or by the decision of the tribunal, the vessels were
released (c).
This case of the Spanish vessels was believed to be the
only case furnished by the history of the world, of an
attempt made by an individual to assert a claim against
a foreign prince by seizing the armed vessels of the
nation. That this proceeding was at once arrested by
the government, in a nation which appears to have
asserted the power of proceeding against the private
property of the prince, would seem to furnish no feeble
argument in support of the universality of the opinion in
favour of the exemption claimed for ships of war. The
distinction made in the laws of the United States between
public and private ships would appear to proceed from
the same opinion.
Without doubt the sovereign of the place is capable
of destroying this implication. He may claim and exer-
cise jurisdiction, cither by employing force, or by sub-
jecting such vessels to the ordinary tribunals. But until
such power be exerted in a manner not to be misunder-
stood, the sovereign cannot be considered as having
imparted to the ordinary tribunals a jurisdiction which
it would be a breach of faith to exercise. Those general
statutory provisions, therefore, which are descriptive of
the ordinary jurisdiction of the judicial tribunals, which
give an individual, whose property has been wrested from
him, a right to claim that property in the courts of the
country in which it is found, ought not, in the opinion
of the Supreme Court, to be so construed as to give them
jurisdiction in a case in which the sovereign power had
implicitly consented to waive its jurisdiction.
The Court came to the conclusion, that the vessel in
question, being a public armed ship, in the service of a
(r) Bynkerelioek, cap. iv.
RIGHTS OP CIVIL AND CRIMINAL LEGISLATION* 161
foreign sovereign with whom the United States were at Ciap. II.
peace, and having entered an American port open for
her reception, on the terms on which ships of war are
generally permitted to enter the ports of a friendly
power, must be considered as having come into the
American territory under an implied promise that, while
necessarily within it and demeaning herself in a friendly
manner, she should be exempt from the jurisdiction of
the country (d).
The point actually decided in the case of The Exchange was, that the Proceedings
local court would not inquire into the title by which the foreign sove- "J^mst shipa
reign held his vessel ; but it did not f oUow from this that ships of war
were to be exempt from the jurisdiction in all cases when complying
with the terms of the implied license under which they entered the
friendly port. The municipal law of most countries prohibits subjects
from taking proceedings against the ships of war of their own country,
except with the consent of the government (0). But whether a subject
of one State could take legal proceedings against a ship of war of
another State for the purpose of enforcing a maritime lien, like
salvage or damage, or for establishing any other claim against such
ship of war, has given rise to much discussion. The general rule, as
to all persons and property within the territorial jurisdiction of a
sovereign being amenable to the jurisdiction of himself and his courts,
is beyond dispute, but there are exceptions to it which are allowed in
order to preserve the peace and harmony of nations, and the exemption
of ships of war is one of the principal of these exceptions. But the
exemption must be understood to apply only to the ship itself. The
jurisdiction of the local sovereign over persons on board such ship, or
over acts committed thereon, is not necessarily waived because no
lights over the corpus of the ship are claimed. The exterritoriality of
Buch a ship is discussed further on (§ 103a), but its exemption from
legal process may now be considered as established in almost all
possible cases. It is not even necessary, in order to claim exemption,
that a ship should be a ship of war. Any vessel declared by a
sovereign authority to be a public vessel, and the property of the
State, will be equally exempt. Thus, a mail packet belonging to the
Belgian Government, and running between Dover and Ostend, was
sued for damages resulting from a collision, but the Court held that it
had no jurisdiction, even though the ship was partly used as a trading
vessel (/). This principle has even been pushed to the extent of
(d) The Schooner Exchange Y, McFadden Brigge ▼. The Light Ships, 11 Allen
and others, 7 Cranoh, 136—147. (^^^^' ^•)' 1^7.
(/) The rarlement Beige, L. R. 5 P. I>,
(e) The Comm, 2 Dods. Ad. 464 ; 197.
W. M
162
Partn.
§ 101b.
Other pro-
perty of
foreign
BOvereignB.
§ lOlo.
Suits by
foreign
soyereigna.
RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
exempting the cargo on board a public ship. The Comiitutiony a
■ frigate of the United States, was employed in carrying home goods
belonging to American exhibitors at the Paris Exhibition. She
stranded oft the English coast, and several tugs went to her assis-
tance. The sum of 200/. was offered to the owners of the tugs as
payment, but, not being deemed sufficient, they sued The Constitution.
The Court held that it had no jurisdiction either against the ship
or the cargo on board, even though the latter belonged to private
persons (^).
As regards other property belonging to a foreign sovereign, the
principle of exempting it from the local tribunals is not so clear and
simple as in the case of ships. The tendency of international law is to
protect such property in all cases where any dealings with it would
impair the dignity of the foreign sovereign, and to substitute negotia-
tions between governments for proceedings in the local courts in such
cases. But where the suit can be carried on without affecting his
dignity, there seems no objection to the local court deciding the case
in the ordinary way (A). But no suit can ever be maintained against
a foreign sovereign for acts done by him by virtue of his authority as
sovereign, for this would most undoubtedly impair his dignity. This
has been held to be the case even though the foreign sovereign should
also happen to be at the same time a British subject (t). But if the
status of the foreign sovereign is doubtful, the Court must of necessity
inquire into that status, for the purpose of ascertaining whether he is
or is not an independent sovereign. In the case of The Charkieh, a
ship belonging to the Khedive of Egypt, which was arrested by the
Admiralty Court in 1872 for running down a vessel in the Thames,
Sir E. Fhillimore in his judgment reviewed the international position
of Egypt, and held that the Khedive was not at that time to all intents
and purposes an independent sovereign, and therefore his property
was not entitled to exemption from the local courts (A).
If a foreign sovereign himself institutes a suit in the local court, he
thereby submits to its jurisdiction as regards all matters relating to
the suit {I) ; and therefore the Court may put him on terms, and order
all proceedings to be stayed, tmless he complies with its terms (m).
Thus, the French courts would not allow the United States to sue
certain shipbuilders for fitting out privateers for the Confederate
States, until that Government had deposited 150,000 francs as security
iff) The Cotuiitution, L. B. 4 P. D. 39 ;
The Frins Fredenk, 2 Dods. Ad. 451.
(A) Ohdetone y. Mttturtu Betfy 1 H. &
M. 492 ; Vavatseur ▼. Kmpp, IL, R. 9
Ch. D. 351 ; Larivihre y. Morgan, L. R.
7 H. L. 423.
(t) Duke of Brttnemch y. King of
Sanover, 2C1. &F. 1.
{k) The Charkieh, L. B. 4 A. & E.
59 ; bat Bee The South Jfriean Bepttblie
y. La Compagnie Franco-Beige du Chemin
ie Fer du Nord, L. R. (1898) 1 Ch. D.
190.
(/) Bullet y. King of Spain, 1 D. & a.
174.
(m) FrioUau y. U, S. of America, L. R.
2 Eq. 669 ; U. S. y. Wagner, L. R. 2 Ch.
682 ; Rcpublie of Peru y. Weguelin, L. R.
20 Eq. 140. Weetlake, { 135. Foeliz,
}217.
RIGHTS OP CIVIL AND CRIMINAL LEGISLATION. 163
for costs (n). The rights of a foreign sovereign, as regards the public Chap. 11.
property of his State, do not abate by reason of a change in the person
of the sovereign, and his successor may continue or institute a suit to
enforce such rights (o).
§ 102.
The maritime jurisprudence of France, in respect to ijaw of
foreign private vessels entering the French ports for the the exemp-
purposes of trade, appears to be inconsistent with the v^8?rom
principles established in the above judgment of the j^Jdi^tion.
Supreme Court of the United States ; or, to speak more
correctly, the legislation of France waives, in favour of
such vessels, the exercise of the local jurisdiction to a
greater extent than appears to be imperatively required
by the general principles of international law. As it
depends on the option of a nation to annex any con-
ditions it thinks fit to the admission of foreign vessels,
public or private, into its ports, so it may extend, to any
degree it may think fit, the immunities to which such
vessels, entering under an implied license, are entitled
by the general law and usage of nations.
The law of France, in respect to ofifences and torts
committed on board foreign merchant vessels in French
ports, establishes a twofold distinction between :
1. Acts of mere interior discipline of the vessel, or
even crimes and offences committed by a person forming
part of its officers and crew, against another person
belonging to the same, where the peace of the port is
not thereby disturbed.
2. Crimes and offences committed on board the vessel
against persons not forming part of its officers and crew,
or by any other than a person belonging to the same, or
those committed by the officers and crew upon each
other, if the peace of the port is thereby disturbed.
In respect to acts of the first class, the French tribu-
nals decline taking jurisdiction. The French law
declares that the rights of the power, to which the
(n) Beport of Neutrality Laws Com- (o) The Sapphire j 11 Wallace, 164 ;
miaiion, 1868 p 49. -BTtw^ of Spain ▼. 0«v«', 2 Wanhington
CO. 481.
m2
164 RIGHTS OP CIVIL AND CRIMINAL LEGISLATION.
Part II. vessel belongs, should be respected, and that the local
authority should not interfere, unless its aid is de-
manded. These acts, therefore, remain under the
police and jurisdiction of the State to which the vessel
belongs. In respect to those of the second class, the
local jurisdiction is asserted by those tribunals. It is
based on the principle, that the protection accorded to
foreign merchantmen in the French ports cannot divest
the territorial jurisdiction, so far as the interests of the
State are affected ; that a vessel admitted into a port of
the State is of right subjected to the police regulations of
the place ; and that its crew are amenable to the tribu-
nals of the country for offences committed on board of it
against persons not belonging to the ship, as well as in
actions for civil contracts entered into with them ; that
the territorial jurisdiction for this class of cases is un-
deniable.
It is on these principles that the French authorities
and tribunals act, with regard to merchant ships lying
within their waters. The grounds upon which the
jurisdiction is declined in one class of cases, and as-
serted in the other, are stated in a decision of the
Council of State, pronounced in 1806. This decision
arose from a conflict of jurisdiction between the local
authorities of France and the American consuls in the
French ports, in the two following cases : —
C 1 AQ
The cases of The first casc was that of the American merchant
^drA^^V vessel. The Newton^ in the port of Antwerp; where the
American consul and the local authorities both claimed
exclusive jurisdiction over an assault committed by one
of the seamen belonging to the crew against another, in
the vessel's boat. The second was that of another
American vessel. The Sally^ in the port of Marseilles,
where exclusive jurisdiction was claimed both by the
local tribunals and by the American consul, as to a
severe wound inflicted by the mate on one of the sea-
men, in the alleged exercise of discipline over the crew.
The Council of State pronounced against the jurisdiction
RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 165
of the local tribunals and authorities in both cases^ and Chap. II.
assigned the following reasons for its decision :
" Considering that a neutral vessel cannot be in-
definitelj'- regarded as a neutral place, and that the
protection granted to such vessels in the French ports
cannot oust the territorial jurisdiction, so far as respects
the public interests of the State ; that, consequently, a
neutral vessel admitted into the ports of the State is
rightfully subject to the laws of the police of that place
where she is received; that her officers and crew are
also amenable to the tribunals of the country for
offences and torts (jt?) committed by them, even on
board the vessel, against other persons than those
belonging to the same, as well as for civil contracts
made with them ; but that, in respect to offences and
torts committed on board the vessel, by one of the
officers and crew against another, the rights of the
neutral power ought to be respected, as exclusively
concerning the internal discipline of the vessel, in which
the local authorities ought not to interfere, unless their
protection is demanded, or the peace and tranquillity of
the port is disturbed ; the Council of State is of opinion
that this distinction, indicated in the report of the Grand
Judge, Minister of Justice, and conformable to usage, is
the only rule proper to be adopted, in respect to this
matter; and applying this doctrine to the two specific
cases in which the consuls of the United States have
claimed jurisdiction ; considering that one of these cases
was that of an assault committed in the boat of the
American ship Newton^ by one of the crew upon another,
and the other case was that of a severe wound inflicted
by the mate of the American ship Sally upon one of the
seamen, for having made use of the boat without leave ;
is of opinion that the jurisdiction claimed by the American
consuls ought to be allowed, and the French tribunals
prohibited from taking cognizance of these cases" {q).
(p) The term naed in the original is (j) Ortolan, Kfegles Internationales
mUB, which indndes ey^ wrong done ^ ^ ^^^ ^^^ . 293-298. Ap.
to the prejndioe ox indiTiduals, whether • ,. . „
they lH» ampuMic or iimprivi.. '^^'^' -^'^ =• P- <«•
166
KIGHTS OF CIVIL AND ClilMlNAL LEGISLATION.
Fartn.
§ 103a.
Distinction
between
public and
priyate ships.
§103b.
Doctrine of
extenitori-
ality.
Case of John
Brown.
Opinion of
the U. S.
Attorney-
General.
Opinion of
Gookbnm,
C. J., on the
Mr. Wheaton, in a notice of Ortolan's work, came to the oonclusion
that the French law established the true rule, and was most in con-
formity with the practice of nations (r). A ship of war and a private
merchant vessel cannot both claim the same immunities. As has
already been stated, it is doubtful whether a ship of war may not be
proceeded against in some cases, but it is beyond doubt that merchant
vessels are always liable to be sued in a local court. It is also a
separate point how far a local court may exercise jurisdiction over acts
done or persons found on board a public or a private ship.
It has been laid down by many writers that a ship of war is in all
respects a portion of the territory of the State to which she belongs,
and that when in the waters of another State not only is the vessel
herself exempt from the local law, but the exemption extends to all
persons and things on board her(«). Although this doctrine of
exterritoriality has been very widely received, there is a great weight
of authoriiy against it.
In the case of John Brown, a British subject, who was imprisoned by
the Spaniards at Callao in 1819, for assisting in a Peruvian revolt, and
who escaped on board a British ship of war then in the port of Lima,
Lord Stowell, on being asked his opinion as to whether Brown ought
to have been delivered up to the Spanish authorities, replied '' that
individuals merely belonging to the same countiy with the ship of war,
are exempted from the civil and criminal process of the oountxy in its
ordinary jurisdiction of justice by getting on board such ship, and
claiming what is caUed the protection of its flag, is a pretension which,
however heard of in practice occasionally, has no existence whatever in
principle '* (i). In accordance with this opinion Lord Castlereagh
directed the English minister in Spain to disavow the act of ti^e
captain of the ship of war in not delivering up John Brown.
In 1794, the opinion of Mr. William Bradford, the United States
Attorney-General, was taken, as to whether a writ of habeas corpus
would go to bring up a subject illegally detained on board a foreign
ship of war. He replied that although he could find no instance of
this having been done, he was of opinion that a writ might be legally
awarded in such a case, and that the commander of the foreign ship of
war could not daim to be exempt from the jurisdiction of the State
where he happens to be (w).
Lord Chief Justice Oockbum, in criticising the case of The Exchange,
allows the exemption of a ship of war ^^if restricted to the ship itself,
(>*] Keyne de Droit Fran^ais et £t-
rangt^, vol. ii. p. 206. Wheaton, by
Lawrence, p. 191.
(«) Historicns, Tim^, Koy. 4th, 1875.
Italy and Qermany maintain this exter-
ritoriality. See Report of Royal Com-
mission on Fugitive Slaves, 1876, p. 7,
where the subject is fully discussed.
This Report is a most valuable contri-
bution to international law, and well
repays the most careful reading.
{t) Report of Royal Commission on
Fugitive Slaves, 1876, p. 77.
(m) Opinions of Attorneys- General,
vol. i. p. 26. See also ibid., pp. 27, 64,
66. U. S. Papers on Foreign Affairs,
vol. i, p. 446.
EIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 167
which was all the Court had to deal with." But as regards those on Chap. II.
board, his Lordship adds, that " inasmuch as the crew may commit exemption of
offences against the local law, which the ship, being an inanimate public ships.
thing, cannot, it cannot be equally implied that the local sovereign
has consented that if they violate the local law they shall enjoy
immunity from its penalties." It is admitted that they are liable to
be arrested for offences against the local law committed on shore, why
therefore *^ should they be exempt because they get back to the ship
before they are taken? And d fortiori, why should a person living
under the local law, as a subject of the local State, be able to withdraw
himself from the operation of that law by getting on a ship which, but
for this alleged exterritoriality, would clearly be within the jurisdic-
tion ? Is it necessarily to be implied that, because by the comity of
nations the ports of every State are open to the ships of war of other
States, the local sovereign has assented to his law becoming powerless
in respect of crime committed within its jurisdiction in case the
criminal can get on board a foreign ship lying in its waters? Has this
country ever assented to this doctrine ? Is it prepared to do so now ?
Can any instance be cited in which a criminal has been allowed to
escape because he found his way to a foreign ship of war ? Certainly
none such has been brought to our knowledge."
This opinion was delivered on the question as to what course an
English naval conmiander was to pursue, when a slave escaped on to
his vessel, while she was in the waters of a State that permitted
slavery. After reviewing all the leading authorities on this subject, Eule laid
the Lord Chief Justice arrived at the conclusion that, " The rule which q^u^^
reason and good sense would, as it strikes me, prescribe, would be c. J.
that, as regards the discipline of a foreign ship of war, and offences
committed on board, as between members of her crew towards one
another, matters should be left entirely to the law of the ship, and that
should the offender escape to the shore, he should, if taken, be given
up to the commander of the ship on demand, and should be tried on
shore only if no such demand be made. But if a crime be committed
on board the ship upon a local subject, or if, a crime having been
committed on shore, the criminal gets on board a foreign ship, he
should be given up to the local authorities. In whatever way the
rule should be settled, so important a principle of international law
ought not to be permitted to remain in its present unsettled state " (x). ^ 103c.
There is, no doubt, a distinction between a criminal going on board Criminala and
a ship of war, and a slave escaping to it from his master. Neverthe- ^^^®
less, from an international point of view, to protect either is a violation
of the rights of the local sovereign. The law of England, as is shown
further on, recognizes the existence of slavery in some coimtries, and
consequently the rights of slave-owners in such countries must be
respected. To assert that a slave, by coming on board a ship of war
while she is in the waters of a slave- owning State immediately becomes
{x) Report of Royal Commission on Fngitire Slaves, 1876, pp. 37, 43.
168
RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Part II.
§ 103d.
ICerohant
vessels in
foreign ports
§103e.
Case of The
Creole. '
a free man, is equivalent to asserting that a slave-owner's rights will
not be regarded, and is tantamount to making the State to which the
ship of war belongs, pass judgment on the laws of a foreign and
independent State. The question cannot be confined even to criminals
or slaves. England has abolished imprisonment for ordinary debt,
but when her ships of war are in a State that incarcerates debtors,
is a debtor to escape by going on board an English ship of war ? No
State would submit to such a pretension. But the case of a slave and
a debtor are very similar, so far as the ship of war is concerned.
Each claims the protection of its flag from a liability imposed by
the local law, and it is not for the commander, by protecting either,
virtually to decide whether the local law is a proper or an improper
one.
A merchant vessel is not in the same position as a ship of war.
Every State claims to exercise jurisdiction over its own merchant vessels
wherever they are, and even when they are in the waters of another
State. But when in a foreign port they must also obey the laws, of
the country to which the port belongs (y). They are thus at the same
time subject to two concurrent systems of law. Any State may decline
to exercise jurisdiction over foreign merchant vessels in its harbours
to whatever extent it pleases, as is the case with France ; but the right
nevertheless exists, and might be resumed on due notice being given.
Thus, a claim by the local officers of France to board the ship, search
her, and take out of her any one who has become amenable to the
local laws, could not lawfully be resisted or disputed after such due
notice (z).
A peculiar case arose in 1841. The brig Creole^ an American mer-
chant vessel, sailed from a port in Virginia with 135 slaves on board.
On the high seas some of the slaves rose, and took possession of the
vessel, killing a passenger, and wounding the captain and several of
the crew. They compelled the mate to navigate the ship to Nassau.
On arrival there the local authorities, at the request of the American
Consul, arrested such slaves as were proved to have committed acts of
violence, and the rest escaped to the shore, but whether with con-
nivance of the local authorities or not did not appear. The United
States demanded that those who had gained the shore should be
restored, but this was refused by Great Britain, on the ground that
they could not be seized while they had committed no crime within
British jurisdiction. The matter was finally referred to an arbitrator,
who awarded a pecuniary indemnity to the American owner for the loss
of his slaves {a). The difficulty of this case arises from the fact that
(y) B, V. Anderson, L. B. 1 C. C. K.
161 ; Jt. V. Saltier, D. & B. C. 0. 525 ;
M. y. Lesley, 1 Bell, C. C. 220 ; JFilden-
hue' Case, 120 U. 8. 1. Boyd, The Mer-
chant Shipping Laws, p. 438.
(s) Report on Fagitive Slaves, 1876,
p. 26.
(a) Beport of Decisions of ConmuB-
sions under Convention of 1853, p. 242.
See also Wheaton, by Lawrence, p. 206 ;
by Dana, p. 166. Hansard, Pari. De-
bates (Lords), Yol. Ix. p. 318.
RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 169
tlie Creole entered the port of Nassau under duress, and against the Chap. n.
will of her owners and master. Yet it can hardly be maintained that
even under such circumstances the local authorities were bound to try
and prevent the slaves from going on shore. The ship was within
British dominions, and the slaves when trying to escape, violated no
British law ; but, on the contrary, were endeavouring to dissolve a tie
looked upon with abhorrence by British law. The arrest of those
who had comnutted acts of violence rested on a different ground.
They were seized, not because they had endeavoured to regain their
liberty, but because they liad committed piratical acts (5).
§104.
Whatever may be the nature and extent of the exemp- Exrmption of
tion of the public or private vessels of one State from the private^esseis
local jurisdiction in the ports of another, it is evident jurbdiotion*
that this exemption, whether express or implied, can ext^n^^to
never be construed to justify acts of hostility committed i^atify acts of
by such .vessel, her oflBcers, and crew, in violation of the agamBtthe
law of nations, against the security of the State in the state.
whose ports she is received, or to exclude the local
tribunals and authorities from resorting to such measures
of self-defence as the security of the State may require.
This just and salutary principle was asserted by the
French Court of Cassation, in 1832, in the case of the
private Sardinian steam-vessel. The Carlo Alberto^ which,
after having landed on the southern coast of France the
Duchess of Berry and several of her adherents, vrith the
view of exciting civil war in that country, put into a
French port in distress. The judgment of the Court,
pronounced upon the conclusions of M. Dupin ain^, Pro-
cureur-G^n^ral, reversed the decision of the inferior
tribunal, releasing the prisoners taken on board the
vessel, upon the following grounds :
1. That the principle of the law of nations, according
to which a foreign vessel, allied or neutral, is considered
as forming part of the territory of the nation to which it
belongs, and consequently is entitled to the privilege of
the same inviolability with the territory itself, ceases to
protect a vessel which commits acts of hostility in the
French territory, inconsistent with its character of ally,
(b) See CalYO, Droit International) toI. ii. {} 269, 560.
170
RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Partn.
§106.
The ezemp*
tion of publio
ships from the
local juris-
diction does
not extend to
their prize
g^ds taken
in violation
of the
neutrality of
the coantry
into which
they are
brought.
or neutral ; as if, for example, such vessel be chartered
to serve as an instrument of conspiracy against the safety
of the State, and after having landed some of the persons
concerned in these acts, still continues to hover near the
coast, with the rest of the conspirators on board, and at
last puts into port under pretext of distress.
2. That supposing such allegation of distress be founded
in fact, it could not serve as a plea to exclude the juris-
diction of the local tribunals, taking cognizance of a
charge of high treason against the persons found on
board, after the vessel was compelled to put into port by
stress of weather (c).
So also it has been determined by the Supreme Court
of the United States, that the exemption of foreign public
ships, coming into the waters of a neutral State, from
the local jurisdiction, does not extend to their prize
ships, or goods captured by armaments fitted out in its
ports, in violation of its neutrality, and of the laws
enacted to enforce that neutrality.
Such was their judgment in the case of the Spanish
ship Santissma Trinidad^ from which the cargo had been
taken out, on the high seas, by armed vessels commis-
sioned by the United Provinces of the Rio de la Plata,
and fitted out in the ports of the United States in viola-
tion of their neutrality. The tacit permission, in virtue
of which the ships of war of a friendly power are
exempt from the jurisdiction of the country, cannot be so
interpreted as to authorize them to violate the rights of
sovereignty of the State, by committing acts of hostility
against other nations, with an armament supplied in the
ports, where they seek an asylum. In conformity with
this principle, the Court ordered restitution of the goods
claimed by the Spanish owners, as wrongfully taken from
them {d).
(c) Sirey, Recueil general de Juris-
prudence, tome xxxii. Partio i. p. 578.
M. Dupin aiue has published his learned
and eloquent pleading in this memorable
case, in his ColUetion det ^equmtoiret,
tome i. p. 447.
{d) The Santiitima Trinidad^ 7 Whea-
ton, 352.
BIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 171
3. Both the pubKc and private vessels of every nation, Chap. II.
on the high seas, and out of the territorial limits of any § loe.
other State, are subject to the jurisdiction of the State to o^^g^te
which they belong (e). ^^^^^ i*? P"^ii°
J o \ / and pnvate
Vattel says that the domain of a nation extends to all J^h seas.**^^
its just possessions ; and by its possessions we are not to
understand its territory only, but all the rights (droits) it
enjoys. And he also considers the vessels of a nation
on the high seas as portions of its territory, Grotius
holds that sovereignty may be acquired over a portion of
the sea, rations peraonarum^ ut si classis qui maritimus est
exercituSy aliquo in loco maris se haheat. But, as one of his
commentators, Rutherforth, has observed, though there
can be no doubt about the jurisdiction of a nation over
the persons who compose its fleets when they are out at
sea, it does not follow that the nation has jurisdiction
over any portion of the ocean itself. It is not a perma-
nent property which it acquires, but a mere temporary
right of occupancy in a place which is common to all
mankind, to be successively used by all as they have
occasion (/).
This jurisdiction which the nation has over its public
and private vessels on the high seas, is exclusive only so
far as respects offences against its own municipal laws.
Piracy and other offences against the law of nations,
being crimes not against any particular State, but against
all mankind, may be punished in the competent tribunal
of any country where the offender may be found, or into
which he may be carried, although committed on board
a foreign vessel on the high seas {g).
Though these offences may be tried in the competent
court of any nation having, by lawful means, the custody
of the offenders, yet the right of visitation and search
does not exist in time of peace. This right cannot be
(e) R, y. Ander9on, L. B. I G. 0. B. Pac. lib. ii. oap. iii. { 13. Batherforth's
161 ; n. ▼. Dudley, 14 Q. B. D. 273, Inst. vol. u. b. 2, ch. 9, §§ 8, 19.
(/) Vattel, liv. i. ch. 19, § 216, Uv. u. {g) Sir L. Jenldne's Works, vol. i.
oh. 7, { 80. QrotioB, de Jtir. Bel. ac p. 714.
172 RlCnXS OF CIVIL AXD CBIJf IXAL LEOISLATIOK.
Partn. employed for the purpose of executing upon foreign
vessels and persons on the high seas the prohibition of a
traffic, which is neither piratical nor contrary to the law
of nations (such, for example, as the slave trade), unless
the visitation and search be expressly permitted by inter-
national compact (h).
Every State has an incontestable right to the service
of all its members in the national defence, but it can
give effect to this right only by lawful means. Its right
to reclaim the military service of its citizens can be exer-
cised only within its own territory, or in some place not
subject to the jurisdiction of any other nation. The
ocean is such a place, and any State may unquestionably
there exercise, on board its own vessels, its right of com-
pelling the military or naval services of its subjects.
But whether it may exercise the same right in respect to
the vessels of other nations, is a question of more diffi-
impreMment In resDCct to public Commissioned vessels belonccinfi: to
Eogiand. the State, their entire immunity from every species and
purpose of search is generally conceded. As to private
vessels belonging to the subjects of a foreign nation, the
right to search them on the high seas, for deserters and
other persons liable to military and naval service, has
been uniformly asserted by Great Britain, and as con-
stantly denied by the United States. This litigation
between the two nations, who by the identity of their
origin and language are the most deeply interested in
the question, formed one of the principal objects of the
late war between them. It is to be hoped that the
sources of this controversy may be dried up by the sub-
stitution of a registry of seamen, and a system of volun-
tary enlistment with limited service, for the odious
practice of impressment which has hitherto prevailed in
the British navy, and which can never be extended,
even to the private ships of a foreign nation, without
(h) The Louis, 2 DodB. Ad. 238 ; The Antelope, 10 Wheaton, 122; ^ vide infra,
Marianna Flora, 9 Wheaton, Z9 ; I%e i 120 et teq.
EIGHTS OP CIVIL AND CRIMINAL LEGISLATION. 173
provoking hostilities on the part of any maritime State CJhap. n.
capable of resisting such a pretension (i).
The subject was incidentally passed in review, though Diflouasions
not directly treated of, in the negotiations which termi- ^
nated in the treaty of Washington, 1842, between the
United States and Great Britain. In a letteY* addressed
by the American negotiator to the British plenipotentiary
on the 8th August, 1842, it was stated that no cause
had produced, to so great an extent, and for so long a
period, disturbing and irritating influences on the poli-
tical relations of the United States and England, as the
impressment of seamen by the British cruisers from
American merchant vessels.
From the commencement of the French revolution to
the breaking out of the war between the two countries
in 1812, hardly a year elapsed without loud complaint
and earnest remonstrance. A deep feeling of opposition
to the right claimed, and to the practice exercised under
it, and not unfrequently exercised without the least re-
gard to what justice and humanity would have dictated,
even if the right itself had been admitted, took posses-
sion of the public mind of America ; and this feeling, it
was well-known, co-operated with other causes to produce
the state of hostilities which ensued.
At different periods, both before and since the war,
negotiations had taken place between the two govern-
ments, with the hope of finding some means of quieting
these complaints. Sometimes the effectual abolition of
the practice had been requested and treated of ; at other
times, its temporary suspension ; and, at other times,
again, the limitation of its exercise and some security
against its enormous abuses.
A common destiny had attended these efforts : they
had all failed. The question stood at that moment where
it stood fifty years ago. The nearest approach to a
settlement was a convention, proposed in 1803, and
(») EdinbnrgliBeTiew, Tol. xi. art. 1. September 23, 1807. American State
Ifr. Canoing's Letter to Mr. Monroe^ Papers, vol. yi. p. 103.
174 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Part II. which had come to the point of signature, when it was
broken off in consequence of the British Government
insisting that the ^' Narrow Seas" should be expressly
excepted out of the sphere over which the contemplated
stipulations against impressment should extend. The
American minister, Mr. King, regarded this exception as
quite inadmissible, and chose rather to abandon the
negotiation than to acquiesce in the doctrine which it
proposed to establish.
England asserted the right of impressing British sub-
jects. She asserted this as a legal exercise of the prero-
gative of the crown ; which prerogative was alleged to
be founded on the English law of the perpetual and in-
dissoluble allegiance of the subject, and his obligation,
under all circumstances, and for his whole life, to render
military service to the Crown whenever required.
This statement, made in the words of eminent British
jurists, showed at once that the English claim was far
broader than the basis on which it was raised. The law
relied on was English law ; the obligations insisted on
were obligations between the crown of England and its
subjects. This law and these obligations, it was ad-
mitted, might be such as England chose they should be.
But then they must be confined to the parties. Impress-
ment of seamen, out of and beyond the English territory,
and from on board the ships of other nations, was an
interference with the rights of other nations ; it went,
therefore, further than English prerogative could legally
extend ; and was nothing but an attempt to enforce the
peculiar law of England beyond the dominions and juris-
diction of the crown. The claim asserted an extra-
territorial authority for the law of British prerogative,
and assumed to exercise this extra-territorial authority,
to the manifest injury of the citizens and subjects of
other States, on board their own vessels, on the high
seas.
Every merchant vessel on those seas was rightfully
considered as part of the territory of the country to which
it belonged. The entry, therefore, into such vessel, by
MGHTS OF aVIL AND CRIMINAL LEGISLATION. 175
a belligerent power, was an act of force, and was, prima Chap. n.
faciey a wrong, a trespass which could be justified only
when done for some purpose allowed to form a suflScient
justification by the law of nations. But a British cruiser
enters an American vessel in order to take therefrom
supposed British subjects ; offering no justification there-
for under the law of nations, but claiming the right under
the law of England respecting the king's prerogative.
This could not be defended. English soil, English terri-
tory, English jurisdiction, was the appropriate sphere for
the operation of English law. The ocean was the sphere
of the law of nations ; and any merchant vessel on the
high seas was, by that law, under the protection of the
laws of her own nation, and might claim immunity,
unless in cases in which that law allows her to be entered
or visited.
If this notion of perpetual allegiance, and the conse-
quent power of the prerogative, were the law of the
world ; if it formed part of the conventional code of
nations, and was usually practised, like the right of visit-
ing neutral ships, for the purpose of discovering and
seizing enemy's property; then impressment might be
defended as a common right, and there would be no
remedy for the evil until the international code should be
altered. But this was by no means the case. There was
no such principle incorporated into the code of nations.
The doctrine stood only as English law, not as inter-
national law; and English law could not be of force
beyond English dominion. Whatever duties or relations
that law creates between the sovereign and his subjects,
could only be enforced within the realm, or within the
proper possessions or territory of the sovereign. There
might be quite as just a prerogative right to the property
of subjects as to their personal services, in an exigency
of the State ; but no government thought of controlling,
by its own laws, the property of its subjects situated
abroad ; much less did any government think of entering
the territory of another power, for the purpose of seizing
such property and appropriating it to its own use. As
176 BIGHTS OP CIVIL AND CfBIMINAL LEGISLATIOir.
PartIL laws, the prerogatives of the crown of England have no
obligation on persons or property domiciled or situated
abroad.
^^ When, therefore," says an authority not unknown ox
unregarded on either side of the Atlantic, ^^ we speak of
the right of a State to bind its own native subjects every-
where, we speak only of its own claim and exercise of
sovereignty over them, when they return within its own
territorial jurisdiction, and not of its right to compel or
require obedience to such laws on the part of other
nations, within their own territorial sovereignty. On
the contrary, every nation has an exclusive right to
regulate persons and things within its own territory,
§ 109. according to its sovereign will and public polity."
S)^tion8to ^^* impressment was subject to objections of a much
impreBament. ^^vidor range. If it could be justified in its application to
those who are declared to be its only objects, it still re-
mained true that, in its exercise, it touched the political
rights of other governments, and endangered the security
of their own native subjects and citizens. The sove-
reignty of the State was concerned in maintaining its
exclusive jurisdiction and possession over its merchant
ships on the seas, except so far as the law of nations
justifies intrusion upon that possession for special pur-
poses ; and all experience had shown that no member of
a crew, wherever bom, was safe against impressment
when a ship was visited.
In the calm and quiet which had succeeded the late
war, a condition so favourable for dispassionate conside-
ration, England herself had evidently seen the harshness
of impressment, even when exercised on seamen in her
own merchant service ; and she had adopted measures,
calculated if not to renounce the power or to abolish the
practice, yet, at least, to supersede its necessity, by other
means of manning the royal navy, more compatible with
justice and the rights of individuals, and far more con-
formable to the principles and sentiments of the age.
Under these circumstances, the government of the
United States had used the occasion of the British
RIGHTS OP CIVIL AND CRIMINAL LEGISLATION. 177
minister's pacific mission to review the whole subject, Chap. n.
and to bring it to his notice and to that of his govern-
ment. It had reflected on the past, pondered the condi-
tion of the present, and endeavoured to anticipate, so
far as it might be in its power, the probable future;
and the American negotiator communicated to the
British Minister the following, as the result of those
deliberations.
The American Government, then, was prepared to say
that the practice of impressing seamen from American
vessels cotdd not hereafter be allowed to take place.
That practice was founded on principles which it did
not recognize, and was invariably attended by conse-
quences so unjust, so injurious, and of such formidable
magnitude, as could not be submitted to.
In the early disputes between the two governments,
on this so long contested topic, the distinguished person
to whose hands were first intrusted the seals of the
Department of State declared, that ^^the simplest rule
will be, that the vessel being American shall be evidence
that the seamen on board are such."
Fifty years^ experience, the utter failure of many
negotiations, and a careful reconsideration of the whole
subject when the passions were laid, and no present
interest or emergency existed to bias the judgment, had
convinced the American Government that this was not
only the simplest and best, but the only rule, which
could be adopted and observed, consistently with the
rights and honour of the United States, and the secu-
rity of their citizens. That rule announced, therefore,
what would hereafter be the principle maintained by
their government. In every regularly documented
American merchant vessel, the crew who navigated it
would find their protection in the flag which was over
them (A).
^ ^ § 109a.
It IB hardly possible that this dispute should arise again. The Change of
practice of impressment has fallen into complete disuse in England, ^^^^*^
dispute I
{k) Wheaton's Hist. Law of Nations, Loid Ashbnrton, Angnst 8, 1842. See
pp. 737^746. Hr. Webfter's Letter to Pari. Papers, 1842, p. 59.
W. N
178 BIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Part n. and the alterations in the municipal laws of each country, added
to the naturalization treaty between them, have altered the whole
aspect of the question (/). England no longer claims the perpetual
allegiance of her subjects ; and even if she did, it is highly improbable
that she would at the present day assert the right of taking them out
of foreign vessels on the high seas.
At the beginning of the century Great Britain was engaged in a
gigantic struggle with France, which she maintained to a great extent
at sea. It appears from an Admiralty Minute of 1812, that there were
supposed to be upwards of 20,000 British-bom seamen in the American
marine ; many of them provided with fraudulent protections (m).
Under such circumstances, it is hardly surprising that ^e royal prero-
gative should have been called into force, for the purpose of seizing
such as could be got at. If the question is to be decided according to
the rules of international law as existing at the present day, Great
Britain was perhaps in the wrong. She claimed to take persons
alleged to be her subjects out of the ships of a friendly State on the
high seas, and to force them into her service. This claim was
appended to the right of search ; that is, it was only exercised over
neutral vessels in time of war. It was not alleged that the fact of
English seamen being on board gave a British cruiser any right of
stopping and searching the neutral vessel, but there being an admitted
right of entering for the purpose of seizing contraband or enemy's
goods, it was contended that British officers, being rightfully on
board, had also the power of seizing anyone they found there who
owed allegiance to the British crown (n). But the claim of England
had in reality nothing to do with the right of search. The seamen
she seized were neither coniaraband of war nor enemy's goods ; they
were seized simply because they owed allegiance. It so happened
that the only way of catching them was by tailing them out of foreign
ships ; and as they were not wanted during peace, there was no need
for asserting the claim except during war, when the right of search
existed. But these were circumstances which only accidentally con-
nected impressment with the right of search. The two have nothing
in common. It must, however, be remembered that international law
has not always been, and is not even now, in all respects fixed and
defuDiite, and that the views of the present day are not precisely the
A |Qg« same as those held at the beginning of the nineteenth century (o).
Case of TA^ ^ 1861, the question as to how far a merchant vessel may be
Trent. stopped on the high seas and persons taken out of her by the officers
of a foreign government, reappeared in a very different form. The
British mail-steamer Trent sailed from Havana for St. Thomas on the
7th November, 1861, under charge of a commander in the navy.
{I) See at the end of this chapter. found.
(m) Report of Naturalization Com- (m) Broolamation of the Prince Re-
miflsion, 1869, p. 35, where a history of gent, 1813, Annual Reg. 1813, p. 360.
the impressment controversy will be (o) Wheaton, by Dana, p. 179.
EIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 179
There were on board as passengers two persons, Messrs. Slidell Chap. II.
and Mason, who were commissioners of the Confederate States, pro-
Deeding to England and France. About nine miles from Cuba, The
Trent was stopped by The San Jacinto, an American ship of war, the
two commissioners, with their secretaries, were taken out, and The
Trent was then allowed to continue her voyage. The commissioners
were imprisoned in a military fortress in the United States. The
British Government instantly demanded their restoration, with an
apology for the aggression, and in case of refusal Lord Lyons was
directed to withdraw from Washington (/>). Instructions were given
to the ambassadors of France, Austria, Prussia, Italy, and Russia,
by their respective governments to sustain the demands of Great
Britain.
It was contended by the United States that the persons seized were
contraband of war, and that The Trent being a neutral merchant
vessel, it was the right of The San Jacinto, as a belligerent cruiser, to
stop her for the purpose of ascertaining her true national character,
and of seizing any contraband found on board. The detention of the
commissioners was, however, not persisted in, and they were delivered
up on considerations connected with complaints previously made by the
United States as to the impressment of seamen from their vessels (7).
Although the American Government congratulated the captain of The
San Jacinto ^^ior the great public service he had rendered," and
although his acts were approved by many eminent American jurists,
the transaction cannot be regarded as justifiable. The Trent was on a
bond fide voyage from one neutral port to another. She was a mail
steamer, a class of vessel peculiarly exempt from molestation, and
instead of being captured and brought before a Prize Court, she was
simply stopped on the high seas, and certain arbitrary acts performed
on board her by the American captain.
One of the reasons alleged by the captain of The San Jacinto for
not bringing in The Trent for adjudication before a Prize Court was,
that he wished to spare the other passengers the inconvenience of
deviating from their voyage. Such a reason was no doubt humane
and honourable, but it cannot be taken as sufficient to set aside a
universal rule of pubHo law, that a ship and cargo are not lawful
prize until condemned by a competent court, and that until so con«
demned a captor has no right to do anything beyond bringing the
ship before the court.
IV. The municipal laws and institutions of any State Consular *
may operate beyond its own territory, and within the ^
territory of another State, by special compact between
the two States.
{p) Pari. Papers, 1862, N. America (q) Mr. Sewazd to Lord Lyons, 26th
(No. 6), p. 8. Dec. 1861.
n2
180 EiGBTB OF CITIL ASD CEOOSAI. LfiGBSLAXIOS:
*^"*^ Such are the treaties by which the oonsols and other
conjinercial agents of one nation are aathoiized to exer-
cise, OTcr their own comitrTmen, a jnrisdicticm within
the territorv of the State where ther reside. The
nature and extent of this peculiar jurisdiction depends
upon the stipulations of the treaties between the two
States. Among Christian nations, it is generally con-
fined to the decision of contraversies in civil cases
arising between the merchants, seamen, and other sub-
jects of the State in foreign countries ; to the roistering
of wills, contracts, and other instruments executed in
presence of the consul; and to the administration of
the estates of their fellow-subjects deceased within the
territorial limits of the consulate. The resident con-
suls of the Christian powers in Tuikev, the Barbaiy
States, and other Mohammedan countries, exercise both
civil and criminal jurisdiction over their countrymen,
to the exclusion of the local magistrates and tribunals(r).
This jurisdiction is subject, in civil cases, to an appeal
to the superior tribunals of their own country. The
criminal jurisdiction is usually limited to the infliction
of pecuniary penalties, and in offences of a higher grade
the consuhur functions are similar to those of a police
magistrate, or juffe d^ instruction. He collects the docu-
mentary and other proofs, and sends them, together
with the prisoner, home to his own country for trial («).
'^^^ By the treaty of peace, amity, and commerce, con*
Cfafluttidtiui eluded at Wang Hiya, 1844, between the United States
and the Chinese Empire, it is stipulated. Art. 21, that
^^ citizens of the United States, who may commit any
crime in China, shall be subject to be tried and pun-
ished only by the consul, or other public functionary
of the United States thereto authorized, according to the
laws of the United States." Art. 25. " All questions in
(r) See Re ThotoTt Trusts, 23 Ch. D. {{ 1, 2, 3. Ab to fiogliah oonanla, see
332 ; Abi-ul-Mesaih ▼. Farrm^ 13 App. Boyd, The MeitJiant Shipping Lawi^
Cm. 431.
(*) De Steck, Eeeai siir les Conmils, „ . , . , . , « . . »
net. TiL S\ 30-40. Patde«i», Droit ^"^^^ Jomdictiaii of Uie Botuh
Index, tit. Consolar officer ; and Hall,
Foragn JmiBdid
Cammeraii], pt. ri. tit. 6, ch. 2, \ 2, ch. 4, Cromn, Chap. n.
RIGHTS OP CIVIL AND CRIMINAL LEGISLATION. 181
regard to rights, whether of property or of person, Chap. II.
arising between citizens of the United States and in
China, shall be subject to the jurisdiction, and regulated
by the authorities, of their own government. And ^ all
controversies occurring in China, between citizens of the
United States and the subjects of any other government,
shall be regulated by the treaties existing between the
United States and such governments respectively, with-
out interference on the part of China " (t).
g 1 Iftil
From a very early time, owing to the total difPerence of habits and Britiah
religious feelings between the Europeans and Asiatics, it was deemed Consular
necessaiy by their respective governments to withdraw Europeans christUm'^^"^'
from the authority of the native courts of these States. In process of countries,
time, and with the consent, express or implied, of the Turkish Govern-
ment, a general system of Consular Courts became established through-
out the Sultan's dominions. The Ottoman Porte gives to the Christian
powers of Europe authority to administer justice to their own subjects
according to their own laws, but it does not profess to give, nor could
it give, to one such power any jurisdiction over the subjects of another
power. It has left those powers at liberty to deal with each other
as they may think fit ; and if the subjects of one country desire to re-
sort to the tribunals of another, there can be no objection to their doing
so with the consent of their own Sovereign and that of the Sovereign
to whose tribunals they resort (u). This kind of jurisdiction, exer-
cised by the consuls of Christian States in Mohammedan coimtries, is
to be carefully distinguished from the ordinary powers exercised by
foreign consuls in Christian States (x). Judicial powers are not neces-
sarily incident to the office of consul. These powers depend altogether
upon treaty (y).
The numerous Orders in Council and other provisions for regulating
the British Consular Courts in Turkey, were repealed and consolidated
by an Order in Council, dated August 8th, 1899 (z). The position of
British subjects in China is very similar to that they occupy in Turkey,^
and consular courts are established in those countries with much the
same powers as those in Turkey (a).
(Q See further Wharton's Digest, U. S. 13 ; Mahonty v. U. S., 10 Wall.
Appendix, i 125. 62.
(u) TheLacania, 2 Moo. P. 0. N. S. W Hertslet,Oominercial Treaties, voL
188. ^™- ^^^•
(a) See Order in Gonndl, 9th March,
{x) MeMiina v. TttroeoehinOy L. R. 4 jgeS. Hertdet, Commeroial Treaties,
P. 0. 168 ; J>mt v. Smith, L. B. 4 Q. B. ^j^ ^^ji^ p^ 281. Phillimore, voL ii.
446. } 276, p. 814. Ms TootaPs Truttt ; AM-
(y) JDaineu r. Hale, 1 Otto, 13 ; 91 u^Mettih v. Farray ntpra.
182 EIGHTS OP CIVIL AND CRIMINAL LEGISLATION.
Part n. The jurisdiction exercised by England in these Eastern countries is
regulated by the Foreign Jurisdiction Act of 1890, which recites that
'* by treaty, capitulation, grant, usage, sufPerance, and other lawful
means, Her Majesty hath jurisdiction within divers foreign countries" ;
and enacts that *^ Her Majesty may hold, exercise, or enjoy any juris-
diction which Her Majesty now hath or may at any time hereafter
have, within a foreign country, in the same and as ample a manner as
if Her Majesty had acquired that jurisdiction by the cession or con-
quest of territory " (5).
§111.
^dep^denoe Every sovereign State is independent of every other
to its judicial in the exerciso of its judicial power.
^^^^^' This general position must, of course, be qualified by
the exceptions to its application arising out of express
compact, such as conventions with foreign States, and
acts of confederation, by which the State may be united
in a league with other States for some common purpose.
By the stipulations of these compacts it may part with
certain portions of its judicial power, or may modify its
exercise with a view to the attainment of the object of
6 112 *^® treaty or act of union.
Exceptions. Subjcct to thcse cxceptions, the judicial power of
every State is co-extensive with its legislative power.
At the same time it does not embrace those cases in
which the municipal institutions of another nation
operate within the territory. Such are the cases of a
foreign sovereign, or his public minister, fleet or army,
coming within the territorial limits of another State,
which, as already observed, are, in general, exempt from
the operation of the local laws.
^i^^^wOT ""'• ^^^ judicial power of every independent State,
over ariiuinai then, cxtcnds, with the qualifications mentioned, —
1. To the punishment of all offences against the
municipal laws of the State, by whomsoever committed,
within the territory.
2. To the punishment of all such offences, by whom-
soever committed, on board its public and private vessels
{b) 63 & 54 Vict. o. 87, b. 1.
BIGHTS OF CIVIL AND C?RIMINAL LEGISLATION. 183
on the high seas, and on board its public vessels in Chap, n.
foreign ports.
3. To the punishment of all such offences by its
subjects, wheresoever committed.
4. To the punishment of piracy and other offences
against the law of nations, by wliomsoever and where-
soever committed.
It is evident that a State cannot punish an offence
against its municipal laws committed within the territory
of another State, unless by its own citizens ; nor can it
arrest the persons or property of the supposed offender
within that territory : but it may arrest its own citizens
in a place which is not within the jurisdiction of any
other nation, as the high seas, and punish them for
offences committed within such a place, or within the
territory of a foreign State.
By the Common Law of England, which has been
adopted, in this respect, in the United States, criminal
offences are considered as altogether local, and are
justiciable only by the courts of that country where
the offence is committed. But this principle is peculiar
to the jurisprudence of Great Britain and the United-
States; and even in these two countries it has been
frequently disregarded by the positive legislation of
each, in the enactment of statutes, under which offences
committed by a subject or citizen, within the territorial
limits of a foreign State, have been made punishable in
the courts of that country to which the party owes
allegiance, and whose laws he is bound to obey. There
is some contrariety in the opinions of different public
jurists on this question ; but the preponderance of their
authority is greatly in favour of the jurisdiction of the
courts of the offender's country, in such a case, wherever
such jurisdiction is expressly conferred upon those
courts, by the local laws of that country. This doctrine
is also fully confirmed by the international usage and
constant legislation of the different States of the European
continent, by which crimes in general, or certain specified
offences against the municipal code, committed by a
184
BIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Part II.
§ 118a.
Jorisdictioii
of BritiBh
Courts over
orimes
ooinmitted
abroad.
§114.
Laws of trade
and naviga-
tion.
§115.
Extradition
of criminals.
citizen or subject in a foreign country, are made punish-
able in the courts of his own (c).
The cases in which English Courts have jurisdiction to tiy offences
committed abroad, are exceptions to the general rule that crimes are
local. The following are the principal exceptions : Political offences,
such as treason (£^) ; administering unlawful oaths, and forging govern-
ment documents (f). As these acts must necessarily be intended to
take effect in the country against which they are devised, they may
perhaps not be looked upon as a real exception. But homicide and
bigamy (/) abroad are undoubted exceptions, and also certain statu-
tory offences under the Foreign Enlistment Act, the Commissioners for
Oaths Act, 1889, and the Explosive Substances Act, 1883 (y). A
British subject who commits murder or manslaughter abroad on land,
whether within the King's dominions or without, and whether he
kills a British subject or not, can be tried in England or Ireland
wherever he may be apprehended. This is not to prevent his being
tried elsewhere (A). Offences against property or person committed
at any place, ashore or afloat, out of His Majesty's dominions, by any
master, seaman or apprentice, who, at the time when the offence is
committed, or within three months previously, has been employed in
any British ship, may be tried in England {t).
Laws of trade and navigation cannot affect foreigners,
beyond the territorial limits of the State, but they are
binding upon its citizens, wherever they may be. Thus,
offences against the laws of a State, prohibiting or regu-
lating any particular traffic, may be punished by its
tribunals, when committed by its citizens, in whatever
place ; but if committed by foreigners, such offences can
only be thus punished when committed within the terri-
tory of the State, or on board of its vessels, in some place
not within the jurisdiction of any other State.
The public jurists are divided upon the question, how
far a sovereign State is obliged to deliver up persons,
(e) Foslix, Droit International Privi,
§§ 510 — 632. See American Jurist,
vol. xxii. pp. 881 — 386.
{d) 35 Henry VIII. o. 2. See Sir
James Stephen's Digest of Criminal Law
as to what is treason, ch. yi. ; and B. v.
Lynch, (1903) 1 K. B. 444.
(e) 52 Geo. III. o. 104, s. 7. Whar-
ton, Conflict of Laws, § 916.
(/) 24 ft 25 Vict. c. 100, s. 57.
(ff) 17 ft 18 Viot. o. 104, 8. 267 (the
Merchant Shipping Act, extended by 53
ft 54 Vict. 0. 37, Foreign Jurisdiction
Act) ; and see 33 ft 34 Viot. o. 90, s. 4
(Foreign Enlistment Act), 46 Viot. o. 3
(The Explosive Substances Act), and 52
Vict. 0. 10 (The Commissioners for Oaths
Act).
(A) 24 ft 25 Viot. o. 100, s. 9.
(t) 17 ft 18 Viot. 0. 104, 8. 267.
BIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 185
whether its own subjects or foreigners, charged with or Chap. II.
convicted of crimes committed in another country, upon
the demand of a foreign State, or of its oificers of justice.
Some of these writers maintain* the doctrine, that, ac-
cording to the law and usage of nations, every sovereign
State is obliged to refuse an asylum to individuals
accused of crimes affecting the general peace and secu-
rity of society, and whose extradition is demanded by
the government of that country within whose jurisdic-
tion the crime has been committed. Such is the opinion
of Grotius, Heineccius, Burlamaqui, Vattel, Rutherforth,
Schmelzing, and Kent(^). According to Puffendorf,
Voet, Martens, Kluber, Leyser, Kluit, Saalf eld. Schmaltz,
Mittermeyer, and Heffter, on the other hand, the extra-
dition of fugitives from justice is a matter of imperfect
obligation only ; and though it may be habitually prac-
tised by certain States, as the result of natural comity
and convenience, requires to be confirmed and regulated
by special compact, in order to give it the force of an
international law (/). And the last-mentioned learned
writer considers the very fact of the existence of so
many special treaties respecting this matter as conclu-
sive evidence that there is no such general usage among
nations, constituting a perfect obligation, and having the
force of law properly so called. Even under systems of
confederated States, such as the Germanic Confederation
and the North American Union, this obligation is limited
to the cases and conditions mentioned in the federal
compacts (m).
(k) Gbotias de Jnr. Bel. ao Pac. osp. 1, No. 6. Martens, Droit des Gens,
lib. ii. cap. zi. §§ 3—5. Heinecolns, liy. iii. oh. 3, { 101. Kluber, Droit dea
Prolect. ia Grot. j. t. Burlamaqui, Gens, pt. ii. tit. 1, ch. 2, § 66. Leyser,
tome ii. pt. iy. oh. 3, §§ 23—29. Vattel, Meditatioues ad Pandect. Med. 10.
liy. ii. ch. 6, §{ 76, 77. Rutherforth, Eluit, de Deditione Profugorum, { 1,
Inst, of Nat. Law, yol. ii. oh. 9, p. 12. p. 7. Saalf eld, Handbuch des positiyen
Schmelzmg, Systematisoher Grundriss Volkeizechts, § 40. Schmaltz, Euro-
des praktisohen Europaischen Volker- paisdhes Volkerrecht, p. 160. Mitter-
rechts, § 161. Kent's Comm. yol. i. meyer, das deutsche Strafyeifahren,
pp. 36, 37, 6th ed. Theil i. § 69, pp. 314-319. Heffter,
{I) Pnffendotf, Elementa, lib. yiiL Europaisohe Volkerrecht, } 63.
cap. 3, f f 28, 24. Voet, da Stat, i 11, (m) Mittermeyer, ibid.
186 EIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Partn. The negative doctrine that, independent of special
compact, no State is bound to deliver up fugitives from
justice upon the demand of a foreign State, was main-
tained at an early period by the United States Govern-
ment, and is confirmed by a considerable preponderance
of judicial authority in the American courts of justice,
Q 116 ^^*^ State and Federal (n).
Extradition The Constitution of the United States (Art. 4, s. 2),
cJnatitution. providcs that " a person charged in any State with
treason, felony, or other crime, who shall flee from
justice, and be found in another State, shall, on demand
of the executive authority of the State from which he
fled, be delivered up, to be removed to the State having
jurisdiction of the crime."
§ 116a.
Obngationol It is still a debated question whether the surrender of fugitives,
not a dedded ®^cept under a treaty, is an absolute international duty. The weight
point. of modem authority inclines towards treating this as a matter of
comity (o). In such a matter as this, if any rules can be laid down at
all, they must be founded only on the practice of nations. A State is
not likely to change its law or practice in this respect, because it is not
S llAh ^ accordance with the theories of text- writers.
Pr^tioe of '^^^ ^^w of England has apparently undergone a change on this
England* point during the nineteenth century. In some of the older cases it is
laid down by the judges that the '' government may send a prisoner
to answer for a crime wherever committed" (/>). In Lord Lough-
borough's time, the crew of a Dutch ship mastered the vessel and ran
away with her, and brought her into Deal, and the question arose
whether the English Ck)urt8 could seize them and send them to
Holland. It was held that they could (^). So late as 1827 the Pro-
vincial Court of Appeals for Lower Canada held that a fugitive accused
of larceny in Vermont (XT. S.), who escaped into Canada, could be sur-
rendered to the United States, although there was then no treaty on
the subject (r). There seems to be no doubt that this would not now
(fi) See Mr. Jefferson to Mr. G^et, Droit International, p. 128. Molesworth
Sept. 12th, 1793. The deoision of Chan- on Foreign Joriadiotion, p. 37. Calvo,
cellor Kent, In re JFathbum, 4 Johnson, toI. ii. §§ 326, 402. Greasy, First Flat-
Gh. Bep. 166, isoounterbalancedbythat form of International Law, { 208, &o.
of Tilghman, C. J., in Itetpub. y. Deacon, Hall, International Law, p. 67 (6th
10 Sergeant & Bawle, 126 ; by that of edition).
Parker, C. J., in Sespub. y. Green, 17 (p) East India Co. y. Campbell, 1 Yes.
Mas. 616—648 ; and by that of the Sa- 247.
preme Gonrt in Sobnee Y. Jennison, 14 {q) Mure y. Kaye, 4 Tannt. 34.
Peters, 640. (r) In re lUher^ Stuart, Lower Canada
(o) FhilUjnore, yoI. i. \ 367. Heflter, Bep. 246.
RIGHTS OP CIVIL AND CRIMINAL LEGISLATION. 187
be done. The conBtitutional doctrine in England is, that the Crown Chap. 11.
may make treaties with foreign States for the extradition of criminals ;
bnt those treaties can only be carried into efPect by Act of Parliament,
for the executive has no power, without statutory authority, to seize an
alien here and deliver him to a foreign power. Lord Denman said in
the House of Lords that he believed all Westminster Hall, including
the Judicial Bench, were unanimous iu holding the opinion that in
this country there was no right of delivering up ; indeed, no means of
securing persons accused of crimes committed in foreign countries («).
It may thus be regarded as certain that England will not at present
surrender fugitives except under a treaty. Nevertheless, she does not
hesitate to ask other countries for fugitives from herself. Thus, in
1874, the Spanish Government, at the request of England, gave up
Austin Bidwell, one of the Bank forgers, without there being at the
time any treaty between the two countries (/). The Boyal Commission
on extradition (1878) have suggested that a statutory power of sur-
rendering fugitive criminals, irrespectively of the existence of any
treaty, should be created in England. This is no doubt the best
course. It is as much to our advantage to get rid of such persons as
it is for the foreign State to punish them. But this power does not
yet exist (i*). § 116c.
The practice of the United States has not always been uniform. In I^ractioe of
1791, the Governor of South Carolina made a request that the Presi- states?^
dent should demand the surrender of certain persons from Florida (then
Spanish territory), who had committed crimes in South Carolina, and
then fled to Florida. Mr. Jefferson said respecting this, " The laws of
the United States, like those of England, receive every fugitive, and no
authority has been given to our executives to give them up. ♦ ♦ ♦ ♦
If, then, the United States could not deliver up to Florida a fugitive
from the laws of his country, we cannot daim as a right the delivery
of fugitives from us" (jx). Mr. Monroe, as Secretary of State, in his
instructions to the American Commissioners at Ghent, in 1814, says,
*' Offenders, even conspirators, cannot be pursued by one power into
(«) Forsyth, Casee and Opizdons, p. treaty oondaded between that oonntry
369. And Bee Earl Riusell to Mr. and Great Britain in 1889 (Hertslet,
Adams, 12th June, 1862 ; U. S. Bipl. Com. Treaties, xiz. p. 94) had not been
Cor. 1862, p. 111. ratified. On ratification, the treaty was
(Q Clarke on Extradition (4th ed.), held by the Argentine Courts to be
p. 74, note. retroactive in its operation. In the
(m) Beport, 1878. Pari. Papers, Cd. oonrse of the debate in the House of
2039. Further defects in the English Commons, a former Chief Comnussioner
law of extradition were brought to Ught of the Mettopolitan Police asserted that
in the case of Dr. Hertz : see Hansard, it was often easier to obtain the surren-
4th series, ttti. p. 446 (March 5, 1895) ; der of a prisoner from a country with
and see the same volume, p. 454 et wq., which there was no extradition treaty
for the proceedings relatiye to the extra- than from a country with which a treaty
dition of Jabez Balfour, who had taken had been concluded,
refuge in the Argentine Bepublic, in (x) Jefferson's Works (ed. 1854), vol.
1892, at a date when the extradition ill. p. 299.
188
RIGHTS OP CIVIL AND CRIMINAL LEGISLATION.
Partn.
Case of
Arguelles.
Case of Carl
Vogt.
§ 116d.
Extradition
in France.
the territory of another, nor are they delivered up by the latter, except
" in compliance with treaties, or by favour " (y). These passages show
that, in the opinion of the writers, the Executive were neither bound,
nor able to surrender fugitives at the time, in the absence of treaty
or special legislation. The opinion Mr. Legare, Attorney- General,
delivered in 1841 is to the same efPect (z). In 1864 a somewhat
different opinion was adopted. Arguelles, the Governor of a district
in Cuba, wrongfully sold certain negroes into slavery while in his
charge, with the aid of forged papers, and then escaped to New York.
There was at the time no treaty between Spain and America, but Spain
asked for the surrender of Arguelles as a matter of comity, and the
United States complied. The senate thereupon requested the Presi-
dent to inform thetn under what authority of law or treaty he had
surrendered Arguelles. Mr. Seward prepared an elaborate defence of
the affair, in which he examined the state of international law when
not regulated by treaty. After citing various authorities (a), he came
to the conclusion, ''upon the plainest reason, and a uniform concur-
rence of authority, that the United States, in its relations to foreign
nations, certainly possesses the authority to surrender to the pursuing
justice of a foreign State, a fugitive criminal found within our terri-
tory»' (5).
In 1 873, the earlier rule of refusing to grant extradition without a
treaty was reverted to in a case where the law should have been
pushed to its furthest limits to obtain the conviction of the offender.
In that year Carl Vogt, a German subject, was accused of robbery,
arson, and murder in Belgium, and escaped to the United States.
There was at the time a treaty with Germany, but none with Belgium.
Both these countries applied for the fugitive, but the United States
refused to give him up to either. The application of Germany was
refused on the ground that the crimes were not committed within her
jurisdiction, and that of Belgium on the ground of there being no
treaty (c). In giving an opinion on this case, the Attorney-General
said : '' Some writers have contended that there is a reciprocal obliga-
tion upon nations to surrender fugitives from justice, but it now seems
to be generally agreed that this is altogether a matter of comity. It
is to be presumed, where there are treaties upon the subject, that
fugitives are to be surrendered only in cases and upon the terms
specified in such treaties " (d),
French jurists are of opinion that the right of sending fugitive
oriminals to the oountiy where their crime was committed is inherent
(y) See Sohnea v. Jenniam, 14 Peten,
549.
[z) Opinions of AttameTS-Gkoieral,
vol. 3, p. 661.
(a) Wheaton, § 116. HaUeok, ch. vii.
} 28. Story, Ck>nfliot of LawB, { 626.
U. S. y. DaviSf 2 Sonmer, 486.
(i) U. S. Dipl. Cor. 1864, pt. iv.
p. 40.
(e) U. S. DipL Cor. 1873, pp. 81 and
300.
(d) Opinions of Attomeys-Gteneral
(U. S.), vol. xiv. p. 288. Wharton,
Dig. { 269.
BIGHTS OP CIVIL AND CRIMINAL LEGISLATION. 189
in every ^yermnent, and exists independently of all treaties. Treaties CShap. 11.
are deemed to regulate the mode in which the right is to be exercised,
and not to create it (e). A circular of the Minister of Justice, issued
in 1841, states that most civilized countries, except England and
America, would surrender notorious criminals without being bound to
do so by treaty (/).
It is thus evident that the practice of nations does not furnish a Practioe of
definite rule on the subject. It may therefore be assumed that the StaJ» w "lot
surrender of criminals is not at present looked upon as an absolute
international duty. Every State may refuse to harbour fugitives if it
pleases; but if it prefers to receive and protect them, other States
have no remedy but to enter into treaties with it to regulate the
future. § iiee.
It seems to be agreed that extradition should be confined to grave What
crimes, such as murder, robbery with violence, forgery, and those IJJJbfwtto*'^
offences which it is the common interest of all nations to suppress, extradition.
Mr. field, in his International Code, gives the following classes of
acts as not creating a liability to extradition : (1) Crimes or offences
of a purely political character; (2) any offence committed in furthering
civil war, insurrection or political commotion, which, if committed
between belligerents, would not be a crime ; (3) desertions from, or
evasions of, military or naval service ; (4) offences which, by reason
of the lapse of time or any other cause, the demanding nation cannot
lawfully punish (y). « ^ ^g^
It is an almost universal rule that no State will surrender political PoUtical
refugees (A). But if the hospitality of a State is so abused by such refugees,
refugees, that the safety of its neighbours becomes imperilled, it then
becomes its duty to adopt such measures as will control them, and
make their residence harmless to other States (t). After the attempt
to assassinate Napoleon m. on the 10th of January, 1858, France
represented that the plot had been formed in England, and asked that
England should provide for the punishment of such offences. Lord
Fahnerston accordingly introduced a Bill for the punishment of con-
spiracies formed in England to commit murder beyond Her Majesty's
dominions, but the excited state of public opinion at the time caused
its rejection {k), Sardinia at the same time passed a law punishing
such acts when committed in her territory (I), In 1888, one Schroeder, Foreign
and again in 1889, one Wohlgemuth, German police agents, engaged pol«»»gentfl.
(e) Mouton, Lee Lois p^nales de la Cattioni, (1890) 1 Q. B. 166; In re
Franoe, torn. i. p. 9. Meunier, (1894) 2 Q. B. 416.
(/) DaUoz, Jnnsp. Gen. 1841, p. 440. (t) Blnnteohli, Le Droit international
{g) See Field, International Oode, codifiS, { 396.
{ 214, notes, where the provisions of the (k) Annual Beg. 1868, pp. 6, 33, 202.
principal existing treaties are analysed. Annuaire des deux Mondes, 1867-8, pp.
(A) Forsyth, Gases and Opinions, p. 32, 110, 420.
371. Woolsey, § 79. As to what giyes (/) Annuaire des deux Ifondes, 1867-8»
a political oharaoter to aime, see In r$ p. 216.
190 RIGHTS OF aVIL AND CRIMINAL LEGISLATION.
Fart n. in watching German subjects on Swiss soil, were expelled from Switzer-
land, on the ground that by their actions and conduct they had dis-
turbed the peace in that countiy. Germany protested, and was
supported by Eussia and Austria, and, in the more recent incident, by
Italy. It was urged, on the German part, that Switzerland had no
right to avail herself of the protection of her neutrality to further, by
toleration and support in her territory, acts against a friendly neigh-
bour which, in the case of another State, might lead to rupture and
war. The Federal Government replied that its neutrality does not
diminish its sovereign rights, but seemed disposed to seek legislative
aid to the end that it might itself better control foreigners residing in
Switzerland (m).
§1".
2^^^^" By Art. X. of the treaty concluded at Washington on
Treaty. the 9th August, 1842, between the United States and
Great Britain, it was " agreed that Her Britannic Majesty
and the United States shall, upon mutual requisitions by
them or their ministers, officers, or authorities, respec-
tively made, deliver up to justice all persons who, being
charged with the .crime of murder, or assault with intent
to commit murder, or piracy, or arson, or robbery, or
forgery, or the utterance of forged paper, committed
within the jurisdiction of either, shall seek an asylum,
or shall be found within the territories of the other : —
provided, that this shall only be done upon such evi-
dence of criminality as, according to the laws of the
place where the fugitive or person so charged shall be
found, would justify his apprehension and commitment
for trial, if the crime or offence had there been com-
mitted ; and the respective judges and other magistrates
of the two Governments shall have power, jurisdiction,
and authority, upon complaint made under oath, to issue
a warrant for the apprehension of the fugitive or person
so charged, that he may be brought before such judges
or other magistrates respectively, to the end that the
evidence of criminality may be heard and considered ;
and if, on such hearing, the evidence be deemed suffi-
cient to sustain the charge, it shall be the duty of the
examining judge or magistrate to certify the same to the
(m) Annual Begitter, 1888. Timea, Haj, Junei J11I7-, 1889.
RIGHTS OP CIVIL AND CRIMINAL LEGISLATION, 191
proper executive authority, that a warrant may issue for Chap. II.
the surrender of such fugitive. The expense of such
apprehension and delivery shall be borne and defrayed
by the party who makes the requisition and receives the
fugitive."
§l"a.
The construction of this treaty has given rise to some difficulties. It Construction
has been held that piracy in it does not include piracy ytir^ gentiumy but °' ^^ treaty,
is confined to piracy by municipal law. As pirates jure gentium can
be tried anywhere, it was considered that there was no need to give
them up (n). In another case the Lord Chief Justice said, '^ We must
assume that the terms employed are used in a sense which they would
have in the law of both countries, and not in a sense wholly peculiar
to some local law in one of them." And, therefore, where certain acts
were made forgery by the law of New York, but did not amount to
forgery in England, or by the general law of the United States, the
fugitive accused of such acts was not delivered up (o). If the evidence
presents several views of the case, on any one of which, if adopted,
there may be a conviction, it has been held in Canada that the prisoner
may be extradited (/>). It has also been determined in Canada that
the extradition treaty contains the whole law of surrender between the
United States and Canada {q). The ofPence must also have been com-
mitted within the jurisdiction of the country demanding the surrender
of the fugitive. In 1858, Thomas Allsop, a British subject, was
charged as an accessory before the fact to the murder of a Frenchman
in Paris, and escaped to the United States. He could have been tried
for this in England (r), but the law officers held that his surrender
could not be demanded from America under the treaty, since he was
not charged with a crime committed within British jurisdiction («).
But where a person was charged with murder on the high seas, on
board a British ship, this was held to be within British jurisdiction,
and the prisoner was accordingly surrendered by the United States {t). o < < wv
In 1870, an Extradition Act was passed in England («), which pro- Extradition
vides inter alia, that *' A fugitive criminal shall not be surrendered to Axst, 1870.
(n) In r$ Timan, 6 B. k 8. 643 ; 10 (p) It, v. G<mldj 20 Upper Canada
L. T. N. S. 449. Cockbnrn, 0. J., dia- 0. P. 164.
sented from the opinion of the majority. (q) J2. v. Tubbtg, I Upper Canada
See also the case of The Chetapeakey Prac. Bep. 98.
Pari. Papers, N. America, No. 10 (1876), (r) 24 ft 26 Yict. c. 100, s. 9 ; and 24
p. 37. ft 26 '^ot. c. 94, s. 1.
(o) In re Windeor, 6 B. ft S. 627 ; («) Forsyth, Cases and Opinions on
In re Trueman Smithy 4 Upper Canada Constitational Law, p. 368. And see
Praotioe Bep. 216. As to murder, see Opinions of Attorneys-General (U. S.},
Anderson's ease, Ann. Reg. 1861, p. 620. vol. Tiii. 216.
Astoconstmctionof treaty with France, ({) Inre Bennett, 11 L. T. N. S. 488.
see The Lennie Mutineers, ParL Papers, [u) 33 ft 34 Viot. o. 62. See Appen-
N. Amerioa, 1876 (No. 1), p. 97. dix B.
192 RIGHTS OF CiriL AND CRIMINAL LEGISLATION.
Part n. A foreign State unless provision is made by the law of that State, or
by arrangement, that the fugitive shall not, until he has been restored
or had an opportunity of returning to Her Majesty's dominions, be
detained or tried in that foreign State for any o£Pence committed prior
to his surrender, other than the extradition crime proved by the facts
Cuse of on which the surrender is grounded " (x). In February, 1875, a person
Laurenoe. named Laurence escaped from the United States, and sailed for Eng-
land. The American Government requested that he should be arrested
on his arrival on a charge of forgery. This was done, and he was
accordingly sent back. Before the trial Her Majesty's Government
were informed that he was also to be tried on a charge of smuggling,
an offence not included in the treaty. Lord Derby thereupon instructed
the British Minister in America to protest if Laurence was tried for
any crime but that for which he had been extradited. Mr. Fish con-
tended that neither by the general law of extradition, nor the practice
of both countries, could such a proviso be implied in the treaty (y).
He cited the cases of Yon Aerman(z), Paxton(a), Caldwell (&), and
Burley (c), to show that, under the treaty, criminals had been extra-
dited for one offence and tried for another ; and he contended that the
Act of 1870, being subsequent to the treaty, and made by only one
party, could not incorporate any new terms into it. Lord Derby
declined to recede, and refused to give up various other American
fugitives, whose surrender had been asked for, unless the United States
would agree to try them for no other offences but those they were
extradited for. His Lordship quoted the case of The Lennie muti-
neers {d\ where it was held that a prisoner delivered up under the
French Extradition Treaty for murder, could not be tried in England
for being an accessory after the fact. The discussion ended without
any conclusion being arrived at ; Mr. Fish informing Lord Derby that
Laurence would not be tried for anything but forgery, the offence for
which he was surrendered («).
[x) 83 k 84 Vict. c. 62, b. 3, sub- 1886. The provisionB of Art. 10 of the
Beot. (2). 1842 Treaty were extended to man-
{y) Mr. Fifih to Col. Hoffmann, Pari. alaaghter, bnrglary, embezzlement, or
Papers, N. America, 1876 (No. 1), p. 80. larceny of the value of 60 dollars, or 10/.
(s) 4 Upper Canada Rep. 288. and upwards, and << malicious injuries
(a) 10 Lower Canada Jur. 212. to property, whereby the life of any
(b) 8 Blatchford, C. C. 131. person shall be endangered, if such
(e) Pari. Papers, N. America, 1876 injuries constitute a crime according to
(No. 3). the laws of both" countries. The pro-
(d) Old Bailey, 4th May, 1876. Pari. yisions of the same Art. 10 and of the
Papers, N. America, 1876 (No. 1), p. 07. Conyention were to apply to persons
See 36 & 37 Vict, c 60, s. 3. Appen- oonvicted of the specified crimes, but
dix B. whose sentence had not been executed.
{e) Mr. Fish to Mr. Pierrepont, Aug. No fugitive criminal was to be surren-
6th, 1876, Pari. Papers, N. America, dered if demanded in respect of a crime
1877 (No. 1), p. 6. A Convention be- deemed to be of a political character,
tween Great Britain and the United or if his surrender should be, in fact,
States was signed at London, 26th June, demanded with a view to try or punish
RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 193
A case of great interest in this connection was decided by the Chap, II.
Supreme Court of the United States in October, 1886. The defendant
being charged with murder on board an American vessel on the high Cas^ ^^ *
seas fled to England, and, on demand, was surrendered on that charge.
The Circuit Court of the United States for the Southern District of
New York, in which he was tried, did not proceed against him for
murder, but upon an indictment under § 5347, Eevised Statutes,
charging him with cruel and unusual punishment of the man of whose
murder he was before accused, such punishment consisting of the
identical acts proved in the extradition proceedings, but not con-
stituting an offence provided for in the Ashburton Treaty. The
judges of the Circuit Court, being divided in opinion, certified to the
Supreme Court for its judgment whether this could be done. It was
laid down in the opinion of the Court, delivered by Miller, J., in
which the cases upon the subject and the opinions of writers are
examined and reviewed : —
1. That, prior to treaties, and apart from them, there was no well-
defined obligation on one country to deliver up fugitives from justice
to another ; and though such delivery was often made, it was upon the
principle of comity, and within the discretion of the government whose
action was invoked ; and has never been recognized as among those
obligations of one government towards another which rest upon
established principles of international law.
2. That a treaty to which the United States is a party is a law of
the land, of which all courts, state and national, are to take judicial
notice, and by the provisions of which they are to be governed, so far
as they are capable of judicial enforcement.
3. That it is the better opinion that in any question of extradition
which can arise between the United States and a foreign nation the
extradition must be negotiated through the Federal Government, and
not by that of a State, though the demand may be for a crime com-
mitted against the laws of that State.
4. That, on a sound construction of the Ashburton Treaty, and Acts
of Congress on the subject, Bevised Statutes, §§ 5272, 5275, the
defendant could not be lawfully tried for any other offence than
murder, because a person who has been brought within the jurisdic-
tion by virtue of proceedings tmder an extradition treaty can only be
tried for one of the offences described in that treaty, and for the
offence with which he is charged in the proceedings for his extradition,
until a reasonable time and opportunity have been given him, after his
him for a crime of a political character, hennons entertained by certain x>6r8on8,
(Pari. Papers, United States (No. 2), who seem to exercise an important
1888.) But notwithstanding the last- inflnence in American politics, that the
mentioned proyision, the ratification of extended list of extraditable offences
the Convention was refosed by the would prove inoonyenient for themselves
Senate, owing, apparently, to appre- or their friends.
W. O
194
RIGHTS OF aVIL AND CRIMINAL LEaiSLATION.
Partn.
Eer'0 Case.
French
decision.
§118.
Treaty
between
France and
the United
States.
release or trial upon such charge, to return to the country from whose
asylum he had been forcibly taken under those proceedings.
5. That the drcumstance that the same evidence might be sufficient
to conyict for the minor offence which was produced before the com-
mitting magistrate to support the charge of murder did not justify a
departure from the principle of the treaty, the minor charge being an
offence for which the treaty made no provision.
Gray, J., concurred upon the short ground that by the Act of
Congress of Srd March, 1869, c. 141, § 1 (§ 5275, Bevised Statutes),
the political department of the government had clearly manifested its
will, in the form of an express law, that an accused person should be
tried only for the crime specified in the warrant of extradition, and
should be allowed a reasonable time to depart out of the United
States before he could be arrested or detained for another offence.
He expressed no opinion upon the broader question, which he con-
sidered a question of comity within the domain of diplomacy.
Waite, 0. J., dissented. The prisoner having been brought within
the jurisdiction was triable there. Whether he ought to be tried for
an offence other than that for which he had been delivered was no
part of his defence, but a matter for diplomacy. § 5275 of the Bevised
Statutes only enabled the Federal Government to regain possession of
the prisoner if they should desire to keep their faith with Great
Britain in respect of the surrender (/).
In another case, decided in December of the same year, where the
defendant was not surrendered by the government of Peru, to which
country he had fled, but was arrested in Peru by the United States
messenger of his own mere motion, it was held by the Supreme Court
that the case was not cognizable by that Court at all, for the defendant
had failed to establish that any treaty with the United States conferred
upon him a right of asylum in a foreign country, and the Court, there-
fore, gave no opinion upon the question whether, having thus been
forcibly removed, the prisoner could resist trial in the State Court (y).
The French Courts have laid it down as a principle of international
law, that a prisoner whose extradition has been obtained cannot be
tried for any crimes but those mentioned in the demand for the
surrender (A).
By the convention concluded at Washington on the
9th November, 1843, between the United States and
France, it was agreed :
^*Art. 1. That the high contracting parties shall, on
requisitions made in their name, through the medium of
their respective diplomatic agents, deliver up to justice
(/) IT. S, V. SauMher, 119 U. S. 407.
(S) Ker Y. imwM, 119 U. S. 436; cf.
Ii$ Fariwt, 5 T. L. R. 844. And for
other reoent American oases, see Clarke
on Extradition (4th ed.), pp. 87—91.
(A) DaUos, Jnxisp. Oen. 1874, p. 602.
EIGHTS OF aVIL AND CRIMINAL LEGISLATION. t&5
persons who, being accused of the crimes enumerated in Chap. II.
the next following article, committed within the jurisdic-
tion of the requiring party, shall seek an asylum or shall
be found within the territories of the other : Provided,
that this shall be done only when the fact of the com-
mission of the crime shall be so established, as that the
laws of the country, in which the fugitive or the person
so accused shall be found, woxdd justify his or her
apprehension and commitment for trial, if the crime had
been there committed.
" Art, 2, Persons shall be so delivered up who shall
be charged, according to the provisions of this conven-
tion, with any of the following crimes, to wit : murder
(comprehending the crimes designated in the French
penal code by the terms assassination, parricide, infan-
ticide, and poisoning), or with an attempt to commit
murder, or with rape, or with forgery, or with arson, or
with embezzlement by public officers, when the same is
punishable with infamous punishment.
" Art. 3. On the part of the French Government the
surrender shall be made only by authority of the Keeper
of the Seals, Minister of Justice; and on the part of the
Government of the United States, the surrender shall be
made only by the authority of the Executive thereof.
*^ Art. 4. The expenses of any detention and delivery,
effected in virtue of the preceding provisions, shall be
borne and defrayed by the government in whose name
the requisition shall have been made.
"Art. 5. The provisions of the present convention
shall not be applied in any manner to the crimes
enumerated in the second Article, committed anterior
to the date thereof, nor to any crime or ofEence of a
purely political character."
The following additional article to the above conven- Additionai
tion was concluded between the contracting parties at *^^^®'
Washington on the 24th February, 1845, and sub-
sequently ratified :
" The crime of robbery, defining the same to be the
felonious and forcible taking from the person of another,
o2
196
BIGHTS OP CIVIL AND CRIMINAL LEGISLATION.
Partn.
§120.
Extraditioa
treaties.
§iaoa.
Surrender of
its own
Bobjects hy a
State.
of goods or money, to any value, by violence or putting
him in fear; and the crime of burglary, defining the
same to be, breaking and entering by night into a
mansion-house of another, with intent to commit felony ;
and the corresponding crimes included under the French
law in the words vol qualifiS crime^ not being embraced in
the second article of the convention of extradition con-
cluded between the United States and France on the 9th
of November, 1843, it is agreed by the present article,
between the high contracting parties, that persons
charged with those crimes shall be respectively delivered
up, in conformity with the first article of the said con-
vention ; and the present article, when ratified by the
parties, shall constitute a part of the said convention,
and shall have the same force as if it had been originally
inserted in the same " (t).
In the negotiation of treaties, stipulating for the
extradition of persons accused or convicted of specified
crimes, certain rules are generally followed, and espe-
cially by constitutional governments. The principle of
these rules is, that a State should never authorize the
extradition of its own citizens or subjects, or of persons
accused or convicted of political or purely local crimes,
or of slight offences, but should confine the provision to
such acts as are, by common accord, regarded as grave
crimes (A).
The delivering up by one State of deserters from the
military or naval service of another also depends entirely
upon mutual comity, or upon special compact between
different nations {I).
In countries whose jurisprudence is founded on the civil law,
crimes committed abroad by subjects can be punished at home. Such
States, therefore, usuallj decline to surrender their own subjects (m).
(»} The treaties of France with other
oonntries np to 1874 are oollected in
Billot, De rExtradition, pp. 471—671.
(k) Ortolan, Ragles Internationales de
la Mer, t. i. p. 340.
(/) Bjnkershoek, Qnaest. Jar. Pub.
lib. i. cap. 22. Note to Duponcean's
Transl. p. 174.
(m) Aa to Franoe, see Billot. De TEx-
tradition, p. 64. As to Qennanjr, see
Clarke on Extradition (2nd ed.), p. 66.
RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 197"
But where the common law prevails, crimes are regarded as local, and Chap. II.
punishable only by the laws of the place where they were committed.
In this case the surrender of subjects for crimes committed abroad is
absolutely necessary if the offenders are to be punished at all. British
Courts have no jurisdiction, except in cases of treason, homicide, or
bigamy, and the statutory offences enumerated on a previous
page(n), to try British subjects for offences committed in foreign
countries. Therefore, unless England agrees to surrender her subjects
accused of other offences abroad, they wiU escape scot free. This has
actually happened in a very recent case. A British subject was, in Oaae of
1877, accused of larceny in Switzerland, and escaped to England. The Wilscm.
Swiss Government applied for his extradition, under their treaty with
England made in 1874. In February, 1875, an Order in Oouncil had
been issued pursuant to the Extradition Act, 1 870, declaring that the
Act applied to Switzerland (o). But the Order also contained this
clause : '' No Swiss shall be delivered up by Switzerland to the
Government of the United Kingdom, and no subject of the United
Kingdom shall be delivered up by the Government thereof to Switzer-
land." Coimsel for the Swiss Government contended that the terms
of this clause were not imperative, but merely meant that neither
government should be bound to deliver up its own subjects. The
Court, however, came to the conclusion that the clause was imperative,
and that under it each government could not surrender its own subjects.
The prisoner was therefore discharged (/>). Lord Chief Justice Cock-
bum characterised this as a blot on our system of extradition. Both
England and the United States are willing to surrender their own
subjects (q), but continental nations, as a rule, are not. The only
means of insuring the punishment of all extraditable offenders is
either for continental nations to surrender their own subjects, or for
England and America to make their treaties with the continental
States non-reciprocal; that is, that they should agree to surrender
their own subjects, while allowing the continental States to keep
theirs. The Boyal Commission on Extradition suggest that reciprocity
in this matter should no longer be insisted upon, whether the criminal
be a British subject or not. If he has broken the laws of a foreign
country, his liability to be tried by them ought not to depend upon his.
nationality (r). The only real ground for refusing to surrender sub-
jects is when they are not likely to be fairly treated by the State
demanding them ; and this does not apply to most civilized States.
The convenience of trying crimes in the countiy where they were
committed is obvious. It is very much easier to transport the criminal
(/>) See anU, § 113a. N. America (No. 3), p. 12. Per Cock-
Co) London Gazette, 1875, vol. i. l>nm, C. J., in In re Wifuhor, 6 B. & S.
p 702. 627 ; Ex parte Von Aemam, 3 Blatch-
^ ^ ^ fold, C. C. 160.
ip) n. T. WiU<m, 3 Q. B. D. 42. ^^j Beportof Commiflirion, 1878. Pari,
(g) Burley's ^m^, Pari. Papew, 1876, Papers, c— 2089.
198
BIGHTS OF CIVIL AND CRIMINAIi LE6ISIATI0N.
Fartn.
§121.
Extra-
temtorial
operation of
a criminal
sentence.
. §122.
Piracy under
the law of
nations.
to the place of luus otf enee, than to carry all the witnesses and proofs
to some other oountzy where the trial is to be held.
An arrangement made under the British Extradition Acts is not
confined to the extradition of subjects of the sovereign Btate with
which it is made, but will, in general, apply to persons of other
nationalities committing offences within that State if their extradition
is requested by that State («).
A criminal sentence pronounced under the municipal
law in one State can have no direct legal effect in
another. If it is a sentence of conviction, it cannot bo
executed without the limits of the State in which it is
pronounced upon the person or property of the offender ;
and if he is convicted of an infamous crime, attended
with civil disqualifications in his own country, such a
sentence can have no legal effect in another independent
State (t).
But a valid sentence, whether of conviction or ac-
quittal, pronounced in one State, may have certain
indirect and collateral effects in other States, If pro-
nounced under the municipal law in the State where the
supposed crime was committed, or to which the supposed
offender owed allegiance, the sentence, either of con-
viction or acquittal, would, of course, be an effectual bar
(exceptio rei jtidicatce) to a prosecution in any other State.
If pronounced in another foreign State than that where
the offence is alleged to have been committed, or to
which the party owed allegiance, the sentence would be
a nullity, and of no aveul to protect him against a prose-
cution in any other State having jurisdiction of the
offence (w).
The judicial power of every State extends to the
punishment of certain off ences against the law of nations,
among which is piracy.
Piracy is defined by the text writers to be the offence
of depredating on the seas, without being authorized by
(«} ^ Ganz, 9 Q. B. D. 93.
(0 Martens, IV^is, &c., liy. iii. oh.
3, } 86. Eluber, Droit dee Qens Ifo-
deme de FEaiope, pt. ii. tit. 1, oh. 2,
}§ 64, 66. Fodliz, Droit International
Priv6, { 666.
(u) See Mex v. Butehinson, Nelson,
Priyate International Law, p. 366.
EIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 199
any sovereign State, or with commissions from different Chap. II.
sovereigns at war with each other (a;).
§ 122a.
"Piracy," said Sir Charles Hedges, Judge of the Admiralty Court, Ingredients
to the Grand Jury, in 1696, "is only a sea term for robbeiy, piracy o* piracy.
being a robbery committed within the jurisdiction of the Admiralty.
• ♦ ♦ ♦ If the mariners of any ship shall violently dispossess the
master, and afterwards carry away the ship itself, or any of the goods,
or tackle, apparel, or furniture, with a felonious intention in any
place where the Lord Admiral hath, or pretends to have, jurisdiction,
this is also robbery and piracy" (y). " I apprehend," said Dr. Lush-
ington, "that in the administration of our criminal law, generally
speaking, all persons are held to be pirates who are found guilty of
piratical acts ; and piratical acts are robbery and murder on tiie high
seas. * * * * It was never deemed necessary to inquire whether the
parties so convicted had intended to rob or to murder on the high seas
indiscriminately " (z). In the case then before the Court it was urged
that the acts complained of had been committed in a bay, and not on
the high seas, and were therefore not legally piratical. To this
Dr. Lushington replied, " the ships were carried away and navigated
by the very same persons who originally seized them. I consider the
possession at sea to have been a piratical possession, and the carrying
away the ships on the high seas to have been piratical acts " (a). An
offence committed on the high seas is not '^mssjjure gentium so long
as the ship on which it is committed remains subject to the authority
of the State to which it belongs. A chief ingredient of piracy is
throwing off this authority.
§ 128.
The ofl&cers and crew of an armed vessel commissioned Commiasioned
against one nation, and depredating upon another, are
not Kable to be treated as pirates in thus exceeding their
authority. The State by whom the commission is
granted, being responsible to other nations for what is
done by its commissioned cruisers, has the exclusive
jurisdiction to try and punish all offences committed
under colour of its authority (i).
The offence of depredating under commissions from
(x) See aathoritiefl cited in note to the («) The Magellan JPiratea, Shipping and
oaaeat United Siaiee v. Smith, 6 WhesAon, Mercantile (Gazette, 27th July, 1863.
167. Fhillimore, vol. i. p. 424.
(y) H. V. Dau^eon and others, 13 State W. ^^ ^"ft'J^^^' And Bee the
„ . ; , . . ' Criniinal Code BiU, 1878, s. 69.
TnalB, 454, approved of in Mtarnetf^ ^^^ Bynkershoek, Quiest. Jnr. Pub.
Oeneral for Hong Kong t. Kwok-a-Sing, Ub. i. cap. 17. Rutherforth's Inst. vol.
L. R. 6 P. C. 199. ii. p. 696.
200 RIGHTS OF aVIL AND CRIMINAL LEGISLATION.
Part II. different sovereigns at war with each other is clearly
piratical, since the authority conferred by one is re-
pugnant to the other ; but it has been doubted how far
it may be lawful to cruise under commissions from
different sovereigns allied against a common enemy.
The bettor opinion, however, seems to be, that although
it might not amount to the crime of piracy, still it would
be irregular and illegal, because the two co-belligerents
may have adopted different rules of conduct respecting
neutrals, or may be separately bound by engagements
8 124. unknown to the party (<?).
Piraoy triable Piratcs being the common enemies of all mankind,
and all nations having an equal interest in their appre-
hension and punishment, they may be lawfully captured
on the high seas by the armed vessels of any particular
State, and brought within its territorial jurisdiction for
trial in its tribunals (e7).
^t^^^^*^ This proposition, however, must be confined to piracy
piracy by tbe as defined by the law of nations, and cannot be extended
and piracy to offcuccs which are made piracy by municipal legis-
^iddpai lation. Piracy under the law of nations may be tried
Btatatee. ^^^ punished in the courts of justice of any nation, by
whomsoever and wheresoever committed; but piracy
created by municipal statute can only be tried by that
State within whose territorial jurisdiction, and on board
of whose vessels, the offence thus created was committed.
There are certain acts which are considered piracy by
the internal laws of a State, to which the law of nations
does not attach the same signification. It is not by
force of the international law that those who commit
(c) Bynkerahoek, QuBBst. Jur. Fab. (d) ''Eveiy man, by tbeiuageof onr
lib. i. cap. 17| p. 130, Dnponoean's European nations, is juttieiabls in the
Transl. torn. ii. p. 236. VaUn, Com- place where the crime is committed : so
mentauresorrOrd. de la Marine. <*The are pirates, being reputed out of the
law," says Sir L. Jenkins, "distin- protection of all laws and privHegeB,
guishes between a pirate who is a high- and to be tried in what ports soever they
wayman, and sets up for robbing, either may be taken.'* — Sir L. Jenkins* Works,
having no commission at all, or else hath lb. See Sir L. Jenkins' Charge to the
two or three, and a lawful man of war Grand Jury at the Admixalty Sessions
that exceeds his oommis8ion."^Wo]to, in Sonthwark, 18th Feb. 1680 ; Man-
Tol. ii. p. 714. den, Adm. Gas., p. 255.
EIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 201
these acts are tried and punished, but in consequence of Chap. II.
special laws which assimilate them to pirates, and which
can only be applied by the State which has enacted
them, and then with reference to its own subjects, and
in places within its own jurisdiction. The crimes of
murder and robbery committed by foreigners, on board
of a foreign vessel, on the high seas, are not justiciable
in the tribunals of another country than that to which
the vessel belongs; but if committed on board of a
vessel not at the time belonging, in fact as well as right,
to any foreign power or its subjects, but in possession of
a crew acting in defiance of all law, and acknowledging
obedience to no flag whatsoever, these crimes may be
punished as piracy under the law of nations in the courts
of any nation having custody of the oflPenders (e).
When an insurrection or rebellion has broken out in any State, the InsurgentB
rebel cruisers may be treated as pirates by the established government, ^^t^^a!^
if the rebel government has not been recognized as a belligerent by
the parent State, or by foreign nations ; but this right ceases to exist
on the recognition of the rebels as belligerents (/). During the
American war of independence, an Act was passed by the English
parliament, the object of which was to declare that the legal status of
the revolted Americans was that of felons or pirates, but as a matter
of fact none of the prisoners were so treated (^). The American civil
war assumed such gigantic proportions at the outset, that there was
very little time during which it could be doubted whether it was
actually a civil war or only a partial insurrection, and the President's
proclamation of the 19th April, 1861, declaring the Confederate ports
blockaded, settled the point, by virtually recognizing the SouUi as
belligerents. From that time the duly commissioned Southern cruisers
became entitled to the rights of war, and ceased to be pirates. § 124b.
When rebels cannot produce a regular commission from their BebeUi
government, the question of whether they are pirates becomes to a oomm^on.
great extent one of intention. If their acts are not done with a
piratical intent, but with an honest intention to assist in the war, they
cannot be treated as pirates. But it is not because they assume the
character of belligerents, that they can thereby protect themselves
from the consequences of acts really piratical (A). If their acts are at
first unauthorized, but are subsequently avowed by the insurgent
(t) U. 8, y. Klintoeky 5 Wheaton, { 27a et seq.
144 ; U. 8. V. Pirates, ibid. 184. (^) 17 Geo. HI. o. 9.
(/) Bote T. mmely, 4 Oianoh, 272 ; {h) In re Timan, 5 B. & S. 043 ; 10
The Priu Causes, 2 Black. 273 ; Miller L. T. N. S. 449 ; U. 8. v. Klintoeky 5
Y. U. 8,y 11 Wallace, 268. See ante, Wheaton, 149.
202 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Part II. government, this may or may not take them out of the category of
pirates. A recognition of belligerency does not imply that other acts
than those of war will be recognized, and the avowal of any past pro-
p 124c ceedings is not an act of war (t).
The case of A case which gave rise to considerable discussion, and caused great
^ ""^*' excitement at the time, occurred during the Neapolitan insurrection of
] 857. The Cagliarij a Sardinian merchant steamer, running between
Genoa and Tunis, left Genoa, on one of her regular voyages, on the
25th June, 1857, with thirty-three passengers, a crew of thirty-two
men, and a cargo partly consisting of firearms. While on the high
seas on the same evening, about twenty-five of her passengers suddenly
produced concealed arms, took forcible possession of the ship, placed
the master and some of the other passengers and crew under restraint,
and took the ship to Ponga, a Neapolitan fortress and prison on an
island. The mutineers landed at Ponga, and, overpowering the
garrison, took possession of the fortress, and liberated 300 prisoners.
Thus reinforced, they committed other excesses, and then proceeded in
The Cagliari to Sapri, where they were soon after all killed or taken
prisoners by the Neapolitan troops. The master then resumed his
authority over The Cagltari, and left Sapri, announcing his intention
of going to Naples, and informing the Neapolitan government of what
had occurred. About twelve miles west of Capri, on the high seas,
The Cagliari fell in with two Neapolitan cruisers, who boarded her,
and not deeming the explanations of the captain satisfactory, took
possession of the ship and conveyed her to Naples. The ship was con-
demned as prize by a Neapolitan Prize Court, and the crew were
imprisoned. The Cagliari at the time of her capture carried the
Sardinian flag, and on receiving the news of this event, the Sardinian
government demanded the release of the ship and her crew. Naples
refused, on the groimd that the vessel had been engaged in warlike
acts against the country, and that the master and crew had assisted in
these acts. Among the crew were two British subjects, named Watts
and Park, who acted as engineers. England demanded their release,
but it was not until they had been confined for ten months that Naples
surrendered them, and then only upon the ground of yielding to
superior force. The ship and the rest of the crew were afterwards
surrendered on the same ground to a British consul — no notice being
taken of Sardinia — and were sent by the consul to Genoa. The right
of Sardinia to claim their release was never admitted by Naples.
After this, the Superior Prize Court of Naples decided that The
Cagliari was rightly seized on the high seas, as having been engaged
in acts which were partly warlike and partly piratical, with the fault
of her master and crew.
(»] See jadgment of Mr. Justioe Wharton, Dig. § 380, p. 20 ; and see the
Wilson in the case of Burley^ Pari, fiye sections there following.
Papers, N. America, 1876 (No. 3), p. 19 ;
BIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 203
The British law officers were of opinion that the seizure was, under Chap. 11.
the oircumstanoes, justifiable, but that there was no ground for the con-
demnation, or for the imprisonment of the two British subjects. They
said, ''We forbear from enlarging upon the serious consequences
which would, in our opinion, result to every maritime State, and to
none more than Gbreat Britain, from it being held that nothing short
of complete legal proof of guilt or the actual commission of crime, at
the moment of capture, will justify a national ship of war in capturing
a vessel under such circumstances as those in which The Cagliari was
captured." There was no doubt the ship had been concerned in the
insurrectionary movement, and the captors could not be expected to
institute a full inquiry on the high seas, for the purpose of ascertain-
ing whether the actual crew found on board had participated in this
or not.
The case, however, was materially altered when it came before the
Prize Court at Naples. The evidence clearly showed that the captain
and crew had acted under compulsion, and that the owners of the ship
were entirely innocent. Nor was any complicity proved against the
two English engineers. Naples ought, therefore, to have immediately
surrendered the ship to Sardinia, and liberated the crew. The only
justifiable grounds for such a seizure were on the supposition that
The Cagliari was a rebel vessel, and not entitled to carry the Sardinian
flag. An insurrection may be carried on by sea as well as by land,
and the government may capture ships of its revolted subjects on the
high seas. But as no war existed at the time, Naples had no belli-
gerent right of search, or of bringing foreign vessels for adjudication
before a Prize Oourt. A Prize Court was not the proper tribunal to
hear the case. If The Cagliari was to be adjudicated on at all, it
should have been before a municipal Court, and her crew should have
been tried as rebels or pirates. As it was proved that she was entitled
to carry the Sardinian flag, every claim to her detention thereupon
disappeared, since no ship of a foreign State can be seized on the high
seas during peace. An indemnity of £3,000 was paid to England on
behalf of Watts and Park, but no compensation was made to the Sar-
dinian government {k), q 124d.
Another case occurred in 1873. The Virginius was registered b& di, The Virginii^t.
vessel of the United States in 1870. She then left the United States
and made several voyages without returning there, but she preserved
her American papers, and carried the American flag when in foreign
ports. In October, 1873, and while an insurrection was raging in
Cuba, she cleared from Kingston, in Jamaica, with her crew and
about 108 passengers. Certain arms and ammunition she had brought
into Slingston were seized and forfeited under the Customs laws, and
she left that port apparently without any arms. She sailed from
{k) See Pari. Papers, 1857. Cor- p. 209. Axmiial R^. 1868, pp. 6^—66,
respondence respecting The Cagliari, ^nd p. 181.
Anxmaire dee deaz mondes, 1857-8,
204 EIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Part n. Kingston ostenaiblj for Port Limon, in Costa Rica, but in reality pro-
ceeded towards Cuba. While on the high seas, and flying the Ameri-
can flag, she was chased by a Spanish ship of war, and being captured
was carried into Santiago da Cuba. On arriying there the Spanish
authorities tried the passengers and crew by court-martial, and shot
thirty-seven of them. Of these sixteen were British subjects. It
* appeared that the majority of the passengers and crew were Cubans,
and that their real intention was to assist in the Cuban insurrection.
But some of them, including some of the British subjects who wei*e
shot, had shipped on the supposition that The Virginius was going on
a bond fide voyage to Costa Eica. When these executions became
known, England and America promptly interfered, and called upon
the Spanish government to prevent any further slaughter of their
subjects. Matters became very serious between Spain and the United
States, and at one time war seemed imminent. Spain, however, was
willing to make reasonable concessions, and at a conference held at
Washington, she agreed to restore The Virginiua and the survivors of
her passengers and crew, and to salute the United States flag, unless
before the 25th December, 1873, Spain could prove to the satisfaction
of the American government that The Virginiue was not entitled to
carry their flag. The ship was accordingly given up to a United
States ship of war, with the survivors, but it being shown before the
appointed time that The Virginiue was not legally entitled to the
American flag, the salute was dispensed with. England also demanded
and obtained compensation for the families of the executed British
subjects (/). The Virginiut was not a pirate. She was, no doubt, on
her way to assist in an insurrection, but at the time she w£Ui captured
she was on the high seas, and had not as yet committed any overt
acts implicating her in the revolt. Spain was entitled, perhaps, to
treat her own subjects as she pleased, but the execution of foreigners
found on board a foreign ship, upon the mere supposition that they
6 124e. ^^^^ going to assist rebels, was wholly unjustifiable.
TK^Emwar, One of the most curious cases occurred in 1877 off the coast
of Peru. Pierola, an insurgent leader, seized upon the Peruvian
turret ship Huascar^ and established himself on board with all his
adherents. The revolt had no basis of operation on land, and conse-
quently could not by any possibility amount to a war. The Huaicar
cruised about the coast, and stopped several British ships, in one case
demanding any despatches there might be for the Peruvian govern-
ment, in another asking if there were any troops on board, in another
seizing on a quantity of coal. A British subject was abo detained on
board, and compelled to act as engineer. No actual violence was re-
sorted to, as no resistance was in any case offered, but the demands
were made by officers armed with swords and pistols. The British
(/] See Pari. Papon. Correspond- Spain (No. 3), 1874. Annual Beg. 1873,
enoe respecting The Virginiut (0. 991), p. 263. U. S. Dipl. CJor. 1874,
RIGHTS OP CIVIL AND CJRIMINAL LEGISLATION. 205
admiral (tn) commanding on the Pacific station, on hearing of these Chap. 11.
acts, called upon The Huascar to surrender, and offered, if this was ■
done without resistance, to land the crew at some neutral place within
reasonable distance. The Huascar refused, and thereupon the admiral
attacked her, not far from the shore, with two English wooden vessels,
The Shah and The Amethyst. Great gallantry was displayed on both
sides in the action, but no lives were lost. After a time The Huascar
retired into shallow water, and an expedition was fitted out from the
British ships to blow her up at night with a torpedo. She, however,
eluded this, and shortly after surrendered to the Peruvian govern-
ment. That government had previously disclaimed all connection
with, or responsibility for, the acts of The Huascar, In the dis-
cussion in Parliament upon this case, the Attorney-General said : '* The
ship had committed acts which made her an enemy of Great Britain ;
and that, therefore, the admiral in command of The Shah was justified
in the course which he took. The Huascar was not in a position to cleum
belligerent rights, in that she was a ship in the hands of insurgents
who had not reached a position entitling them to say that they were,
or were likely to be, able to supplant the government against which
they had rebelled, and to conduct the affairs of the country. As a
matter of fact. The Huascar was simply a rover of the sea, and she
had committed acts which entitled Admiral De Horsey, in command
of one of her Majesty's ships, to make war upon her. Sir W. Har-
court had asked in the House, whether, if The Huascar had been
taken by the admiral, he (the Attorney-General) would have advised
a prosecution for piracy against the crew. In strictness they were
pirates, and might have been treated as such, but it was one thing to
assert that they had been guilty of acts of piracy, and another to
advise that they should be tried for their lives and hanged at New-
gate. This vessel. The Huascar, was under no commission of any
sort. She was roving the seas without a commission, having been
taken possession of by a mutinous crew. • . . What right had
The Huascar to stop a British merchant vessel and demand to see
whether she had any despatches on board ? '' He concluded that the
reasons given by the admiral for his acts were perfectly just and
proper (n). The Peruvian government expressed their intention of
asking reparation from England (o) ; but as the law officers gave it
as their opinion that Admiral De Horsey's proceedings were in law
justifiable, and as the Lords of the Admiralty, although of opinion
that it would have been better first to endeavour to obtain redress by
means of remonstrances, nevertheless approved of what he did, it did not
seem probable that England would accord any reparation to Peru {p).
(m) Bear- Admiral Be Horsey. (o) Pari. Papers, 1877, Peru (No. 1),
(it) See the Times, Aug. 13th, 1877, p. 18.
p. 7. And see Pari. Papers, 1877, on
this subject. No. 369. (p) B>id. pp. 14, 24.
206
BIGHTS OP CIVIL AKD CRIMINAL LEGISLATION.
Partn.
§125.
Slave-trade^
whether
prohibited by
the law of
nations.
§126,
Treaties to
Nor was any due. The Peruvian government had expressly disclaimed
all connection with the vessel, and refused to be responsible for her
acts. Nor were they, indeed, capable of controlling her. As soon,
therefore, as she had molested British commerce, there was no other
course open to the British admiral but to take the matter into his own
hands.
The African slave-trade, though prohibited by the
municipal laws of most nations, and declared to be
piracy by the statutes of Great Britain and the United
States, and since the treaty of 1841, with Great Britain,
by Austria, Prussia, and Russia, is not such by the
general international law ; and iis interdiction cannot be
enforced by the exercise of the ordinary right of visita-
tion and search. That right does not exist, in time of
peace, independently of special compact (j').
The African slave-trade, once considered not only a
lawful, but desirable branch of commerce, a participation
in which was made the object of wars, negotiations, and
treaties between different European States, is now
denounced as an odious crime by the almost universal
consent of nations. This branch of commerce was, in
the first instance, successively prohibited by the muni-
cipal laws of Denmark, the United States, and Great
Britain, to their own subjects. Its final abolition was
stipulated by the treaties of Paris, Kiel, and Ghent,
in 1814, confirmed by the declaration of the Congress of
Vienna of the 8th of February, 1815, and reiterated by
the additional article annexed to the treaty of peace
concluded at Paris on the 20th November, 181 6 (r). The
accession of Spain and Portugal to the principle of the
abolition was finally obtained by the treaties between
Great Britain and those powers of the 23rd September,
1817, and the 22nd January, 1816. And by a conven-
tion concluded with Brazil in 1826, it was made piratical
for the subjects of that country to be engaged in the
trade after the year 1830.
By the treaties of the 30th November, 1831, and
{q) Le ZouU, Dods. Ad. 210; La Jeime
Mnginie, 10 Wheaton, 66.
(r) See Hertslet, Map of Euiope by
Treaty, vol. i. pp. 60, 696.
RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 207
22nd May, 1833, between France and Great Britain, to Chap. II.
which nearly all the maritime powers of Europe have suppresathe
subsequently acceded, the mutual right of search was "
conceded, within certain geographical limits, as a means
of suppressing the slave-trade. The provisions of these
treaties were extended to a wider range by the Quintuple
Treaty, concluded on the 20th December, 1841, between
the five great European powers, and subsequently
ratified between them, except by France, which power
still remained only bound by her treaties of 1831 and
1833 with Grreat Britain. By the treaty concluded at
Washington, the 9th August, 1842, between the United
States and Great Britain, referring to the 10th Article of
the Treaty of Ghent, by which it had been agreed that
both the contracting parties should use their best
endeavours to promote the entire abolition of the traffic
in slaves, it was provided. Article 8, that "the parties
mutually stipulate that each shall prepare, equip, and
maintain in service, on the coast of Africa, a sufficient
and adequate squadron, or naval force of vessels, of
suitable numbers and descriptions, to carry in all not less
than eighty guns, to enforce, separately and respectively,
the laws, rights, and obligations of each of the two
countries, for the suppression of the slave-trade, the said
squadrons to be independent of each other, but the two
governments stipulating, nevertheless, to give such
orders to the officers commanding their respective forces,
as shall enable them most effectually to act in concert
and co-operation, upon mutual consultation, as exigencies
may arise, for the attainment of the true object of this
article ; copies of all such orders to be communicated by
each government to the other, respectively.^^ By the
Treaty of the 29th May, 1845, between France and
Great Britain, new stipulations were entered into be-
tween the two powers, by which a joint co-operation of
their naval forces on the coast of Africa, for the sup-
pression of the slave-trade, was substituted for the
mutual right of search, provided by the previous treaties
of 1831 and 1833.
208
RIGHTS OP aVIL AND CRIMINAL LEGISLATION.
Partn.
§ 126a.
Treaty of
1862 between
England and
the United
States.
§126b.
Oeaeral Act
of Berlin
Conference.
By a treaty concluded between England and the United States on
tlie 7th April, 1862, it is agreed that the high contracting parties
mutually consent that those ships of their respective navies, which
shall be provided with special instructions, may visit such merchant
vessels of the two nations as may upon reasonable grounds be sus-
pected of having been fitted out for, or being engaged in the slave-
trade. This right of search is only to be exercised by authorized
vessels of war, and only as regards mercliant vessels ; nor may it be
put in force within the limits of a settlement or port, or within the
territorial waters of the other party. The mode in which the search
is to be conducted, and the geographical limits within which the right
may be enforced, are defined by the treaty (*). An additional con-
vention concluded on the 3rd June, 1870, abolished certain courts that
had been established in Africa to adjudicate on vessels alleged to be
slavers, and provides that suspected vessels shall be brought before
the nearest Prize Court of their own country, or handed over to one of
its cruisers, if one should be near the scene of capture. Instructions
for the ships of each country employed in this service are annexed to
the treaty (0.
By Article 9 of the General Act of the Berlin Conference, which
was signed at Berlin 26th February, 1885, Great Britain, Germany,
Austria-Hungary, Belgium, Denmark, Spain, the United States («),
France, Italy, the Netherlands, Portugal, Bussia, Sweden and
Norway, and Turkey, solemnly declared that trading in slaves is
forbidden in conformity with the principles of international law as
recognized by those powers, and that the operations, which, by sea or
land, furnish slaves to trade, ought likewise to be forbidden. And
each of the powers bound itself to employ all the means at its disposal
for putting an end to this trade, and for punishing those who engage
in it. This declaration was followed up by an Anti-Slavery Confer-
ence held at Brussels, in 1890, at which all the above enumerated
powers, together with the Congo State, Persia and Zanzibar, were
represented. The General Act of the Conference, ratified eventually
by all the powers there present, contains an elaborate series of regula-
tions for "counteracting" the slave-trade in the interior of Africa, for
repressing it at sea, for liberating escaped slaves, and for preventing
the introduction of gunpowder and firearms into districts infested by
the slave-raiders (:r).
This general concert of nations to extinguish the
§127.
Deoifllons of
American trafl&c has givon rise to the opinion, that, though once
^^*^- tolerated, and even protected and encouraged by the
laws of every maritime country, it ought henceforth to
(«) XT. S. StatateB at Large, vol. xii.
p. 279.
(0 IWd. vol. xvi. p. 777.
(«) But vide tupra, { 67a, adjlnem,
{x) Hertdety Map of Afrioa by Treaty,
Kos. 20 and 22.
BIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 209
be considered as interdicted by the international code of Chap, II.
Europe and America. This opinion first received judicial
countenance from the judgment of the Lords of Appeal
in Prize Causes, pronounced in the case of an American
vessel, The Amedie^ in 1807, the trade having been
previously abolished by the municipal laws of the
United States and of Great Britain. The judgment of
the Court was delivered by Sir William Grant, in the
following terms : — ^ J28
" This ship must be considered as being employed, at TheAmedie,
the time of capture, in carrying slaves from the coast of
Africa to a Spanish colony. We think that this was
evidently the original plan and purpose of the voyage,
notwithstanding the pretence set up to veil the true
intention. The claimant, however, who is an American,
complains of the capture, and demands from us the
restitution of property, of which, he alleges, that he has
been unjustly dispossessed. In all the former cases of
this kind which have come before this Court, the slave-
trade was liable to considerations very different from
those which belong to it now. It had, at that time, been
prohibited (so far as respected carrying slaves to the
colonies of foreign nations) by America, but by our own
laws it was still allowed. It appeared to us, therefore,
difficult to consider the prohibitory law of America in
any other light than as one of those municipal
regulations of a foreign State of which this Court
could not take any cognizance. But by the altera-
tion which has since taken place, the question stands
on different grounds, and is open to the applica-
tion of very different principles. The slave-trade has
since been totally abolished by this country, and our
legislature has pronounced it to be contrary to the
principles of justice and humanity. Whatever we might
think, as individuals, before, we could not, sitting as
judges in a British court of justice, regard the trade in
that light while our own laws permitted it. But we can
now assert that this trade cannot, abstractedly speaking,
have a legitimate existence.
w. V
210 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Fart II. *'WhenIsay abstractedly speaking^ I mean that this
country has no right to control any foreign legislature
that may think fit to dissent from this doctrine, and to
permit to its own subjects the prosecution of this trade ;
but we have now a right to affirm that primd facie the
trade is illegal, and thus to throw on claimants the
burden of proof, that, in respect of them, by the autho-
rity of their own laws, it is otherwise. As the case now
stands, we think we are entitled to say that a claimant
can have no right, upon principles of universal law, to
claim the restitution in a Prize Court of human beings
carried as slaves. He must show some right that has
been violated by the capture, some property of which he
has been dispossessed, to which he ought to be restored.
In this case, the laws of the claimant's country allow of
no property such as he claims. There can, therefore, be
no right to restitution. The consequence is, that the
n -09 judgment must be affirmed " (y).
TheFortma. In the casc oJE The Fortuna^ determined in 1811, in the
High Court of Admiralty, Lord Stowell, in delivering
the judgment of the Court, stated that an American ship,
quasi American, was entitled, upon proof, to immediate
restitution ; but she might forfeit, as other neutral ships
might, that title, by various acts of misconduct, by
violations of belligerent rights most clearly and uni-
versally recognized. But though the Prize Court looked
primarily to violations of belligerent rights as grounds of
confiscation in vessels not actually belonging to the
enemy, it had extended itself a good deal beyond con-
siderations of that description only. It had been estab-
lished by recent decisions of the Supreme Court, that the
Court of Prize, though properly a Court purely of the
law of nations, has a right to notice the municipal law
of this country in the case of a British vessel which, in the
course of a prize-proceeding, appears to have been trading
in violation of that law, and to reject a claim for her on
that account. That principle had been incorporated into
(»/) Acton's Admiralty Reportfl, vol, i. p. 240.
RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 211
the prize-law of this country within the last twenty Chap. II.
years, and seemed now fully incorporated. A late
decision in the case of The Amedie seemed to have gone
the length of establishing a principle, that any trade
contrary to the general law of nations, although not
tending to, or accompanied with, any infraction of the
law of that country whose tribunals were called upon to
consider it, might subject the vessels employed in that
trade to confiscation. The Amedie was an American ship,
employed in carrying on the slave-trade ; a trade which
this country, since its own abandonment of ity had deemed
repugnant to the law of nations, to justice, and humanity;
though without presuming so to consider and treat it
where it occurs in the practice of the subjects of a State
which continued to tolerate and protect it by its own
municipal regulations ; but it put upon the parties the
burden of showing that it was so tolerated and protected,
and in failure of producing such proof, proceeded to
condemnation, as it did in the case of that vessel. ^^How
far that judgment has been universally concurred in and
approved," continued Lord Stowell, "is not for me to
inquire. If there he those who disapprove ofity I certainly am
not at liberty to include myself in that nufnber^ because the
decisions of that Court bind authoritatively the conscience of
this; its decisions must be conformed to, and its principles
practically adopted. The principle laid down in that case
appears to be, that the slave-trade, carried on by a vessel
belonging to a subject of the United States, is a trade
which, being unprotected by the domestic regulations of
their legislature and government, subjects the vessel
engaged in it to a sentence of condemnation. If the
ship should therefore turn out to be an American,
actually so employed — ^it matters not, in my opinion, in
what stage of the employment, whether in the inception,
or the prosecution, or the consummation of it — the case
of The Amedie will bind the conscience of this Court to
the effect of compelling it to pronounce a sentence of
confiscation "(;?).
{z) 1 DodB. Ad. Rep. 81.
p2
212 EIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
_^art II. In a subsequent case, that of The Diana^ Lord Stowell
§ 130. limited the application of the doctrine invented by Sir
*«««• W. Grant, to the special circumstances which distin-
guished the case of The Amedie. The Diana was a Swedish
vessel, captured by a British cruiser on the coast of
Africa whilst actually engaged in carrying slaves to the
Swedish West India possessions. The vessel and cargo
were restored to the Swedish owner, on the ground that
Sweden had not then prohibited the trade by law or
convention, and still continued to tolerate it in practice.
It was stated by Lord Stowell, in delivering the judg-
ment of the High Court of Admiralty in this case, that
England had abolished the trade as unjust and criminal;
but she claimed no right of enforcing that prohibition
against the subjects of those States which had not
adopted the same opinion ; and England did not mean
to set herself up as the legislator and (mstos morum for the
whole world, or presume to interfere with the commercial
regulations of other States. The principle of the case of
The Amedie was, that where the municipal law of the
country to which the parties belonged had prohibited
the trade, British tribunals would hold it to be illegal
upon general principles of justice and humanity; but
they would respect the property of persons engaged in it
under the sanction of the laws of their own country (a).
The above three cases arose during the continuance of
the war, and whilst the laws and treaties prohibiting the
slave-trade were incidentally executed through the exer-
S 131 ^^^® ^^ *^® belligerent right of visitation and search.
The LouIbI In the case of The Diana^ Lord Stowell had sought to
distinguish the circumstances of that case from those
of The Amedie^ so as to raise a distinction between the
case of the subjects of a country which had already pro-
hibited the slave-trade, from that of those whose govern-
ments still continued to tolerate it. At last came the
case of the French vessel called The Louisy captured after
the general peace, by a British cruiser, and condemned in
W 1 Dods. Ad. Rep. 95.
EIGHTS OF CflVlL AND CRIMINAL LEGISLATION. 213
the inferior Court of Admiralty. Lord Stowell reversed Chap. n.
the sentence in 1817, discarding altogether the authority
of The Amedie as a precedent, both upon general reason-
ing, which went to shake that case to its very founda-
tions, and upon the special ground, that even admitting
that the trade had been actually prohibited by the muni-
cipal laws of France (which was doubtful), the right of
visitation and search (being an exclusively belligerent
right) could not consistently with the law of nations be
exercised, in time of peace, to enforce that prohibition
by the British Courts upon the property of French sub-
jects. In delivering the judgment of the High Court of
Admiralty in this case. Lord Stowell held that the slave-
trade, though unjust and condemned by the statute law
of England, was not piracy, nor was it a crime by the
universal law of nations. A court of justice, in the
administration of law, must look to the legal standard of
morality — a standard which, upon a question of this
nature, must be found in the law of nations as fixed and
evidenced by general, ancient, and admitted practice, by
treaties, and by the general tenor of the laws, ordinances,
and formal transactions of civilized States ; and looking
to these authorities, he found a diflSculty in maintaining
that the transaction was legally criminal. To make it
piracy or a crime by the universal law of nations, it must
have been so considered and treated in practice by all
civilized States, or made so by virtue of a general con-
vention.
The slave-trade, on the contrary, had been carried on
by all nations, including Great Britain, until a very
recent period, and was still carried on by Spain and
Portugal, and not yet entirely prohibited by France. It
was not, therefore, a criminal act by the consuetudinary
law of nations; and every nation, independently of
special compact, retained a legal right to carry it on.
No nation could exercise the right of visitation and search
upon the common and unappropriated parts of the ocean,
except upon the belligerent claim. No one nation had a
right to force its way to the liberation of Africa by
214 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Partn. trampling on the independence of other States; or to
procure an eminent good by means that are unlawful ; or
to press forward to a great principle by breaking through
other great principles that stand in the way. The right
of visitation and search on the high seas did not exist in
time of peace. If it belonged to one nation it equally
belonged to all, and would lead to gigantic mischief and
universal war. Other nations had refused to accede to
the British proposal of a reciprocal right of search in the
African seas, and it would require an express convention
§ 132. t^ give the right of search in time of peace (b).
wuh^ ^- The leading principles of this j udgment were confirmed
in 1820 by the Court of King's Bench, in the case of
Madrazo v. WtlleSj in which the point of the illegality of
the slave-trade, under the general law of nations, came
incidentally in question. The Court held that the British
statutes against the slave-trade were applicable to British
subjects only. Tlie British Parliament could not prevent
the subjects of other States from carrying on the trade
out of the limits of the British dominions. If a ship be
acting contrary to the general law of nations, she is
thereby subject to condemnation; but it was impossible
to say that the slave-trade is contrary to the law of nations.
It was, until lately, carried on by all the nations of Europe;
and a practice so sanctioned could only be rendered illegal
on the principles of international law, by the consent of
all the powers. Many States had so consented, but others
had not; and the adjudged cases had gone no farther
than to establish the rule, that ships belonging to countries
that had prohibited the trade were liable to capture and
§ 133. condemnation, if found engaged in it (c).
ThcAnuiopc. X. similar course of reasoning was adopted by the
Supreme Court of the United States in the case of Spanish
and Portuguese vessels captured by American cruisers
whilst the trade was still tolerated by the laws of Spain
and Portugal. It was stated, in the judgment of the
ib) 2 Dodfl. Ad. Rep. 210. L. J. 0. P. 348 ; JR. v. Zultieta, 1 0. &
{e) 3 Bam. & Aid. 353. See also R. 216 ; Pinner v. Arnold, 0. M. & R.
Santoa v. Illiige, 6 0. B. N. S. 841 ; 29 613 ; E9po9ito v. Bowden, 7:E.&B. 768.
. RIGHTS OP CIVIL AND CRIMINAL LEGISLATION. 216
Court, that it could hardly be denied that the slave-trade Chap, II.
■was contrary to the law of nature. That every man had
a natural right to the fruits of his own labour, was gene-
rally admitted; and that no other person could right-
fully deprive him of those fruits, and appropriate them
against his will, seemed to be the necessary result of this
admission. But, from the earliest times, war had existed,
and war conferred rights in which all had acquiesced.
Among the most enlightened nations of antiquity one of
these rights was, that the victor might enslave the
vanquished. That which was the usage of all nations
could not be pronounced repugnant to the law of nations,
which was certainly to be tried by the test of general
usage. That which had received the assent of all must
be the law of all.
Slavery, then, had its origin in force ; but as the world
had agreed that it was a legitimate result of force, the
state of things which was thus produced by general con-
sent could not be pronounced unlawful.
Throughout Christendom this harsh rule had been
exploded, and war was no longer considered as giving a
right to enslave captives. But this triumph had not
been universal. The parties to the modem law of nations
do not propagate their principles by force ; and Africa
had not yet adopted them. Throughout the whole extent
of that immense continent, so far as we know its history,
it is still the law of nations that prisoners are slaves.
The question then was could those who had renounced
this law be permitted to participate in its effects by pur-
chasing the human beings who are its victims ?
Whatever might be the answer of a moralist to this
question, a jurist must search for its legal solution in
those principles which are sanctioned by the usages, the
national acts, and the general assent, of that portion of
the world of which he considers himself a part, and to
whose law the appeal is made. If we resort to this
standard as the test of international law, the question
must be considered as decided in favour of the, legality
of the trade. Both Europe and America embarked in it ;
216 BIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
^ftrt IT. and for nearly two centuries it was carried on without
opposition and without censure. A jurist could not say
that a practice thus supported was illegal, and that those
engaged in it might be punished, either personally or by
deprivation of property.
In this commerce, thus sanctioned by universal assent,
every nation had an equal right to engage. No principle
of general law was more universally acknowledged than
the perfect equality of nations. Russia and Geneva have
equal rights. It results from this equality, that no one
can rightfully impose a rule on another. Each legislates
for itself, but its legislation can operate on itself alone.
A right, then, which was vested in all by the consent of
all, could be divested only by consent ; and this trade, in
which all had participated, must remain lawful to those
who could not be induced to relinquish it. As no nation
could prescribe a rule for others, no one could make a
law of nations ; and this traffic remained lawful to those
whose governments had not forbidden it.
If it was consistent with the law of nations, it could
not in itself be piracy. It could be made so only by
statute; and the obligation of the statute could not
transcend the legislative power of the State which might
enact it.
If the trade was neither repugnant to the law of nations,
nor piratical, it was almost superfluous to say in that
court that the right of bringing in for adjudication in
time of peace, even where the vessel belonged to a nation
which had prohibited the trade, could not exist. The
com'ts of justice of no country executed the penal laws
of another ; and the course of policy of the American
government on the subject of visitation and search, would
decide any case against the captors in which that right
had been exercised by an American cruiser, on the vessel
of a foreign nation not violating the municipal laws of
the United States. It followed that a foreign vessel
engaged in the African slave-trade, captured on the
high seas in time of peace, by an American cruiser, and
BIGUTS OF CIVIL AND CRIMINAL LEGISLATION. 217
brought in for adjudication; would be restored to the Chap. n.
original owners (rf).
§ 133a.
The Bubsequent case of Buron v. Denman {e\ places the matter in Buron y.
a still clearer light. A treaty was entered into between Commander ^^^'*^^'
Denman, of H.M.S. Wanderer, and King Sciacca, the sovereign of
Gallinas, a territory near Sierra Leone, for the abolition of slavery in
bis dominions. Acting upon this treaty, Commander Denman destroyed
certain barracoons of the slave dealers, and liberated the slaves, whom
he conveyed to Sierra Leone. Some of these slaves belonged to Buron,
the plaintiff. Baron Parke, in summing up, directed the jury, that
the proceedings of Commander Denman, at the time of their execution,
had been wrongful, and would have entitled the plaintiff to recover for
the loss of his goods and slaves, were it not that the defendant had
acted under the authority of a political treaty, which had been subse-
quently ratified by the Home Government, whereby his acts had
become acts of State, for which the Government, and not its officer,
was responsible.
These ctises establish beyond controversy, that the tribunals of Eng-
land recognize the right of property of the owner in the slave, so long
as the slave is in the country by the law of which the owner's right is
upheld {/), It has also been held in a recent case in the supreme
court of the United States, that a promissory note given as the price
of slaves in a State where slavery was at the time lawful, could be
enforced after the abolition of slavery throughout the Union (y). « ,««,
Another question which has caused great difficulty with regard to Fugitive
slaves is that of their position after quitting a country where they are Blaves.
held in bondage, and then returning to it. No one will deny that a
slave is justified in escaping from his master, if he can do so without
having recourse to violence, and no country would give him up to his
owner in such a case. It has, however, been asserted, that when a slave
has once set foot on British soil, he becomes at once and for ever a free
man, and that his owner's rights thereupon cease to exist. Such a
position cannot be supported. The law of England recognizes the
right of an owner in a slave-owning State over his slaves, and therefore
British law cannot impress the quality of freedom upon a slave who
has violated his master's right, so as to make the slave able to con-
tinue free on his return to the owner's country. In a case decided by Case of the
Lord Stowell, Grace, a slave in Antigua, accompanied her mistress to ®^^® C^race,
England, and then returned with her to Antigua. She was there
seized by the waiter of the Customs, as forfeited for having been
imported into the island, contrary to a statute prohibiting the further
{d) The Antelope, 10 Wheaton, 69. 2 B. & G. 448.
See The Slavers, 2 Wallace, 350. (/) Beport of Goxmn. on Fugitive
{e) 3 Ezoh. 167, and State Trials, N. Slaves, 1875, p. 54.
S. n. 526 ; and see Forbet v. Ooehrane, {g) Boyee v. TM, 18 Wallaoe, 546.
218
RIGHTS OF CIVIL AND CJRIMINAL LEGISLATION.
Partn.
§1330.
Slaves
escaping to
ships of war.
British
Admiralty
instmotions.
§133d.
Slavery in the
United States.
importation of slaveB. Her owner put in a claim for her, and Lord
Stowell decided in his favour, on the ground that while in England
she was free, hut that her liberty had been placed '^ into a sort of
parenthesis," and as she had returned to Antigua, her owner's rights
over her revived, and he was therefore entitled to her (A). Lord Chief
Justice Cockbum has expressed his approval of this decision (t) ; and
the same principle is to be found in other cases {k). Mr. Justice Story
has also expressed his concurrence with this judgment (/), and the
decisions of the American courts are to the same effect (m).
The mode in which the question is most likely to present itself at
the present time, is by slaves escaping on to the ships of war of foreign
States. To jgive back a slave to his master, knowing that he will be
maltreated, and made to suffer for having attempted to regain his
liberty, is repugnant to the feelings of human nature ; and yet to pro-
tect him and carry him off to some country where slavery does not
exist, is a violation of his owner's rights. The instructions of the
Admiralty to the commanders of British ships of war, recommend that
as a rule fugitive slaves should not be received on board, but the com-
manders are instructed that *'In any case in which you have received
a fugitive slave into your ship, and taken him under the protection of
the British flag, whether within or beyond the territorial waters of any
State, you will not admit or entertain any demand made upon you for
his surrender, on the ground of slavery. No rule is, or can be laid
down, as to when a fugitive is to be received on board or not." And
now by the terms of the General Act of the Brussels Conference, any
slave who may have taken refuge on board a ship of war flying the
flag of one of the signatory powers, within the maritime zone there
defined, shall be immediately and definitely freed. Such freedom,
however, is not to withdraw him from the competent jurisdiction if he
has committed a crime or offence at common law. By another article
of the Act it is further provided that any fugitive slave claiming on
the African continent the protection of the signatory powers shall
obtain it, and be received in the camps and stations officially estab-
lished by them, or on board Government vessels plying on the
lakes and rivers. Private stations and vessels are only permitted to
exercise the right of asylum subject to the previous sanction of the
State (n).
While slavery existed in some of the States of the American Union,
it was held by the supreme court, that laws made by any of the States
{h) The Slave Graee, 2 Hagg. Ad.
131.
(t) See Report on Fugitive Slaves,
1876, p. xlviii.
(*) Forhee v. CoeJkrane, 2 B. & 0. 448 ;
WilliatM V. Brwm, 3 Bos. & Pnl. 69.
(/) Life of Story, vol. i. p. 662.
(w) Strader v. Oraham, 10 Howard,
62 ; Dred Scot v. Sandford, 19 Howard,
393.
{n) The subject is fully ooDsidered in
the Report of the Royal Gommissioii on
Fugitive Slaves, 1876 ; and see Articles
vii., xxi., zxviii. of the Qeneral Act of
the Brussels Conference ; Hertslet, Hap
of Africa by Treaty, No. 22.
BIGHTS OP CIVIL AND CRIMINAL LEGISLATION. 219
to prevent or even to assist, the arrest of fugitive slaves, were unoon- Chap. 11.
stitutional and void (o). However, the civil war resulted in the total '
abolition of slavery throughout the Union. The Thirteenth Amend-
ment to the Constitution provides that, ** 1. Neither slavery nor in-
voluntary servitude, except as a punishment for crime, whereof the
party shall have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction. 2. Congress shall
have power to enforce this article by appropriate legislation" {p).
Q 134
II. The judicial power of every State extends to all Extent of the
civil proceedings, in rem^ relating to real or personal pro- Mto^ro^rty
perty within the territory. "^^^
This follows, in respect to real property, as a necessary
consequence of the rule relating to the application of the
lex loci rei sitce. As every thing relating to the tenure,
title, and transfer of real property {immobilia) is regulated
by the local law, so also the proceedings in courts of
justice relating to that species of property, such as the
rules of evidence and of prescription, the forms of action
and pleadings, must necessarily be governed by the same
A similar rule applies to all civil proceedings in reniy DiBonotion
respecting personal property (mobilia) within the terri- ^^^^ *^®
tory, which must also be regulated by the local law, ^^"of^
with this qualification, that foreign laws may furnish ^^S?^^^'^
the rule of decision in cases where they apply, whilst oases in rm.
the forms of process and rules of evidence and prescrip-
tion are still governed by the lex fori. Thus the kx
domicilii forms the law in respect to a testament of
personal property or succession ab intestato, if the will is
made, or the party on whom the succession devolves
resides, in a foreign country; whilst at the same time
the lex fori of the State in whose tribunals the suit is
pending determines the forms of process and the rules of
evidence and prescription.
Though the distribution of the personal effects of an Sncleflaionto
intestate is to be made according to the law of the place ^^^ «*
intestate.
(o) Prigg v. Bennaylvanxa, 16 Peters, Constitatioxi of the XT. S. See Mimor v.
539, 622. Sapperaett, 21 Wallace, 162.
(p) Thirteenth Amendment to the {q) YiAe supra, \%\,
220 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Part n. where the deceased was domiciled, it does not therefore
follow that the distribution is in all cases to be made by
the tribunals of that place to the exclusion of those of
the country where the property is situate. Whether the
tribunal of the State where the property lies is to decree
distribution, or to remit the property abroad, is a matter
of judicial discretion to be exercised according to the
circumstances. It is the duty of every government to
protect its own citizens in the recovery of their debts
and other just claims ; and in the case of a solvent
estate it would be an unreasonable and useless comity to
send the funds abroad, and the resident creditor after
them. But if the estate be insolvent, it ought not to be
sequestered for the exclusive benefit of the subjects of
the State where it lies. In all civilized countries,
foreigners, in such a case, are entitled to prove their
g |Ai7 debts and share in the distribution (r).
Foreign wii], Though the fomis in which a testament of personal
into effect in property made in a foreign country is to be executed are
oowit^. regulated by the local law, such a testament cannot be
carried into effect in the State where the property lies,
until, in the language of the law of England, probate has
been obtained in the proper tribunal of such State, or, in
the language of the civilians, it has been homologated^ or
registered, in such tribunal (5).
So also a foreign executor, constituted such by the
will of the testator, cannot exercise his authority in
another State without taking out letters of administration
in the proper local court. Nor can the administrator of
a succession ah intestatOy appointed ex officio under the
laws of a foreign State, interfere with the personal
property in another State belonging to the succession,
without having his authority confirmed by the local
tribunal.
(r) Kent*8 Conunentaries on American liams on Execaton (9th ed.), p. 1387.
Law (5ih ed.)i vol. ii. pp. 431, 432, and
the cases there cited. Nelson, Private W -^^"^^^9 v. Lear, 12 Wheaton,
International Law, pp. 196 W seq. P- 169. Code Civil, Uv. iu, tit. 2, art.
Dicey, Conflict of Laws, p. 682. Wil- 1000.
EIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 221
If the testator died without leaving any personal property in Chap. II.
England, generally speaking, his will need not be proved in any « -^«
Court of Probate in England (/). But if a foreign executor should Pr^bate o*
find it necessary to institute a suit in this country, to recover a debt wills in
due to his testator, he must then prove the will here, or a personal ^
representative must be constituted by the Court of Probate here to
administer ad litem (u). The English Court of Probate generally
f oUows the decision of the foreign court, when a will proved abroad
also requires probate in England. The Court should, however, be
satisfied, either that the will was valid by the law of the testator's
domicile, or that a court of the foreign country has acted upon it, and
given it efficiency («).
The judgment or sentence of a foreign tnbunal of Condumve-
competent jurisdiction proceeding in rem^ such as the foreign
sentences of Prize Courts under the law of nations, or STnttw!**
Admiralty and Exchequer, or other revenue courts,
under the municipal law, are conclusive as to the pro-
prietary interest in, and title to, the thing in question,
wherever the same comes incidentally in controversy in
another State.
Whatever doubts may exist as to the conclusiveness of
foreign sentences in respect of facts collaterally involved
in the judgment, the peace of the civilized world, and
the general security and convenience of commerce,
obviously require that full and complete eflEect should be
given to such sentences, wherever the title to the specific
property, which has been once determined in a compe-
tent tribunal, is again drawn in question in any other
court or country.
§ 138a.
The EngUsh courts endeavour to uphold all decisions of foreign Eaglishand
tribunals, when such decisions have been rightly obtained. Mr. Jus- ^^^^^
tice Storj lays down the rule as regards foreign judgments in rem in
very explicit terms. He says the judgment is conclusive *' when there
have been proceedings in rem as to movable property within the juris-
(0 Williams on Ejcecntors, p. 296 j In the good» of Des Hais, 34 L. J. P. M.
Jauneey v. Sealep, I Vernon, 397. & A. 68 ; Nelson, 206 et seq. With re-
(u) Williams on Executors, ibid. ; gard to the probate in England of
Attorney-General v. Bowene^ 4 M. & W. Scotch and Irish wills, see 21 & 22 Vict.
193 ; Frice v. Deichurete, 4 M. & Or. 80. o. 66, 8. 12 ; 20 & 21 Vict. c. 79, s. 95 ;
(x) Williams on Ezeoators, p. 298. Nelson, 203—206.
222 EIGHTS OF aVIL AND CRIMINAL LEGISLATION.
Part n. diction of the court pronouncing tlie judgment (y). Whatever it settleB
^ as to the right or title, or whatever disposition it makes of the property
by sale, revendication, transfer, or other act, will be held valid in
every other country where the question comes directly or indirectly in
judgment before any other foreign tribunal. But this doctrine, how-
ever, is always to be understood with this limitation, that the judg-
ment has been obtained bond fide and without fraud ; for if fraud has
intervened, it will doubtless avoid the force and validity of the sen-
tence (z). So it must appear that there have been regular proceedings
to found the judgment or decree ; and that the parties in interest in rem
have had notice or an opportunity to appear and defend their interests,
either personally or by their proper representatives, before it was pro-
nounced ; for the common justice of all nations requires that no con-
demnation should be pronounced before the party has an opportunity
to be heard " {a), " We think the inquiry is," said Mr. Justice Black-
bum, in giving an opinion in the House of Lords (i), " first, whether
the subject-matter was so situated as to bo within the lawful control of
the State, under the authority of which the court sits ; and, secondly,
whether the sovereign authority of that State has conferred on the
court jurisdiction to decide as to the disposition of the thing, and the
court has acted within its jurisdiction. If these conditions are
fulfilled, the adjudication is conclusive against all the world." The
judgment is binding even though it appears that the foreign court
based its decision on a mistaken idea of English law (c).
§139.
Tranflfer of How far a bankruptcy declared under the laws of one
SD^^fOTeign country will affect the real and personal property of the
proc^mgB. bankrupt situate in another State, is a question of which
the usage of nations, and the opinions of civilians, furnish
no satisfactory solution. Even as between co-ordinate
States, belonging to the same common empire, it has
been doubted how far the assignment under the bank-
rupt laws of one country will operate a transfer of pro-
perty in another. In respect to real property, which
generally has some indelible characteristics impressed
upon it by the local law, these difficulties are enhanced
in those cases where the lex loci rei sitce requires some
(y) ^86 y. Himelyt 4 Granoh, 241. Maflsaclinsetts, 291 ; ColUsa v. Hector ^
\z) JFiiliamt v. Amrayd, 7 Cranoh, L. R. 19 Eq. 334 ; Abouloff v. Oppen*
423. heimer, 10 Q. B. D. 295.
(a) story, Conflict of Laws, } 692. ,,, ^ , . r • t tj ^ tt ,
Boyd, The Merchant Shipping Laws, ^ ^^^''^'^ ^- ^^'"^^ ^- ^- * ^- ^'
p. 469. Monroe v. Douglas, 4 Sandfoid,
429.
126 ; Satayer v. Maine Fire Ins, Co,y 12 (e) Ibid. p. 414.
EIGHTS OP CIVIL AND CRIMINAL LEGISLATION. 223
formal act to be done by the bankrupt or his attorney, Chap» n.
specially constituted, in the place where the property
lies, in order to consummate the transfer. In those
countries where the theory of the English bankrupt
system, that the assignment transfers all the property of
the bankrupt, wherever situate, is admitted in practice,
the local tribunals would probably be ancillary to the
execution of the assignment by compelling the bankrupt,
or his attorney, to execute such formal acts as are re-
quired by the local laws to complete the conveyance (d).
The practice of the English Court of Chancer}^' in as-
suming jurisdiction incidentally of questions affecting
the title to lands in the British colonies, in the exercise
of its jurisdiction in personam , where the party resides in
England, and thus compelling him, indirectly, to give
effect to its decrees as to real property situate out of its
local jurisdiction, seems very questionable on principle,
unless where it is restrained to the case of a party who
has fraudiJently obtained an undue advantage over other
creditors by judicial proceedings instituted without per-
sonal notice to the defendant (^).
But whatever effect may, in general, be attributed to
the assignment in bankruptcy as to property situate in
another State, it is evident that it cannot operate where
one creditor has fairly obtained by legal diligence a
specific lien and right of preference, under the laws of
the country where the property is situate (/).
§140.
III. The judicial power of every State may be ex- ?^^*^°***^
tended to all controversies respecting personal rights and power over
contracts, or injuries to the person or property, when the reeidSg
party resides within the territory, wherever the cause of tOTntory.^
action may have originated.
(d) See Lotd Eldon's observations in Lord Selbome, L. 0. ; Kelson, Private
Selkriffff V. Dam, Rose's Gases in Bank- International Law, pp. 160, 151.
ruptcy, vol. ii. p. 311 ; Banfield v. Solo^ ^. ^ , c^^^^. ^^ Amerii«in
mpH, 9 Vesey, 77; ^ Zevi/s Tnw^*, 3e '^^ s^mm^. on -^enoan
Oh. D. 119. Law, vol. ii. pp. 406—408 (5th ed.) ;
(«) See, as to this practice, £tcin^ v. -^»'w» ^ Portugal v. JFtiddell, 6 App*
Orr-JSfffihfft 9 App. Gas. 34, 40, per Gas. 161.
221
BIGHTS OF CIVIL AND CRIMINAL LEGI8LATI0K.
Partn.
Depends upon
muiiicipal
regulfttions.
Law of
England and
America.
§141.
Flinch law.
This general principle is entirely independent of the
rule of decision which is to govern the tribunal. The
rule of decision may be the law of the country where
the judge is sitting, or it may be the law of a foreign
State in cases where it applies ; but that does not affect
the question of jurisdiction, which depends, or may be
made to depend, exclusively upon the residence of the
party.
The operation of the general rule of international law,
as to civil jurisdiction, extending to all persons who owe
even a temporary allegiance to the State, may be limited
by the positive institutions of any particular country.
It is the duty, as well as the right, of every nation to
administer justice to its own citizens; but there is no
uniform and constant practice of nations, as to taking
cognizance of controversies between foreigners. It may
be assumed or declined, at the discretion of each State,
guided by such motives as may influence its juridical
policy. All real and possessory actions may be brought,
and indeed must be brought, in the place where the
property lies; but the law of England, and of other
countries where the English common law forms the
basis of the local jurisprudence, considers all personal
actions, whether arising ez delicto or ex contractu^ as
transitory; and permits them to be brought in the
domestic forum, whoever may be the parties, and
wherever the cause of action may originate. This rule
is supported by a legal fiction, which supposes the injury
to have been inflicted, or the contract to have been
made, within the local jurisdiction. In the countries
which have modelled their municipal jurisprudence upon
the Roman civil law, the maxim of that code, actor
seqiiitur forum reiy is generally followed, and personal
actions must therefore be brought in the tribunals of
the place where the defendant has acquired a fixed
domicile.
By the law of France, foreigners who have estab-
lished their domicile in the country by special license
{autorisation) of the king, are entitled to all civil rights,
BIGHTS OP CIVIL AND CRIMINAL LEGISLATION. 225
and, among others, to that of suing in tho local tribunals Chap. 11.
as French subjects. Under other circumstances, these
tribunals have jurisdiction where foreigners are parties
in the following cases only : —
1. Where the contract is made in France, or else-
where, between foreigners and French subjects.
2. In commercial matters, on all contracts made in
France, with whomsoever made, where the parties have
elected a domicile, in which they are liable to be sued,
either by the express terms of the contract, or by neces-
sary implication resulting from its nature.
3. Where foreigners voluntarily submit their contro-
versies to the decision of the French tribunals, by waiv-
ing a plea to the jurisdiction.
In all other cases, where foreigners not domiciled in
France by special license of the king are concerned, the
French tribunals decline jurisdiction, even when the
contract is made in France (ff).
A late excellent writer on private international law
considers this jurisprudence, which deprives a foreigner,
not domiciled in France, of the faculty of bringing a
suit in the French tribunals against another foreigner,
as inconsistent with the European law of nations. The
Roman law had recognized the principle, th^t all con-
tracts the most usual among men arise from the law of
nations, ex Jure gentium ; in other words, these contracts
are valid, whether made between foreigners, or between
foreigners and citizens, or between citizens of the same
State. This principle has been incorporated into the
modem law of nations, which recognizes the right of
foreigners to contract within the territorial limits of
another State. This right necessarily draws after it the
authority of the local tribunals to enforce the contracts
thus made, whether the suit is brought by foreigners or
by citizens (A).
is) Code Ciyil, art. 13, 14, 16. Code torn. i. pp. 118, 253, 264. PardesBas,
de Commeroe, art. 631. Diaoossions Droit Commeroial, Ft. VI. tit. 7, oh. 1,
snr le Code Civil, torn. i. p. 48. Po- } 1.
thier, Proc^dnre Civile, Partie I. oh. i. (A) Foeliz, Droit International Priy6,
p. 2. Valin, wax TOrd. de la Marine, {§ 122, 128.
W. • U
226
BIGHTS OF dVIL AND CRIMINAL LEGISLATION.
Partn.
§142.
Proceedings
against absent
parties.
Discinction
between the
rule of
deciHion and
rule of pro-
ceeding, in
cases of
contract.
The practice which prevails in some countries, of
proceeding against absent parties, who are not only
foreigners, but have not acquired a domicile within the
territory, by means of some formal public notice, like
that of the viis et modis of the Roman civil law, without
actual personal notice of the suit, cannot be reconciled
with the principles of international justice («). So far,
indeed, as it merely affects the specific property of the
absent debtor within the territory, attaching it for the
benefit of a particular creditor, who is thus permitted to
gain a preference by superior diligence, or for the
general benefit of all the creditors who come in within a
certain fixed period, and claim the benefit of a rateable
distribution, such a practice may be tolerated; and in
the administration of international bankrupt law it is
frequently allowed to give a preference to the attaching
creditor, against the law of what is termed the iocus
concur sih creditormn^ which is the place of the debtor's
domicile.
Wliere the tribunal has jurisdiction, the rule of deci-
sion is the law applicable to the case, whether it be the
municipal or a foreign code ; but the rule of proceeding
is generally determined by the lex fori oi the place where
the suit is pending. But it is not always easy to dis-
tinguish the rule of decision from the rule of proceeding.
It may, however, be stated in general, that whatever
belongs to the obligation of the contract is regulated by
the lex domicilii^ or the Ux loci contractus^ and whatever
belongs to the remedy for enforcing the contract is regu-
lated by the lex fori (k).
If the tribunal is called upon to apply to the case the
law of the country where it sits, as between persons
(i) Schihsly v. JFestenhoIz, L. R. 6
Q. B. 166 ; but see Sirdas Ourdyal Singh
V. Itajah of Tarxkdate, (1894) A. 0. 670.
The former of these oases is said by
Professor Dicey to afford an example of
legislative and judicial excess of autho-
rity. ♦* The English Courts, under an
Act of the English Legislature, were
authorised, and indeed bound, to exer-
cise a jurisdiction which English judges
did not believe that foreign Courts would
admit to be within the proper authority
of the British Sovereign/' Conflict of
Laws, p. 28, n.
{k) See \ 93a, anU,
BIGHTS OP CIVIL AND CRIMINAL LEGISLATION. 227
domiciled in that country, no difficulty can possibly d^v-U.
arise. As the obligation of the contract and the remedy
to enforce it are both derived from the municipal law,
the rule of decision and the rule of proceeding must be
sought in the same code. In other cases it is necessary
to distinguish with accuracy between the obligation and
the remedy.
The obligation of the contract, then, may be said to
consist of the following parts : —
1. The personal capacity of the parties to contract.
2. The will of the parties expressed, as to the terms
and conditions of the contract.
3. The external form of the contract.
The personal capacity of parties to contract depends
upon those personal qualities which are annexed to their
civil condition, by the municipal law of their own State,
and which travel with them wherever they go, and
attach to them in whatever foreign country they are
temporarily resident. Such are the privileges and disa-
bilities conferred by the lex domicilii in respect to
majority and minority, marriage and divorce, sanity or
lunacy, and which determine the capacity or incapacity
of parties to contract, independently of the law of the
place where the contract is made, or that of the place
where it is sought to be enforced.
It is only those universal personal qualities, which the
laws of all civilized nations concur in considering as
essentially affecting the capacity to contract, which are
exclusively regulated by the lex domicilii^ and not those
particular prohibitions or disabilities, which are arbitrary
in their nature and founded upon local policy ; such as
the prohibition in some countries of noblemen and
ecclesiastics from engaging in trade and forming com-
mercial contracts. The qualities of a major or minor,
of a married or single woman, &c., are universal
personal qualities, which, with all the incidents belong-
ing to them, are ascertained by the. Ux domicilii^ but
q2
228 EIGHTS OP CIVIL AND CfEIMINAL LEGISLATIOIT.
Part II. which are also everywhere recognized as forming essen^-
tial ingredients in the capacity to contract (/).
Bankruptojr. How far bankruptcy ought to be considered as a
privilege or disabiKty of this nature, and thus be
restricted in its operation to the territory of that State,
under whose bankrupt code the proceedings take place,
is, as already stated, a question of difficulty in respect to
which no constant and uniform usage prevails among
nations. Supposing the bankrupt code of any country
to form a part of the obligation of every contract made
in that country with its citizens, and that every such
contract is subject to the implied condition, that the
debtor may be discharged from his obligation in the
manner prescribed by the bankrupt laws, it would seem,
on principle, that a certificate of discharge ought to be
effectual in the tribunals of any other State where the
creditor may bring his suit. If, on the other hand, the
bankrupt code merely forms a part of the remedy for a
breach of the contract, it belongs to the lex fori^ which
cannot operate extra- territorially within the jurisdiction
of any other State having the exclusive right of regulat-
ing the proceedings in its own courts of justice ; still less
can it have such an operation where it is a mere partial
modification of the remedy, such as an exemption from
arrest, and imprisonment of the debtor's person on a
ce^m honorum. Such an exemption being strictly local
in its nature, and to be administered, in all its details,
by the tribunals of the State creating it, cannot form a
law for those of any foreign State. But if the exemption
from arrest and imprisonment, instead of being merely
contingent upon the failure of the debtor to perform his
obligation through insolvency, enters into and forms an
essential ingredient in the original contract itself, by the
law of the country where it is made, it cannot be
enforced in any other State by the prohibited means.
Thus by the law of France, and other countries where
(/) Fardeflsos, Droit Oommeroial, Ft. L. J. Gh. 637 ; T%dHz t. O^Soffan, (1900)
VI. tit. 7, oh. 2, § 1. Cooper v. Cooper^ 2 Oh. 87.
13 App. Gas. 88 ; lU Cooke' t Truete, 66
EIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 229
the contrainte par corps is limited to commercial debts, an Chap. IL
ordinary debt contracted in that country by its subjects
cannot be enforced by means of personal arrest in any
other State, although the lex fori may authorize imprison-
ment for every description of debts (m).
There is no doubt of the general rule that when an action is brought Remedy for
in one country for acts which have taken place in another, the rights ^roDgs
and merits of the case are to be decided by the law of the place where in a foreign
the acts occurred. There is, however, a limitation to the rule when country,
the case is one, not of contract, but of tort. The civil liability arising
out of a wrong derives its birth from the law of the place where the
wrong was committed, and its character is determined by that law ;
but in order that a wrong committed abroad should give a remedy in
England, it is essential that the wrong should be of such a character
that it would give a cause of action if committed in England (n). Thus
a collision occurred in the Scheldt between a British ship and a Nor-
wegian barque, in which the latter was damaged by the fault of the
British ship. By the law of Belgium, the British ship was compelled
to take a pilot on board while navigating the Scheldt, but, though the
pilotage was compulsory, the law of Belgiimi did not free the master
from responsibility while the ship was in the pilot's charge. By the
law of England, a master is not responsible for damage occasioned by
the fault or incapacity of a qualified pilot, when the employment of
such a pilot is compulsory by law (o). It being proved that the colli-
sion occurred through the faidt of the pilot on board the British ship,
the Privy Council refused to hold the owner liable in England, although
he might be so in Belgium ( je?).
§145.
The obligation of the contract consists of the will of ObUgation of
, IT- a contract.
the parties, expressed as to its terms and conditions.
The interpretation of these depends, of course, upon
the lex loci contractus^ as do also the nature and extent of
those implied conditions which are annexed to the con-
tract by the local law or usage (y). Thus, the rate of
interest, unless fixed by the parties, is allowed by the
(«) Melan v. The Duke of FOz-James, (o) 17 & 18 Vict. o. 104, s. 388. See
1 B. & P. 131. See Frith v. WoUtuton, Boyd, The Merbhant Shipping Laws,
21 L. J. Ex. 108. p. 845.
{«) The Ealley, L. B. 2 P. 0. 193 ; ^ j ^ ^^^^ j^ ^ 2 P. 0. 193.
Fhillipe T. Eyre, L. R. 6 Q. B. 28 ; The g^ ^ ^^j^ ^ ^^^^^ 1 ^^^^^^ 28,
M. Moxham, 1 P. D. Ill; Chartered ^tere similar principles were appUed in
Bank of India v. Netherlands India Steam Xm&tv^
Ka^atum Co,, 10 Q. B. D. 621, 536,
537. («) See § 93, ante.
230 BIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
Part II. law as damages for the detention of the debt, and the
proceedings to recover these damages may strictly be
considered as a part of the remedy. The rate of interest
is, however, regulated by the law of the place where the
contract is made, unless, indeed, it appears that the
parties had in view the law of some other country. In
that case, the lawful rate of interest of the place of pay-
ment, or to which the loan has reference, by security
being taken upon property there situate, will control the
§ 146. lex loci contractus (r).
co^itoiot.* The external form of the contract constitutes an essen-
tial part of its obligation.
This must be regulated by the law of the place of
contract, which determines whether it must be in writ-
ing, or under seal, or executed with certain formalities
before a notary, or other public officer, and how attested.
A want of compliance with these requisites renders the
contract void ab initio^ and being void by the law of the
place, it cannot be carried into effect in any other State.
But a mere fiscal regulation does not operate extra-terri-
torially ; and therefore the want of a stamp, required by
the local law to be impressed on an instrument, cannot
be objected where it is sought to be enforced in the
tribunals of another country.
There is an essential difference between the form of
the contract and the extrinsic evidence by which the
contract is to be proved. Thus the lex loci contractus
may require certain contracts to be in writing, and
attested in a particular manner, and a want of compli-
ance with these forms will render them entirely void.
But if these forms are actually complied with, the ex-
trinsic evidence by which the existence and terms of the
contract are to be proved in a foreign tribunal, is regu-
0 147 lated by the kx/ori{s).
Conclusive- The most eminent public jurists concur in asserting
ness of foreign , , . .
judgments m tlic principle, that a final judgment, rendered in a per-
personHX
actions.
(r) Kent's Comxn. on American Law, vol. ii. p. 459 (5th edit.). Fosliz, Droit
International Priy6, § 85. Kelson, p. 279.
(*) Nelson, 267—261.
RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. 231
sonal action, in the courts of competent jurisdiction of Chap. n.
one State, ought to have the conclusive effect of a res
adjudieatay in every other State, wherever it is pleaded
in bar of another action for the same cause (^).
But no sovereign is bound, unless by special compact,
to execute within his dominions a judgment rendered by
the tribunals of another State; and if execution bo
sought by suit upon the judgment or otherwise, the tri-
bunal in which the suit is brought, or from which execu-
tion is sought, is, on principle, at liberty to examine into
the merits of such judgment, and to give effect to it or
not, as may be found just and equitable (w). The general
comity, utility, and convenience of nations have, how-
ever, established a usage among most civilized States,
by which the final judgments of foreign courts of com-
petent jurisdiction are reciprocally carried into execution,
under certain regulations and restrictions, which differ in
different countries {x).
By the law of England, the judgment of a foreign English law
tribunal of competent jurisdiction, is conclusive where judgments.
the same matter comes incidentally in controversy
between the same parties ; and full effect is given to the
exceptio rei judicatce^ where it is pleaded in bar of a new
suit for the same cause of action. A foreign judgment
is prima facie evidence, where the party claiming the
benefit of it applies to the English Courts to enforce it,
and it lies on the defendant to impeach the justice of it,
or to show that it was irregularly obtained. If this is
not shown, it is received as evidence of a debt, for which
a new judgment is rendered in the English Court, and
execution awarded. But if it appears by the record of
the proceedings, on which the original judgment was
founded, that it was unjustly or fraudulently obtained,
without actual personal notice to the party affected by
it ; or if it is clearly and unequivocally shown, by ex-
(0 Vattel, Uv. ii. ch. vii. }{ 84, 86. Bnndes Recht, § 366.
Martens, Droit des Gtene, §{ 93, 94, 95. W Kent's Comm., vol. ii. p. 119 (5th
miiber, Droit des Geng, j 69." Deutsche ^^Jp^ij,^ jj 292-311.
232 RIGHTS OF aVIL AND CRIMINAL LEGISLATION.
Part n. trinsic evidence, that the judgment has manifestly pro-
ceeded upon false premises or inadequate reasons, or
upon a palpable mistake of local or foreign law ; it will
not be enforced by the English tribunals (y).
A foreign jadgment in personam^ to be recognized in England, must
he final and conclusive between the parties litigating the same issue
in England, and must be for a debt or a definite simi of money. And
the plaintiff in England cannot, when he relies on the foreign judg-
ment as his cause of action, obtain a greater benefit here than the
foreign judgment gave him abroad. In an action on a foreign judg-
ment not impeached for fraud, the original cause of action is not re-
investigated here, if the judgment was pronounced by a competent
tribunal having jurisdiction over the litigating parties ; and a foreign
judgment, subject as above, will be regarded in an English Court as
final and conclusive, though it is subject to an appeal, and though an
appeal against it is actually pending in the foreign country where it
was given. For the Courts of this country do not sit to hear appeals
from foreign tribunals, and if the judgment of a foreign Court is
erroneous, the regular mode, provided by every system of jurisprudence,
of procuring it to be examined and reversed, or re-heard, ought to be
followed. But no judgment will be recognized in England which was
obtained by the fraud of the party relying on it here ; or if the foreign
Court, although it affected to decide on the merits, was, in view of
English law, without jurisdiction (2).
§149.
American The samc jurisprudence prevails in the United States
of America, in respect to judgments and decrees ren-
dered by the tribunals of a State foreign to the Union.
As between the different States of the Union itself, a
judgment obtained in one State has the same credit and
effect in all the other States, which it has by the laws of
that State where it was obtained ; that is, it has the con-
« 150 elusive effect of a domestic judgment (a).
Law of The law of France restrains the operation of foreign
judgments within narrower limits. Judgments obtained
(y) Franklatid v. McGwty^ 1 Knapp, D. 296 ; Voinet v. Barrett, 55 L. J.
P. O. 274 ; Novelli v. Rom, 2 Bam. & Q. B. 39 ; Godard v. Gray; Sehibsby t.
Adol. 767 ; Beequet v. McCarthy, 3 ib. Wettenhoh, L. R. 6 Q, B. 139, 166 ;
951. Kelflon, Private InternatioDal Law, 338
{z) Dicey, Conflict of Laws, p. 416. f^ m^., and cases there cited.
Re Mendersonf NouvUm v. Freeman, 15 (a) MilU y. Duryee, 7 Granch, pp. 481
App. Caa. 1; Hawksford v. Giffard, 12 —484; Hampton Y.M'Connel^ZVfheakUm,
App. Gas. 122; Re Trufort, 36 Ch. D. 234. Story (Bigelow, edit. 8), p. 829,
600 ; Abouloff v. Oppenheimer, 10 Q. B. note (a).
RIGHTS OP CIVIL AND CRIMINAL LEGISLATION. 283
in a foreign country against French subjects are not Cfhap. n.
conclusive, either where the same matter comes again in-
cidentally in controversy, or where a direct suit is brought
to enforce the judgment in the French tribunals. And
this want of comity is even carried so far, that, where a
French subject commences a suit in a foreign tribunal,
and judgment is rendered against him, the exception of
lisfinita is not admitted as a bar to a new action by the
same party, in the tribunals of his own country. If the
judgment in question has been obtained against a
foreigner, subject to the jurisdiction of the tribunal
where it was pronounced, it is conclusive in bar of a new
action in the French tribunals, between the same parties.
But the party who seeks to enforce it must bring a new
suit upon it, in which the judgment is primd facie evi-
dence only; the defendant being permitted to contest
the merits, and to show not only that it was irregularly
obtained, but that it is unjust and illegal (&).
The execution of foreign judgments in personam is
reciprocally allowed, by the law and usage of the dif-
ferent States of the Germanic Confederation, and of the
European continent in general, except Spain, Portugal,
Russia, Sweden, Norway, France, and the countries
whose legislation is based on the French civil code (c). n jgj
A decree of divorce obtained in a foreign country, by Foreign
a fraudulent evasion of the laws of the State to which
the parties belong, would seem, on principle, to be
clearly void in the country of their domicile, where the
marriage took place, though valid under the laws of the
country where the divorce was obtained. Such are
divorces obtained by parties going into another country
for the sole purpose of obtaining a dissolution of the
nuptial contract, for causes not allowed by the laws of
their own country, or where those laws do not permit a
{b) Code Giyil, art. 2123, 2128. Code Droit, torn. iii. tit. Jugemeni. Toollier,
de Pzoc^dnie Civil, art. 546. Fardefisas, Droit dvil Fran^ais, torn. z. Nos. 76—
Droit Commercial, Pt. VI. tit. 7, oh. 2, 86.
{ 2, Ko. 1488. Merlin, Repertoire {c) Fcelix, Droit International Priv6,
torn. tI. tit. Jugement. Queetions de \\ 293 — 311.
234 BIGHTS OF CIVIL Aim CRIMINAL LEGISLATION.
Part n. divorce H vinculo for any cause whatever. This subject
has been thrown into almost inextricable confusion,
by the contrariety of decisions between the tribunals of
England and Scotland ; the Courts of the former refusing
to recognize divorces 5 vinculo pronounced by the Scottish
tribunals, between English subjects who had not acquired
a bond fide permanent domicile in Scotland ; whilst the
Scottish Courts persist in granting such divorces in cases
where, by the law of England, Ireland, and the colonies
connected with the United Bongdom, the authority of
parliament alone is competent to dissolve the marriage,
so as to enable either party, during the lifetime of the
other, again to contract lawful wedlock (d).
In the most recent English decision on this subject,
the House of Lords, sitting as a Court of Appeals in a
case coming from Scotland, and considering itself bound
to administer the law of Scotland, determined that the
Scottish Courts had, by the law of that country, a
rightful jurisdiction to decree a divorce between parties
actually domiciled in Scotland, notwithstanding the
marriage was contracted in England. But the Court
did not decide what effect such a divorce would have,
if brought directly in question in an English court of
justice («).
In the United States, the rule appears to be con-
clusively settled that the lex loci of the State in which
the parties are bond fide domiciled, gives jurisdiction to
the local courts to decree a divorce, for any cause recog-
nized as sufficient by the local law, without regard to
the law of that State where the marriage was originally
contracted (/). This, of course, excludes such divorces
as are obtained in fraudulent evasion of the laws of one
State, by parties removing into another for the sole
purpose of procuring a divorce ( g).
(d) Dow's Parliament. Canes, vol. i. (e) Warrender v. Warrender, 9 Bligb,
p. 117 ; Tovey v. Lindsay, p. 124 ; Zolly*s 89 ; S. C, 2 Qark & Fin. 488.
case, 2 Claxk & Kn. 667. See Fergus- ^ (/> -^^'^ ^; ^^*^» Chandler's Law
I ^ . ^ . . . .^ X Reporter, vol. i. p. 287.
son's Exports of Decisions in the Con- ^^^ ^^^,^ ^^ ^ ^^1 j. ^ ^^^ ^^^
sistorial Courts of Scotland, passim. edit.). Story, p. 308, note (a).
BIGHTS OP CTVIL AND CRIMINAL LEGISLATION. 235
A marriage is regarded in England as indissolable by a foreign Chap. II.
Court when it is an English domiciled marriage ab initio down to the
time of the foreign decree. And where the domicile of the husband is yi^g^it^y of |^
English at the time of the sentence in the foreign Court, such sentence foreign
is ineffective in England. But the English Courts will recognize as EnffL^dT
valid the decision of a foreign tribunal dissolving a marriage cele-
brated in England between a man domiciled at the date of the
marriage and thenceforward till the date of the decree in the country
where such tribunal exercises jurisdiction and an Englishwoman,
although the sentence is for a cause insufficient by the law of
England. And a domicile of the husband acquired after marriage
but before decree, and without ulterior motive, is probably enough to
found the foreign jurisdiction so that the foreign sentence may be
allowed here. When neither the domicile or place of celebration is or
has been English, a sentence pronounced by a Court of the matrimonial
domicile will be deemed of effect here, and a sentence of a Court of the
place of celebration is sufficient if so regarded by the law of the
domicile. A foreign sentence in a matrimonial cause, as any other
foreign judgment, is vitiated by fraud or collusion (A). o <gjv
The only fair and satisfactory rule to adopt as regards jurisdiction is Divorce
to insist upon the parties in all cases referring their matrimonial dif- J^^^i^ .v
ferences to the Courts of the country in which they are domiciled, csouotrv of
Different communities have different views and laws respecting matri- domicile,
monial obligations, and a different estimate of the* causes that should
justify divorce. It is both just and reasonable, therefore, that the
differences of married people should be adjusted in accordance with
the laws of the community to which they belong, and dealt with by
the tribunals which alone can administer those laws. An adherence
to this principle will preclude the scandal which arises when a man
and woman are held to be man and wife in one country, and strangers
in another (t). Though there can be no doubt of the soundness of
this principle, it cannot, unfortunately, be considered as absolutely
established in English law {k) ; but after the decision of the Judicial
Committee of the Privy Council in Le Mesurier v. Le Mesurier (/), it
may be assumed that the House of Lords will, when the opportunity is
afforded them, overrule the judgment of the Court of Appeal in
Nihoyet v. Niboyet. In the former case the Privy Council decided that
the permanent domicil of the spouses within a territory is necessary to
give to its Courts jurisdiction so to divorce d vinculo^ as that its decree
to that effect shall, by the general law of nations, possess extra-
(h) Harvey y. Famie, 8 App. Oas. Bossell, the Times for Jnlj 19, 1901,
43 ; Turner v. Thompson, 13 P. D. 37 ; and (1901) A. C. 446.
Ddphin y. SoHns, 7 H. L. G. 391; (i) ^i/Mnv. 7ri/^n,L.R.2P.&M.442.
8eoU y. AtL'GeH,, 11 P. D. 128 ; Bripfft {k) Niboyet y. Niboyet, 4 P. D. 1.
V. Briggs^ 6 P. D. 163 ; LoU&yU ease, R. (/) (1895) A. 0. 517. In Armytage y.
& Rj. 237 ; Nelflon, 128 et seq,, and Armytage, (1898) P. 178, Barnes, J.,
cases there cited. See also Green y. treated Niboyet and Niboyet as being no
Green, (1893) P. 89, and the trial of Lord longer law.
236
Partn.
§ 151o.
Domicile
neoe^arp" to
givejunsdio-
tion to
diyorce.
§ 161d.
Case of the
Prinoees
Bibeeco.
EIGHTS OF CIVIL AND CRIMINAL LEGISLATION.
territorial authority. Nor would it, even if firmly established, in
every case prevent collision between the courts of different countries,
because there would still, in each case, remain the fact of domicile to
be established ; and as all countries do not adopt the same rules of
evidence, the evidence on this question might be very different in one
country to what it would be in another (m).
Their lordships further held, in Lb Mesurier v. Le Mesurier, that a
so-called ''matrimonial domicile," said to be created by a bond fide
residence of the spouses within the territory, of a less degree of per-
manence than is required to fix their true domicil, cannot be recog-
nized as creating such jurisdiction. This ruling may be considered as
setting at rest the doubts expressed by Lord Colonsay in the House of
Lords in 1868 as to whether a domicile /or all purposes is necessary to
give a foreign Court such jurisdiction as will ensure the recognition of
the divorce in England (n). It was not necessary to decide the point,
because in the case before the Court the domicile of the parties was
English ; the husband had committed adultery in England, and both
parties had then gone to Scotland, and remained forty days there,
simply to give the Scotch Court jurisdiction. The divorce was there-
fore an evasion of English law. "The result is," said Lord West-
bury, ''that a sentence of divorce under such circumstances may be
binding in Scotland, although of no validity in the territory of
England But this disgraceful anomaly can only be removed by
the Legislature " (o). The present state of the law as evolved out of a
long series of contests between the English and Scotch Courts is
summed up by Professor Dicey as follows : " The Scotch Courts, as
represented by the House of Lords, would appear to have surrendered
the claim to dissolve the marriage of persons not domiciled in Scotland,
or at least to look with great doubt on the doctrine that either the
locus delicti or residence for forty days gives jurisdiction in matters of
divorce As the English Courts have now conceded that an
English marriage may be dissolved by the tribunals of any country
where the parties are domiciled at the time of divorce, it follows that
a Scotch divorce will in general be held valid in England if the parties
to the marriage are at the time of the divorce domiciled in Scotland
and not elsewhere" (/>).
An interesting case regarding the effect to be attributed to the
second marriage of a woman in Germany, who had been previously
married in France, where divorce was not then permitted, occurred in
1875. The Princess de Bauffremont was married in France to a
Frenchman, and in August, 1874, obtained a separation de corps from
the French Courts. In May, 1875, she was naturalized at Saxe-Alten-
(m) WiUon V. Wilaon, ubi sup,
(») Shaw V. Oould, L. B. 3 H. L. 96.
See also Brodis v. BrodiSy 2 Sw. & Tr.
269; ShawY, Att.-Gen,^ L. B. 2 P. &
D. 156 ; Bri^fft v. BHppn^ 6 P. D. 163 ;
ffarvey v. Famis, 6 P. D, 163, 167; 6
P. D. 36, 60, 61 ; 8 App. Gas. 43, 66.
(o) Shuw T. Gould, at p. 88.
(p) Ckmflict of Laws, p. 768.
BIGHTS OP CIVIL AND CRIMINAL LEGISLATION. 237
bourg, and became a subject of the German Empire. She then Qhap. U.
domiciled herself near Dresden, and in October, 1875, married the
Prince Bibesco, at Berlin, according to the laws of Germany. The
opinion of Herr Holtzendorff, a professor at Munich, was asked as to
the effect of this second marriage, and he fully considers the subject in
his reply (q). By the law of Germany, naturalization wiU not be con-
ferred unless the applicant is capable of contracting by the law of his
own country (r). This refers to a general incapacity to contract, and
the incapacity of a French subject to marry after a separation de corps
is a special incapacity, and one not contemplated in the German law.
Hence the naturalization of the Princess was valid in Germany. The
French code (s) provides, without any limitation, that the quality of
French subject is lost by naturalization abroad, and by the common
law of Germany a separation de corps is looked upon as equivalent to a
divorce {t). Thus Herr Holtzendorff argued that the Princess, having
rightfully ceased to be a French, and having become a German subject,
also acquired the right of marrying again, and that the marriage was
certainly valid in Germany. Whether the marriage would be recog-
nized in France appears to be an open question, but there is some
authority for supposing that it would (u).
And in a case where the husband and wife, both domiciled in Scott r.
Ireland, were married in that country, and there resided for about two -^**•-^^'••
years, and subsequently acquired a domicile at the Gape, and the wife
was divorced from her husband by a sentence of the proper Court at
the Gape, and later came to England with the intention of remaining
here, and contracted a marriage here ; it was held by the English
Court that this second marriage was valid, although the law prevailing
in the colony prohibited the re-marriage of a guilty party as long as
the innocent party remained unmarried (as the facts were). For, it
was said, the wife having become by the foreign divorce an unmarried
person, she was free to acquire, and had acquired, a new domicile, by
which. her capacity to re-marry was to be regulated («).
{q) See Bevue de Droit International, (ti) Merlin, Questions de Droit, Di-
1876, p. 205. vorce, § 11, p. 350. Story, i 214.
(r) Law of iBt June, 1870. W ^^* ▼. Att,'Om,y 11 P. D. 128 ;
and see WarUr v. Warter, 15 P. D. 152 ;
(.) Code Oivil, art. 17. ^^^^ ^ 117^ ^^^ (^^ . ^^^ ^ ^^^,.
{t) Sbhulte, Handbubh des Eatho- many 92 K. Y. 521 ; Thorp v. Thorp, 90
liahohen Eherechts (ed. 1855), p. 596. N. Y. 602.
238
Fartn.
VATlGSAJj CHABACTER AND DOMICILE.
CHAPTER IIa,
§161 A.
Distinctions
between
natioual
character,
domicile, and
allegiance.
NATIONAL CHARACTER AND DOMICILE.
Questions relating to national character and domicile are of such
importance in private international law, and have so frequently arisen
since Mr. Wheaton published the last additions to his text, that some
account of the present state of the law on these points seems necessary.
The question of domicile as it afPects the property of merchants during
war is considered in a subsequent part of this work (a). It has been
distinguished from domicile ^wrc gentium during peace (b).
It is necessary at the outset to distinguish clearly what is meant by
the terms national character and domicile. The distinction was ex-
plained by Lord Westbury in the House of Lords as follows : — " The
law of England, and of almost all civilized countries, ascribes to each
individual at his birth two distinct legal states or conditions ; one, by
virtue of which he becomes the subject of some particular country,
binding him by the tie of natural allegiance, and which may be called
his political status ; another, by virtue of which he has ascribed to him
the character of a citizen of some particular country, and as such is
possessed of certain municipal rights, and subject to certain obliga-
tions, which latter character is the civil status or condition of the indi-
vidual, and may be quite different from his political status. The
political status may depend on different laws in different countries ;
whereas the civil status is governed universally by one single prin-
ciple, namely, that of domicile, which is the criterion established by
law for the purpose of determining civil status. For it is on this
basis that the personal rights of the party, that is to say, the law which
determines his majority or minority, his marriage succession, testacy
or intestacy must depend '' (c). The political status of the individual
is called his national character, his civil status is referred to by the
term domicile. Domicile and residence are two distinct things.
Besidence is a matter of fact, although it is difficult to define what
{a) See post, §§ 318 to 339.
{b) Per Dr. Lnshington in Hodgson
T. De Beauchesne, 12 Moo. P. C. 313.
The two are very different ; the dia-
tinotion between them has been de-
monstrated, and they have been aocn-
rately and carefnlly contrasted by Pro-
fessor Dicey. Conflict of Laws, App.
Note IV. on commercial domicile in
tune of war.
W Udny V. I7if»y, L. R. 1 So. & Div,
467.
NATIONAL CHARACTEB AND DOMICILE. 239
amounts to it{d), but domicile is an idea of law. It is a relation Chap. Ila.
which the law creates between an individual and a particular country
in which the individual is said to have his domicile (0). National
character is also an idea of law, but it is quite distinct from domicile.
A person may be invested with the national character of one country
and be domiciled in another (/). Allegiance is a term synonymous
with national character. By it is understood the obligations of fidelity
and obedience, which an individual owes to the State whose national
character he bears (y). 8 151 B.
It is remarkable no definition of domicile has as yet been universally Defimtionsof
accepted (A). It has been said to be " A residence at a particular place donucUe.
accompanied with positive or presumptive proof of an intention to
remain there for an unlimited time"(i). This explains what con-
stitutes a domicile, perhaps better than it can otherwise be expressed,
but is not strictly a definition. The actual fact of residence makes it
probable the party is doDoiciled there, but on the other hand a person
may be domiciled in a country he seldom visits. In its ordinary
acceptation a person's domicile means the country where he lives and
has his home {k), and if he has been married and has not been sepa-
rated from his wife, the country of his domicile will probably be the
one where his wife lives — that is, where his chief establishment for the
purposes of habitation is. But the presumption thus created may be
repelled by evidence that it was not the person's intention to remain
there for an indefinite time(/). Two ingredients are essential to
domicile. There must be the fact that an abode which can in some
shape or other be considered a home exists in the country, and there
must be the intention that this abode shall not cease to be the home
within any definite period. The domicile of a wife during coverture
is that of her husband (m) ; and the fact that the husband and wife
live apart by agreement, without being judicially separated, does not
(<Q JFaleot v. BotJUld^ Kay, 534 ; in fact his permanent home, but is in
King v. Foxwell, 3 Oh. D. 620 ; Brigga some oases the place or country which,
y. JBriggs, L. B. 5 P. D. 163. whether it be in fact his home or not, is
W Bell V. Kennedy, L. R. 1 So. & determined to be his home asarule of
Div. 307 ; Ahd'Ul-Meseih v. Farra^ 13 ^^•"
App. Cas. 431, 439i (t) Guger v. Daniel, 1 Binney, 349,
(/) Per Lord Chancellor Hatherley in note; Mitchell v. U, S., 21 Wallace,
Udny V. Udng, L. R. 1 So. & Div. 462 ; 352.
Be Grow, 40 Ch. D. 216. Field, Int. {k) Story, Conflict of Laws, § 41 ;
Code (2nd ed.), p. 128. and see Craignieh v. Hewitty (1892) 3 Oh.
is) Field, Int. Code, 261. 180.
(A) Maltaee v. MaltoM, 1 Robertson, (0 ^o^^ ▼• Forhee, Kblj, 864 ; Ait-
74. Professor Dicey, Conflict of Laws, chiaon v. Dixon, L. R. 10 Eq. 689 ;
App. Note III., criticises the various D'Ktehegoyen v. D' Etchegogen, 13 P. D.
deflnitlons of domicile. The one he 1^2.
adopts in his text runs as follows : (m) Story, } 46 ; Firehrace v. Fire^
**The domicile of any person is, in hraoe, 47 L. J. P. D. & M. 41 ; Harvey
general, the place or country which is ▼. Famie, 8 App. Cas. 43, 50, 51.
240
NATIONAL CHARACTEB AND DOMICILE.
Fartn.
§ 161 C.
Domicile of
origin and of
choice.
§ 151 D.
Domicile of
choice.
enable the wife to acquire a separate domicile. It is an open question
whether, eren after a judicial separation, a wife can acquire a domicile
different from that of her husband (n).
It is a settled principle that no man shall be without a domicile, and
to secure this result the law attributes to every indiyidual as soon as
he is bom the domicile of his father, if the child be legitimate, and the
domicile of the mother if illegitimate. This has been called the domi-
cile of origin, and is involuntary. The mother of fatherless infants
has a power of changing their domicile vested in her for their wel-
fare (o). Other domiciles, including domicile by operation of law, as
on marriage, are domiciles of choice. For as soon as an individual is
8ui Juris, it is competent to him to elect and assume another domicile,
the continuance of which depends upon his act and will. When
another domicile is put on, the domicile of origin is for that purpose
relinquished, and remains in abeyance during the continuance of the
domicile of choice ; but as the domicile of origin is the creature of law,
and independent of the will of the party, it would be inconsistent with
the principles on which it is by law created and ascribed, to suppose
that it is capable of being by the act of the party entirely obliterated
and extinguished. It revives and exists whenever there is no other
domicile, and it does not require to be regained or reconstituted animo
et factOy in the manner which is necessary for the acquisition of a
domicile of choice.
Domicile of choice is a conclusion or inference which the law derives
from the fact of a man fixing voluntarily his sole or chief residence in
a particular place, with an intention of continuing to reside there for
an unlimited time. This is a description of the circumstances which
create or constitute a domicile, not a dejGlnition of the term. There
must be a residence freely chosen and not prescribed or dictated by
any external necessity, such as the duties of office, the demands of
creditors, or the relief from illness ; and it must be residence fixed, not
for a limited period or particular purpose, but general and indefinite
in its future contemplation. It is true that residence originally tempo-
rary, or intended for a limited period, may afterwards become general
and unlimited, and in such a case, so soon as the change of purpose,
or animus manendi can be inferred, the fact of domicile is established.
The domicile of origin may be extinguished by act of law, as, for
example, by sentence of death or exile for life, which puts an end to
the status civilis of the criminal; but it cannot be destroyed by the will
or act of the party.
Domicile of choice, as it is g^ned animo et facto , so it may be put
an end to in the same manner. When put an end to the domicile of
(n) Dolphin y. Robins, 7 H. of L. 390,
per Lord Kingsdown at p. 420. Le
Sueur V. Le Sueur, 1 P. D. 139, is ap-
parently in contradiction to thia, but
Sir B. Fhillimore was there oaref ul to say
that the petitioner's '* bondjide domicile,
80 far as the law alloics it, is in this
country. "
(o) In re Beaumont, (1893) 3 Ch. 490.
NATIONAL CHARACTER AND DOMICILE. 241
origin reyires and continues until the individual acquires another Chap. Ila.
domicile of choice. Suppose a natural bom Englishmau to settle in
Holland and acquire a Dutch domicile. After a time he quits Holland
and travels in France or Italy without settling anywhere. As soon as
he quits Holland, his English domicile of origin revives, and continues
till he acquires another domicile of choice (p), S 151 E
What is a man's domicile is a question of fact ; the consequences of Chancre of
being invested with it, when ascertained, are a question of law. The domicile,
intention of a person to acquire a domicile of choice must be collected
from various indicia incapable of precise definition (q). When a domi-
cile has been acquired it is presumed to continue until it is shown to
be renounced, and when a change is alleged, the burden of proof rests
upon the party making the allegation (r). Mere length of residence
in a foreign country will not of itself confer a new domicile, but it
raises a presumption that it was the intention of the party to acquire
such domicile (a). This presumption may be rebutted by evidence
showing that there was not such an intention. It may also be pre-
sumed that a person is less likely to relinquish a domicile of origin
than a domicile of choice ; greater proof of intention is required in the
former than in the latter case (/). This is so especially when the party
is connected with the country of his domicile of origin by some specific
ties, such as being a peer of the realm, or serving in some public
capacity, such as the army or civil service (w).
To change his domicile of origin a person must choose a new domi-
cile— the word "choose" indicates that the act is voluntary on his
part — he must choose a new domicile by fixing his sole or principal
residence in a new country with the intention of residing there for a
period not limited as to time {x). To change a domicile of choice it
need only be relinquished, without any new domicile of choice being
necessarily chosen. p 251 p
The intention required for a change of domicile, as distinguished Intention to
from the action embodjdng it, is not necessarily an intention to change ?*"^
a civil status ; that is, an intention to cease to be subject to the laws of
one country, and to place oneself imder the laws of another. It is
(p) See judgment of Lord Westbnry in {t) Bell v. Kennedy ^ L. R. 1 Sc. &
Udny V. TIdny, L. R. 1 So. & Dir. 457— Div. 307 ; Shaw y. Shaw, 98 Massa-
9 ; Lauderdale Peerage eaee, 10 App. Cas. chuisetts, 158 ; Whicker v. Hume, 7 H.
692 ; Bradford v. Tonny, 29 Ch. D. 617, of L. Cas. 124 ; Lauderdale Peerage,
623 ; Re Marrett, 36 Ch. D. 400 ; Re supra ; Re Marrett, eupra ; Brigge y.
Cooke's Trusts, 66 L. J. Ch. 637 ; TJrqw Briggs, 5 P. D. 163 ; Concha v. Concha,
hart y. Butterjhld, 37 Ch. D. 867, 381. 11 App. Caa. 641, 663 ; Ex parte Cun-
(q) Forbes y. Forbes, Kay, 353; and 'r^*^'"' ^l^'^^'.^^' ^}^ ' J^ ^'''
^InredeAlmeda, W. N. (1901) 142. f '^^^ ''^ ^ »' ^- ^22. Wharton,
' ^ ' Conflict of Laws, § 56.
(r) Desmare y. U, S., 3 Otto, 606 ; („) Hamilton y. I/allas, I Ch. D. 257 ;
Croekenden y. Fuller, 1 Sw. & Tr. 442 ; Hodgson y. Be Beauchesne, 12 Moo. P. C.
mtehell y. U, 8., 21 Wallace, 360. 286 ; Sharpe y. Crispin, L. R. 1 P. & M.
(«) Brunei y. Brunei^ L. R. 12 Eq. 611 ; KiboyH y. Niboyet, 3 P. D. 52.
300. (a-) Xing y. Foxwell^ 3 Ch. D. 520.
W. R
242
NATIONAL CHARACTEE AND DOMICILE.
Partn.
§ 161 0.
Residence in
ex-territorial
community.
§ 151 H.
Acquisition of
domicile and
national
character.
§ 161 1.
Incidents of
national
character.
sufficient to work the change, if there be an intention to settle in a
new country as a permanent home. If this intention exists, and is
sufficiently carried into effect by acts, certain legal consequences
follow, whether such consequences were intended or not, and perhaps
even though the person in question may have intended the exact
contrary. To prove such intention (in the absence of any express
declaration), the evidence must lead to the inference that if the
question had been formally submitted to the person whose domicile
was in question, he would have expressed his wish in favour of a
change (y).
There is a strong presumption against an American or European
acquiring a domicile in a country with political, social, and religious
institutions in radical conflict with Western ideas. And as domicile is
the relation which the law creates between an individual and a par-
ticular locality, residence in a foreign State as a privileged member of
an ex-territorial community, although it might be effectual to destroy
a residential domicile acquired elsewhere, is ineffectual by English law
to create a new domicile of choice, even though such residence be of a
person enjoying, or among a community enjoying, the de facto protec-
tion of the Crown (z).
According to the French code the domicile of every Frenchman " e^t
le lieu oH il a son principal itahlissement " (a).
Domicile depends almost entirely upon the will of the individual.
He is invested with a domicile of origin at his birth, and this is
involuntary, but he may by his own act change this and cause it to be
inoperative while the new domicile subsists, by locating himself in any
country he pleases with the intention of settling there. National
character, on the other hand, depends upon the will of the State. To
divest himself of the national character he acquired at the time of his
birth, an individual must in many cases obtain the consent of his own
government, and to acquire a new national character the consent of the
country of his adoption is always necessary {fi).
National character confers benefits, and imposes duties on the indi-
vidual. It entitles him to the protection of his country wherever he
may be, but it requires him to fulfil the duties of supporting the State,
or defending it against its enemies. The extent to which States will
protect their subjects, or claim their allegiance when abroad, depends
entirely upon the discretion and municipal laws of each. A govern-
ment can always refuse to protect one of its subjects, if it considers
that his conduct has shown an intention of renouncing aU ties and
fulfilling no duties towards his country. It may, also, in case he oomes
(y) Douglas v. Doufflat, L. R. 12 Eq.
644—6 ; Hdldane v. Eckford, L. B. 8
Eq. 631.
(«) Re TootaVa Tnutty 23 Ch. D. 632 ;
Abd'Ul'MesHh v. Farray 13 App. Cas.
431 ; Abdallah y. Itickard$, 4 T. L. B.
622.
(a) Code CiTil, art. 102.
(b) Westlake, $ 20. Inglis v. Sailorg'
Snuff Harbour^ 3 Peters, 126. Halleck,
p. 695.
NATIONAL CHARACTER AND DOMICILE. 243
irithin its jurisdiction, force him to fulfil any obligations incurred Chap. Ila.
before he quitted it. If he has acquired another national character,
without his native State renouncing its authority over him, the claims
of each State to him can only be determined by treaty, if any exist, or
by diplomatic action between the respective governments (c). c 151 j^
The fact of establishing a permanent residence in a foreign country, JPermanent
without being naturalized in it, places a person in a different position fo^jg^ ^
towards his native country from that he occupies while only quitting countries,
it as a traveller. He does not thereby lose the right to its protection,
but it renders the invocation of it less reasonable. He cannot claim
to be exempt from taxes and other burdens not imposed on a simple
stranger, and he has no ground of complaint if its municipal laws
invest him with both the benefits and disabilities of a native {d). If
the country is invaded, and his property is injured or destroyed by
some act of war, he has no daim to any special protection from his
native country so long as his position is no worse than that of the
other inhabitants. Numerous applications were made to England to
protect the property of British subjects resident in France from the
requisitions of the Franco-German war of 1870-71, but Lord Granville
replied, that such British subjects must bear the same burdens aa the
other inhabitants («). c 252 ^^
Down to the year 1870, England invariably denied the right of her Expatriation
subjects to expatriate themselves. She placed no restrictions whatever ^*i^^^
on emigration, but maintained that her subjects carried their national
character with them wherever they went, and were always liable to be
treated as subjects on their return (/). This claim has now been
abandoned. It is expressly provided by Act of Parliament, that
"Any British subject who has at any time before, or may at any
time after the passing of this Act, when in any foreign State and not
under any disability, voluntarily become naturalized in such State,
shall from and after the time of his so having become naturalized in
that foreign State, be deemed to have ceased to be a British subject
and be regarded as an alien.'' It is also provided that if naturalized
abroad before the passing of the Act, he yet wishes to remain a British
subject, he shall make a declaration to that effect, and take the oath
of allegiance, and he will then be deemed to have been continually a
British subject, except in the State where he was naturalized, as long
as he remains a subject of it(y). Natural born British subjects Who are
include not only persons bom in British dominions, but also the 3**^^^™
subjects.
(e) This Bubject is fullj considered in {e) Annual Begister, 1871. Pub.
the Kepori; of the Naturalization Com- Docts. p. 259.
mission, 1869, and Sir A. Cockbum on . , . , .
NationaUty. The Report is, to a great ^^ ^ ^ *^« impressment of seamen,
extent, reprinted in the U. S. Diplo- ^ ^**^^' * ^^®"
matio GoTrespondenoe, 1873. Appendix, {g) The Naturalization Act, 1870,
Wharton, Dig. {§ 181, 182. 33 & 34 Vict. c. 14, s. 6. See Appen-
{d) Fhillimore, rol. ii. p. 6. dix A.
244
NATIONAL CHABACTER AND DOMICILE.
Fartn.
§ 161 L.
Law of the
IlDited
States as to
expatriation.
children and grand-children of British subjects, bom out of the
• ligeance of his Majesty, unless the father was at the time of the
child's birth outlawed or attainted for treason. Such persons are,
therefore, entitled to claim British protection unless they have been
naturalized in some other country, or unless they have ceased to be
British subjects by reason of that part of his Majesty's once dominions
in which they continue resident ceasing to belong to the Crown of
England by division of succession, as Hanover in 1837, or by reason
of Uie operation of any treaty concluded between his Majesty and some
;Eoreign State, or through the operation of any cession of any part of
his Majesty's dominions and the provisions made in that behalf (A).
But if they were born'abroad and have thereby become the subjects
of some other State, it seems that England will not protect them
against that State (t).
The question of expatriation is one of vital importance in the
United States. It was estimated in 1868 that upwards of six million
persons had emigrated to that country since 1790, and that they and
their descendants numbered more than twenty millions {k). The
position of the government was, therefore, most anomalous if that
number of its subjects were te owe allegiance to foreign States, and it
is remarkable that under such circumstances the law should have so
long continued doubtful. The Executive government had always
claimed an unlimited right of expatriation for the subjects of all other
countries, but when the question presented itself in the Supreme
Court, not one of the judges affirmed, while several denied, the right
for its own citizens (/). To remedy this an Act of Congress was passed
in 1868, which provides that ** Any declaration, instruction, order, or
decision of any officer of the United States, which denies, restricts,
impairs, or questions the right of expatriation is declared inconsistent
with the fundamental principles of the Republic " (m). This Act is,
however, only declaratory, and no provision is made in it respecting
what is to be considered an act of expatriation. It furnishes no rule
for the Executive to determine whether a person is still an American
citizen or not, although it subsequently declares that '' All naturalized
citizens of the United States, while in foreign countries, are entitled
to, and shall receive from, the government the same protection of
persons and property which is accorded to native bom citizens " (n).
(A) 7 Anne, c. 6, s. 3 ; 4 Geo. II.
o. 21, 8. 1 ; 13 Geo. III. c. 21, s. 1.
iBoaeson v. Durant, 17 Q. B. D. 64 ; 2>tf
Geer v. Stone, 22 Ch. D. 243 ; Jte Wil-
loughhy, 30 Ch. D. 324. See Boyd, The
Merchant Shipping Laws, p. 15.
(i) Lord BuBsell to Sir J. Crampton,
9th July, 1862. Kat. Comm. Bep.
p. 74.
(k) Beport of U. S. Committee on
Foreign AfPairs, 1868.
(/) Opinions of AttomeTS-General,
vol. viii. p. 139. Kent, Comm. vol. ii.
p. 49. Inglii v. Sailors' Smtg Harbour^
3 Peters, 125. Halleok, p. 695.
(w) Act of July, 1868, c. 249, & I.
U. S. Bevised Statutes, tit. zxy. Citizen-
ship, sec. 1999.
{n) Ibid. 8. 2 ; sec. 2000.
NATIONAL CHARA^CTER AND DOMICILE. 245
Two laws exist for determining who is a citizen. The Act of Chap. Ila.
Congress of the 10th of February, 1855, provides that '* persons here-
tofore bom, and hereafter to be bom, out of the limits and jurisdiction y^^ ^^ *
of the United States, whose fathers were, or shall be at the time of citizens of the
their birth, citizens of the United States, shall be deemed and con- United States.
sidered, and are hereby declared to be citizens of the United States :
Provided, however, that the rights of citizenship shall not descend to
persons whose fathers never resided in the United States " (o). The
Fourteenth Amendment to the Constitution declares *'A11 persons
bom or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States " {p), g ^^^^ w
The law thus states distinctly who are citizens, but the right of United
expatriation being admitted, it becomes a matter of difficulty to ^itizena
determine when individuals cease to be citizens, or at all events when abroad,
they cease to be entitled to the protection of the United States.
"The American citizen," said Chief Justice Marshall, "who goes
into a foreign country, although he owes local and temporary allegi-
ance to that country, yet, if he performs no other act changing his
position, is entitled to the protection of our Government; and if
without the violation of any municipal law, he should be oppressed
unjustly, he would have a right to claim that protection, and the
interposition of the American Government in his favour would be con-
sidered a justifiable interposition. But his situation is completely
changed, where, by his own act, he has made himself the subject of a
foreign power. Although this act may not be sufficient to rescue him
from punishment for any crime committed against the United States,
a point not intended to be decided, yet it certainly places him out of
the protection of the United States while within the territory of the
sovereign to whom he has sworn allegiance" (q).
In 1873, Mr. Fish issued instructions to the American Minister in
France, in which, after quoting the above dictum of Chief Justice
Marshall, he thus explains the principles upon which the American
Government now acts in protecting its subjects abroad. **If on the
one hand the Government assumes the duty of protecting his rights
and privileges, on the other hand the citizen is supposed to be ever
ready to place his fortune and even his life at its service, should the
public necessities demand such a sacrifice. If, instead of doing this,
he permanently withdraws his person from the national jurisdiction ;
if he places his property where it cannot be made to contribute to the
national necessitieB ; if his children are bom and reared upon a foreign
soil, with no purpose of returning to submit to the jurisdiction of the
United States, then, in accordance with the principles laid down by
Chief Justice Marshall, and recognized in the 14th Amendment, and
(0) U. S. StatateB at Large, vol. z. Statutes at Large, vol. zv. p. 706.
p. 604. {q) Murray v. The Charming Betty^ 2
(i?) Batifled, 20th June, 1868. U. S. Granoh, 119.
246
NATIONAL CHARACTER AND DOMICILE.
Part II.
What
amounts to
expatriation
of an
American
citizen.
American
certificates of
naturaliza-
tion.
§ 161 0.
Naturaliza-
tion Treat J
between
England and
America.
in the Act of 1868, he has so far expatriated himself as to relieve this
Goyemment from the obligation of interference for his protection.
'< Each case as it arises must be decided on its own merits. In esudk
the main fact to be determined will be this, — has there been such a
practical expatriation as removes the individual from the jurisdiction
of the United States ?
<*If there has not been, the applicant will be entitled to protec-
tion »(r).
Although the American Government maj refuse to protect any
individual citizen who is abroad without an apparent intention of
returning, it does not follow that such a pq^on is necessarily ex-
patriated. If he is naturalized abroad this will amoimt to an act of
expatriation, and the same effect may be attributed to the acceptance
of public or military employment in a foreign State without naturaliza-
tion. Naturalization is without doubt the highest, but not the only
evidence of expatriation («). But the mere fact of residence abroad
without an intention of returning does not of itself amount to an act
of expatriation (/).
Certificates of naturalization are issued in America when the require-
ments for becoming a citizen have been complied with. There is,
however, no xmiform system of registration of such certificates, and as
there are about 3,000 Federal and State courts having power to grant
them, great difficulties sometimes arise in proving naturalization. But
when a certificate, valid on the face of it, and founded on the decree of
a competent court, is produced, it cannot be questioned except through
judicial proceedings instituted for the purpose (ti).
Such is the present state of the law in England and America (a?).
The probability of future disputes between the two countries on the
subject of allegiance has been reduced to a minimum, by a convention
concluded between them' on the 13th May, 1870, by which it is agreed
that citizens of either country naturalized as citizens or subjects of the
other, are to be treated in all respects as citizens or subjects of such
country. This naturalization may, however, be renounced, and the
former nationality of the individual resumed on compliance with
certain formalities (y). Treaties more or less similar exist between
the United States and most other civilized countries (s).
(r) Hr. Fish to Hr. Washbnxne,
28th June, 1873. U. S. Dipl. Gor. 1873,
p. 269. See also lb. 1875, p. 489 and
p. 563.
(«] Opinions of Att.-Qen. (IT. 8.),
vol. xiv. p. 296.
(<) Ibid. vol. ix. p. 369.
(m) See case of the EjuteUans. U. S.
Dipl. Cor. 1875, p. 677.
(x) In 1873 the President addressed a
series of questions on this subject to the
heads of the various American State
departments. The i>ast and present
American law is fully discussed in the
answers. See U. S. Dipl. Gor. 1878,
pp. 1160 et seq. See, further, Wharton,
Dig. {{ 171—200.
(y) See Appendix A. The Naturali-
zation Act, 1872, Schedule. Also U. S.
Statutes at Large, vol. xvi. p. 775.
(z) See Analysis of U. S. Naturali-
zation Treaties. U. 8. Dipl. Gor. 1873,
p. 1274. Wharton, Dig. { 171, pp. 809,
310.
NATIONAL CHAKACTER AND DOMICILE. 247
The claims of both England and America^ before the laws of each Chap. Ila.
assumed their present shape, either to protect their subjects or to " —
require their services when abroad, have caused endless discussions. Y^mer
In 1848 and 1866, Irish agitators resorted to the United States for discussiozi
the purpose of organizing plots against the British Government. The ^^^i^^ ^nd
Habeas Corpus Act was suspended on both occasions, and several America as to
persons were arrested in Ireland on suspicion of having been con- t|io allegiauoe
cerned in treasonable acts either in the United States or in Ireland, subjects.
Of the right of England to punish her subjects for treason, wherever
committed, there could be no doubt ; nor could the right to punish
native bom Americans for acts against the government committed in
the British Isles be disputed (o). The cases which presented any
difficulty were those of native born British subjects who had been
naturalized in America, and had only conspired there without com-
mitting overt acts in Great Britain. At that time the doctrine of
perpetual allegiance was strongly insisted on in England. The maxim
nemo potest exuere patriam was considered a fundamental one in English
law. The United States maintained that their naturalized citizens
were to all intents and purposes as much entitled to protection abroad
as native bom Americans (6), and that such persons could therefore
not be arbitrarily imprisoned under a suspension of the Habeas Corpus
Act, but were entitled to a trial. To this Lord Palmerston replied,
that native bom British subjects who were naturalized abroad and
returned to the United Kingdom, were as amenable to British law as
any other subjects of her Majesty (c). In the cases of Warren and
Costello, tried in Ireland, in 1867, the judges refused a jury de medie-
tate linffua, on the ground that, although the prisoners had been
naturalized in America, they had been native born British subjects,
and, being once under the allegiance of the British sovereign, they
remained so for ever (d). Most of the persons arrested who could
prove their naturalization in America were, however, liberated at the
request of the American government, unless treasonable acts were ^
proved to have been committed by them in Ireland («). >► g 151 q^
During the American civil war the protection of England was f re/ British
quently demanded against conscription in the United States armyl Am^a"^
Lord Lyons was instructed that there is no rule or principle of inteii during the
national law which prohibits the government of any country from rel ^"'
quiring aliens resident within its territories to serve in the militia on
police of the country, or to contribute to the support of such establish-!
ments(/). But her Majesty's government would not consent to^
British subjects being compelled to serve in the armies of either party,
(a) Mr. Seward to Mr. Adams, 10th (e) 16th Augnst, 1S49.
March, 1867. U. S. Dipl. Cor. 1867, (i) Beport of Naturalization Commifl-
p. 74. don, 1868, p. 49 and p. 90.
(5) Mr. Badhanan to Mr. Bancroft, (e) Ibid. pp. 48 et 8eq,
28th Oct. 1848. Hertalet'B State Papers, (/) To Lord Lyons, No. 76, April 4tb,
vol. xlvii. p. 1236. 1861.
248 NATIONAL CHARACTER AND DOMICILE.
Part n. where, besides the ordinary incidents of battle, they would be exposed
to be treated as traitors or rebels in a quarrel in which, as aliens, they
had no concern; and on their return to England would incur the
penalties imposed on British subjects for having taken part in the
war (g). All who could prove their British nationality were accord-
ingly exempted from military service (A). But if a British subject
had become naturalized in America, England refused to protect him so
Ilong as he remained there ()). Individuals who had declared their
intention of becoming naturalized, but had not completed the neces-
sary formalities, were also treated as aliens, and exempted (k) ; but
her Majesty's government declined to interfere in their behalf if they
had voted at elections, or in any other way exercised any of the ex-
clusive privileges of a citizen (/). In 1863 an Act of Congress was
passed, specially including ** intended " citizens in a further enrolment
of the militia (m) ; and a proclamation of the President allowed sixty-
five days to such persons to leave the country, or become liable to be
enrolled by remaining. To this Great Britain acquiesced, the period
allowed for departure being deemed sufficient (n). It was regarded as
an established principle that a government might, by an ex post facto
law, include in its conscription any persons permanently resident in its
territory, provided it allowed them reasonable time and facilities for
§ 161 B. departure on the promulgation of such a law (o).
Prussian The Prussian military laws, which have now been introduced
throughout the German empire ( /?), declare that every German subject
is liable to military service, and cannot have that service performed by
deputy (y). The right to emigrate is, however, not restricted, except
as regards the performance of military service (r). Permission to
emigrate may be obtained, but this permission, when granted, destroys
the quality of Prussian or German subject (*). It is not to be granted
to males between the ages of seventeen and twenty-five, without a
certificate from the military commission of their district, or to actual
soldiers or officers before their discharge, or to persons convoked for
military service (/). If anyone does emigrate without permission, and
(si) To Lord Lyons, No. 349, 7th Oct. (o) Pari. Papers, 1863, N. America
1861. Pari. Papers, N. America (No. 13), (No. 13), p. 34. To Lord Lyons, No.
1864, p. 34. 293, 27th Nov. 1862. As regards this
(h) Lord Lyons, No. 379, 29th July, matter of military service there waa,
IgQl. apparently, no difference between the
(0 ToLordLyoii8,No. 269, 7Ui June, '^«" °* ^ ^"**^ State, and thoM
«Qg2 entertained by her Majesty's GoTem-
,, ' , „ :, X -Ej- «. .A 'Ofiat- Wharton, Dig. § 202.
(*) Mr. Seward to Mr. Stuart, Aug. ^^j Comrtitution of the Empire, ari..
20tb, 1862. Qj Hertslet, Map of Europe, yoL iii.
(^ Consular Circular from Mr. Stuart, p. 1947.
No. 99, 26th July, 1862. \g) ^. 57.
(tn) U. S. Statutes at Large, vol. xii. (r) Prussian Constitution, 1850, tit. i.
p. 731. art. i.
{n) To Lord Lyons, No. 486, Slst («) Law of 31st Deo. 1842, § 16.
Aug. 1863. (0 Ibid. § 17.
laws.
NATIONAL CHARACTER AND DOMICILE. 249
to avoid perfonning his military service, he becomes liable to a fine or Chap. Ila.
imprisonment, nor does the infliction of the penalty relieve him from
performing the military duties {u).
Numerous oases have occurred of Prussians evading these duties by
going abroad, and then returning to Prussia and claiming to be under
the protection of some foreign State. Johann Knocke, a native bom
Prussian, was naturalized in America, and on returning to Prussia
claimed exemption from military service. Mr. Wheaton, then Ameri-
can Minister at Berlin, told him that as long as he was in any other
country but Prussia he would be protected, ** but having returned to
the country of your birth, your native domicile and national character
revert (so long as you remain in Prussian dominions), and you are bound
to obey the laws as if you had never emigrated" (a:). This rule was ob-
served in similar cases until 1859, when the United States endeavoured
to protect Hofer from the conscription. Mr. Cass asserted that '' the
moment a foreigner becomes naturalized, his allegiance to his native
country is severed for ever" (y). This pretension, however, was not
persisted in, nor did it meet with the approval of all American jurists (z).
And the rule now established in America is that, if a subject of a
foreign State has left military duty accrued due and unperformed, he
may lawfully be held to it if he return after naturalization, but that
he is not liable for subsequent duty ; for duty, that is, which was not
then owing by him when he left the foreign country (a). During the
civil war, it being found that many persons quitted the United States
to escape the conscription there, and then applied to that government
to save them from serving in the Prussian army, Mr. Judd, American
Minister in Prussia, was instructed not to interfere on behalf of such
'* worthless citizens " (A). On the 22nd February, 1868, a treaty was
signed between the United States and the North German Confedera-
tion, containing terms similar to that between the United States and
England, except that residence for five years in the country adopted is
required in order to entitle the individual to its protection (c). Other
treaties have been at various times concluded with separate German
sovereignties. Owing to the events of 1870 — 71, the existing treaties
are, apart from other defects, not co-extensive with the limits of the
German Empire, and their revision, on the basis of extending the
North German treaty, with some explanation, to the whole empire, is
desired by the United States Government. But the response at Berlin
is not, it would appear, altogether in accordance with American
feeling (d),
(«) Penal Code, April Uth, 1851. {b) U. S. Dipl. Cor. 1863, Pt. II.
(j:) U.S.SenateDocuments, 1859— 60, p. 1020.
vol. ii. p. 6. See other oases, ibid. pp. ^^^ jj g g^^^^ ^^ ^^^^^ ^^j ^^
9-67, p. 1364; and Nat. Comm. Rep. ^ q^^. ^^ ^ ^^^ ^omm. Rep. p.
P- ^^' 149. For the EngUsh treaty, see Ap- .
i^? ^\1* ^' ^^h.. P®^^^ -^» 36 & 36 Viot. c. 39, schedule.
{z) Halleck, p. 700.
(tf) Wharton, Dig. §§ 181, 182. W Wharton, Dig. {{ 178, 179.
250
NATIONAL CHARACTER AND DOMICILE.
Partn.
British
subjects in
Fnissia.
Conditions of
natoraliza-
tion in
Germany.
§ 151 S.
Ca^ of
Martin Eozta
and Simon
Tousig.
Simon
Tousig.
Case of
Heinzich.
England has acted upon Bimilar principles respecting Pmssiana who
- have claimed exemption on the ground of being British subjects. In
1862, Mr. CroBsthwaite, her Majesty's Consul at Cologne, who had
naturalized himself in Prussia, was informed by her Majesty's
Government that his sons were liable to military sendee while they
Jained in Prussia (e).
. foreigner is not permitted to naturalize himself in Germany unless
by the law of his own country he is capable of contracting, or if
pable, has obtained the consent of his parent or guardian; (2)
)8S his conduct has been irreproachable; (3) unless he will be
ived and find an abode at the place where he proposes to settle ;
(4) and unless he will be able to live so as to support himself and
family (/).
The cases of Martin Kozta and Simon Tousig were instances of
Austrian subjects leaving their country, and claiming the protection of
the United States, after having only declared their intention of being
naturalized in America. Kozta was a Hungarian refugee of 1848—9.
He went to Turkey and was imprisoned there, but released on oondi-
tion of leaving the country. He then went to America and declared
his intention of being naturalized. In 1853 he went to Smyrna, and
obtained from the United States Consul a travelling pass, stating he
was entitled to American protection. While there, he was seized by
some persons in the pay of Austria, who took him out in a boat and
threw him into the sea, whence he was picked up by The Hussar, an
Austrian ship of war. The American Consul demanded his release,
but this being refused, an American ship of war. The Si, Louis, was
sent to take him by force if his detention was still insisted on. The
matter was compromised by Kozta being shipped o£E to the United
States, while Austria reserved the right to proceed against him if he
returned to Turkey. Mr^g^Jf^rcy, in his despatch to the Austrian
Government, justly affirmed that whether Kozta was entitled to Ameri-
can protection or not, Austria had no right to seize him upon Turkish
soil, and in spite of the protests of the Turkish Government (y). Simon
Tousig on returning to Austria was arrested for ofEences committed
before he had left that country. Mr. Marcy declined to interfere for
him, on the groimd that ^* having once been subject to the laws of
Austria, and whUe under her jurisdiction violated those laws, his with-
drawal from that jurisdiction and acquiring a different national cha-
racter would not exempt him from their operation whenever he again
chose to place himself under them " (A). Another case occurred in
1873. Frangois A. Heinrich was born in New York of Austrian
parents, who were not naturalized in the United States, and three or
four years after his birth he was taken to Austria. On becoming of
(e) Nat. Comm. £ep. p. 73. 1042. Wheaton, by Dana, p. 146.
(/) NationalityLawoflst June, 1870. Westlake, { 64.
Bee Bevue de Droit Int. 1876, p. 206. • {h) Wheaton, by Lanienoe, App. p.
(^) State Papem, vol. xUv. pp. 926— I 929:~^
NATIONAL CHARACTER AND DOMiaLE. 261
age he claimed to be exempt from serving in the Austrian army, but Chap. Ila.
the United States deolined to interfere on his behalf, he being taken
to have expatriated himself (»). o i ki m
The law of France requires every [Frenchman to perform military Law of
service in person (A), and imposes a penalty on anyone who emigrates ^^"^o®-
without having served his time in the army. The requirements of
universal service have been the guiding principle in modifications
of the law which now enforces French citizenship on those born
within the territory of the Bepublic with a greater rigour than is
to be found in the corresponding laws of any other State. By Lawsof 28tli
comparatively recent legislation, every individual who has been '^^JMrd J^*l
bom in France of a foreigner, and who, at the time of his majority, is 1893.
domiciled in France, is a Frenchman ; unless, during the year that
follows his majority, as regulated by French law, he has declined to
be French, and has proved that he has preserved the nationality of his
parents by a certificate in due form from his Government, which will
remain annexed to his declaration ; and unless he has also produced,
if there is occasion so to do, a certificate proving that he has complied
with the call to serve under the flag in compliance with the military
laws of his country, always excepting cases provided for in
treaties (/).
(i) TT R. "^f flnr, ?j7ffi g. ^^ of Naturalisation in the United States
{k) Law of 27th July, 1872, tit. L § 1. and elsewhere. This latter book oon-
(/) See Hall, Foreign Jurisdiction of tains an exceedingly useful synopsis of
iheBritishGrown,pp.56— 60,Gogordan, the laws of nationality throughout the
La Nationality, and Webster, The Law ciTilized world.
252
Partn.
EIGHTS OP EQUAUTY.
CHAPTER III.
§162.
Natural
equality of
States
modified "bj
compact and
usage.
§163.
Royal
honours.
RIGHTS OF EQUALITY.
The natural equality of sovereign States may be
modified by positive compact, or by consent implied
from constant usage, so as to entitle one State to superi-
ority over another in respect to certain external objects,
such as rank, titles, and other ceremonial distinctions.
Tlius, the international law of Europe has attributed
to certain States what are called roi/al honourSy which
are actually enjoyed by every empire or kingdom in
Europe, by the Pope, the grand duchies in Germany,
and the Germanic and Swiss confederations. They
were also formerly conceded to the German Empire,
and to some of the great republics, such as the United
Netherlands and Venice.
These ro^al honours entitle the States by whom they
are possessed to precedence over all others who do not
enjoy the same rank, with the exclusive right of send-
ing to other States public ministers of the first rank, as
ambassadors, together with certain other distinctive
titles and ceremonies.
For the last few years the United States have exercised the right in
certain cases of conferring on their public ministers to foreign courts
the rank of ambassadors, and of receiving at Washington ministers of
a corresponding dignity. At the present moment they are represented
by ambassadors in Germany, Austria, France, Great Britain, Italy,
Mexico and Bussia. This step was not taken without much debate, and
with grave apprehensions as to its consequence. ** The Department,"
wrote the Secretary of State, January 3l8t, 1884, ''cannot, in justice
to its ministers abroad, ask Congress to give them higher rank with
their present salaries ; neither could it with propriety appeal to Con-
RIGHTS OP EQUALITY. 253
gress for an allowance oommenBurate with the necessary mode of life Chap. III.
of an ambassador." And, July 2nd, 1885, Mr. Bayard informed Mr.
Phelps that the question of sending and receiving ambassadors had
been frequently considered, but that '' the inconyenience which in a
simple social democracy might attend the reception of an extraordinary
foreign priyileged class" had hitherto been found an insuperable
bar (a).
Among the princes who enjoy this rank, the Catholic Precedence
powers concede the precedency to the Pope, or sove- p^SS and
reign pontiff ; but Russia, and the Protestant States of ^^^ji^^'
Europe consider him as bishop of Rome only, and a ^<>^ouw.
sovereign prince in Italy, and such of them as enjoy
royal honours refuse him the precedence.
The Emperor of Germany, under the former consti-
tution of the empire, was entitled to precedence over all •
other temporal princes, as the supposed successor of
Charlemagne and of the Caesars in the empire of the
West; but since the dissolution of the late Germanic
constitution, and the abdication of the titles and prero-
gatives of its head by the Emperor of Austria, the
precedence of this sovereign over other princes of the
same rank may be considered questionable (i).
The various contests between crowned heads for pre-
cedence are matter of curious historical research as
illustrative of European manners at different periods;
but the practical importance of these discussions has
been greatly diminished by the progress of civilization,
which no longer permits the serious interests of mankind
to be sacrificed to such vain pretensions.
(a) Yattel, Droit cles QemSf torn. i. liy. predecessors claimed to occupy the same
ii. ch. 3, § 38. Hartena, Pr^oia da Droit position in the secular as the Pope in
des Gena Hodeme de FEurope, liy. iii. the spiritual world. The Empire of
oh. 2, § 129. Kluber, Droit des Gens Austria is in no sense the successor of
Hodeme, pt. it tit. i. ch. 3, §§91, 92. the Holy Boman Empire dissolyed bj
Heffter, § 28. Almanach de Gotha, Napoleon in 1806. See Professor Bryce's
1904. Wharton, Digest, 2nd ed. § 88. well-known book bearing that title. In
(3) Martens, § 132. Eliiber, § 96. strictness there is no *' Emperor of G«r-
This claim was always contested by Eag- many,*' though French diplomatic Ian-
land. 24 Hen. 8, o. 12. It was as ''The guage speaks of sa Majesty PEmpereur
Emperor," not ** The Emperor of Ger- d'Allemagne ; the correct title is Seine
many," that the Hapsburgs and thor Majestat der Deutsche Eiiiser.
254 RIGHTS OF EQUALITY.
Fart II. The text-writers eommonly assigned to what were
§ 156. called the great republics^ who were entitled to royal
EranWiM. honours, a rank inferior to crowned heads of that class ;
and the United Netherlands, Venice, and Switzerland,
certainly did formerly yield the precedence to emperors
and reigning kings, though they contested it with the
electors and other inferior princes entitled to royal
honours. But disputes of this sort have commonly
been determined by the relative power of the con-
tending parties, rather than by any general rule derived
from the form of government. Cromwell knew how to
make the dignity and equality of the English Common-
wealth respected by the crowned heads of Europe ; and
in the different treaties between the French Republic
and other powers, it was expressly stipulated that the
same ceremonial as to rank and etiquette should be
observed between them and France which had subsisted
« 159 before the revolution [c).
Monarchs not l^hose monarchial sovereigns who are not crowned
and semi- hcads, but who cujoy royal honours, concede the pre-
cedence on all occasions to emperors and kings.
Monarchial sovereigns who do not enjoy royal honours
yield the precedence to those princes who are entitled to
these honours.
Semi-sovereign or dependent States rank below sove-
reign States (rf).
Semi-sovereign States, and those under the protection
or SuzerainetS of another sovereign State, necessarily
rank below that State on which they are dependent.
But where third parties are concerned, their relative
rank must be determined by other considerations ; and
they may even take precedence of States completely
sovereign, as was the case with the electors under the
former constitution of the Germanic empire, in respect
to other princes not entitled to royal honours {e).
[e) Treaty of Campo Formio, art. 23, Paix, torn. i. p. 610. Edit. Bruzelles.
and of Loneyille, art. 17, with Austria. (d) Kliiber, } 98.
Treaties of Basle with Prnasia and {e) Heffter, das Enropaisohe Volker-
Spain. Sohoell, Histoire dea Traites de recht, } 28, No. iii.
sovereignp.
EIGHTS OF EQUALITY. 265
These different points respecting the relative rank of Chap. III.
sovereigns and States have never been determined by
any positive regulation or international compact: they
rest on usage and general acquiescence. An abortive
attempt was made at the Congress of Vienna to classify
tlie different States of Europe, with a view to determine
their relative rank. At the sitting of the 10th December,
1814, the plenipotentiaries of the eight powers who
signed the treaty of peace at Paris, named a committee
to which this subject was referred. At the sitting of the
9th February, 1815, the report of the committee, which
proposed to establish three classes of powers, relatively
to the rank of their respective ministers, was discussed
by the Congress; but doubts having arisen respecting
this classification, and especially as to the rank assigned
to the great republics, the question was indefinitely post-
poned, and a regulation established determining merely
the relative rank of the diplomatic agents of crowned
heads (/). g ^gy
Where the rank between different States is equal or u»ge of the
undetermined, different expedients have been resorted
to for the purpose of avoiding a contest, and at the same
time reserving the respective rights and pretensions of
the parties. Among these is what is called the usage of
the alternate by which the rank and places of different
powers are changed from time to time, either in a
certain regular order, or one determined by lot. Thus,
in drawing up public treaties and conventions, it is the
usage of certain powers to alternate^ both in the pre-
amble and the signatures, so that each power occupies,
in the copy intended to be delivered to it, the first
place. The regulation of the Congress of Vienna, above
referred to, provides that in acts and treaties between
those powers which admit the alternate the order to be
observed by the different ministers shall be determined
by lot (^).
(/) Kliiber, Acien des Weiner Con* {p) Annexe, xrii. k TAote da Gon-
g^resses, torn. Tiii. pp. 98, 102, 108, 116. grds de Vienne, art. 7.
256
BIGHTS OF EQUALITY.
Partn.
§168.
Language
iifled in
diplomatic
intercourse.
§169.
Titles of
soTereign
Srinces and
tates.
Another expedient which has frequently been adopted
" to avoid controversies respecting the order of signatures
to treaties and other public acts, is that of signing in the
order assigned by the French alphabet to the respective
powers represented by their ministers {h).
The primitive equality of nations authorizes each
nation to make use of its own language in treating
with others, and this right is still, in a certain degree,
preserved in the practice of some States. But general
convenience early suggested the use of the Latin lan-
guage in the diplomatic intercourse between the dif-
ferent nations of Europe. Towards the end of the
fifteenth century, the preponderance of Spain contri-
buted to the general diffusion of the Castilian tongue
as the ordinary medium of political correspondence.
This, again, has been superseded by the language of
France, which, since the age of Louis XIV., has become
the almost universal diplomatic idiom of the civilized
world. Those States which still retain the use of their
national language in treaties and diplomatic correspond-
ence, usually annex to the papers transmitted by them
a translation in the language of the opposite party,
wherever it is understood that this comity will be
reciprocated. Such is the usage of the Germanic con-
federation, of Spain, and the Italian courts. Those
States which have a common language, generally use
it in their transactions with each other. Such is the
case between the Germanic confederation and its dif-
ferent members, and between the respective members
themselves ; between the different States of Italy ;
and between Great Britain and the United States of
America.
All sovereign princes or States may assume whatever
titles of dignity they think fit, and may exact from their
own subjects these marks of honour. But their recog-
nition by other States is not a matter of strict right,
(h) Kliiber, Uebetaiclit der diplomatisshen Verhandlangen des Wiener Con*
i, } 164.
RIGHTS OF EQUALITY.
1257
especially in the case of new titles of higher dignity, Chap, m.
assumed by sovereigns. Thus, the royal title of King
of Prussia, which was assumed by Frederick I. in 1701,
was first acknowledged by the Emperor of Germany,
and subsequently by the other princes and States of
Europe. It was not acknowledged by the Pope until
the reign of Frederick William II. in 1786, and by the
Teutonic knights until 1792, this once famous military
order still retaining the shadow of its antiquated claims
to the Duchy of Prussia until that period (e). So, also,
the title of Emperor of all the Russias, which was taken
by the Czar, Peter the Great, in 1701, was successively
acknowledged by Prussia, the United Netherlands, and
Sweden in 1723, by Denmark in 1732, by Turkey in
1739, by the emperor and the empire in 1745-6, by
France in 1745, by Spain in 1750, and by the Republic
of Poland in 1764. In the recognition of this title by
France, a reservation of the right of precedence claimed
by that crown was insisted on, and a stipulation entered
into by Russia in the form of a Edversale^ that this
change of title should make no alteration in the cere-
monies observed between the two courts. On the acces-
sion of the Empress Catherine II. in 1762, she refused
to renew the stipulation in that form, but declared that
the imperial title should make no change in the cere-
monial observed between the two courts. This decla-
ration was answered by the court of Versailles in a
counter declaration, renewing the recognition of that
title, upon the express condition, that, if any alteration
should be made by the court of St. Petersburg in the
rules previously observed by the two courts as to rank
and precedence, the French Crown would resume its
ancient style, and cease to give the title of Imperial
to that of Russia (k).
The title of Emperor, from the historical associations
(•) Ward's History of the Law of {k) Hassan, Histoire de la Diplomatie
Nations, toI. ii. pp. 246—248. Kluber, Eraiwjaise, torn. vi. Uv. iii. pp. 828-
Dzoit des G^ens Modeme de I'Eoxope, g^^
pt. ii. tit. i. ch. 2, } 107, note e.
W. S
268 EIGHTS or EQUALITY.
^^n* with which it is connected, was formerly considered the
most eminent and honourable among all sovereign titles;
but it was never regarded by other crowned heads as
conferring, except in the single case of the Emperor of
Germany, any prerogative or precedence over those
§ 160. princes.
Maritiine The usageof nations has established certain maritime
oeremoxuals. , ^
ceremonials to be observed, either on the ocean or those
parts of the sea over which a sort of supremacy is claimed
by a particular State.
Among these is the salute by striking the flag or the
sails, or by firing a certain number of guns on approach-
ing a fleet or a ship of war, or entering a fortified port
or harbour.
Every sovereign State has the exclusive right, in
vii'tue of its independence and equality, to regulate the
maritime ceremonial to be observed by its own vessels
towards each other, or towards those of another nation,
on the high seas, or within its own territorial jurisdiction.
It has a similar right to regulate the ceremonial to be
observed within its own exclusive jurisdiction by the
vessels of all nations, as well with respect to each other,
as towards its own fortresses and ships of war, and the
reciprocal honours to be rendered by the latter to foreign
ships. These regulations are established either by its
own municipal ordinances, or by reciprocal treaties with
other maritime powers (I).
Where the dominion claimed by the State is contested
by foreign nations, as in the case of Great Britain in the
Narrow Seas, the maritime honours to be rendered by
its flag are also the subject of contention. The disputes
on this subject have not unfrequently formed the motives
or pretexts for war between the powers asserting these
pretensions, and those by whom they were resisted.
(Q Bynkerahoek, de Dominio Maris, 1872, p. 202, where the United States
cap. 2, 4. Martens, Precis du Droit dee complained of the Canadian flag being
GensModemederEorope, Uy. iv. ch. 4, v-aj xvtt« n v-j
, ,,^ _,..^ T. . ^ ^ ,, hoisted over the Union flag, on board a
{ 159. Kluber, Droit des Gens Mo-
deme de TEurope, pt. ii. tit. 1, ch. 3, ^^*^ ^^^ ^^^ captured for yio-
{§ 117—122. See U. S. Dipl. Cor. lating the fiahing laws.
RIGHTS OF EQUALITY. 269
The maritime honours required by Denmark, in con- t^pHI.
sequence of the supremacy claimed by that power over
the Sound and Belts, at the entrance of the Baltic Sea,
have been regulated and modified by different treaties
with other States, and especially by the convention of
the 16th of January, 1829, between Russia and Den-
mark, suppressing most of the formalities required by
former treaties. This convention is to continue in force
until a general regulation shall be established among all
the maritime powers of Europe, according to the pro-
tocol of the Congress of Aix-la-Chapelle, signed on the
9th November, 1818, by the terms of which it was
agreed, by the ministers of the five great powers,
Austria, France, Great Britain, Prussia, and Russia, that
the existing regulations observed by them should be
referred to the ministerial conferences at London, and
that the other maritime powers should be invited to
communicate their views of the subject in order to form
some such general regulation (m).
(m) J. H. W. Schlegel, Staats Recht torn. yiii. p. 73. Ortolan, Diplomatie
dea KSnigreiohfl Danemark, I TheU, je la Mer, t. i. Kv. 2, oh. 15.
p. 412. Martens, Noureau Becueil,
s2
260
Part n.
RIGHTS OF PROPERTY.
CHAPTER IV.
§161.
National
proprietary
rights.
§162.
Public and
private
property.
§163.
Eminent
domain.
§164.
Prescription.
RIGHTS OF PROPERTY.
The exclusive right of every independent State to its
territory and other property, is founded upon the title
originally acquired by occupancy, conquest, or cession,
and subsequently confirmed by the presumption arising
from the lapse of time, or by treaties and other compacts
with foreign States.
This exclusive right includes the public property or
domain of the State, and those things belonging to private
individuals, or bodies corporate, within its territorial
limits.
The right of the State to its public property or domain
is absolute^ and excludes that of its own subjects as well
as other nations. The national proprietary right, in
respect to those things belonging to private individuals,
or bodies corporate, within its territorial limits, is ahsolutcj
so far as it excludes that of other nations ; but, in respect
to the members of the State, it is paramount only, and
forms what is called the eminent domain {a) ; that is, the
right, in case of necessity or for the public safety, of
disposing of all the property of every kind within the
limits of the State.
The writers on natural law have questioned how far
that peculiar species of presumption, arising from the
lapse of time, which is QsW^di prescription^ is justly applic-
able, as between nation and nation; but the constant
and approved practice of nations shows that, by whatever
(a) Vattel, Droit des Gens, liv. i. oh.
20, §§ 235, 244. Ratherforth's Inst,
of Natural Law, vol. ii. eh. 9, } 6.
Heffter, Das Europfiisohe Volkerreoht,
§§ 64, 69, 70.
RIGHTS OP PROPERTY. 261
name it be called, the uninterrupted possession of terri- Chap. IV.
tory, or other property, for a certain length of time, by
one State, excludes the claim of every other; in the same
manner as, by the law of nature and the municipal code
of every civilized nation, a similar possession by an
individual excludes the claim of every other person
to the article of property in question. This rule is
founded upon the supposition, confirmed by constant
experience, that every person will naturally seek to enjoy
that which belongs to him ; and the inference fairly to
be drawn from his silence and neglect, of the original
defect of his title, or his intention to relinquish it (b).
The title of almost all the nations of Europe to the Conquest and
territory now possessed by them, in that quarter of the oonfiraX by
world, was originally derived from conquest, which has ^^g^^e^o^^
been subsequently confirmed by long possession and **™®-
international compacts, to which all the European States
have successively become parties. Their claim to the
possessions held by them in the New World, discovered
by Columbus and other adventurers, and to the territories
which they have acquired on the continents and islands
of Africa and Asia, was originally derived from discovery,
or conquest and colonization, and has since been confirmed
in the same manner, by positive compact. Independently
of these sources of title, the general consent of mankind
has established the principle, that long and uninterrupted
possession by one nation excludes the claim of every
other. Whether this general consent be considered as
an implied contract, or as positive law, all nations are
equally bound by it; since all are parties to it, since
none can safely disregard it without impugning its own
title to its possessions, and since it is founded upon
{b) GrotinSi de Jar. Bel. ao Pac. lib. Galyo thinks acquisition by prescrip-
ii. cap. 4. Puffendorf, Jus Natune et ^o^ more necessary for States than in-
/M Aj vu • -.10 Tr-4 4.^1 -nwvu dividuals. The latter can appeal to
Genham, lib. ir. cap. 12. Vattel, Droit ^, . , ., ., . .. ,
courts of law to decide upon their title,
des Gens, tomei.Uv.ii.ch.il. Ruther- ^hUe the former too of ten resort to arms
forth*s Inst, of Natural Law, vol. i. for the settlement of such differences,
oh. 8 ; vol. ii. oh. 9, {} 3, 6. Droit IntematioDal, vol. i. } 211.
262
RIGHTS OF PROPERTY.
^"^"' mutual utility, and tends to promote the general welfare
§ 168. ^^ mankind.
f^P^A^'^o^ The Spaniards and Portuguese took the lead among
the nations of Europe, in the splendid maritime discoveries
in the East and the West, during the fifteenth and six-
teenth centuries. According to the European ideas of
that age, the heathen nations of the other quarters of the
globe were the lawful spoil and prey of their civilized
conquerors, and as between the Christian powers them-
selves, the Sovereign Pontiff was the supreme arbiter of
conflicting claims. Hence the famous bull, issued by
Pope Alexander VI., in 1493, by which he granted to the
united crowns of Castile and Arragon all lands discovered,
and to be discovered, beyond a line drawn from pole to
pole, one hundred leagues west from the Azores, or
Western Islands, under which Spain has since claimed
to exclude all other European nations from the possession
and use, not only of the lands but of the seas in the New
World west of that line. Independent of this papal
grant, the right of prior discovery was the foundation
upon which the different European nations, by whom
conquests and settlements were successively made on the
American continent, rested their respective claims to
appropriate its territory to the exclusive use of each
nation. Even Spain did not found her pretension solely
on the papal grant. Portugal asserted a title derived
from discovery and conquest to a portion of South
America ; taking care to keep to the eastward of the line
traced by the Pope, by which the globe seemed to be
divided between these two great monarchies. On the
other hand, Great Britain, France, and Holland disre-
garded the pretended authority of the papal see, and
pushed their discoveries, conquests, and settlements, both
in the East and West Indies ; until conflicting with the
paramount claims of Spain and Portugal, they produced
bloody and destructive wars between the different mari-
time powers of Europe. But there was one thing in
which they all agreed, that of almost entirely disregarding
the right of the native inhabitants of these regions. Thus
BIGHTS OF PBOPERTY. 263
the bull of Pope Alexander VI. reserved from the grant CJhap. IV.
to Spain all lands, which had been previously occupied
by any other Christian nation ; and the patent granted
by Henry VII. of England to John Cabot and his sons,
authorized them '^ to seek out and discover all islands,
regions, and provinces whatsoever, that may belong to
heathens and infidels ^^; and "to subdue, occupy, and
possess these territories, as his vassals and lieutenants."
la the same manner, the grant from Queen Elizabeth to
Sir Humphrey Gilbert empowers him to " discover such
remote heathen and barbarous lands, countries, and terri-
tories, not actually possessed by any Christian prince
or people, and to hold, occupy, and enjoy the same,
with all their commodities, jurisdictions, and royal-
ties." It thus became a maxim of policy and of law,
that the right of the native Indians was subordinate to
that of the first Christian discoverer, whose paramount
claim excluded that of every other civilized nation,
and gradually extinguished that of the natives. In the
various wars, treaties, and negotiations, to which the
conflicting pretensions of the different states of Christen-
dom to territory on the American continents have given
rise, the primitive title of the Indians has been entirely
overlooked, or left to be disposed of by the States within
whose limits they happened to fall, by the stipulations
of the treaties between the different European powers.
Their title has thus been almost entirely extinguished
by force of arms, or by voluntary compact, as the pro-
gress of cultivation gradually compelled the savage tenant
of the forest to yield to the superior power and skill of
his civilized invader (c). ^ 2.67.
In the dispute which took place in 1790, between Great ^isp^te
Britain and Spain, relative to Nootka Sound, the latter Great Britain
claimed all the north-western coast of America as far JSatmgto
north as Prince William^s Sound, in latitude 61°, upon so^d?
the ground of prior discovery and long possession, con-
firmed by the eighth article of the Treaty of Utrecht,
referring to the state of possession in the time of his
{e) Johnson v. M'lntoih^ 8 Wlieaton, o7l— 605,
264 RIGHTS OF PROPERTY.
fart II. Catholic Majesty Charles II. This claim was contested
by the British government, upon the principle that the
earth is the common inheritance of mankind, of which
each individual and each nation has a right to appro-
priate a share, by occupation and cultivation. This dis-
pute was terminated by a convention between the two
powers, stipulating that their respective subjects should
not be disturbed in their navigation and fisheries in the
Pacific Ocean or the South Seas, or in landing on the
coasts of those seas, not already occupied, for the purpose
of carrying on their commerce with the natives of the
country, or of making settlements there, subject to the
following provisions : —
1. That the British navigation and fishery should not
be made the pretext for illicit trade, with the Spanish
settlements, and that British subjects should not navigate
or fish within the space of ten marine leagues from any
part of the coasts already occupied by Spain.
2. That in all parts of the north-western coasts of
North America, or of the islands adjacent, situated to the
north of the parts of the said coast already occupied by
Spain, wherever the subjects of either of the two powers
should have made settlements since the month of April,
1789, or should thereafter make any, the subjects of the
other should have free access, and should carry on their
trade without any disturbance or molestation.
3. That with respect to the eastern and western coasts
of South America, and the adjacent islands, no settle-
ment should be formed thereafter, by the respective
subjects, in such parts of those coasts as are situated to
the south of those parts of the same coa.sts, and of the
adjacent islands already occupied by Spain ; provided
that the respective subjects should retain the liberty of
landing on the coasts and islands so situated, for the
purposes of their fishery, and of erecting huts and other
temporary buildings, for those purposes only(rf).
{d) Annual Register for 1790 (State Oregon and California, p. 466 ; Pnxrfs
Papers), pp. 285—305 ; 1791, pp. 208, and niustrationa, K. Na 1.
214, 222—227. Greenhow, History of
RIGHTS OF PROPERTY. 265
By an ukase of the Emperor Alexander of Russia, of Chap. IV.
the 4- 1 6th September, 1821, an exclusive territorial right § les.
on the north-west coast of America was asserted as be- S^^^rthe
longing to the Russian Empire, from Behring's Straits ^^ ^^^
to the 51st degree of north latitude, and in the Aleutian respecting the
Islands, on the east coast of Siberia, and the Kurile ooaatof
Islands, from the same straits to the South Cape in the *"^*
Island of Ooroop, in 45** 51' north latitude. The naviga-
tion and fishery of all other nations were prohibited in
the islands, ports, and gulfs, within the above limits; and
every foreign vessel was forbidden to touch at any of
the Russian establishments above enumerated, or even
to approach them, within a less distance than 100 Italian
miles, under penalty of confiscation of the cargo. The
proprietary rights of Russia to the extent of the north-
west coast of America, specified in this decree, were
rested upon the three bases said to be required by the
general law of nations and immemorial usage; that is,
upon the title of first discovery; upon the title of first
occupation ; and, in the last place, upon that which re-
sults from a peaceable and uncontested possession of more
than half a century. It was added, that the extent of
sea, of which the Russian possessions on the continents
of Asia and America form the limits, comprehended all
the conditions which were ordinarily attached to shut
seas (mers fennSea) ; and the Russian government might
consequently deem itself authorized to exercise upon this
sea the right of sovereignty, and especially that of en-
tirely interdicting the entrance of foreigners. But it
preferred only asserting its essential rights, by measures
adapted to prevent contraband trade within the chartered
limits of the American Russian Company.
All these grounds were contested, in point of fact
as well as right, by the American government. The
Secretary of State, Mr. John Q. Adams, in his reply to
the commimication of the Russian Minister at Washing-
ton, stated, that from the period of the existence of the
United States as an independent nation, their vessels had
freely navigated these seas, and the right to navigate
266 BIGHTS OF PEOPERTY.
Part II. them was a part of that independence ; as was also the
right of their citizens to trade, even in arms and muni-
tions of war, with the aboriginal natives of the north-
west coast of America, who were not under the territorial
jurisdiction of other nations. He totally denied the
Russian claim to any part of America south of the 55th
degree of north latitude, on the ground that this parallel
was declared, in the charter of the Russian American
Company, to be the southern limit of the discoveries
made by the Russians in 1799; since which period they
had made no discoveries or establishments south of that
line, on the coast claimed by them. With regard to the
suggestion, that the Russian government might justly
exercise sovereignty over the northern Pacific Ocean, as
mare clausum^ because it claimed territories both on the
Asiatic and American coasts of that ocean, Mr. Adams
merely observed, that the distance between those coasts
on the parallel of 61 degrees, was not less than four
thousand miles; and he concluded by expressing the
persuasion of the American government, that the citizens
of the United States would remain unmolested in the
prosecution of their lawful commerce, and that no effect
would be given to a prohibition, manifestly incompatible
tflft with their rights (e).
Convention of The negotiations on this subject were finally teimi-
the u^ted**** natcd by a convention between the two governments,
B^^^ signed at Petersburg, on the 5-17th April, 1824, which
stipulated that the subjects of either power should not be
disturbed in resorting to the coasts for the purposes of
navigation and fishing, or of trading with the natives at
points of the coast not already occupied. But United
States citizens were not to resort to any point where
there was a Russian establishment without the permission
of the governor, and vice versd. No United States
establishments were to be formed north of 54° 40', and no
Russian establishments south of that latitude. During a
term of ten years (Art. 4) from the signature of the
{e) Annual Begister, vol. Ixiv. pp. 576—684. Correspondence between Hr.
Secretary Adams and Mr. Poletica.
MGHTS OF PROPERTY. 267
Convention, the vessels of either party might frequent Chap. IV.
the inland seas, gulfs and creeks of the coastline assigned
to the other party for the purpose of fishing and trading
with the natives.
Great Britain had also formally protested against the Convention oi
claims and principles set forth in the Russian ukase of oreatBrit^n
1821, immediately on its promulgation, and subsequently *»dR»»«»*-
at the Congress of Verona. The controversy, as between
the British and Russian governments, was finally closed
by a convention signed at Petersburg, February 16-28,
1825, which also established a permanent boundary
between the territories respectively claimed by them on
the continent and islands of North-western America.
This treaty contained stipulations similar to those
between the United States and Russia, the line of de-
marcation being drawn from the southernmost point of
Prince of Wales's Island in latitude 54° 40' eastwards to
Portland Channel, and along the middle of that inlet
to latitude 66**, whence it should follow the summit of
the mountains bordering the coast, within 10 leagues
north-westward to Mount St. Elias, and thence north
along the 141st meridian west from Greenwich to the
frozen ocean. The term of ten years for trading by
vessels of either party in the harbours or creeks of the
other, was also inserted in this treaty, but trading with
the natives in liquors, firearms, powder, or warlike
stores, was prohibited (/). o ^^^
When the ten years period of the United States' treaty Expiration of
iiT^» ii'11 -I ft "^® *^^ years
expired, the Russian government claimed the right of period in
excluding American vessels from that part of the coast tr^ty.
on which the United States had agreed to form no
establishments. A lengthy discussion took place on the
construction of the treaty (^), but for a very long time
no definite understanding was arrived at. Finally the
question was set at rest for ever by the purchase by the
United States of the whole territory of Alaska from
(/) Greenhow, Hist, of Oregon, &o., (g) Mr. Forsyth's letter to Mr. Dallaa,
p. 469 ; Proofs I. No. 6. ^o^- 3, 1837. Congress l>ocuments,
1838-9, vol. i. p. 36.
268
EIGHTS OF PROPERTY.
Part n. Russia, in 1867, for the sum of 7,200,000 dollars, there
being after that no possibility of any dispute as to
boundary between the two countries.
The Alaska boundary question, however, was destined to be raised
as between the United States and Qreat Britain in a very acute fonii,
which has only received a settlement in the course of the last few
months. From the first days of the American occupation of Alaska,
the British and Canadian governments were insistent in urging upon
the United States the necessity of having the boundary line, which had
been left in ambiguity by the treaty of 1825, authoritatively marked
out. Nothing, however, was done, and much friction and inconveni-
ence was the result. In 1897, the discovery of gold on the Yukon
Eiver, in British Columbia, attracted a multitude of settlers to what
had hitherto been one of the most deserted quarters of the North-
American continent. It was then realised that the United States
claimed a boundary line which entirely shut off the mining districts
from the sea. This claim, fortified by acts of occupation, was based
on the contention that under the treaty of 1825, it was meant that
there should remain in the exclusive possession of Bussia a continuous
fringe or strip of coast on the mainland not exceeding ten marine
leagues in width separating the British possessions from the bays,
ports, inlets, havens and waters of the ocean. This interpretation of
the 3rd and 4th articles of the treaty was strongly contested by the
Canadians, who, with the support of the British government, main-
tained that the boundary line, whether running along the crests of the
mountains, or in the absence of mountains, at a distance of ten marine
leagues from the ocean, was intended to be traced across the bays and
inlets, and not to run round them. There was also a dispute as to
what was ^^ the channel called the Portland Channel " in the 3rd article
of the treaty of 1825, and as to the course to be taken by the southern
boundary line of American territory from its commencement to the
entrance of Portland Channel.
In 1899, a temporary modus vivendi was arrived at, and after
prolonged negotiations a convention was signed at Washington on
Jan. 24, 1903, for the appointment of a tribunal consisting of ''six
impartial jurists of repute" who were to ''consider judicially" the
questions submitted to them with regard to the disputed boundary
arising out of the treaty of 1825, which they were thus practically
asked to construe. The case was argued at great length in London
during September and October of the same year, and the award was
delivered on October 20. The tribunal found that the point of com-
mencement of the line of demarcation was Cape Muron, and that the
Portland Channel was the channel which ran from about 55^ 56' N. L.,
and passed to the north of Pearce and Wales Islands. These islands
were thus awarded to Great Britain, but the little islands to the west
of them, Sitklan and Kannaghunut, fell to the United States. The
RIGHTS OP PROPERTY. 269
tribunal further gave to the United States a oontinuoufl strip of coast Chap. IT.
on the mainland, holding this to be the true construction of a ** line
parallel to the sinuosities of the coast, and distant therefrom not more
than ten marine leagues." The award was only signed by Lord
Alyerstone, L. C. J., and the three American commissioners, die two
Canadian representatives declining to do so ; but under the terms of
the treaty a bare majority was sufficient (h),
§ 172.
The claim of the United States to the territory between claim of the
the Rocky Mountains and the Pacific Ocean, and between to'the Oregon
the 42nd degree and 54th degree and 40th minutes of *®™*^'y
north latitude, is rested by them upon the following
grounds : —
1. The first discovery of the mouth of the river
Columbia by Captain Gray, of Boston, in 1792 ; the first
discovery of the sources of that river, and the explora-
tion of its course to the sea, by Captains Lewis and
Clarke in 1805 — 6; and the establishment of the first
posts and settlements in the temtory in question by
citizens of the United States.
2. The vii'tual recognition by the British government
of the title of the United States in the restitution of the
settlement of Astoria or Fort George, at the mouth of
the Columbia River, which had been captured by the
British during the late war between the two countries,
and which was restored in virtue of the 1st article of the
treaty of Ghent, 1814, stipulating that ^^all territory,
places, and possessions whatever, taken by either party
from the other during the war," &c., *^ shall be restored
without delay." This restitution was made, without
any reservation or exception whatsoever, communicated
at the time to the American government.
3. The acquisition by the United States of all the
titles of Spain, which titles were derived from the
discovery of the coasts of the region in question, by
Spanish subjects, before they had been seen by the
people of any other civilized nation. By the 3rd article
of the treaty of 1819, between the United States and
(A) Wharton, Int. Law Digest, vol. ii. Art. I31a, p. 21. Encydopeedia Bri-
tannica, Art. Alaska; Times, Oct. 21, 1903, and following days.
270
EIGHTS OP PBOPERTV.
Part II. Spain, the boundary line between the two countries west
of the Mississippi, was established from the mouth of the
river Sabine, to certain points on the Red River and the
Arkansas, and runnings along the parallel of 42 degrees
north of the South Sea ; his Catholic Majesty ceding to
the United States " all his rights, claims, and pretensions
to any territories east and north of the said line ; and "
renouncing ^'for himself, his heirs and successors, all
claim to the said territories for ever." The boundary
thus agreed on with Spain was confirmed by the treaty
of 1828, between the United States and Mexico, which
had, in the meantime, become independent of Spain.
4. Upon the ground of contiguity^ which would give to
the United States a stronger right to those territories
than could be advanced by any other power. '* If," said
Mr. Gallatin, ^' a few trading factories on the shores of
Hudson's Bay have been considered by Great Britain as
giving an exclusive right of occupancy as far as the
Rocky Mountains ; if the infant settlements on the more
southern Atlantic shores justified a claim thence to the
South Seas, and which was actually enforced to the
Mississippi; that of the millions of American citizens
already within reach of those seas, cannot consistently
be rejected. It will not be denied that the extent of
contiguous country to which an actual settlement gives a
prior right, must depend, in a considerable degree, on
the magnitude and population of that settlement, and on
the facility with which the vacant adjacent land may,
within a short time, be occupied, settled, and cultivated
by such population, compared with the probability of its
being occupied and settled from any other quarter.
This doctrine was admitted to its fullest extent by Great
Britain, as appeared by all her charters, extending from
the Atlantic to the Pacific, given to colonies established
then only on the borders of the Atlantic. How much
more natural and stronger the claim, when made by a
nation whose population extended to the central parts
of the continent, and whose dominions were by all
acknowledged to extend to the Rocky Mountains."
RIGHTS OF PROPERTY. 271
The exclusive claim of the United States is opposed Chap, ry.
by Great Britain on the following grounds : — § 173.
1. That the Columbia was not discovered by Gray, ^^^^'
who had only entered its mouth, discovered four years
previously by Lieutenant Mears of the British navy;
and that the exploration of the interior borders of the
Columbia by Lewis and Clarke could not be considered
as confirming the claim of the United States, because,
if not before, at least in the same and subsequent years,
the British Northwest Company had, by means of their
agents, already established their posts on the head waters
or main branch of the river.
2. That the restitution of Astoria, in 1818, was accom-
panied by express reservations of the claim of Great
Britain to that territoiy, upon which the American
settlement must be considered an encroachment,
3. That the titles to the territory in question, derived
by the United States from Spain through the treaty of
1819, amounted to nothing more than the rights secured
to Spain equally with Great Britain by the Nootka
Sound Convention of 1790: namely, to settle on any
part of those countries, to navigate and fish in their
waters, and to trade with the natives.
4. That the charters granted by British sovereigns to
colonies on the Atlantic coasts were nothing more than
cessions to the grantees of whatever rights the grantor
might consider himself to possess, and could not be con-
sidered as binding the subjects of any other nation, or as
part of the law of nations, until they had been confirmed
by treaties. ^ ^ ^ ^^^
During the negotiation of 1827, the British plenipoten- Ne^tiation
tiaries, Messrs. Huskisson and Addington, presented the ^ ^^^^'
pretensions of their government in respect to the territory
in question in a statement, of which the following is a
summary.
" Great Britain claims no exclusive sovereignty over
any portion of the territory on the Pacific, between the
42nd and the 49th parallels of latitude. Her present
claim, not in respect to any part, but to the whole, is
272
RIGHTS OF PROPERTY.
Part n. limited to a right of joint occupancy, in common with
other States, leaving the right of exclusive dominion in
abeyance ; and her pretensions tend to the mere main-
tenance of her own rights, in resistance to the exclusive
character of the pretensions of the United States.
^^The rights of Great Britain are recorded and de-
fined in the Convention of 1790. They embrace the
right to navigate the waters of those countries, to settle
in and over any part of them, and to trade with the in-
habitants and occupiers of the same. These rights have
been peaceably exercised ever since the date of that
convention ; that is, for a period of nearly forty years.
Under that convention, valuable British interests have
grown up in those countries. It is admitted that the
United States possess the same rights, although they
have been exercised by them only in a single instance,
and have not, since the year 1813, been exercised at all;
but beyond those rights they possess none.
**In the interior of the territory in question, the
subjects of Great Britain have had, for many years,
numerous settlements and trading-posts ; several of these
posts are on the tributary waters of the Columbia ; seve-
ral upon the Columbia itself ; some to the northward, and
othera to the southward of that river. And they navigate
the Columbia as the sole channel for the conveyance of
their produce to the British stations nearest to the sea,
and for its shipment thence to Great Britain ; it is also
by the Columbia and its tributary streams that these
posts and settlements receive their annual supplies from
Great Britain.
" To the interests and establishments which British
industry and enterprise have created. Great Britain owes
protection; that protection will be given, both as re-
gards settlement, and freedom of trade and navigation,
with every attention not to infringe the co-ordinate
rights of the United States ; it being the desire of the
British government, so long as the joint occupancy con-
tinues, to regulate its own obligations by the same rules
RIGHTS OF PEOPERTY. 273
which govern the obligations of every other occupying Chap. IV.
party "(0- §176.
By the 3rd article of the Convention between the ^51^®^*^^^ ®'
United States and Great Britain, in 1818, it was ^* agreed,
that any country that may be claimed by either party,
on the north-west coast of America, westward of the
Stony Mountains, shall, together with its harbours, bays,
and creeks, and the navigation of all rivers within the
same, be free and open, for the term of ten years from
the date of the signature of the present Convention, to
the vessels, citizens, and subjects of the two powers ; it
being well understood that this agreement is not to be
construed to the prejudice of any claim which either of
the two high contracting parties may have to any part
of the said country, nor shall it be taken to afEect the
claims of any other power or State to any part of the
said country; the only object of the high contracting
parties, in that respect, being to prevent disputes and
differences amongst themselves.'^
In 1827, another Convention was concluded between
the two parties, by which it was agreed : —
"Art. 1. All the provisions of the third article of the
Convention concluded between the United States of
America and His Majesty the King of the United King-
dom of Great Britain and Ireland, on the 20th of
October, 1818, shall be, and they are hereby further
indefinitely extended and continued in force, in the same
manner as if all the provisions of the said article were
herein specifically recited.
" Art. 2. It shall be competent, however, to either of
the contracting parties, in case either should think fit at
any time after the 20th of October, 1828, on giving due
notice of twelve months to the other contracting party,
to annul and abrogate this Convention ; and it shall, in
such case, be accordingly entirely annulled and abrogated,
after the expiration of the said term of notice.
(i) Congiefis Doonments, 20th Cong, and 1st Sees. No. 199. Greenhow, Proofs
and ninBtrations, H.
W. T
274
RIGHTS OP PROPERTY.
Partn.
§176.
Treaty of
1846.
Arbitratioii
before the
£mperor of
Qennany,
" Art, 3. Nothing contained in this Convention, or in
the third article of the Convention of the 20th of
October, 1818, hereby continued in force, shall be con-
straed to impair, or in any manner affect, the claims
which either of the contracting parties may have to any
part of the country westward of the Stony or Rocky
Mountains " (k).
The notification provided for by the Convention,
having been given by the American government, new
discussions took place between the two governments,
which were terminated by a treaty concluded at Wash-
ington, in 1846. By the first article of that treaty it was
stipulated, that from the point on the 49th parallel of
north latitude, where the boundary laid down in existing
treaties and conventions between the United States and
Great Britain terminates, the line of boundary shall be
continued westward along the said 49th parallel of north
latitude to the middle of the channel which separates the
continent from Vancouver's Island, and thence southerly
through the middle of the said channel, and of Fuca
Straits, to the Pacific Ocean; provided, however, that
the navigation of the whole of the said channel and
straits, south of the 49th parallel of north latitude, re-
main free and open to both parties. The second article
stipulated for the free navigation of the Columbia River
by the Hudson's Bay Company, and the British subjects
trading with them, from the 49th degree of north lati-
tude to the ocean. The third article provided that the
possessory rights of the Hudson's Bay Company, and of
all other British subjects, to the territory south of the
parallel of the 49th degree of north latitude, should be
respected (/).
The treaty of 1S46 did not, however, completely settle the question.
It was only terminated in 1S72 by being submitted to the award of the
Emperor of Germany as arbitrator. The 34th Article of the Treaty of
Washington, 8th of May, 1871, after referring to the Treaty of 1846,
and stating that the Commissioners appointed to determine that
{k) EllioVs AmerioaiL Diplomatio Code,
Tol. i. pp. 282—330.
{1} United States Statutes at Laige,
Tol. ix. pp. 109, 869.
BIGHTS OF PEOPERTY. 276
portion of the boundary whioh runs southerly through the middle of Chap. IV.
the channel separating Yancouyer's Island from the Continent, and of
Fuca Straits to the Pacific Ocean, were unable to agree, provides 'Hhat
the respective claims of the government of Her Britannic Majesty, and
the government of the United States, shall be submitted to the arbitra-
tion and award of His Majesty the Emperor of Germany, who, having
regard to the above-mentioned Article of the said Treaty, shall decide
thereupon finally, and without appeal, which of these claims is most
in accordance with the true interpretation of the Treaty of June 15,
1846 "(m).
Great Britain contended that the boundary line should be run
through the Bosario Strait, while the United States asserted that it
should be run through the Canal de Haro. The position of the
boimdary was a matter of considerable importance, not only in assign-
ing several islands to the successful party, but also in settling the
rights of ownership over the navigable channels between Vancouver's
Island and the mainland. The whole question turned upon the inter-
pretation to be put on the existing treaties. Oases and counter cases
were submitted by each government to the Emperor of Germany, and
on the 21st October, 1872, His Imperial Majesty awarded that *<The
claim of the government of the United States, viz., that the line of
boundary between the dominions of Her Britannic Majesty and the
United States should be run through the Canal of Haro, is most in
accordance with the true interpretation of the Treaty " of 1846 (n). o 176a.
In 1885, the powers assembled at the Conference of Berlin, that is, Oooupations
all the maritime States of Europe and the United States (o), being ^Srf^ coast,
desirous to obviate the misunderstanding and disputes which might in
future arise from new acts of occupation on the coast of Africa, dis-
cussed and adopted a declaration introducing into international rela-
tions certain uniform rules with reference to future occupations of that
coast. Any power taking possession of a tract of land outside any
possessions it had before is to give notice to the other Signatory
Powers, in order to enable them, if need be, to make good any claims
of their own ; and the Signatory Powers recognize the obligation to
insure the establishment of authority in the regions occupied by them
on the coasts of the African continent sufficient to protect existing
rights, and, as the case may be, freedom of trade and of transit under
the conditions agreed upon in the General Act(/>).
, § 177.
The maritime territory of every State extends to the Maritime
ports, harbours, bays, mouths of rivers, and adjacent juriadiotion.
(m) Pari. Papers, K. America, No. 3 see { 67a, ante.
(1878), p. 1, see Appendix E. (p) Arte. 84, 86. Hertelet, Map of
(«) Pari. Papers, N. America, No. 9 Africa by Treaty, p. 20 ; for notifioa-
(1873), p. 3. See Cosling, The Treaty tionB under Art. 85, see ibid. pp. 10.
of Washington, p. 203. 47, 316, 827, 868, 772, 811, 1016, 1068,
(o) Aa to the position of the XT. S. A., 1069.
t2
276
Partn.
§ 177a.
The Case
of The
Franeonia.
§im.
Territorial
Waters
Jurisdiction
Act, 1878.
RIGHTS OP PROPERTY.
parts of the sea enclosed by headlands belonging to the
same State. The general usage of nations superadds to
this extent of territorial jurisdiction a distance of 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 rights of property and territorial jurisdiction
are absolute, and exclude those of every other nation (y).
The extent and nature of the jurisdiction of a State over its terri-
torial waters has been much discussed of late. In the well-known
case of The Franeonia the Oourt held that it had no jurisdiction over a
criminal ofEence committed by a foreigner on board a foreign ship
which was on the open sea but within three miles of the coast of Eng-
land. The difficulty and doubt surrounding the question is shown by
the fact that of the fourteen judges who attended during the argu-
ments in The Franeonia seven pronounced against the jurisdiction,
while six claimed it. One who agreed with the majority died before
judgment was delivered (r). The decision, therefore, could not be
considered as altogether satisfactory, and the question has now been
set at rest, as far as English law is concerned, by an Act of Parliament
known as the Territorial Waters Jurisdiction Act, 1878 («).
By this Act, after reciting that "the rightful jurisdiction of Her
Majesty, her heirs and successors, extends and has always extended
over the open seas adjacent to the coasts of the United Kingdom, and
of all other parts of Her Majesty's dominions to such distance as is
necessary for the defence and security of such dominions " (/), it is
enacted (amongst other things) that, ''An ofEence committed by a
person, whether he is or is not a subject of Her Majesty, on the open
sea within the territorial waters of Her Majesty's dominions, is an
offence within the jurisdiction of the Admiral, although it may have
been committed on board or t)y means of a foreign ship, and the
person who committed such offence may be arrested, tried, and
punished accordingly." " * The territorial waters of Her Majesty's
dominions,' in reference to the sea, means such part of the sea adjacent
to the coast of the United Kingdom, or the coast of some other part of
Her Majesty's dominions, as is deemed by international law to be
within the territorial sovereignty of Her Majesty; and for the purpose
of any offence declared by this Act to be within the jurisdiction of the
{q) Grotiafl, de Jar. Bd. ao Pao.
lib. ii. cap. 3, { z. Bynkerahoek, Qoeest.
Jur. Pub. lib. i. cap. 8. De Dominio
Maris, cap. 2. Yattel, liv. i. ob. 23,
§ 289. Valin, Comm. but rOrdonnance
de la Marine, liv. y. tit. 1. Aznni,
Diritto Marit. pt. i. cap. 2, art. 3,
{16. Galiani, dei Boveri dei Prinoipi
Keutrali in Tempo de Guerra, lir. i.
life and Works of Sir L. Jenkins,
vol. ii. p. 780.
(r) B. V. Keyn {The Franeonia), 2 Ex.
J>. 63.
(») 41 & 42 Vict. 0. 73.
(0 See Iteff. v. Dudley, 14 Q. B. D.
273, 281, per Lord Coleridge, L. C. J.
RIGHTS OP PEOPERTY. 277
Adniiral, any part of the open sea within one marine league of the Chap. IV.
coast meaBiired from low- water mark shall be deemed to be open sea
within the territorial waters of Her Majesty's dominions." o 277c
Other States may in time adopt a similar course, and claim as their Extension of
own the three-mile belt of sea for all purposes of jurisdiction, and j^f®'°^®
it is not improbable that in course of time the limit may be extended
still further. Spain has, on more than one occasion, put forward
a claim to exercise maritime jurisdiction at a distance of two leagues,
or six nautical miles from the Spanish coast. Other nations have,
however, resisted this claim. In 1874, Lord Derby intimated to
the Spanish government that their pretensions would not be submitted
to by Great Britain, and that any attempt to carry them out would
lead to very serious consequences {u). Mr. Fish also stated, on the
part of the United States government, " We have always understood
and asserted that, pursuant to public law, no nation can rightfully
claim jurisdiction at sea beyond a marine league from its coast " {x).
The extent of territorial waters was incidentally a disputed point
before the Suez Canal Commission which sat at Paris in 1885. The
original draft of Article V. of the Convention read **in the territorial
waters of Egypt," for which the British amendment of three marine
miles from the ports of access of the canal was afterwards substituted.
Commenting on this amendment M. de Freycinet wrote, '* This limit,"
namely, three marine miles, ''is borrowed from the traditions of
international law ; nevertheless, it should be observed that at the time
when this limit was established, and when it came into uisage, it
represented approximately cannon range. Since then, the range of
cannon having increased, it would be natural to extend proportionately
the zone of territorial waters." But the French government, willing
to be conciliatory, waived their contention (y).
6 178
The term ^^ coasts" includes the natural appendages ExtLtofthe
of the territory which rise out of the water, although J^/"'"^*'''
these islands are not of suflScient firmness to be inhabited
or fortified ; but it does not properly comprehend all the
shoals which form sunken continuations of the land per-
petually covered with water. The rule of law on this
subject is terrce dominium ubi finitur armorum vis ; and
since the introduction of firearms, that distance has
(m) Lord Derby to Mr. Wataon, i^fra^ § 205d. A majority of the Insti-
25th Deo. 1874 ; U. S. Dipl. Cor. 1875, tute de Droit Intemational at the Paris
p. 641. meetiiig of 1894 resolved that a zone of
(X) V. S. Dipl. Cor. 1876, p. 649 ; ^* f^^ miles from low-watermark
' Tki t ought to be considered temtorial for all
Wharton, Dig. i 32. purposes. See HaU's Intemational Law
(y) Pari; Papers, Egypt, No. 1 (1888), (5th ed.), p. 165,
278 EIGHTS OP PEOPEETY.
Part II. usually been recognized to be about three miles from the
shore. In a case before Sir W. Scott (Lord Stowell)
respecting the legality of a capture alleged to be made
within the neutral territory of the United States, at the
mouth of the river Mississippi, a question arose as to
what was to be deemed the shore, since there are a
number of little mud islands, composed of earth and
trees drifted down by the river, which form a kind of
portico to the main land. It was contended that these
were not to be considered as any part of the American
territory — that they were a sort of ^^no man's land," not
of consistency enough to support the purposes of life,
uninhabited, and resorted to only for shooting and
taking birds' nests. It was argued that the line of
territory was to be taken only from the Balize, which is
a fort raised on made land by the former Spanish
possessors. But the learned judge was of a different
opinion, and determined that the protection of the
territory was to be reckoned from these islands, and
that they are the natural appendages of the coast on
which they border, and from which indeed they were
formed. Their elements were derived immediately from
the territory, and on the principle of alluvium and incre-
ment, on which so much is to be found in the books of
law. Quod vis fluminis de tuo prcedio detraxeritj et vicino
prcedio attulerity pahm tuum remanety even if it had been
carried over to an adjoining territory. Whether they
were composed of earth or solid rock would not vary the
right of dominion, for the right of dominion does not
§ 179. depend upon the texture of the soil (z).
The King's The exclusivc territorial jurisdiction of the British
crown over the enclosed parts of the sea along the coasts
of the island of Great Britain has immemorially ex-
tended to those bays called the King^s Chambers; i.e.j
portions of the sea cut off by lines drawn from one
promontory to another. A similar jurisdiction is also
asserted by the United States over the Delaware Bay
(«) The Anna, 5 C. Eob. 385 {o).
BIGHTS OF PBOPBRTY. 279
and other bays and estuaries forming portions of their Chap. IV.
territory. It appears from Sir Leoline Jenkins, that
both in the reigns of James I. and of Charles II. the
security of British commerce was provided for by express
prohibitions against the roving or hovering of foreign
ships of war so near the neutral coasts and harbours of
Great Britain as to disturb or threaten vessels homeward
or outward bound; and that captures by such foreign
cruisers, even of their enemies' vessels, would be restored
by the Court of Admiralty if made within the King's
Chambers. So also the British ^^ Hovering Act," passed
in 1736 (9 Geo. II. cap. 35), assumes, for certain revenue
purposes, a jurisdiction of four leagues from the coasts,
by prohibiting foreign goods to be transliipped within
that distance without payment of duties. A similar pro-
vision is contained in the revenue laws of the United
States ; and both th^se provisions have been declared by
judicial authority, in each country, to be consistent with
the law and usage of nations (a).
§ 179a.
The British "Hovering Act*' has been long since repealed. The Ciiatoms
present Customs legislation makes a distinction as regards the extent thepree^t^
of jurisdiction claimed for revenue purposes, between ships belonging ^^^'
to British subjects and ships belonging to foreigners. Thus it is now
enacted that " If any ship or boat shall be found or discovered to have
been within any port, bay, harbour, river, or creek of the United
Kingdom, or the Channel Islands, or within three leagues of the
coast thereof, if belonging wholly or in part to British subjects, or
having half the persons on board subjects of Her Majesty, or within
one league if not British^ having false bulkheads, &c.," she shall be
liable to foi^eiture, or to be dealt with as the statute directs. The
distinction is also maintained for individuals; thus every person
found to have been on board a ship liable to forfeiture, '' within three
leagues of the coast if a British subject, or within one league if a
foreigner," shall forfeit a sum not exceeding 100/. (5). Any officer of
Customs may go on board any ship after clearance outwards within
one league of the coast of the United Kingdom, and demand the
(a) LifeasdWoilcsof SirL. Jenkins, Le Louis, 2 Dods. Ad. 245; Church y.
voL ii. pp. 727, 728, 780. Opinion of Bubbard, 2 Orsnoh, 187. Vattel, Droit
the United States Attomey-Oenend on ^^ ^^^^ j.^ . ^ 22, § 281.
the oapture of the British ship Grange
in the Belawaze Bay, 1793. Waite'f (*) The Customs Consolidation Act,
American State Papers, vol. i. p. 75. 1876 (39 & 40 Viot. o. 36), s. 179.
280 RIGHTS OF PROPERTY.
Part II. ship's clearance, which the master must produce, or be liable to a
penalty of 500/. (c).
Right of The right of fishing in the waters adjacent to the
^^' coasts of any nation, within its territorial limits, belongs
exclusively to the subjects of the State. The exercise of
this right, between France and Great Britain, was regu-
lated by a convention concluded between these two
powers, in 1839 ; by the 9th article of which it is pro-
vided, that French subjects shall enjoy the exclusive
right of fishing along the whole extent of the coasts of
France, within the distance of three geographical miles
from the shore, at low-water mark, and that British
subjects shall enjoy the same exclusive right along the
whole extent of the coasts of the British Islands, within
the same distance ; it being understood, that upon that
part of the coasts of France lying between Cape Carteret
and the point of Monga, the exclusive right of French
subjects shall only extend to the fishery within the
limits mentioned in the first article of the Convention ;
it being also understood, that the distance of three miles,
limiting the exclusive right of fishing upon the coasts of
the two countries, shall be measured, in respect to bays
of which the opening shall not exceed ten miles, by a
straight line drawn from one cape to the other (rf).
By the 1st article of the Convention of 1818, between
the United States and Great Britain, reciting that
^^ whereas diflferences have arisen respecting the liberty
claimed by the United States, for the inhabitants thereof
to take, dry, and cure fish, on certain coasts, bays,
harbours, and creeks, of his Britannic Majesty^s do-
minions in America," it was agreed between the con-
tracting parties, ^Hhat the inhabitants of the said
United States shall have, forever, in common with the
subjects of his Britannic Majesty, the liberty to take
fish of every kind on that part of the southern coast of
(f) The CustomB Consolidation Act, 1878, N. America (Ko. 2), p. 113.
1876 (39 & 40 Vict. o. 36), b. 134. As {d) Annales Maritames et Ooloniales,
to what is a olearanoe, see Pari. Papers, 1839, 1'« Partie, p. 861.
EIGHTS OP PROPERTY. 281
Newfoundland, which extends from Cape Ray to the Chap. IV,
Rameau Islands, on the western and northern coast
of Newfoundland, from the said Cape Ray to the
Quirpon Islands; on the shores of the Magdalen Islands ;
and also on the coasts, bays, harbours, and creeks, from
Mount Joly, on the southern coast of Labrador, to and
through the Straits of Belleisle, and thence northwardly
indefinitely along the coast; without prejudice, however,
to any of the exclusive rights of the Hudson Bay Com-
pany. And that the American fishermen shall also have
liberty, forever, to dry and cure fish in any of the
unsettled bays, harbours, and creeks, of the southern
part of the coast of Newfoundland, here above described,
and of the coast of Labrador ; but so soon as the same,
or any portion thereof, shall be settled, it shall not be
lawful for the said fishermen to dry or cure fish at such
portion so settled, without previous agreement for such
purpose with the inhabitants, proprietors, or possessors
of the ground. And the United States hereby renounce
forever any liberty heretofore enjoyed or claimed by the
inhabitants thereof, to take, dry, or cure fish, on or
within three marine miles of any of the coasts, bays,
creeks, or harbours, of his Britannic Majesty's dominions
in America, not included within the above-mentioned
limits. Provided, however, that the American fisher-
men shall be admitted to enter such bays or harbours,
for the purpose of shelter, and of repairing damages
therein, of purchasing wood, and of obtaining water,
and for no other purpose whatever. But they shall be
under such restrictions as may be necessary to prevent
their taking, drying, or curing fish therein, or in any
other manner whatever abusing the privileges hereby
reserved to them (e).
§180a.
Another treaty was negotiated in 1854 on the basis of reciprocity, Treaty of
that is, the subjects of each State were permitted to fish in the waters ^^^^*
of the other, and the produce was admitted into both countries free of
duty. This treaty came to an end in 1866, through notice of terminat-
(e) Elliot'B Dipbmatio Code, toI. i. p. 281.
282 RIGHTS OP PBOPEBTY.
Part n. "^ ^* being given by the United States ; and the question was for a
"— time regulated by the Treaty of Washington. By Art. XVIII. of the
Waahington, latter conyention, the inhabitants of the United States had, in addition
1871. to their rights under the treaty of 1818, in conmion with British sub-
jects, for the term of ten years from the date when the treaty came
into force, and further, until after two years' notice of terminating the
treaty should be given by either party, the liberty to take fish of every
kind, except shell-fish, on the sea-coasts and shores, and in the bays,
harbours, and creeks of the Provinces of Quebec, Nova Scotia, and
New Brunswick, and the Colony of Prince Edward's Island, and of
the several Islands thereunto adjacent, without being restricted to any
distance from the shore ; with permission to land upon the said coasts
and shores and islands, and also upon the Magdalen Islands, for the
purpose of drying their nets and curing their fish. This only applied
to sea-fishing; salmon and other river-fishing being reserved exclu-
sively for British fishermen. Art. XIX. gave to British subjects
corresponding rights, on the same terms, on the eastern eea-coasts and
shores of the United States north of the 39th parallel of N. lat. As
long as the treaty was in force, fish-oil and fish of all kinds (except
fish of the inland lakes, and of the rivers falling into them, and except
fish preserved in oil), being the produce of Canadian or United States
fisheries, were to be admitted into each country, respectively, free of
duty (/). It being asserted that this treaty gave a greater advantage
to American than to British subjects, a Commission was appointed to
settle what compensation, if any, should be paid by the United States
to England; and on the 23rd of November, 1877, the Commission,
which met at Halifax, awarded that the sum of 5,500,000 dollars
in gold be so paid. Some difficulties were raised by the United
States as to complying with the award ; but the money was idtimately
paid (y).
The later abrogation by the United States of the fishery articles of
the Treaty of Washington (A), subjected the relations between the two
countries to the stipulation of the Convention of 1818. The provisions
of this Convention relating to the right of exclusion were construed
very strictly by the Canadian Government; and friction arising be-
tween the Dominion, Great Britain, and the United States, commis-
sioners were appointed by the respective governments with a view to
Draft Treaty, amving at an amicable settlement (t). On 15th Pebruary, 1888,
1888. 1^ provisional treaty was signed at Washington. By this treaty it was
provided that Great Britain and the United States should appoint a
mixed commission to delimit, as in the now stating treaty specified,
the waters of Canada and Newfoundland as to which the United
States, by the Treaty of 1818, had renounced all liberiy to take, cure,
(/) The Treaty of Waahingrton, 1871, 1878, Supplement,
arte, xviii. xix. lad. See 35 & 36 Vict. (h) Wharton, Dig. p. 64.
c. 45. See also Appendix E, p. 783. (t) Mr. Chamberlain to Lord Salifr-
{ff) See London Gazette, 16th Nov. bnry, <« Times," 3id March, 1888.
BIGHTS OF PBOPEBTY. 283
ot dry fish. The three marine miles mentioned in the 1818 Conven- Chap. IV.
tion were to be measured seaward from low- water mark ; but in every
bay, creeky or harbour, not otherwise specially provided for, such
miles were to be measured seaward from a straight line drawn across
such waters in the part nearest the entrance at the first point where the
width does not exceed ten miles. There were other provisions similar
in principle to those contained in the Treaty of 1871. The plenipoten-
tiaries exchanged protocols establishing a modus vivendi for two
years (>&). On 21st August, 1888, the United States Senate, by the
Bepublican majority, refused to ratify the treaty (/).
8 181.
Besides those bays, gulfs, straits, mouths of rivers, and ciaimflto'
estuaries which are enclosed by capes and headlands ^^^^^n
belonging to the territory of the State, a jurisdiction and tii«fir«>T^d of
right of property over certain other portions of the sea
have been claimed by different nations, on the ground of
immemorial use. Such, for example, was the sovereignty
formerly claimed by the Republic of Venice over the
Adriatic. The maritime supremacy claimed by Great
Britain over what are called the Narrow Seas has
generally been asserted merely by requiring certain
honours to the British flag in those seas, which have
been rendered or refused by other nations, according to
circumstances, but the claim itself has never been
sanctioned by general acquiescence (w).
Straits are passages communicating from one sea to
another. If the navigation of the two seas thus con-
nected is free, the navigation of the channel by which
(k) Mr. Chamberlain to Lord Salia- arrangfement signed at Paris in April
bury, <* Times," 22nd Feb. 1888 ; of that year for the settlement of the
Ibid. 17th Feb. 1888 ; Aimual Register, several points at issue. The ratification
1 888. of the arrangement has not been possible
(/) Annual Begister, 1888, p. 406. owing to the refusal of the Newfound-
There is a long standing dispute with land Legislature to consent to it. A
France with respect to fishing rights, inodm vivendi, origiuallj agreed upon
and incidental matters on the New- March 10, 1892, has been renewed from
f oundland shore, relating to the inter- jear to year,
pretation to be placed on Article 13 of
the Treaty of Utrecht of 1713, and on ' W Vattel, Droit des Gens, liv. i.
the arrangements made at Versailles in ^' ^^i } ^^d* Martens, Precis du Droit
1783. A summary of it is giren in des Qens Modeme de I'Europe, liv. ii.
Loid Derby's despatch of 12th June, oli- 1, § 42. Edinburgh BevieWy vol. xi.
1884, to the Governor of Newfound- art. If Pp. 17—19. Wheaton's Hist,
land, which was laid before Parliament Law of Nations, pp. 164—167. Kluber,
in January, 1886, together with an § 132«
284 RIGHTS OP PBOPERTY.
Part n. they are connected ought also to be free. Even if such
strait be bounded on both sides by the territory of the
same sovereign, and is at the same time so narrow as to
be commanded by cannon shot from both shores, the
exclusive territorial jurisdiction of that sovereign over
such strait is controlled by the right of other nations to
communicate with the seas thus connected. Such right
may, however, be modified by special compact, adopting
those regulations which are indispensably necessary to
the security of the State whose interior waters thus form
the channel of communication between different seas,
the navigation of which is free to other nations. Thus
the passage of the strait may remain free to the private
merchant vessels of those nations having a right to
navigate the seas it connects, whilst it is shut to all
o 182. foreign armed ships in time of peace.
Tte Waok So long as the shores of the Black Sea were exclusively
Boihorus, possessed by Turkey, that sea might with propriety be
DardaneUes. Considered a mare clausum ; and there seems no reason to
question the right of the Ottoman Porte to exclude other
nations from navigating the passage which connects it
with the Mediterranean, both shores of this passage
being at the same time portions of the Turkish territory;
but since the territorial acquisitions made by Russia, and
the commercial establishments formed by her on the
shores of the Euxine, both that Empire and the other
maritime powers have become entitled to participate in
the commerce of the Black Sea, and consequently to the
free navigation of the Dardanelles and the Bosphorus.
This right was expressly recognized by the seventh
article of the Treaty of Adrianople, concluded in 1829,
between Russia and the Porte, both as to Russian vessels
and those of other European States in amity with
Turkey (w).
The right of foreign vessels to navigate the interior
waters of Turkey, which connect the Black Sea with the
Mediterranean, does not extend to ships of war. The
(n) Martens, Nouveau Beoudl, torn. Tiii. p. 143.
BIGHTS OP PBOPERTY. 285
ancient rule of the Ottoman Empire, established for its Chap. IV.
own security, by which the entry of foreign vessels of
war into the canal of Constantinople, including the Strait
of the Dardanelles and that of the Black Sea, has been
at all times prohibited, was expressly recognized by the
treaty concluded at London the 13 th July, 1841, between
the five great European Powers and the Ottoman Porte.
By the 1st article of this treaty, the Sultan declared
his firm resolution to maintain, in future, the principle
invariably established as the ancient rule of his empire ;
and that so long as the Porte should be at peace, he
would admit no foreign vessel of war into the said Straits.
The five Powers, on the other hand, engaged to respect
this determination of the Sultan, and to conform to the
above-mentioned principle.
By the 2nd article it was provided, that, in declaring
the inviolability of this ancient rule of the Ottoman
Empire, the Sultan reserved the faculty of granting, as
heretofore, firmans allowing the passage to light-armed
vessels employed according to usage, in the service of
the diplomatic legations of friendly powers.
By the 3rd article, the Sultan also reserved the faculty
of notifying this treaty to all the powers in amity with
the Sublime Porte, and of inviting them to accede to
it(o),
§ 182a.
The treaty of 1841 was revised by the Treaty of Paris (j»), but the Treaty of
principles contained in the former treaty were re-estabHshed with very ^*™' ^«^'«-
slight changes. The Sultan, however, agreed to permit the passage of
light ships of war, which the contracting parties were authorized to
station at the mouths of the Danube, in order to secure the execution
of the regulations relative to the liberty of that river (y). The Treaty
of Paris provided for the neutralization of the Black Sea, by excluding
from it ships of war of every flag. Eussia and Turkey also agreed
not to establish any military-maritime arsenals on its coasts (r).
In 1870 Bussia seized upon the opportunity afforded her by the London
Franco-Prussian war to obtain the abrogation of these latter provi- ^f^vention of
sions, and a declaration was then made by the powers assembled at
{o) Wheaton's Hist. Law of Nations, {q) Convention of SOth March, 1856,
pp. 683—685. art. iii. Ibid. p. 1268.
Ip) Art. z. Herfcfllet, Map of Europe
hy Treaty, vol. ii, p. 1265. W Arts. xi. xiii.
286
RIGHTS OF PROPERTY.
Partn.
Berlin
Congress.
§188.
Daiuah
BOTereignty
over the
SoQDd and
the Belts.
the Congress of London that ''the principle of the closing of the
Straits, such as it has been established, is maintained," bnt that power
should be given to the Sultan " to open the Straits in time of peace to
the vessels of war of friendly and allied powers, in case the Sublime
Forte should judge it necessary in order to secure the execution of the
stipulations of the Treaty of Paris, 1856 " (s). The abrogation of the
article in the Treaty of Paris preventing the building of arsenals, also
gave both Turkey and Russia the power of forming such establish-
ments on the coasts of the Black Sea. Article HI. of this convention
declares that "The Black Sea remains open, as heretofore, to the
mercantile marine of all nations."
The Treaty of Berlin contains no express mention of the Dardanelles,
but in the 18th Protocol Lord Salisbury declared on behalf of England
« that the obligations of her Britannic Majesty relating to the closing
of the Straits, do not go further than an engagement with the Sultan
to respect in this matter his Majesty's independent determinations in
conformity with the spirit of existing treaties." The Plenipotentiaries
of Russia declared, in reply, that '' without being able exactly to
appreciate the meaning of" Lord Salisbury's proposition, "in their
opinion, the principle of the closing of the Straits is an European
principle," and that existing stipulations are binding on the part of all
the Powers, " not only as regards the Sultan, but also as regards all
the Powers signatory to these transactions " (t). The intention of the
British declaration was, apparently, to reserve liberty to British ships
of war to enter the Straits with the consent of the Porte.
The supremacy asserted by the King of Denmark over
the Sound and the two Belts which form the outlet of the
Baltic Sea into the ocean, is rested by the Danish public
jurists upon immemorial prescription, sanctioned by a
long succession of treaties with other powers. According
to these writers, the Danish claim of sovereignty has
been exercised from the earliest times beneficially for the
protection of commerce against pirates and other enemies
by means of guard-ships, and against the perils of the
sea by the establishment of lights and land-marks. The
Danes continued for several centuries masters of the
coasts on both sides of the Sound, the province of Scania
not having been ceded to Sweden until the treaty of
(«) Art. ii. of ConTention of 13th
March, 1871 . Hertalet's Map of Europe
by Treaty, vol. iii. p. 1921 ; and see id.
p. 1892, for the BiUBaa Koto de-
nonnoing the Black Sea claiues of the
Treaty of Paris.
{t) Holland, European Concert, p. 226.
RIGHTS OP PROPERTY. 287
Roeskild in 1658, confirmed by that of 1660, in which it Chap. IV.
was stipulated that Sweden should never lay claim to the
Sound tolls in consequence of the cession, but should
content herself with a compensation for keeping up the
lighthouses on the coast of Scania. The exclusive right
of Denmark was recognized as early as 1368, by a treaty
with the Hanseatic republics, and by that of 1490, with
Henry VII. of England, which forbids English vessels
from passing the Great Belt as well as the Sound, unless
in case of unavoidable necessity; in which case they
were to pay the same duties at Wyborg as if they had
passed the Sound at Elsinore. The treaty concluded at
Spire, in 1544, with the Emperor Charles V., which has
commonly been referred to as the origin, or at least the
first recognition, of the Danish claim to the Sound tolls,
merely stipulates, in general terms, that the merchants
of the Low Countries frequenting the ports of Denmark
should pay the same duties as formerly.
The treaty concluded at Christianople, in 1645,
between Denmark and the united provinces of the
Netherlands, is the earliest convention with any foreign
power by which the amount of duties to be levied on
the passage of the Sound and Belts was definitely ascer-
tained. A tariff of specific duties on certain articles
therein enumerated was annexed to this treaty, and it
was stipulated that *^ goods not mentioned in the list
should pay, according to mercantile usage, and what has
been practised from ancient times."
A treaty was concluded between the two countries at
Copenhagen, in 1701, by which the obscurity in that of
Christianople, as to the non-specified articles, was meant
to be cleared up. By the third article of the new treaty
it was declared, that as to the goods not specified in the
former treaty, "The Sound duties are to be paid
according to their value; that is, they are to be valued
according to the place from whence they comcy and one per
centum of their value to be paid."
These two treaties of 1645 and 1701, are constantly
referred to in all subsequent treaties, as furnishing the
CoDTention of
1841
288 RIGHTS OP PROPERTY.
Part n. standard by which the rates of these duties are to be
measured as to privileged nations. Those not privileged
pay according to a more ancient tariff for the specified
articles, and one and a quarter per centum on unspecified
§ 184. articles («).
By the arrangement concluded at London and Elsi-
nore, in 1841, between Denmark and Great Britain, the
tariff of duties levied on the passage of the Sound and
Belts was revised, the duties on non-enumerated articles
were made specific, and others reduced in amount,
whilst some of the abuses which had crept into the
manner of levying the duties in general were corrected.
The benefit of this arrangement, which is to subsist for
the term of ten years, has been extended to all other
nations privileged by treaty {x).
§184a.
Abolitioii of The rights relating to the navigation of these Straits haye now been
Du«**'^^ permanently settled. In 1857, a treaty was entered into by Denmark
with Great Britain, Austria, Belgium, France, Hanover, Mecklenburg-
Schwerin, Oldenburgh, the Netherlands, Prussia, Russia, Sweden, and
Norway, and the Hanse Towns, by which the King of Denmark
agreed (Article 1) not to levy any dues or charges upon any ships
belonging to any of the contracting States that passed through the
Belts or the Sound, *' whether they simply traverse Danish waters, or
whether they may be obliged by casualties, or by commercial opera-
tions, to anchor or lie-to therein. No vessel whatever shall hence-
forward be subjected under any pretext, to any detention or impediment
whatever, in the passage of the Sound or of the Belts; but His
Majesty the King of Denmark expressly reserves to himself the right
of regulating by special arrangements, not involving visit or deten-
tion, the treatment in regard to duties and customs, of vessels belong-
ing to powers which are not parties to the present treaty." By
Article II. Denmark was to preserve and maintain all existing light-
houses, buoys, &c., and to change or set up such new ones as might
become necessary. Pilotage was to be optional, and pilotage charges
the same as for Danish vessels. A fixed rate of transit duties on goods
was to be established, not exceeding 16 skillings Danish per 500 lbs.
Danish. Ajb compensation, the contracting parties engaged, by
Article IV., to pay a total sum of 80,476,325 rigs-doUars to Denmark,
the sum being assessed in certain proportions among the contracting
(m) Sohlegel, Staats-Recht des Koni- (x) Scherer, der Sondzoll, adne G«»-
greich Danemark, 1 Th. kap. 7, }§ 27 — chichte, sein jetziger Bestand imd seme
29. Wheaton, Hiat. Law of Nations, Staaterechtlioh — politiBche Loaong,
pp. 158—161. Beilage Kr. 8—9.
RiaHTS OF PROPERTY. 289
parties, dach party being responsible only for the share placed to its Chap. lY.
own charge. Separate treaties to the same effect were signed by
Denmark with the United States and with Sardinia in 1857, with
Portugal and the two Sicilies in 1858, with Turkey in 1859, and with
Spain in 1860(5^).
§ 185.
The Baltic Sea is considered by the maritime powers Qu. whether
bordering on its coasts as mare clausum against the exer- sea ia mare
cise of hostilities upon its waters by other States, whilst ^^^**^^^
the Baltic powers are at peace. This principle was pro-
claimed in the treaties of armed neutrality in 1780 and
1800, and by the treaty of 1794, between Denmark and
Sweden, guaranteeing the tranquillity of that sea. In
the Russian declaration of war against Great Britain of
1807, the inviolability of that sea and the reciprocal
guarantees of the powers that border upon it (guarantees
said to have been contracted with the knowledge of the
British government) were stated as aggravations of the
British proceedings in entering the Sound and attacking
the Danish capital in that year. In the British answer
to this declaration it was denied that Great Britain had
at any time acquiesced in the principles upon which the
inviolability of the Baltic is maintained; however she
might, at particular periods, have forebome, for special
reasons influencing her conduct at the time, to act in
contradiction to them. Such forbearance never could
have applied but to a state of peace and real neutrality
in the north ; and she could not be expected to recur to
it after France had been suffered, by the conquest of
Prussia, to establish herself in full sovereignty along the
whole coast, from Dantzic to Lubeck(^). o ^gg
The controversy, how far the open sea or main ocean, Controyerey
beyond the immediate vicinity of the coasts, may be dominion of
appropriated by one nation to the exclusion of others, ^**
which once exercised the pens of the ablest and most
learned European jurists, can hardly be considered open
(y) See Hertslet, Map of Europe by (s) Annnal Register, vol. zliz. State
Treaty, vol. ii. p. 1301. State Papers, Papers, p. 778.
▼ol. xlvii. p. 24.
W. U
290 RiaHTS OF PROPERTT.
Part n. at this day. Grotius, in his treatise on the Law of Peace
and War, hardly admits more than the possibility of
appropriating the waters immediately contiguous, though
he adduces a number of quotations from ancient authors,
showing that a broader pretension has been sometimes
sanctioned by usage and opinion. But he never inti-
mates that anything more than a limited portion could
be thus claimed; and he uniformly speaks of ^^/?ar3," or
^^ partus maris^^^ always confining his view to the effect
of the neighbouring land in giving a jurisdiction and
property of this sort (a). He had previously taken the
lead in maintaining the common right of mankind to the
free navigation, commerce, and fisheries of the Atlantic
and Pacific Oceans, against the exclusive claims of Spain
and Portugal, founded on the right of previous discovery,
confirmed by possession and the papal grants. The
treatise De Mare Libero was published in 1609. The
claim of sovereignty asserted by the kings of England
over the British seas was supported by Albericus Gentilis
in his Advocatio Hispanica in 1613. In 1635, Selden
published his Mare Clausum, in which the general prin-
ciples maintained by Grotius are called in question, and
the claim of England more fully vindicated than by
Gentilis. The first book of Selden's celebrated treatise
is devoted to the proposition that the sea may be made
property, which he attempts to show, not by reasoning,
but by collecting a multitude of quotations from ancient
authors, in the style of Grotius, but with much less
selection. He nowhere grapples with the arguments by
which such a vague and extensive dominion is shown to
be repugnant to the law of nations. And in the second
part, which indeed is the main object of his work, he
has recourse only to proofs of usage and of positive com-
pact, in order to show that Great Britain is entitled to
the sovereignty of what are called the Narrow Seas.
Father Paul Sarpi, the celebrated historian of the Council
of Trent, also wrote a vindication of the claim of the
(a) De Jar. Bel. ao Pao. lib. ii. cap. 3, {§ 8—13.
RIGHTS OF PROPEKTY. 291
Republic of Venice to the sovereignty of the Adriatic (b). Chap. IV.
Bynkershoek examined the general question, in the
earliest of bis published works, with the vigour and
acumen which distinguish all his writings. He admits
that certain portions of the sea may be susceptible of
exclusive dominion, though he denies the claim of the
English crown to the British seas on the ground of the
want of uninterrupted possession. He asserts that there
was no instance, at the time when he wrote, in which
the sea was subject to any particular sovereign, where
the surrounding territory did not also belong to him ((?).
Puffendorf lays it down, that in a narrow sea the
dominion belongs to the sovereigns of the surrounding
land, and is distributed, where there are several such
sovereigns, according to the rules applicable to neigh-
bouring proprietors on a lake or river, supposing no
compact has been made, " as is pretended," he says,
"by Great Britain"; but he expresses himself with a
sort of indignation at the idea that the main ocean can
ever be appropriated (d). The authority of Vattel would
be full and explicit to the same purpose, were it not
weakened by the concession, that though the exclusive
right of navigation or fishery in the sea cannot be claimed
by one nation on the ground of immemorial use, nor lost
to others by non-user, on the principle of prescription,
yet it may be thus established where the non-user
assumes the nature of a consent or tacit agreement,
and thus becomes a title in favour of one nation against
another (^). „ -g-
On reviewing this celebrated controversy it may be B«ww of the
aflBrmed, that if those public jurists who have asserted
{b) Paolo Sarpi, Del Dominio del Mare (0) Droit des Qens, Ut. i. ch. 23,
Adriatico e eux Reg-gioni per o Jua Belli {) 279 — 286. Ab to the maritime police
della Serenisaima Bop. di Venezia, Venet. which may be exercised \}j any partis
1676, 12°. onlar nation, on the high seas, for the
{e) De Dominio Maris, Opera Minora, punishment of offences committed on
Dissert V., first pubUshed in 1702. lb. . board its own yessels, or tilie suppres-
oap. vii. ad finem. sion of piracy and the African slave
(</)De Jure Nature etOentinm, lib. iv. trade, ru^ wpra^-gt, ii. oh. ii. }§ 106,
cap. 5, §7. 122.
u2
292 RIGHTS OF PROPEBTY.
Part n. the exclusive right of property in any particular nation
over portions of the sea, have failed in assigning suffi-
cient grounds for such a claim, so also the arguments
alleged by their opponents for the contrary opinion
must often appear vague, futile, and inconclusive.
There are only two decisive reasons applicable to the
question. The first is physical and material, which
alone would be sufficient ; but when coupled with the
second reason, which is purely moral, will be found
conclusive of the whole controversy.
I. Those things which are originally the common
property of all mankind, can only become the exclusive
property of a particular individual or society of men, by
means of possession. In order to establish the claim of
a particular nation to a right of property in the sea, that
nation must obtain and keep possession of it, which is
impossible.
II. In the second place, the sea is an element which
belongs equally to all men like the air. No nation,
then, has the right to appropriate it, even though it
might be physically possible to do so.
It is thus demonstrated, that the sea cannot become
the exclusive property of any nation. And, conse-
quently, the use of the sea for these purposes remains
open and common to all mankind (/).
We have abeady seen that, by the generally approved
usage of nations, which forms the basis of international
law, the maritime territory of every State extends :
Ist. To the ports, harbours, bays, mouths of rivers,
and adjacent parts of the sea inclosed by headlands,
belonging to the same State.
2ndly. To the distance of a marine league, or as far
as a cannon-shot will reach from the shore, along all the
coasts of the State.
Srdly. To the straits and sounds, bounded on both
(/) Ortolan, B^les IntematlonakBetDiplQiiuttie dela ^er, torn. i. pp. 120—126*
BIGHTS OP PEOPERTY. 293
sides of the territory of the same State, so narrow as to Chap. IV.
be commanded by cannon-shot from both shores, and
communicating from one sea to another (ff). « - gg
The reasons which forbid the assertion of an exclusive i^orte, moutha
proprietary right to the sea in general, will be found "^^'
inapplicable to the particular portions of that element
included in the above designations.
1. Thus, in respect to those portions of the sea which
form the ports, harbours, bays, and mouths of rivers of
any State where the tide ebbs and flows, its exclusive
right of property, as well as sovereignty, in these waters,
may well be maintained, consistently with both the
reasons above mentioned, as applicable to the sea in
general. The State possessing the adjacent territory,
by which these waters are partially surrounded and
inclosed, has that physical power of constantly acting
upon them, and, at the same time, of excluding, at its
pleasure, the action of any other State or person, which,
as we have already seen, constitutes possession. These
waters cannot be considered as having been intended by
the Creator for the common use of all mankind, any
more than the adjacent land, which has already been
appropriated by a particular people. Neither the
material nor the moral obstacle, to the exercise of the
exclusive rights of property and dominion, exists in this
case. Consequently, the State, within whose territorial
limits these waters are included, has the right of
excluding every other nation from their use. The
exercise of this right may be modified by compact,
express or implied; but its existence is founded upon
the mutual independence of nations, which entitles
every State to judge for itself as to the manner in which
the right is to be exercised, subject to the equal reci-
procal rights of all other States to establish similar
regulations, in respect to their own waters (h). § 139.
2. It may, perhaps, be thought that these considera- ^©marine
tions do not apply, with the same force, to those portions
{jf) rttU iypra, \ 174. (A) Ftkfe tupra, pt. U. oh. 2, {{ 177—181.
294 RIGHTS OF PBOPKBTY.
Part n. of the sea which wash the coasts of any particular State,
within the distance of a marine league, or as far as a
cannon-shot will reach from the shore. The physical
power of exercising an exclasive property and juris-
diction, and of excluding the action of other nations
within these limits, exists to a certain degree ; but the
moral power may, perhaps, seem to extend no further
than to exclude the action of other nations to the injury
of the State by which this right is claimed. It is upon
this ground that is founded the acknowledged immunity
of a neutral State from the exercise of acts of hostility,
by one belligerent power against another, within those
limits. This claim has, however, been sometimes ex-
tonded to exclude other nations from the innocent use of
the waters washing the shores of a particular State, in
peace and in war ; as, for example, for the purpose of
participating in the fishery, which is generally appro-
priated to the subjects of the State within that distance
of the coasts. This exclusive claim is sanctioned both
by usage and convention, and must be considered as
S 190. forming a part of the positive law of nations (*).
stnuBmnd 3. As to straits and sounds, bounded on both sides by
Bounds. , "^
the territory of the same State, so narrow as to be com-
manded by cannon-shot from both shores, and communi-
cating from one sea to another, we have already seen
that the territorial sovereignty may be limited, by the
right of other nations to navigate the seas thus connected.
The physical power which the State, bordering on both
sides the sound or strait, has of appropriating its waters,
and of excluding other nations from their use, is here
encountered by the moral obstacle arising from the right
of other nations to communicate with each other. If the
Straits of Gibraltar, for example, were bounded on both
sides by the possessions of the same nation, and if they
were sufficiently narrow to be commanded by cannon-
shot from both shores, this passage would not be the less
(i) MarteoBy Tr&aa da Droit des Oens Moderae de rEoiope, { 153. Vattel,
Bioit deB OeoB, lir. L o. 23, i 287.
BIGHTS OF PROPERTY. 295
freely open to all nations ; since the navigation, both of Chap. IV.
the Atlantic Ocean and the Mediterranean Sea, is free to ^
all. Thus it has already been stated that the navigation
of the Dardanelles and the Bosphorus, by which the
Mediterranean and Black Seas are connected together, is
free to all nations, subject to those regulations which are
indispensably necessary for the security of the Ottoman
Empire. In the negotiations which preceded the sig-
nature of the treaty of intervention, of the IStli of July,
1840, it was proposed, on the part of Russia, that an
article should be inserted in the treaty, recognizing the
permanent rule of the Ottoman Empire, that, whilst that
empire is at peace, the Straits, both of the Bosphorus and
the Dardanelles, are considered as shut against the ships
of war of all nations. To this proposition it was replied,
on the part of the British government, that its opinion
respecting the navigation of these Straits by the ships of
war of foreign nations rested upon a general and funda-
mental principle of international law. Every State is
considered as having territorial jurisdiction over the sea
which washes its shores, as far as three miles from low-
water mark; and, consequently, any strait which is
bounded on both sides by the territory of the same sove-
reign, and which is not more than six miles wide, lies
within the territorial jurisdiction of that sovereign. But
the Bosphorus and Dardanelles are bounded on both
sides by the territory of the Sultan, and are in most parts
less than six miles wide; consequently his territorial
jurisdiction extends over both those Straits, and he has
a right to exclude all foreign ships of war from those
Straits, if he should think proper so to do. By the
Treaty of 1809, Great Britain acknowledged this right
on the part of the Sultan, and promised to acquiesce in
the enforcement of it ; and it was but just that Russia
should take the same engagement. The British govern-
ment was of opinion, that the exclusion of all foreign
ships of war from the two Straits would be more con-
ducive to the maintenance of peace, than an under-
standing that the Strait in question should be a general
TheDar<
296 RIGHTS OF PKOPEBTY.
Part n. thoroughfare, open, at all times, to ships of war of all
countries ; but whilst it was willing to acknowledge by
treaty, as a general principle and as a standing rule, that
the two Straits should be closed for all ships of war, it
was of opinion, that if, for a particular emergency, one
of those Straits should be open for one party, the other
ought, at the same time, to be open for other parties, in
order that there should be the same parity between the
condition of the two Straits, when open and shut ; and,
therefore, the British government would expect that, in
that part of the proposed Convention which should allot
to each power its appropriate share of the measures of
execution, it should be stipulated, that if it should be-
come necessary for a Russian force to enter the Bosphorus,
a British force should, at the same time, enter the
§ 191. Dardanelles.
It was accordingly declared, in the 4 th article of the
Convention, that the co-operation destined to place the
Straits of the Dardanelles and the Bosphorus and the
Ottoman capital under the temporary safeguard of the
contracting parties, against all aggression of Meheinet
Ali, should be considered only as a measure of exception,
adopted at the express request of the Sultan, and solely
for his defence, in the single case above mentioned ; but
it was agreed that such measure should not derogate, in
any degree, from the ancient rule of the Ottoman
Empire, in virtue of which it had, at all times, been pro-
hibited for ships of war of foreign powers to enter those
Straits. And the Sultan, on the one hand, declared that,
excepting the contingency above mentioned, it was his
firm resolution to maintain, in future, this principle in-
variably established as the ancient rule of his Empire,
and, so long as the Porte should be at peace, to admit no
foreign ship of war into these Straits ; on the other hand,
the four powers engaged to respect this determination,
and to conform to the above-mentioned principle.
This rule, and the engagement to respect it, as we
have already seen, were subsequently incorporated into
the treaty of the 13th July^ 1841, between the five great
EIGHTS OF PROPEKTY. 297
European Powers and the Ottoman Porte ; and as the Chap. lY.
right of the private merchant vessels of all nations, in
amity with the Porte, to navigate the interior waters of
the Empire, which connect the Mediterranean and Black
* Seas, was recognized by the Treaty of Adrianople, in
1829, between Russia and the Porte ; the two principles
— the one excluding foreign ships of war, and the other
admitting foreign merchant vessels to navigate those
waters — may be considered as permanently incorporated
into the public law of Europe (k). o 202.
The territory of the State includes the lakes, seas, and Rivera
• •••• • formingr
rivers, entirely enclosed within its limits. The rivers part of the
which flow through the territory also form a part of the theState^
domain, from their sources to their mouths, or as far
as they flow within the territory, including the bays or
estuaries formed by their junction with the sea. Where
a navigable river forms the boundary of conterminous
States, the middle of the channel, or Thahveff, is generally
taken as the line of separation between the two States,
the presumption of law being that the right of navi-
gation is common to both ; but this presumption may be
destroyed by actual proof of prior occupancy and long
undisturbed possession, giving to one of the riparian
proprietors the exclusive title to the entire river (/). ^ jgg
Things of which the use is inexhaustible, such as the RigSt of
sea and running water, cannot be so appropriated as to paaeago on
exclude others from using these elements in any manner Srough^^"**
which does not occeision a loss or inconvenience to the steteT*
proprietor. This is what is called an innocent use. Thus
we have seen that the jurisdiction possessed by one nation
over sounds, straits, and other arms of the sea leading
through its own territory to that of another, or to other
seas common to all nations, does not exclude others from
the right of innocent passage through these communi-
cations. The same principle is applicable to rivers flow-
{k) Wheaton, Hist. Law of Nations, oh. 22, { 266. Hartens, Precis da Droit
pp. 677—588. See p. 288, ants, des Gens Modeme de TEupope, liy. ii.
oh. 1, } 39. He£Fter, das Enropaisohe
(0 Vatfcd, Droit des Gens, Ut. i. V61kerredht, }} 66—77.
298
KlGUXti OF PBOPKKTY.
Partn.
§194.
Incidental
right to use
the banks of
the riyen.
§196.
These rights
are imperfect.
§196.
Modification
of these rights
by compact.
ing from one State through the territory of another into
the sea, or into the territory of a third State. The right
of navigating, for commercial purposes, a river which
flows through the territories of different States, is com-
mon to all the nations inhabiting the different parts of its
banks ; but this right of innocent passage being what the
text-writers call an imperfect right^ its exercise is neces-
sarily modified by the safety and convenience of the
State affected by it, and can only be effectually secured
by mutual convention regulating the mode of its exer-
cise (m).
It seems that this right draws after it the incidental
right of using all the means which are necessary to the
secure enjoyment of the principal right itself. Thus the
Roman law, which considered navigable rivers as public
or common property, declared that the right to the use
of the shores was incident to that of the water ; and that
the right to navigate a river involved the right to moor
vessels to its banks, to lade and unlade cargoes, &c. The
public jurists apply this principle of the Roman civil law
to the same case between nations, and infer the right to
use the adjacent land for these purposes, as means neces-
sary to the attainment of the end for which the free
navigation of the water is permitted (w).
The incidental right, like the principal right itself, is
imperfect in its nature, and the mutual convenience of
both parties must be consulted in its exercise.
Those who are interested in the enjoyment of these
rights may renounce them entirely, or consent to modify
them in such manner as mutual convenience and policy
may dictate. A remarkable instance of such a renun-
ciation is found in the Treaty of Westphalia, 1648,
confirmed by subsequent treaties, by which the navigation
of the river Scheldt was closed to the Belgic provinces,
(m) (}rotius, de Jur. Bel. ao Pao.
lib. ii. cap. 2, }} 12—14 ; cap. 8, §{ 7—
12. Vattel, Droit dee Gens, liv. ii.
ch. 9, §§ 126—130 ; oh. 10, §} 132—134.
Puflendorf , de Jar. Naturae et Gentium,
lib. iii. cap. 3, {§ 3 — 6.
(it) GrotiuB, de Jur. BeL ao Pac. lib. ii.
cap. 2, { 15. Puflendorf, de Jur. NatunD
et Gentium, lib. iii. cap. 3, { 8. Vattel,
Proit dea Gens, liy. ii. oh. 9, i 129.
EIGHTS OF PROPERTY.
299
in favour of the Dutch. The forcible opening of this Chap. IV.
navigation by the French on the occupation of Belgium
by the arms of the French Republic, in 1792, in viola-
tion of these treaties, was one of the principal ostensible
causes of the war between France on one side, and
Great Britain and Holland on the other. By the
Treaties of Vienna, the Belgic provinces were united
to Holland under the same sovereign, and the naviga-
tion of the Scheldt was placed on the same footing of
freedom with that of the Rhine and other great
Em'opean rivers. And by the Treaty of 1831, for the
separation of Holland from Belgium, the free navigation
of the Scheldt was, in like manner, secured, subject
to certain duties, to be collected by the Dutch govern-
ment (o).
J 196a.
emption
and most of the European Powers, by which Belgium agreed to sup- ^^^ Scheldt
press the tolls on the Scheldt. Holland had renounced her claims to
the tolls on the 12th of May of the same year, in consideration of an
indemnity paid to her by Belgium (/?). The suppression of the tolls
was to apply to every flag, and they were never to be re-established.
Belgium also agreed to abolish tonnage dues in her ports, and to
reduce the pilotage rates previously charged; but this was only to
apply to countries which were parties to the treaty (q). As a compen-
sation, the signatory powers agreed to indemnify Belgium against the
claims she had become liable to, under the treaty with Holland, and
to pay her a total sum, assessed in certain proportions among the con-
tracting parties (r).
c joy
By the Treaty of Vienna in 1815, the commercial Treaties of
navigation of rivers, which separate different States, or ^^^
flow through their respective territories, was declared to eJLS^
be entirely free in their whole course, from the point 'i^®"-
where each river becomes navigable to its mouth ; pro-
vided that the regulations relating to the police of the
navigation should be observed, which regulations were
(o) Wheaton, Hist. Law of Nations, [q) The United States were not a
pp. 282—284, 552. party.
(/?) Hertslet, Map of Europe by (r) Hertslet, Hap of Europe by
Treaty, vol. ii. p. 1632. Treaty, yoI. ii. p. 1650.
300
RIGHTS OF PROPERTY.
Part n. to bo uniform, and as favourable as possible to the com-
merce of all nations (s).
By the Annexe xvi. to the final act of the Congress of
Vienna, the free navigation of the Rhine is confirmed
" in its whole course, from the point where it becomes
navigable to the sea, ascending or descending;" and
detailed regulations are provided respecting the naviga-
tion of that river, and the Neckar, the Mayn, the
Moselle, the Meuse, and the Scheldt, which are declared
in like manner to be free from the point where each of
these rivers becomes navigable to its mouth. Similar
regulations respecting the free navigation of the Elbe
were established among the powers interested in the
commerce of that river, by an Act signed at Dresden the
12th December, 1821. And the stipulations between
the different powers interested in the free navigation of
the Vistula and other rivers of ancient Poland contained
in the treaty of the 3rd May, 1815, between Austria and
Russia, and of the same date between Russia and
Piiissia, to which last Austria subsequently acceded, are
confirmed by the final act of the Congress of Vienna.
The same treaty also extends the general principles
adopted by the congress relating to the navigation of
rivers to that of the Po(^).
§ 197a.
Kayigation of These principlee were applied to the Danube by the Treaty of Parisi
the Danube. 1956 („), it ^as then declared that " The navigation of the Danube
cannot be subjected to any impediment or charge not expressly pro-
Tided for by the stipulations contained in the following articles ; in
consequence there shall not be levied any toll founded solely upon the
fact of the navigation of the river, nor any duty upon the goods which
may be on board of vessels. The reg^ations of police and of quaran-
tine to be established for the safety of the States separated or
traversed by that river, shall be so framed as to facilitate, as much
as possible, the passage of vessels. With the exception of such
regulations, no obstacle whatever shall be opposed to free naviga-
tion." A European commission was then appointed to manage the
navigation of the river, and to cany out the works necessary for this
purpose («).
(<) Wheaton, Hist. Law of Nations, art. 14, 118, 96.
pp. 498— 501. « (m) Art. XV. Hertalet, Map of Europe
{t) Mayer, Corpus Juris Germanioi, by Treaty, toI. ii. p. 1257.
torn. ii. pp. 224—239, 298. Aote Baal, {x) Art. xvii.
RIGHTS OP PROPERTY. 301
In 1865, a public Act was promulgated by the parties to the Treaty Chap. IV.
of FariSy by which all the works of the Danube Commission, together — —
with its members and servants, were declared neutral in case of war. Neutrality of
This principle was re-affirmed in the Treaty of 1871 ; but the right of the River and
Turkey, as territorial power, to send vessels of war into the river was gio^ ™™""
maintained (y). When war broke out between Russia and Turkey in
1877, some stoppage of the navigation became inevitable, as the lower
part of the river was at first the actual seat of war. Both Austria and
England addressed notes on the subject to the Governments of Eussia
and Turkey. It was admitted that the incidents of war might cause
temporary obstacles to the navigation of the Danube ; but a demand
was made that this exceptional situation should not be invoked as a
precedent to the prejudice of the liberty of navigation, and that the
measures restricting this liberty, which might become indispensable,
should be regulated on international principles, and should not over-
step the limits traced by the most imperious necessity. As soon as the
circumstances of the war permitted, the belligerents were immediately
to restore the freedom of navigation (z). To this both parties replied,
that they would confine their restrictions on the freedom of neutral
commerce to the narrowest limits that the necessities of the war would
admit, and that these restrictions would be removed as soon as
possible (a). Throughout the discussion it was admitted that the
existing international arrangements did not imply the absolute neu-
trality of the river way. The works of the Danube Commission could
alone claim this exemption from the effects of war.
By Articles 52 — 57 of the Treaty of Berlin, all fortresses on the
Danube, from the Iron Gates downwards, were to be razed, and no new
ones erected, and no vessel of war, except light poHce and customs
vessels, is to navigate the river below the same point. Boumania is
added to the European Oommission, and the functions of the Commis-
sion are extended to Galatz(&). By a treaty signed in London,
10th March, 1883, between the signatories to the Berlin Treaty, the
duration of the commission is prolonged to 24th April, 1904, and its
authority is extended to Ibraila, which is the limit to which great ships
are able to ascend (c).
c 198.
The interpretation of the above stipulations respecting Na^f^ation of
the free navigation of the Rhine, gave rise to a contro-
versy between the kingdom of the Netherlands and the
other States interested in the commerce of that river.
(y) Pari. Papeni, Turkey (No. 29), (a) Ibid. Turkey (No. 26), 1877,
1878, p. 26. HerUlet, Map, yol. iU. pp. 26, 118.
p. 1922. (3) Appendix F.
{z) Pari. Papers, Turkey (No. 26), {e) Pari. Papers, 1883, Dannbei
1877, pp. 286, 294. No. 6 ; Holland, p. 283.
302 RIGHTS OP PROPERTY,
Part II. The Dutch government claimed the exclusive right of
regulating and imposing duties upon the trade, within
its own territory, at the places where the different
branches into which the Rhine divides itself fall into the
sea. The expression in the Treaties of Paris and Vienna
^^jusqu^a la mevj^ to the sea, was said to be different in
its import from the term ^^ dans la mer^ into the sea;
and, besides, it was added, if the upper States insist so
strictly upon the terms of the treaties they must be con-
tented with the course of the proper Rhine itself. The
mass of waters brought down by that river, dividing
itself a short distance above Nimeguen, is carried to the
sea through three principal channels, the Waal, the Leek,
and the Yssel ; the first descending by Gorcum, where it
changes its name for that of the Mouse; the second
approaching the sea at Rotterdam; and the third, taking
a northerly course by Zutphen and Deventer, empties
itself into Zuyderzee. None of these channels, however,
is called the Rhine ; that name is preserved to a small
stream which leaves the Leek at Wyck, takes its course
by the learned retreats of Utrecht and Leyden, gradually
dispersing and losing its waters among the sandy downs
at Kulwyck. The proper Rhine being thus useless for
the purposes of navigation, the Leek was substituted for
it by common consent of the powers interested in the
question ; and the government of the Netherlands after-
wards consented that the Waal, as being better adapted
to the purposes of navigation, should be substituted for
the Leek. But it was insisted by that government that
the Waal terminates at Gorcum, to which the tide
ascends, and where, consequently, the JR-hine terminates ;
all that remains of that branch of the river from Gorcum
to Helvoetsluys and the mouth of the Mouse is an arm of
the sea, inclosed within the territory of the kingdom, and
consequently subject to any regulations which its govern-
ment may think fit to establish.
On the other side, it was contended by the powers
interested in the navigation of the river, tJiat the stipu-
lations in the Treaty of Paris, in 1814, by which the
RIGHTS OF PROPERTY. 303
sovereignty of the House of Orange over Holland was CJliap. IV.
revived, with an accession of territory, and the naviga-
tion of the Rhine was, at the same time, declared to be
free " from the point where it becomes navigable to the
sea," were inseparably connected in the intentions of the
allied powers who were parties to the treaty. The
intentions thus disclosed were afterwards carried into
effect by the Congress of Vienna, which determined the
union of Belgium to Holland, and confirmed the freedom
of the navigation of the Rhine, as a condition annexed
to this augmentation of territory which had been
accepted by the government of the Netherlands. The
right to the free navigation of the river, it was said,
draws after it, by necessary implication, the innocent
use of the different waters which unite it with the sea ;
and the expression '* to the sea " was, in this respect,
equivalent to the term ** into the sea," since the preten-
sion of the Netherlands to levy unlimited duties upon its
principal passage into the sea would render wholly useless
to other States the privilege of navigating the river within
the Dutch territory [d). ^ ^^
After a long and tedious negotiation, this question was The Rhine,
finally settled by the convention concluded at Mayence,
the 31st of March, 1831, between all the riparian States
of the Rhine, by which the navigation of the river was
declared free from the point where it becomes navigable
into the sea {bis in die See\ including its two principal
outlets or mouths in the kingdom of the Netherlands,
the Leek and the Waal, passing by Rotterdam and Briel
through the first-named watercourse, and by Dordrecht
and Helvoetsluys through the latter, with the use of the
artificial communication by the canal of Voome with
Helvoetsluys. By the terms of this treaty the govern-
ment of the Netherlands stipulates, in case the passages
by the main sea by Briel or Helvoetsluys should at any
time become innavigable, through natural or artificial
causes, to indicate other watercourses for the navigation
(d) Annnal Register for 1826| vol. Ixviii. pp. 269^863.
304
RIGHTS OF PBOPERXy,
Part II. and commerce of the riparian States, equal in conveni-
ence to those which may be open to the navigation and
commerce of its own subjects. The convention also
provides minute regulations of police and fixed toll-
duties on vessels and merchandise passing through the
Netherlands temtory to or from the sea, and also by
the different ports of the upper riparian States on thd
§ 200. Rhine (e).
S'Sr^'''' By the Treaty of Peace concluded at Paris in 1763,
Misaasippi. between France, Spain, and Great Britain, the province
of Canada was ceded to Great Britain by France, and
that of Florida to the same power by Spain, and the
boundary between the French and British possessions in
North America was ascertained by a line drawn through
the middle of the river Mississippi from its source to the
Iberville, and from thence through the latter river and
the lakes of Maurepas and Pontchartrain to the sea.
The right of navigating the Mississippi was at the same
time secured to the subjects of Great Britain from its
source to the sea, and the passages in and out of its
mouth, without being stopped, or visited, or subjected to
the payment of any duty whatsoever. The province of
Louisiana was soon afterwards ceded by France to
Spain ; and by the Treaty of Paris, 1783, Florida was
retroceded to Spain by Great Britain. The indepen-
dence of the United States was acknowledged, and the
right of navigating the Mississippi was secured to the
citizens of the United States and the subjects of Great
Britain by the separate treaty between these powers.
But Spain having become thus possessed of both banks
of the Mississippi at its mouth, and a considerable
distance above its mouth, claimed its exclusive naviga-
tion below the point where the southern boundary of the
United States struck the river. This claim was resisted,
and the right to participate in the navigation of the
river from its source to the sea was insisted on by the
United States, under the treaties of 1763 and 1783, as
(s) Martens, Nonyeaa Recneil, torn. iz. p. 252.
EIGHTS OP PROPERTY. 80S
well as by the law of nature and nations- The dispute Chap. lY.
was terminated by the Treaty of San Lorenzo el Real,
in 1795, by the 4th article of which his Catholic Majesty
agreed that the navigation of the Mississippi, in its whole
breadth, from its source to the ocean, should be free to
the citizens of the United States: and by the 22nd
article, they were permitted to deposit their goods at
the port of New Orleans, and to export them from
thence, without paying any other duty than the hire of
the warehouses. The subsequent acquisition of Louisiana
and Florida by the United States having included within
their territory the whole river from its source to the
Gulf of Mexico, and the stipulation in the treaty of
1783, securing to British subjects a right to participate
in its navigation, not having been renewed by the
Treaty of Ghent in 1814, the right of navigating the
Mississippi is now vested exclusively in the United
States.
The right of the United States to participate with ciaim of tk©
Spain in the navigation of the river Mississippi, was ^^^
rested by the American government on the sentiment
written in deep characters on the heart of man, that
the ocean is free to all men, and its rivers to all their
inhabitants. This natural right was found to be univer-
sally acknowledged and protected in all tracts of country,
united under the same political society, by laying the
navigable rivers open to all their inhabitants. When
these rivers enter the limits of another society, if the
right of the upper inhabitants to descend the stream
was in any case obstructed, it was an act of force by a
stronger society against a weaker, condemned by the
judgment of mankind. The, then, recent case of the
attempt of the Emperor Joseph II. to open the naviga-
tion of the Scheldt from Antwerp to the sea, was con-
sidered as a striking proof of the general union of
sentiment on this point, as it was believed that Amster-
dam had scarcely an advocate out of Holland, and even
there her pretensions were advocated on the ground of
treaties, and not of natural right. This sentiment of
w. X
806 KIGHTS OP PROPERTY.
Partn. right in favour of the upper inhabitants must become
stronger in the proportion which their extent of country
bears to the lower. The United States held 600,000
square miles of inhabitable territory on the Mississippi
and its branches, and this river, with its branches,
afforded many thousands of miles of navigable waters
penetrating this territory in all its parts. The inhabit-
able territory of Spain below their boundary and border-
ing on the river, which alone could pretend any fear of
being incommoded by their use of the river, was not the
thousandth part of that extent. This vast portion of the
territory of the United States had no other outlet for its
productions, and these productions were of the bulkiest
kind. And, in truth, their passage down the river
might not only be innocent, as to the Spanish subjects
on the river, but would not fail to enrich them far
beyond their actual condition. The real interests, then,
of the inhabitants, upper and lower, concurred in fact
S 202 '^^^^ their respective rights.
Legal view of If the appeal was to the law of nature and nations, as
^' expressed by writers on the subject, it was agreed by
them, that even if the river, where it passes between
Florida and Louisiana, were the exclusive right of Spain,
still an innocent passage along it was a natural right in
those inhabiting its borders above. It would, indeed, be
what those writers call an imperfect right, because the modi-
fication of its exercise depends, in a considerable degree,
on the conveniency of the nation through which they
were to pass. But it was still a riffhty as real as any other
right, however well defined : and were it to be refused,
or to be so shackled by regulations not necessary for the
peace or safety of the inhabitants, as to render its use
impracticable to us, it would then be an injmy, of which
we should be entitled to demand redress. The right of
the upper inhabitants to use this navigation was the
counterpart to that of those possessing the shores below,
and founded in the same natural relations with the soil
and water. And the line at which their respective rights
met was to be advanced or withdrawn, so as to equalize
RIGHTS OF PROPERTY. 807
the inconveniences resulting to each party from the Cliap.IV.
exercise of the right by the other. This estimate was
to be fairly made with a mutual disposition to make
equal sacrifices, and the numbers on each side ought to
have their due weight in the estimate, Spain held so
very small a tract of habitable land on either side below
our boundary, that it might in fact be considered as a
strait in the sea ; for though it was eighty leagues from
our southern boundary to the mouth of the river, yet it
was only here and there in spots and slips that the land
rises above the level of the water in times of inundation.
There were then, and ever must be, so few inhabitants
on her part of the river, that the freest use of its naviga-
tion might be admitted to us without their annoyance (/).
It was essential to the interests of both parties that the
navigation of the river should be free to both, on the
footing on which it was defined by the Treaty of Paris,
viz., through its whole breadth. The channel of the
Mississippi was remarkably winding, crossing and re-
crossing perpetually from one side to the other of the
general bed of the river. Within the elbows thus made
by the channel, there was generally an eddy setting
upwards, and it was by taking advantage of these
eddies, and constantly crossing from one to another of
them, that boats were enabled to ascend the river.
Without this right the navigation of the whole river
would be impracticable both to the Americans and
Spaniards.
It was a principle that the right to a thing gives a
right to the means without which it could not be used,
that is to say, that the means follow the end. Thus a
right to navigate a river draws to it a right to moor
vessels to its shores, to land on them in cases of distress,
or for other necessary purposes, &c. This principle was
founded in natural reason, was evidenced by the common
(/) The aathorities referred to on this 13 ; c. 3, §§ 7—12. PufPendorf, Ub. iii.
head were the foUowing: Grotins, de <»P- 3, {{ 3-6. Wolff's Inst. {{ 310—
Jur. Bel. ac Pao. Ub. ii. cap. 2, « 11- JJ^. Vattel, Uy. i. 292 ; liy. i. » 123-
139.
x2
308
RIGHTS OF PROPERTY.
^^•rtll. sense of mankind, and declared by the writers before
quoted.
The Roman law, which, like other municipal laws,
placed the navigation of their rivers on the footing of
nature, as to their own citizens, by declaring them
public, declared also that the right to the use of the
shores was incident to that of the water (^). The laws
of every country probably did the same. This must
have been so understood between France and Great
Britain at the Treaty of Paris, where a right was ceded
to British subjects to navigate the whole river, and
expressly that part between the island of New Orleans
and the western bank, without stipulating a word about
the use of the shores, though both of them belonged
then to France, and were to belong immediately to
Spain. Had not the use of the shores been considered
as incident to that of the water, it would have been
expressly stipulated, since its necessity was too obvious
to have escaped either party. Accordingly all British
subjects used the shores habitually for the purposes
necessary to the navigation of the river; and when a
Spanish governor undertook at one time to forbid this,
and even cut loose the vessels fastened to the shores, a
British vessel went immediately, moored itself opposite
the town of New Orleans, and set out guards with orders
to fire on such as might attempt to disturb her moorings.
The governor acquiesced, the right was constantly exer-
cised afterwards, and no interruption ever offered.
This incidental right extends even beyond the shores,
when circumstances render it necessary to the exercise
of the principal right ; as in the case of a vessel damaged^
where the mere shore could not be a safe deposit for her
cargo till she could be repaired, she may remove into
safe ground off the river. The Roman law was here
quoted too, because it gave a good idea both of the
extent and the limitations of this right (A).
{g) Inst. liy. ii.t. 1, §§ 1—6. 1792. Waite's State Papers, vol. x.
(A) Mr. Jefferson's Instructions to pp, 135— 140.
XJ. S. Ministers in Spain, March 18,
BIGHTS OP PROPERTY.
309
The relative position of the United States and Great Chap. IV.
Britain in respect to the navigation of the great northern § 203.
lakes and the river St. Lawrence, appears to be similar ^^^1*'^°'^
to that of the United States and Spain, previously to s*- Lawrence.
the cession of Louisiana and Florida, in respect to the
Mississippi ; the United States being in possession of the
southern shores of the lakes and the river St. Lawrence
to the point where their northern boundary line strikes
the river, and Great Britain, of the northern shores of
the lakes and the river in its whole extent to the sea, as
well as of the southern banks of the river, from the
latitude 45*" north to its mouth.
The claim of the people of the United States, of a
right to navigate the St. Lawrence to and from the sea,
was, in 1826, the subject of discussion between the
American and British governments. « oq^
On the part of the United States government, this The
right is rested on the same grounds of natural right and
obvious necessity which had formerly been urged in
respect to the river Mississippi. The dispute between
different European powers respecting the navigation of
the Scheldt, in 1784, was also referred to in the corres-
pondence on this subject, and the case of that river was
distinguished from that of the St. Lawrence by its
peculiar circumstances. Among others, it is known to
have been alleged by the Dutch, that the whole course
of the two branches of this river which passed within
the dominions of Holland was entirely artificial ; that it
owed its existence to the skill and labour of Dutchmen ;
that its banks had been erected and maintained by them
at a great expense. Hence, probably, the motive for
that stipulation in the Treaty of Westphalia, that the
lower Scheldt, with the canals of Sas and Swin, and
other mouths of the sea adjoining them, should be kept
closed on the side belonging to Holland. But the case
of the St. Lawrence was totally different, and the prin*
ciples on which its free navigation was maintained by
the United States had recently received an unequivocal
confirmation in the solemn act of the principal States of
310 RIGHTS OP PROPERTY.
Fart II. Europe. In the treaties concluded at the Congress of
Vienna, it had been stipulated that the navigation of the
Rhine, the Neckar, the Mayn, the Moselle, the Maese,
and the Scheldt, should be free to all nations. These
stipulations, to which Great Britain was a party, might
be considered as an indication of the present judgment
of Europe upon the general question. The importance
of the present claim might be estimated by the fact, that
the inhabitants of at least eight States of the American
Union, besides the territory of Michigan, had an imme-
diate interest in it, besides the prospective interests of
other parts connected with this river and the inland seas
through which it communicates with the ocean. The
right of this great and growing population to the use of
this its only natural outlet to the ocean, was supported
by the same principles and authorities which had been
urged by Mr. Jefferson in the negotiation with Spain
respecting the navigation of the river Mississippi. The
present claim was also fortified by the consideration that
this navigation was, before the war of the American
Revolution, the common property of all the British
subjects inhabiting this continent, having been acquired
from France by the united exertions of the mother
country and the colonies, in the war of 1756. The
claim of the United States to the free navigation of the
St. Lawrence was of the same nature with that of Great
Britain to the navigation of the Mississippi, as recognized
by the 7th article of the Treaty of Paris, 1763, when
the mouth and lower shores of that river were held by
another power. The claim, whilst necessary to the
United States, was not injurious to Great Britain, nor
could it violate any of her just rights (i).
On the part of the British government, the claim was
considered as involving the question whether a perfect
right to the free navigation of the river St. Lawrence
could be maintained according to the principles and
practice of the law of nations.
(i) American Paper on the Naviga- Documents, Session 1827 — 1828, No. 43,
tion of the St. Lawrence. Congreas p. 34.
BIGHTS OP PROPERTY. 311
The liberty of passage to be enjoyed by one nation Chap. IV.
through the dominions of another was treated by the
most eminent writers on public law as a qualified, occa-
sional exception to the paramount rights of property.
They made no distinction between the right of passage
by a river, flowing from the possessions of one nation
through those of another, to the ocean, and the same
right to be enjoyed by means of any highway, whether
of land or water, generally accessible to the inhabitants
of the earth. The right of passage, then, must hold good
for other purposes, besides those of trade, — for objects of
war as well as for objects of peace, — for all nations, no
less than for any nation in particular, and be attached to
artificial as well as to natural highways. The principle
could not, therefore, be insisted on by the American
government, unless it was prepared to apply the same
principle by reciprocity, in favour of British subjects, to
the navigation of the Mississippi and the Hudson, access
to which from Canada might be obtained by a few
miles of land-carriage, or by the artificial communica-
tions created by the canals of New York and Ohio,
Hence the necessity which has been felt by the writers
on public law, of controlling the operation of a principle
so extensive and dangerous, by restricting the right of
transit to purposes of innocent utility, to be exclusively
determined by the local sovereign. Hence the right in
question is termed by them an imperfect right. But there
was nothing in these writers, or in the stipulations of the
Treaties of Vienna, respecting the navigation of the
great rivers of Germany, to countenance the American
doctrine of an absolute natural right. These stipula-
tions were the result of mutual consent, founded on con-
siderations of mutual interest growing out of the relative
situation of the different States concerned in this naviga-
tion. The same observation would apply to the various
conventional regulations which had been, at different
periods, applied to the navigation of the river Mississippi,
As to any supposed right derived from the simultaneous
acquisition of the St. Lawrence by the British and
312 BIGHTS OP PROPERTY.
Partn. American people, it could not be allowed to have sur-
vived the treaty of 1783, by which the independence of
the United States was acknowledged, and a partition of
the British dominions in North America was made
between the new government and that of the mother
§205. country (A).
st^Lawrence ^^ *^^® argument it was replied, on the part of the
United States, that, if the St. Lawrence were regarded
as a strait connecting navigable seas, as it ought pro-
perly to be, there would be less controversy. The
principle on which the right to navigate straits depends,
is, that they are accessorial to those seas which they
unite, and the right of navigating which is not exclusive,
but common to all nations ; the right to navigate the
seas drawing after it that of passing the straits. The
United States and Great Britain have between them the
exclusive right of navigating the lakes. The St. Law-
rence connects them with the ocean. The right to
navigate both (the lakes and the ocean) includes that of
passing from one to the other through the natural link.
Was it then reasonable or just that one of the two co-
proprietors of the lakes should altogether exclude his
associate from the use of a common bounty of nature,
necessary to the full enjoyment of them ? The distinc-
tion between the right of passage, claimed by one nation
through the territories of another, on land, and that on
navigable water, though not always clearly marked by
the writers on public law, has a manifest existence in the
natm'e of things. In the former case the passage can
hardly ever take place, especially if it be of numerous
bodies, without some detriment or inconvenience to the
State whose territory is traversed. But in the case of a
passage on water no such injury is sustained. The
American government did not mean to contend for any
principle, the benefit of which, in analogous circum-
stances, it would deny to Great Britain. If, therefore,
(k) Biitiah Paper on the Kayigation of the St. Lawrence. Session 1827 — 28,
No. 43, p. 41.
EIGHTS OP PROPERTY.
313
in the further progress of discovery, a connection should Chap. IV.
be developed between the river Mississippi and Upper
Canada, similar to that which exists between the United
States and the St. Lawrence, the American government
would be always ready to apply, in respect to the Missis-
sippi, the same principles it contended for in respect
to the St. Lawrence. But the case of rivers, which
rise and debouch altogether within the limits of the same
nation, ought not to be confounded with those which,
having their sources and navigable portions of their
streams in States above, finally discharge themselves
Avithin the limits of other States below. In the former
case, the question as to opening the navigation to other
nations depended upon the same considerations which
might influence the regulation of other commercial inter-
course with foreign States, and was to be exclusively
determined by the local sovereign. But in respect to
the latter, the free navigation of the river was a natural
right in the upper inhabitants, of which they could not
be entirely deprived by the arbitrary caprice of the
lower State. Nor was the fact of subjecting the use of
this right to treaty regulations, as was proposed at
Vienna to be done in respect to the navigation of the
European rivers, sufficient to prove that the origin of
the right was conventional, and not natural. It often
happened to be highly convenient, if not sometimes in-
dispensable, to avoid controversies by prescribing certain
rules for the enjoyment of a natural right. The law of
nature, though sufficiently intelligible in its great out-
lines and general purposes, does not always reach every
minute detail which is called for by the complicated
wants and varieties of modern navigation and commerce.
Hence the right of navigating the ocean itself, in many
instances, principally incident to a state of war, is sub-
jected, by innumerable treaties, to various regulations.
These regulations — the transactions of Vienna, and other
analogous stipulations — should be regarded only as the
spontaneous homage of man to the paramount Lawgiver
of the universe, by delivering his great works from the
314
KIGHTS OP PEOPEETY.
Fartn.
§a05a.
Treaty of
Washington,
1871, as to the
St. Lawrence.
§ 206b.
African
riyers.
§205c.
International
canals*
artificial shackles and selfish contrivances to which they
have been arbitrarily and unjustly subjected (/,).
It iB now settled by the Treaty of Washington, 1871, that ''The
navigation of the river St. Lawrence, ascending and descending, from
the 45th parallel of north latitude, where it ceases to form the
boundary between the two countries, from, to, and into the sea, shall
for ever remain free and open for the purposes of commerce to the
citizens of the United States, subject to any laws and regidations of
Great Britain, or of the Dominion of Canada, not inconsistent with
such privilege of free navigation " (m).
By the General Act of the Berlin Conference, 1885, the trade of all
nations, except in so far as any independent sovereign State may
neglect to apply this principle within its territory, is to enjoy complete
freedom in the basin of the Congo, its mouth and circumjacent regions,
extending to the Indian Ocean and the Zambesi. The signatoiy
parties bind themselves to respect the neutrality of the same free trade
zone, so long as the ruling power in any territory within it shall fulfil
the duties which neutrality requires; and in case any such power
shall be engaged in war, the signatoiy powers bind themselves to use
their good offices to the end that any territoiy within the free trade
zone, belonging to either belligerent, may be placed, in effect, in veiy
much the same position as though it were neutral territory. The
navigation of the Cod go is to remain free for the merchant ships of
all nations equally. The provisions of the Act of Navigation are to
remain in force in time of war. Consequently all nations, whether
neutral or belligerent, are to be always free, for the purposes of trade,
to navigate the Congo and the territorial waters fronting the embou-
chure of the river, except in so far as concerns the transport of articles
intended for a belligerent and, in virtue of the law of nations, regarded
as contraband of war. Provisions of a like nature are made in respect
of the navigation of the Niger (n).
The scientific progress of the world has added another mode of
water communication, viz., by international canals, which has given
rise to very important questions in international law. The Suez
canal, between the continents of Africa and Asia, has long been an
accomplished fact, and a successful commercial speculation ; while the
project of the Panama Canal, between North and South America, seems
at last to have recovered from the catastrophe which overwhelmed
M. de Lesseps and his unhappy shareholders, and possesses once
more a working chance of being ultimately realised. In the former
pf these cases the works are the property of a commercial corporation.
(/) Mr. Secretary Clay's letter to
Mr. Gallatin, June 19, 1826. Session
1827—1828, No. 43, p. 18.
(m) Art. xxvi. Treaty of Washing-
ton, 1871. See Appendix £.
(n) Hertslet, Map of Africa by Treaty,
p. 20.
BIGHTS OF PROPERTY. 315
and are situated entirely within the territories of the State where they Chap. IV.
are located. But their importance as maritime highways for the whole
world is, and will be, enormous, while their value to the actual States
where they are situated is merely confined to such local prosperity as
may be derived from the transit of passengers and goods through the
canals. Thus the question of keeping these waterways open at all
times, and under all circumstances, becomes one of paramount
importance to countries that have no direct connection with the States
where the canals are situated. In theory, Egypt and the newly
constituted Eepublic of Panama ought respectively to have absolute
control over the Suez and Panama Canals ; but the interests of other
countries in these works are so vast and far-reaching, that it is found
practically impossible to admit any such rights. The Suez Canal was
made chiefly with French capital, while three-fourths of the traffic
passing through it is English (o) ; and the maintenance of the military
connection between England and India makes the canal far more
important to England than to any other country. The United States
consider that, if the Panama Canal were made, it would render their
Western seaboard much more liable to attack by a European country
than it now is ; and on this ground they consider themselves to have a
most important interest in its control, although the canal is himdreds
of miles from the nearest point of their territoiy.
It is impossible to lay down any general rule to meet all such cases
as these. The situation of the waterway and the States whose com-
mercial or other interests require its maintenance must all be
considered. g 206d.
The considerationB noticed in the preceding section induced the The Saez
British government, in 1875, to purchase from the Elhedive of Egypt ^**^*
a large number of shares in the Suez Canal, which the latter owned
in his private capacity of shareholder. The Turko-Bussian War of
1877 gave lise to apprehensions lest either of the belligerents should
endeavour to close the canal, or commit acts of hostility in or near it ;
and strong opinions were expressed in the British Parliament to the
effect that Great Britain would insist on the canal being kept open.
M. de I^Bseps, the engineer of the canal and president of the com-
pany, on 10th May, 1877, laid before Lord Derby a proposal for its
neutralization. His lordship declined to accept the scheme as put
forward by M. de Lesseps, but he * intimated to the Bussian ambas-
sador that an attempt to blockade, or otherwise to interfere with the
canal or its approaches, would be regarded by Her Majesty's govern-
ment as a menace to India, and as a grave injury to the commerce of
the world." '' Any such step woidd be incompatible with the main-
tenance by Her Majesty's government of an attitude of passive
neutrality," *' Her Majesty's government will expect that the Porte
(o) In the year 1901, oat of a total of canal, 2,076, with a gross tonnage of
8,699 vesselB, with a gross tonnage of 8,651,016, weie British.
16,163,233, which passed through the
316 BIGHTS OP PBOPEBTY^
Part II ^^'^ the Khediye will on their aide abstain from impeding the navi-
. . gation of the canal, or adopting any measures likely to injure the
canal or its approaches, and they are firmly determined not to permit
the canal to be made the scene of any combat, or other warUke
operations'* (/)).
One main object of the British occupation of Egypt in 1882 was to
protect the canal against injury ; and in August of that year, British
war vessels and transports entered the canal, which was thereafter
used as the British base of operations, and was patrolled by armed
boats and launches belonging to Her Majesty's ships. These acts,
however, were done under the authority of the Khedive, and in his
interest (q)»
Early in 1883, Lord Granville had proposed to the powers that the
canal should be neutralized (r). By a declaration, which was signed
at London on the 17th March, 1885, by Lord Granville and the ambas-
sadors of Germany, Austria-Hungaiy, Erance, Italy, and [Russia,
and, on the last day but one of the same month, by Musurus Pacha on
behalf of Turkey, after reciting that the powers had agreed to recog-
nize the urgent necessity for negotiating with the object of sanction-
ing, by a Conventional Act, the establishment of a definite reg^ation
guaranteeing at all times, and for all powers, the freedom of the Suez
Canal, it is declared that it has been agreed between the seven
- governments that a commission composed of delegates named by the
said governments shall meet at Paris on the 30th March to prepare
and draw up this Act, taking for its basis the circular in which Lord
Granville had made the proposal above mentioned («).
The sittings of the commission terminated in the summer of the same
year. A general agreement upon many points had been arrived at,
but there were some on which a difiPerence of opinion still remained ;
the principal divergence being in reference to the question of super-
intendence to insure the execution of the treaty. After protracted
negotiations between the two governments (the chief points in dispute
being the one specified above, the extent of the area to be neutralized
— the French government wishing to indude the '' approaches " to the
canal, a strip of land on either side of it, and a large x>art of the
territorial waters of Egypt, while Great Britain was desirous of con-
fining the treaty to the canal itself, and its inmiediate ports — and as to
how far the territorial rulers, the Sultan, and the Khedive, should be
left unfettered to take such measures as they might think fit for
defending the canal from attack) a draft convention was signed by
M. Flourens and Mr. Egerton at Paris on the 24th October, 1887.
The draft was communicated by the French government to the other
(p) Lord Derby to Lord Lyons, 16th (r) Pari. Papers, Egypt, No. 2
May, 1877. Pari. Papers, Egypt, No. 1 (1882).
(0 Pari. Papers, Egypt, No. 6
^ ^ ^' (1886); Holland, Eniopean Concert,
{q) Ante, § 36b. pp. 194, 195.
RIGHTS OF PROPERTY. 317
powers, and after mnch correspondence, the Convention, which, as Chap. 17.
amended to suit Turkey, had been approved in the previous July by
Austria-Hungary, France, Germany, Great Britain, Italy, Bussia,
Spain, and the Netherlands, was finally signed at the Porte on the
29th October, 1888, by the representatives of all those powers and
Turkey, the ratifications being exchanged in the following De-
cember (0.
The effect of the Convention (ti) is to open the canal in time of war as
in time of peace, to every vessel of commerce or of war, without distinc-
tion of flag, and to free it from the exercise of the right of blockade.
But in time of war, the canal, as respects the ships of belligerents, will
be in a position analogous to that of a neutral port. The agents in
Egypt of the signatory powers are to watch over the execution of the
treaty, the necessary measures for insuring which are to be taken by
the Egyptian government. In case the Egyptian government should
not have sufficient means at its disposal, it is to call upon the Imperial
Ottoman Government, which is to take the necessary measures, giving
notice to the signatory powers of the Declaration of London of the
17th March, 1885 (and, apparently, in accordance with a diplomatic
understanding, to the Netherlands and Spain) (or), and concerting, if
necessary, with them on the subject. The provisions as to belligerent
vessels and the landing of troops, the stationing of war vessels, and
superintendence, are not to interfere with the measures which the
Sultan and the IQiedive may find it necessary to take for securing, by
their own forces, the defence of Egypt, and the maintenance of public
order, or occasion any obstacle to the measures which the Imperial
Ottoman Government may think it necessary to take in order to insure
by its own forces the defence of its other possessions situated on the
eastern coast of the Bed Sea. Though measures to be taken in either
of these respects are not to interfere with the free use of the canal,
none of the contracting parties are to endeavour to obtain, with
respect to the canal, territorial or commercial advantages or privileges.
The rights of Turkey as the territorial power are reserved, and, with
the exception of the obligations expressly provided by the treaty, the
sovereign rights of the Sultan, and the rights and immunities of the
Khedive, are in no way affected.
The signatory powers agreed, by a prior interchange of notes, that
the prohibition to disembark troops (troupes), in Article V. of the
Convention cannot be interpreted as depriving unarmed invalid soldiers
of access to the military hospitals at Suez and Port Said (y). » aak^
The idea of constructing a maritime canal across the isthmus that Panama
joins North and South America is by no means a new one. M. de *^ '
(Q ^arl. Papers, Egypt, No. 2 (1889). This point is left unsettled in the oorre-
(fi) See Appendix I. ^^^®
{x) Pari. Papers, Egypt, No. 2 (1889). (i888).
M See Appendix I. spondence as published.
^ ' *^*^ (y) Pari. Papers, Egypt, No. 1
818 RIGHTS OF PROPERTY;
Part IL Lesseps cannot daim to be the originator of the scheme, although he
is, as yet, the only person who has endeavoured to carry it out in
practice. In 1846, a treaty was ratified between the United States and
the Republic of Colombia (then called New Granada), by which a
right of transit over the Isthmus of Panama was given to the United
States, and the free transit over the Isthmus <' from the one to the
other sea " guaranteed by both the contracting powers. As a conse-
quence of this treaty, the Panama Bailroad was built by American
capital, and completed in 1855. In 1849, the United States entered
into another treaty with Nicaragua for the construction of a ship
canal from Oreytown (San Juan) on the Atlantic side to the Pacific
coast, by way of the lake of Nicaragua ; and the idea of carrying out
this work appears to have been seriously entertained at the time.
But the question was complicated by England claiming a protectorate
over the Mosquito Indians, in whose territory the Atlantic end of the
canal would of necessity be placed. The United States decUned to
admit the validity of this claim, but disputes were for the time being
avoided by a treaty (known as the Ciayton-Bulwer treaty) being
agreed to, whereby the proposed canal was placed under the joint
protection of England and the United States. By Article I. of this
treaty, both these governments declare ^Hhat neither the one nor the
other will ever obtain or maintain for itself any exdusive control
over the said ship canal; agreeing that neither wiU ever erect or
maintain any fortifications commanding the same, or in the vicinity
thereof, or occupy, or fortify, or colonize, or assume or exercise any
dominion over, Nicaragua, Oosta Bica, the Mosquito coast, or any
part of Central America." Nor were either government to ''take
advantage of any intimacy or use any alliance, connection, or influ-
ence, that either may possess with any State or Government through
whose territory the canal may pass for the purpose of acquiring or
holding, directly or indirectly, for the citizens or subjects of the one,
any rights or advantages in regard to conunerce or navigation through
the said canal which shall not be offered on the same terms to the
citizens or subjects of the other." By Article 11., it was provided
that, in case of war between the contracting parties, vessels of either
traversing the canal should be exempt from blockade, detention, or
capture by the other. By Article Y., the contracting parties further
engage that when the said canal shall have been completed, they will
protect it from interruption, seizure, or unjust confiscation, and that
they will guarantee the neutrality, so that the said canal may for ever
be open and free, and the capital invested therein secure." But this
protection might be withdrawn after six months' notice by either
party, if either or both were of opinion that the Canal Company were
making vexatious regulations, or unduly favouring the trade of one
party to the prejudice of the other. By Article YIII., Great Britain
and the United States also agreed to extend their protection to
any other communications across the isthmus, whether by railway or
canal.
RIGHTS OP PROPERTY. 3IS
The attempt of M. de Lesseps to construct a canal across the Isthmus Chap. 17.
of Panama, and its tragic failure, are matters of recent history.
During the course of the operations the United States showed a con-
stant apprehension lest the canal, when completed, should fall under
the control of any European power or combination of powers. At a
crisis in the affairs of the company, when it seemed possible that the
French government might be induced to afford financial or official
assistance, the United States Senate passed a resolution to the effect
that the American government would look with serious concern and
disapproval upon any connection of any European government with
the construction or control of any ship canal across the Isthmus of
Darien or Central America, and must regard any such connection or
control as injurious to the just rights of the United States, and a
menace to their welfare (2).
For some years the project of constructing a ship canal was in abey-
ance, but it was revived by the United States to whom the severance
of their Atlantic and Pacific sea-boards by the whole length of the
South American continent was growing more and more intolerable in
view of their annexation of the Hawaian Islands, and the prospective
expansion of American influence and commerce in the Pacific. Finally,
the government resolved upon the construction of a canal either across
the Isthmus of Panama, or through the territory of Nicaragua. But
before taking any further steps it was resolved to obtain a fuller con-
trol over the canal wlien completed than was permissible under the
terms of the Clayton-Bidwer treaty. In 1901 a treaty was negotiated
between Mr. Hay and Lord Pauncefote, then British Ambassador at
"Washington, by the 1st article of which the Clayton-Bulwer treaty,
therein described as the Convention of April 19th, 1850, was declared
to be superseded. By the 2nd article it was agreed that a canal might
be constructed under the auspices of the United States government,
either directly at its own cost or by a gift or loan of money to indi-
viduals or corporations, or through subscription to or purchase of stock
or shares ; and that, subject to the provisions of the present treaty,
the said government should have and enjoy all rights incident to such
construction, as well as the exclusive right of providing regulations for
the management of the canal. The 3rd article adopted as the basis of
the neutralization of the canal, rules borrowed from the Convention of
Constantinople of October 28th, 1888, for the free navigation of the
Suez Canal. Of these the most important was the first one : — '' That
the canal shall be free and open to vessels of conmierce and war of aU
nations observing these rules on the terms of entire equality, so that
there shaU be no discriminations against any such nation or its citizens
or subjects in respect of the conditions or charges of traffic or other-
-wise : such conditions and charges of traffic to be just and equitable."
It was further agreed that no change in the territorial sovereignty or
international relations of the country or countries traversed by the canal
(z) See Times for Jan. 8th, 1889.
820 EIGHTS OP PROPERTY.
Fart n. should affect the general principle of neutralization or the obligation
of the contracting parties.
The treaty was ratified by the Senate on the 16th of December, 1901 (a).
The Panama route was ultimately decided upon, but the Colombian
Government showed themselves unwilling to carry out the provisions
of the treaty of 1 84 1 , under which the United States claimed the right to
construct a canal. On November 5th, 1 903, a revolution on the Isthmus,
by which the inhabitants of the adjacent territory declared themselves
independent of the Colombian Government, resulted in the proclama-
tion of the Bepublic of Panama, whose existence was recognized with
remarkable promptitude by the United States ; and when President
Hoosevelt sent his message to Congress on December 7th, he was in
a position to lay before the Senate a treaty with the new Republic for
the building of a canal across the Isthmus of Panama.
(a) The negotiations which led to the be oat of place in these pages. See
eventual ratification of the Hay-Pannoe- Pari. Papers, United States, No. 1 (1900)
fote Treaty form a curious chapter in [Gd. 30] ; and Annual Register, 1900,
diplomatic history, but the details would p. 418.
321
PAET THIRD.
INTERNATIONAL EIGHTS OP STATES IN THEIE PACIFIC
EELATIONS.
CHAPTER I.
RIGHTS OF LEGATION.
There is no circumstance which marks more distinctly xjgage of *
the progress of modern civilization than the institution ^i^tio
of permanent diplomatic missions between different "^^"ions.
States. The rights of ambassadors were known, and,
in some degree, respected by the classic nations of
antiquity. During the middle ages they were less dis-
tinctly recognized, and it was not until the seventeenth
century that they were firmly established. The institu-
tion of resident permanent legations at all the European
courts took place subsequently to the Peace of Westphalia,
and was rendered expedient by the increasing interest of
the different States in each other's affairs, growing out
of more extensive commercial and political relations, and
more refined speculations respecting the balance of
power, giving them the right of mutual inspection as to
all transactions by which that balance might be affected.
Hence the rights of legation have become definitely
ascertained and incorporated into the international code. « ^^
Every independent State has a right to send public Right to send,
1... 1 • • • 1 p ii ftnd oblififa-
ministers to, and receive ministers from, any other tion to receiye
I obliga-
ito
sovereign State with which it desires to maintain the ^^^.
relations of peace and amity. No State, strictly speaking,
W. Y
322 BIGHTS OF LEGATION.
Partm. is obliged, by the positive law of nations, to send or
receive public ministers, although the usage and comity
of nations seem to have established a sort of reciprocal
duty in this respect. It is evident, however, that this
cannot be more than an imperfect obligation, and must
be modified by the nature and importance of the rela-
tions to be maintained between difiPerent States by means
of diplomatic intercourse (a).
Kighte of How far the rights of legation belong to dependent or
wCt^stat^ semi-sovereign States must depend upon the nature of
belonging, their peculiar relation to the superior State under whose
protection they are placed. Thus, by the treaty con-
cluded at Kinardgi, in 1774, between Russia and the
Porte, the provinces of Moldavia and Wallachia, placed
under the protection of the former power, have the right
of sending charges d'affaires of the Greek communion to
represent them at the Court of Constantinople {b).
So also of confederated States ; their right of sending
public ministers to each other, or to foreign States,
depends upon the peculiar nature and constitution of the
union by which they are bound together. Under the
constitution of the former German Empire, and that of
the Germanic Confederation, this right was preserved to
all the princes and States composing the federal union (c).
Such was also the former constitution of the United
Provinces of the Low Countries, and such is now that
of the Swiss Confederation. By the Constitution of the
United States of America every State is expressly for-
bidden from entering, without the consent of Congress,
into any treaty, alliance, or confederation, with any
(a) Vattel, I>roit dee Gena, lir. iv. united proyinoee are now called, has
oh. 5, }§ 56 — 65. Batheiforth*8 Insti* now aoqttired complete independence^
tates, Tol. ii. h. ii. ch. 9, § 20. ICartena, which is recognized hj the Treaty of
Precis da Droit des Gens Modeme de Berlin. This State has therefore the
rEorope, liv. yii. oh. 1, §} 187 — 190. right of sending diplomatic representa-
{b) Vattel, liy. iy. ch. 6, § 60. Kluher, tives to the Porte, and to other oonntries,
I^roit des Gens Modeme de TEaiope, ^^ *^® "*™« ierma as other independent
St. 2, tit. 2, oh. 3, § 176. Merlin, Re- States. See Treaty of Berlin, art. 43.
pertoire, tit. Ministre Fubiique, sect. ii. {e) It is now merged in that of the
f 1, No. 3, 4. Bonmaaia, as theee German Empire.
BIGHTS OP LEGATION. 823
other State of the Union, or with a foreign State, or Chap. I.
from entering, without the same consent, into any
agreement or compact with another State, or with a
foreign power. The original power of sending and
receiving pubKc ministers is essentially modified, if it be
not entirely taken away, by this prohibition (d).
The question, to what department of the government Howaflecied
belongs the right of sending and receiving public orw^teiJ*'
ministers, also depends upon the municipal constitution [^^^^«nty.
of the State. In monarchies, whether absolute or con-
stitutional, this prerogative usually resides in the sove-
reign. In republics, it is vested either in the chief
magistrate, or in a senate or council, conjointly with, or
exclusive of, such magistrate. In the case of a revolu-
tion, civil war, or other contest for the sovereignty,
although, strictly speaking, the nation has the exclusive
right of determining in whom the legitimate authority of
the country resides, yet foreign States must of necessity
judge for themselves whether they will recognize
the government de factOj by sending to, and receiving
ambassadors from, it; or whether they will continue
their accustomed diplomatic relations with the prince
whom they choose to regard as the legitimate sovereign,
or suspend altogether these relations with the nation in
question. So, also, where an empire is severed by the
revolt of a province or colony declaring and maintaining
its independence, foreign States are governed by expe-
diency in determining whether they will commence
diplomatic intercourse with the new State, or wait for
its recognition by the metropolitan country {e).
For the purpose of avoiding the difficulties which
might arise from a formal and positive decision of these
questions, diplomatic agents are frequently substituted,
who are clothed with the powers, and enjoy the immu-
nities, of ministers, though they are not invested with
{d) Heflter, das Enropaiaohe Volker- Motley's Life of Jolm Bajmeyeld, vol. i.
zeoht, { 200. Merlin, Repertoire, tit. oh. 1.
Minittre Fublique, seot. ii. { 1, No. 5. (e) Vide Mpra.Tt.l. ch. 2, {§ 23—27.
As to the reception of the Dutch am- Merlin, Repertoire, tit. Ministre Fud-
bassadors in the sixteenth century, see liqWj sect. ii. § 6.
y2
324
RIGHTS OF LEGATION.
Partm.
§a09a.
Commani-
oation with
rebels.
I 210.
titional
z^BOdptioii of
foreign
miniaten.
§211.
CUMifioatioxi
of public
miniaten.
the representative character, nor entitled to diplomatic
honours.
It was on this footing that Messrs. 81idell and Mason, the emissaries
of the Confederate States, who were seized on board The Trent^ were
sent to Europe (/). During the continuance of a rebellion^ although
foreign States may refuse to recognize the insurgents in any way, or
to enter into regular diplomatic intercourse with them, it sometimes
becomes necessary for the protection of their own conmierce and sub-
jects, that foreign States should communicate with the rebel autho-
rities. Lord Bussell has laid it down that ^' Her Majesty's Goyem-
ment hold it to be an undoubted principle of international law, that
when the persons or the property of the subjects or citizens of a State
are injured by a cfe facto government, the State so aggrieved has a
right to claim from the de facto government redress and reparation ;
and also that in cases of apprehended losses or injury to their sub-
jects, States may lawfully enter into communication with de facto
governments to provide for the temporary security of the persons and
property of their subjects" (y).
As no State is under a perfect obligation to receive
ministers from another, it may annex such conditions to
their reception as it thinks fit ; but when once received,
they are in all other respects entitled to the privileges
annexed by the law of nations to their public character.
Thus some governments have established it as a rule not
to receive one of their own native subjects as a minister
from a foreign power ; and a government may receive
one of its own subjects under the expressed condition
that he shall continue amenable to the local laws and
jurisdiction. So also one court may refuse to receive a
particular individual as minister from another court,
alleging the motives on which such refusal is grounded (A).
The primitive law of nations makes no other dis-
tinction between the different classes of public ministers,
(/) Wheaton, by Lawrence, p. 378,
n. 118. Pari. Papers, N. America, 1862
(No. 5), p. 34. See ante, Pt. II. eh. 2,
\ 109 h,
is) Earl EtLBaell to Mr. Adams, 26th
Nov. 1861. U. S. Dipl. Cor. 1862,
p. 8.
(A) Bynkershoek, de Foro Legatorum,
cap. 11, § 10. Martens, Manuel Diplo-
matique, ch. 1, { 6. Merlin, R6per-
toire, tit. Ministre Fublique, sect. iii.
§ 6. The latest recorded instance of the
exercise of this right oocuned in 1891,
when the Chinese Government refused
to accept as Minister of the United
States at Pekin a gentleman who had
used strong language in the Senate on
the occasion of the Chinese Exclusion
Bill. Annual Register, 1891.
RIGHTS OF LEGATION.
325
than that which arises from the nature of their functions; ,caiap. I.
but the modern usage of Europe having introduced into
the voluntary law of nations certain distinctions in this
respect, which, for want of exact definition, became the
perpetual source of controversies, uniform rules were at
last adopted by the Congress of Vienna, and that of Aix-
la-Chapelle, which put an end to those disputes. By
the rules thus established, public ministers are divided
into the four following classes :
1. Ambassadors, and papal legates or nuncios.
2. Envoys, ministers, or others accredited to sove-
reigns (auprfes des souverains).
3. Ministers resident accredited to sovereigns.
4. Charges d'affaires accredited to the minister of
foreign affairs («). ^^^2
Ambassadors and other public ministers of the first Amboafladora.
class are exclusively entitled to what is called the
representative character, being considered as peculiarly
(t) The i^glement of the Congpress of
Vienna of the 19th of March, 1815, pro-
vides:—
'' Art. 1. Les employ^ diplomatiqnes
0ont partagp^ en trois dasses :
<< Gelle des ambassadeors, Ug^ats on
nonces;
« Gelle des envoy6s, ministres, on
aatres accr^t^ auprte des soayerains ;
*' Gelle des charges d'affaires aocr6-
dit^ anprds des ministres charg^ des
affaires ^trang^es.
<' Art. 2. Les ambassadeors, Ugats on
nonces, ont senls le caraot^ repre-
sentatif.
" Art. 3. Les employes diplomatiques
en mission extraordinaire, n'ont, 4 ce
titre, ancnne snp^riorit^ de rang.
'< Art. 4. Les employes diplomatiquee
prendront rang, entre eox, dans chaqne
classe, d*apr^ la date de la notification
offioielle de lenr arriv^e.
"Le present r^glement n*apportera
aocime innovation relativement aox re-
pr^sentans du Pape.
<' Art. 5. n sera d6termin^ dans
chaqne 6tat nne mode nnif orme poor la
r^ption des employ^ diplomatiqnes de
chaqne classe.
"Art. 6. Les liens de parents on
d* alliance de famille entre les copra, ne
donnent aucnn rang k lenrs employes
diplomatiques.
*' n en est de m@me des alliances poli-
tiqnes.
**Art. 7. Dans les actes on trait^s
entre plusieurs puissances, qui admet-
tent Taltemat, le sort decidera, entre les
ministres, de Pordre qui devra etre suivi
dans les signatures." Martens, Nouv.
Rec. ii. 449.
The protocol of the Congress of Aiz-
la-Chapelle of the 21st November, 1818,
declares:
<' Pour ^viter les discussions d66agr6-
aUes qui pouiraient avoir lieu k I'avenir
BUT un point d'6tiquette diplomatique,
que ranneze du recez de Yienne, par
lequel les questions de rang ont 6t^ r6-
gl^,ne paratt pas avoir pr^vu, il est
arr§t^ entre les dnq cours, que les minis-
tres xesidens, accr^dit^ aupr^ d'elles,
f ormeront, par rapport k leur rang, une
classe interm^diaire entre les ministres
du second ordre et les charges d'affaires. "
State Papers, vol. v. p. 1090.
326
RIGHTS OP LEGATION.
Part m. representing the sovereign or State by whom they are
delegated, and entitled to the same honours to which
their constituent would be entitled, were he personally
present. This must, however, be taken in a general
sense, as indicating the sort of honours to which they
are entitled ; but the exact ceremonial to be observed
towards this class of ministers depends upon usage,
which has fluctuated at different periods of European
history. There is a slight shade of difference between
ambassadors ordinary and extraordinary; the former
designation being exclusively applied to those sent on
permanent missions, the latter to those employed on a
particular or extraordinary occasion, though it is some-
times extended to those residing at a foreign court for
an indeterminate period (k).
The right of sending ambassadors is exclusively con-
fined to cr6wned heads, the great republics, and other
States entitled to royal honours (/).
All other public ministers are destitute of that parti-
cular character which is supposed to be derived from
representing generally the person and dignity of the
sovereign. They represent him only in respect to the
particular business committed to their charge at the
court to which they are accredited (m).
Ministers of the second class are envoys, envoys extra-
ordinary, and ministers plenipotentiary, while those of
the pope are called internuncios («).
So far as the relative rank of diplomatic agents may be
determined by the nature of their respective functions,
there is no essential difference between public ministers
of the first class and those of the second. Both are
accredited by the sovereign, or supreme executive power
of the State, to a foreign sovereign. The distinction
between ambassadors and envoys was originally grounded
§213.
Ministers of
the seoond
class.
,214.
Diplomatio
preoedenoe.
(k) Vattel, Droit des Gens, liv. iv.
oh. 6, {} 70—79. Martens, Precis du
Droit des Otens Modeme de TEnrope,
lir. yii. ch. 9, { 192. Martens, Manuel
Diplomatiqae, oh. I, i 9.
{fj Martens, Pr^is, &c., liv. yii. oh. 2,
} 198. Vide anU, Pt. 11. oh. 8, i 168.
(m) Martens, Manuel Diplomatique,
oh. 1, § 10.
(») n)id.
EIGHTS OF LEGATION.
827
upon the supposition, that the former are authorized to ^^P- ^'
negotiate directly with the sovereign himself ; whilst the
latter, although accredited to him, are only authorized to
treat with the minister of foreign affairs or other person
empowered by the sovereign. The authority to treat
directly with the sovereign was supposed to involve a
higher degree of confidence, and to entitle the person,
on whom it was conferred, to the honours due to the
highest rank of public ministers. This distinction, so
far as it is founded upon any essential difference between
the functions of the two classes of diplomatic agents, is
more apparent than real. The usage of all times, and
especially the more recent times, authorizes public
ministers of every class to confer, on all suitable occa-
sions, with the sovereign at whose court they are
accredited, on the political relations between the two
States. But even at those periods when the etiquette of
European courts confined this privilege to ambassadors,
such verbal conferences with the sovereign were never
considered as binding official acts. Negotiations were
then, as now, conducted and concluded with the minister
of foreign affairs, and it is through him that the deter-
minations of the sovereign are made known to foreign
ministers of every class. If this observation be appli-
cable as between States, according to whose constitutions
of government negotiations may, under certain circum-
stances, be conducted directly between their respective
sovereigns, it is still more applicable to representative
governments, whether constitutional monarchies or re-
publics. In the former, the sovereign acts, or is sup-
posed to act, only through his responsible ministers, and
can only bind the State and pledge the national faith
through their agency. In the latter, the supreme exe-
cutive magistrate cannot be supposed to have any rela-
tions with a foreign sovereign, such as would require or
authorize direct negotiations between them respecting
the mutual interests of the two States (o).
<o) Fmheiro-FeTTeira, Notes to HartenB, Ft^oU du Droit dee Godb, torn. ii.
Notee 12, 14.
828
BIGHTS OF LEGATION.
§215.
Mixustersof
the third
oUes.
§216.
CohbiiLb.
In the third class are included ministers, ministers
resident, residents, and ministers charg(5s d'affaires,
accredited to sovereigns (p).
Charges d'affaires, accredited to the ministers of
foreign affairs of the court at which they reside, are
either charges d'affaires ad hoc^ who are originally sent
and accredited by their governments, or charges d'affaires
per interim^ substituted in the place of the minister of
their respective nations during his absence {q).
According to the rule prescribed by the Congress of
Vienna, and which has since been generally adopted,
public ministers take rank between themselves, in each
class, according to the date of the official notification of
their arrival at the court to which they are accredited (r).
The same decision of the Congress of Vienna has also
abolished all distinctions of rank between public ministers,
arising from consanguinity and family or political rela-
tions between their different courts {s).
A State which has a right to send public ministers of
different classes, may determine for itself what rank it
chooses to confer upon its diplomatic agents ; but usage
generally requires that those who maintain permanent
missions near the government of each other should send
and receive ministers of equal rank. One minister may
represent his sovereign at different courts, and a State
may send several ministers to the same court. A minister
or ministers may also have full powers to treat with
foreign States, as at a Congress of different nations,
without being accredited to any particular court {t).
Consuls, and other commercial agents, not being accre-
dited to the sovereign or minister of foreign affairs,
are not, in general, considered as public ministers ; but
the consuls maintained by the Christian Powers of Europe
and America near the Barbary States are accredited and
treated as public ministers (w).
{p) MartemB, Precis, &o., liy. vii.
ch. 2, { 194.
{q) Martens, Manuel Diplomatique,
cji. 1, { 11.
(r) Becez du Congr^s de Vienne du
19 Mara, 1815, art. 4. Ante^ p. 318, n.
(«) Ibid. art. 6.
{t) Martens, Pr6ais, &c., liy. yii. ch. 2,
§§ 199—204.
(u) Bynkershoek, de Foro Competent.
EIGHTS OF LEGATION. 329
Every diplomatic agent, in order to be received in Chap. I.
that character, and to enjoy the privileges and honours § 217.
attached to his rank, must be furnished with a letter of J^^^/
credence. In the case of an ambassador, envoy, or
minister, of either of the three first classes, this letter of
credence is addressed by the sovereign, or other chief
magistrate of his own State to the sovereign or State to
whom the minister is delegated. In the case of a charg^
d'affaires, it is addressed by the secretary, or minister
of state charged with the department of foreign afiPairs,
to the minister of foreign affairs of the other government.
It may be in the form of a cabinet letter^ but is more gene-
rally in that of a letter of council. If the latter, it is signed
by the sovereign or chief magistrate, and sealed with
the great seal of state. The minister is furnished with an
authenticated copy, to be delivered to the minister of
foreign affairs, on asking an audience for the purpose of
delivering the original to the sovereign, or other cliief
magistrate of the State to whom he is sent. The letter
of credence states the general object of his mission, and
requests that full faith and credit may be given to what
he shall say on the part of his court {x).
The full power, authorizing the minister to negotiate, FuU power.
may be inserted in the letter of credence, but it is more
usually drawn up in the form of letters-patent. In general,
ministers sent to a Congress are not provided with a
letter of credence, but only with a full power, of which
they reciprocally exchange copies with each other, or
deposit them in the hands of the mediating power or
presiding minister (y).
The instructions of the minister are for his own direc- Xnatructions.
tion only, and not to be communicated to the government
Legat. cap. 10, §§ 4—6. Martens, 1904.
Maauel Diplomatique, ch 1, § 13. ^^ j^^enB, Pr&U, &o., Uv. tM. oh. S,
VaiM M^ n. oh. 2, 34 WK>qnefort. j 202. Wioquefort. de I'Ambaeeadeur
de rAmbaaeadeur, liv. i. } 1, p. 63- ^y i x xk
The Ghreat Powers are to-da7 represented
in Egypt by ministers bearing the title (y) Wicquefort, liv. i. § 16. Martens,
of •* Agent Diplomatique and Consul- Precis, &o., liv. vii. oh. 3, } 201. Manuel
General." Vide Almanabh de Gk)iha, Diplomatique, ch. 2, § 17.
330
maHTS OF LEGATION.
Partm.
§219a.
Gommunioa-
tion of
instniotioiis.
Passport.
Duties of a
public
minister on
arriying at
his 'post.
to which he is accredited, unless he is ordered by his own
government to communicate them in extensoy or partially;
or unless, in the exercise of his discretion, he deems it
expedient to make such a communication (;?).
Some States refuse to receive communications from foreign ministers,
either on all or on particular topics, unless a copy is at the same time
given to their own minister. In 1825, Canning was informed that the
EuBsian ambassador was about to read him a despatch from St. Peters-
burg, relating to British policy in South America, but that he would
not leave him a copy. At the interview Canning declined to allow the
reading of the despatch to commence if no copy would be left, on the
ground that he could not, at a single hearing, take in the full bearing
of the document, nor weigh its expressions sufficiently to return a
suitable reply (a).
A public minister, proceeding to his destined post in
time of peace requires no other protection than a pass-
port from his own government. In time of war, he must
be provided with a safe conduct, or passport, from the
government of the State with which his own country
is in hostility, to enable him to travel securely through
its territories (b).
It is the duty of every public minister, on arriving at
his destined post, to notify his arrival to the minister of
foreign affairs. If the foreign minister is of the first
class, this notification is usually communicated by a secre-
tary of embassy or legation, or other person attached
to the mission, who hands to the minister of foreign
affairs a copy of the letter of credence, at the same time
requesting an audience of the sovereign for his principal.
Ministers of the second and third classes generally notify
their arrival by letter to the minister of foreign affairs,
requesting him to take the orders of the sovereign, as to
the delivery of their letters of credence. Charges
d'affaires, who are not accredited to the sovereign, notify
their arrival in the same manner, at the same time re-
(z) Manuel Diplomatiqne, oh. 2, § 16.
(a) Calvo, Droit International (2nd
ed.), Tol. i. § 430, p. 660 ; and see
"George Canning and hia Times," by
Stapleton, p. 429.
(h) Vattel, Ut. It. ch. 7, { 86. Manuel
Diplomatiqne, oh. 2, { 19. Flaasan,
Histoire de la Diplomatie IFran^aiBe^
tom. V. p. 246.
RIGHTS OF LEGATION. 331
questing an audience of the minister of foreign affairs Cliap. I.
for the purpose of delivering their letters of credence. 8222!
Ambassadors, and other ministers of the first class, are Audience of
' , , , the soyereigiiy
entitled to a public audience of the sovereign ; but this or chief
ceremony is not necessary to enable them to enter on
their functions, and, together with the ceremony of the
solemn entry ^ which was formerly practised with respect
to this class of ministers, is now usually dispensed with,
and they are received in a private audience, in the same
manner as other ministers. At this audience, the letter
of credence is delivered, and the minister pronounces a
complimentary discourse, to which the sovereign replies.
In republican States, the foreign minister is received in
a similar manner, by the chief executive magistrate or
council, charged with the foreign affairs of the nation [c).
The usage of civilized nations has established a certain Dipiomatio
etiquette, to be observed by the members of the diplo- ^ *^^^
matic corps, resident at the same court, towards each
other, and towards the members of the government to
which they are accredited. The duties which comity
requires to be observed, in this respect, belong rather to
the code of manners than of laws, and can hardly be
made the subject of positive sanction; but there are
certain established rules in respect to them, the non-
observance of which may be attended with inconvenience
in the performance of more serious and important duties.
Such are the visits of etiquette, which the diplomatic
ceremonial of Europe requires to be rendered and re-
ciprocated, between public ministers resident at the same
court (rf). ^ ^ ^ §224.
From the moment a public minister enters the terri- PnToiegee of
tory of the State to which he is sent, during the time of SiSatw.
his residence, and until he leaves the country, he is en-
titled to an entire exemption from the local jurisdiction,
both civil and criminal. Representing the rights, inte-
rests, and dignity of the sovereign or State by whom he
(tf) Martens, Manuel Diplomatique, (^ Manuel Diplomatique, ch. 4, § 37.
oh. 4, M*33-36.
332
KIGHT8 OP LEGATION.
Part m. is delegated, his person is sacred and inviolable. To
give a more lively idea of this complete exemption from
the local jurisdiction, the fiction of extra-territoriality has
been invented, by which tlie minister, though actually in
a foreign country, is supposed still to remain within the
territory of his own sovereign. He continues still sub-
ject to the laws of his own country, which govern his
personal status and rights of property, whether derived
from contract, inheritance, or testament. His children
born abroad are considered as natives. This exemption
from the local laws and jurisdiction is founded upon
mutual utility, growing out of the necessity that public
ministers should be entirely independent of the local
authority, in order to fulfil the duties of their mission.
The act of sending the minister on the one hand, and of
receiving him on the other, amounts to a tacit compact
between the two States that he shall be subject only to
the authority of his own nation (e).
The passports or safe conduct, granted by his own
government in time of peace, or by the government to
which he is sent in time of war, are sufficient evidence of
his public character for this purpose (/).
InyiolabiKty Halleck draws a distinction between tlie inviolability and the exterri-
torial^^' ^oria/% of a public minister. He says, " tbe former is not a conse-
quence of the latter, but the latter was invented for the purpose of
giving security to the former. The mere fact of a public minister
being regarded as a foreigner, resident in a foreign coimtiy, would
not, of itself, necessarily exempt him from local jurisdiction
The true basis of all diplomatic privilege consists in the idea of in-
violability which international jurisprudence attaches to his person
and his office, and from which it cannot be severed. This idea of
inviolability is an inherent and essential quality of the public minister,
and the office cannot exist without it. International law has conferred
it upon the State or sovereign which he represents, and to divest him
(tf) Giotiiifl, deJnr.Bel. aoPao.lib.ii. liv. vii. ch. 6, §§ 214—218. Kliiber,
oap. 18, }§ 1 — 6. Rutherforth's Inst. Droit des Gena Modeme de rEurope,
vol. ii. b. ii. cb. 9, { 20. Wioquefort, Ft. II. tit. 2, } 203. FobUz, Dzoit Inter-
de rAmbaasadeur, liv. i. } 27. Byn- national PriyS, § 184. Wbeaton, Hiat.
kersboek, de Jure Competent. Legat. Law of Nationa, pp. 237—243.
cap. 6,8. Vattel, Droit dee Gena, liv. iv. /^xtt.. i ,. . v ^ x oo
cb 7, §§ 81 -125. Martena, Precia, &c., ^^^ ^***«^' ^^- ^^- ^'7' § «•
RIGHTS OF LEGATION.
333
of that quality is to divest lum of his office, as the two are inseparable. Chap. I.
Not so with the fiction of exterritoriality. So far as that is not neces-
sary to the exercise of his functions, or, in other words, to secure his
inviolability, it is not an essential quality of the public minister, and
therefore may be dispensed with by renouncement or otherwise " (g).
The attack on the Ohinese Legations and the murder of Baron von
£etteler stand happily alone of recent years as a violation of the
immunity of diplomatic agents on the part of a nation claiming to be
regarded as civilised. But in 1799 the French plenipotentiaries to the
Congress of Eastadt were brutally murdered in cold blood by Austrian
hussars (A).
This immunity extends, not only to the person of the Exceptions to
minister, but to his family and suite, secretaries of lega- J^e^T^^
tion and other secretaries, his servants, moveable effects, fof™ thelooai
and the house in which he resides (z). jurifldiotion.
§ 226a.
The absolute exterritoriality of a minister's house was disputed in Minister's
comparatively recent times by the French Government. In April, 1867, ^<'^**®-
one Mickilchenkorff, a Bussian subject, appeared at the Bussian em-
bassy in Paris, and made a demand, which was refused. Thereupon
he assaulted one of the attaches with a dagger, wounded him, and
injured two other persons who came to the rescue. The police, being
applied to, entered the house and removed the culprit, who was after-
wards brought before the Cour d^ Assise. The Bussian ambassador,
who was absent when the crime was committed, on his return demanded
that the prisoner should be sent to Bussia, on the ground that the act
having been committed in his hotel, the French courts had no jurisdic-
tion, and the case must be tried in Bussia. The French Government
refused to give up the prisoner, urging that the principle of exterri-
toriality did not cover the case of a stranger entering the minister's
house, and there committing a crime ; and that even if it did, the
parties themselves had in this particular ccuse waived the privilege by
, summoning the local police. The Bussian Gx}vernment finally admitted
the jurisdiction of the French court, and the prisoner weis duly tried
by the local law {k).
The minister's person is in general entirely exempt
both from the civil and criminal jurisdiction of the
iff) Halleok, oh. ix. { 13, p. 210. oap. 15, 20. Yattel, liy. ir. oh. 8, { 113 ;
(A) Alison, vol. iy. sect. 27, p. 228. f' ^! » .^'^Z'^^^, ^^^"^ ^^«'
^ ' " &o., Uv. vii, ch. 6, §§ 216—227 ; oh. 9,
(fj Grotiua, de Jur. Bel. ao Pao. lib. iL }{ 234—237. Fcelix, §§ 184—186.
oap. xviii. {§ 8, 9. Bynkewhoek, de (^) Calvo, Droit International, vol. t
Foio Competent. Legat. cap* 13, § 5 ; } 571«
334
Partni.
§226b.
Suits by aod
againBt
ministers.
MinisteTsiii
foreign
ooantriefl.
RIGHTS OF LEGATION.
country where he resides. To this general exemption,
there may be the following exceptions : —
1. This exemption from the jurisdiction of the local
tribunals and authorities does not apply to the contentious
jurisdiction which may be conferred on those tribunals
by the minister voluntarily making himself a party to a
suit at law (/).
It has been held in England that an ambassador, having no real
property in the countiy, and having done nothing to disentitle him to
the general privileges of his office, cannot, while he remains such
ambassador, be sued in England against his will, although the suit
may arise out of commercial transactions bj him here, and although
neither his person nor his goods are touched by the suit (m). But if
the ambassador appears and submits to the jurisdiction, the action can
then be proceeded with(n). The constitution of the United States
vests the exclusive jurisdiction '*of all suits or proceedings against
ambassadors, or other public ministers, or their domestios, or domestic
servants, or against consuls or vice-consuls,'' in the courts of the
United States, to the exclusion of the State courts (o). If an ambas-
sador contracts debts which he refuses to pay, and if he also refuses
to submit to the jurisdiction, creditors have no remedy but to apply
to the Minister for Foreign AfiEairs of the ambassador's own
country (/?). The immunity of an ambassador from process in the
Euglish courts extends not merely to the time during which he is
accredited to the Sovereign, but to such a reasonable period after he
has presented his letters of recall as is necessary to enable him to
wind up his official business and prepare for his return to his own
country, and he is not deprived of the immimity by reason that his
successor is duly accredited before that period has elapsed {g).
In 1888, an application was made to a Queen's Bench Divisional
Court in England to set aside service of process which had been
effected in Paris upon one General Blanco, the minister of Venezuela,
accredited and received in France in that character. The court
discharged the order upon other grounds, and gave no judgment on
this point. Baron Huddleston, however, expressed an opinion that
(/) Bynkerahoek, cap. 16, §§ 13—16.
Vattd, liv. iv. oh. 8, } 111- Martens,
Pr^cu, Uy. vii. ch. 6, { 216. Merlin,
Bep. tit. Ministref 8. 6, § 4, No. 10.
{m) MagdaUna Steam Naviff. Co. v.
Martin, 2 E..& E. 94.
(n) Taylor v. Bett, 14 C. B. 621 ;
Gladstone t. Mutuntt Bey, 9 Jur. N. S.
71. Halleck, oh. ix. § 17, p. 216. And
see U. S, V. Eand, 2 Washington 0. 0.
486; Parkinson y. JPMter, 16 Q. B. D.
162.
(o) U. S. Bevised Statntes, tit. xiii.
oh. 12, seo. 711. U. 8. t. Bavara, 2
Dallas, 297 ; Cohens t. Virginia, 6
Wheaton, 407 ; 8t. Luke's Hospital t.
Barkley, 3 Bl'atohfoid, 269.
(p) Calvo, Droit International, vol. i.
}676.
{q) Musurus Bey v. Oadban and others,
(1894) 2 Q. B. 362.
RIGHTS OF LEGATION. 335
the privilege of ambaBsadors was confined by the municipal law to Chap. I.
representatives of foreign States resident at Her Majesty's Court.
Mr. Justice Manisty, on the other hand, thought that the principle laid
down by Grotius — omnis coactio a legato adesse debety as recognized in
Magdalena Co. v. Martin — would be violated by compelling (in effect)
a foreign minister to a foreign coimtry to appear and defend himself
^^^ (''^ . § 225c,
The immunities of ambassadors in England are partially defined by Foreign
a statute of the reign of Queen Anne, which recites that "Whereas ministerBin
several turbulent and disorderly persons having in a most outrageous
manner insulted the person of his Excellency Andrew Artemonowitz
Mattueof, ambassador extraordinary of his Gzarish Majesty, Emperor
of Great Bussia, by arresting him and taking him by violence out of
his coach in the public street, and detaining him in custody for several
hours, in contempt of the protection granted by Her Majesty, contrary
to the law of nations, and in prejudice of the rights and privileges
which ambassadors and other public ministers, authorized and received
as such, have at aU times been thereby possessed of, and ought to be
kept sacred and inviolable;'* it was therefore enacted, *'That all writs
and processes that shall at any time hereafter be sued forth or prose-
cuted, whereby the person of any ambassador, or other public minister
of any foreign prince or State .... or the domestick or domestick
servant of any such ambassador, or other public minister, may be
arrested or imprisoned, or his or their goods or chattels may be dis-
trained, seized or attached, shall be deemed or adjudged to be utterly
null and void to all intents, constructions, and purposes whatso-
ever" («). But no merchant or trader who puts himself into the
service of an ambassador, shall have the benefit of the Act, and every
ambassador's servant must be registered to entitle him to exemption
from process {t). If the ambassador himself engage in trade, he does
not thereby forfeit the privilege conferred by the statute (w).
2. If he is a citizen or subject of the country to which
he is sent, and that country has not renounced its autho-
rity over him, he remains still subject to its jurisdic-
tion (;p). But it may be questionable whether his
reception as a minister from another power, without any
express reservation as to his previous allegiance, ought
not to be considered as a renimciation of this claim,
(r) New ChiU Go, v. Blanco, 4 Time» 29'elflon, Private Inteniational Law, 391
Law Beportfl, 346. ti seq.
(•) 7 Anne, c. 12, 8eo. 3. (x) Except in any respeot direotly
{t) Ibid, seo. 6. relating to the performance of hiB pubUo
(m) JBarbuU*M ease, Gas. temp. TeXkfot, functions. Farkinson T. Fotter, 16 Q. B.
281 ; Toffhr y. Bett^ 14 0. B. 4U, J>, 162, 162*
336
RIGHTS OP LEGATION.
Part in. since such reception implies a tacit convention between
the two States that he shall be entirely exempt from the
local jurisdiction (y).
3. If he is at the same time in the service of the power
who receives him as a minister, as sometimes happens
among the German courts, he continues still subject to
the local jurisdiction (0).
4. In case of offences committed by public ministers
affecting the existence and safety of the State where
they reside, if the danger is urgent, their persons and
papers may be seized, and they may be sent out of the
country. In all other cases, it appears to be the estab-
lished usage of nations to request their recall by their
own sovereign, which, if unreasonably refused by him,
would unquestionably authorize the offended State to
send away the offender. There may be other cases
which miglit, under circumstances of suflScient aggrava-
tion, warrant the State thus offended in proceeding
against an ambassador as a public enemy, or in inflicting
punishment upon his person if justice should be refused
by his own sovereign. But the circumstances which
would authorize such a proceeding are hardly capable of
precise definition, nor can any general rule be collected
from the examples to be found in the history of nations
where public ministers have thrown off their public
character and plotted against the safety of the State to
which they were accredited. These anomalous excep-
tions to the general rule resolve themselves into the
paramount right of self-preservation and necessity.
Grotius distinguishes here between what may be done
in the way of self-defence and what may be done in
the way of punishment. Though the law of nations
will not allow an ambassador's life to be taken away as
a punishment for a crime after it has been committed,
(y) Bynkershoek, cap. 11. Vattd, ^ a recent English case, Macartney t.
Ht. iT. ch. 8, § 112. The principle sup- ^^f""' ^4 Q. R D. 368
(z) Martens, Manuel Diplomatiqae,
ported in the text has been established ^3 ^23.
RIGHTS OP LEGATION. 337
yet this law does not oblige the State to suffer him to Chap. I.
use violence without endeavouring to resist it (a).
§226d.
Several instances are to be found in history of ambassadors oeing Instanoea of
seized and sent out of the country. The Bishop of Boss, ambassador ^l^Sia-*^^^
of Mary Queen of Scots, was imprisoned and then banished from sadozs.
England, for conspiring against the sovereign, while the Duke of
Norfolk and other conspirators were tried and executed (b). In 1584,
De Mendoza, the Spanish ambassador in England, was ordered to quit
the realm for conspiring to introduce foreign troops and dethrone
Queen Elizabeth (c). In 1654, De Bass, the French Minister, was
ordered to depart the country in twenty-four hours, on a charge of
conspiracy against the life of Cromwell (rf). In 1717, Gyllenborg, the
Swedish ambassador, contrived a plot to dethrone George I. He was
axrested, his cabinet broken open and searched, and his papers seized.
Sweden arrested the British minister at Stockholm by way of reprisal.
The Eegent of France interposed his good offices, and the two ambas-
sadors were shortly afterwards exchanged («). The arrest of Gyllenborg
was necessary as a measure of self-defence, but on no principle of
international law can the arrest of the British minister by Sweden
be made justifiable. For similar reasons, Cellamare, Spanish am-
bassador in France, was, in 1718, arrested, his papers seized, and
himself conducted to the frontier by a military escort (/).
In 1804, Yrujo, minister of Spain to the United States, caused great
annoyance to the President and ministers by intemperate conduct in
diplomatic intercourse, and more particularly by endeavouring, and
claiming the right to endeavour, by a pecuniary recompense, to induce
a newspaper editor to forward his views and insert articles from birn
impeaching the conduct of the President. His recall was demanded,
and the £ing intimated that his minister had received his royal per-
mission to return to Spain at the season which would be convenient for
a safe passage. Yrujo, however, after the lapse of many months,
being about to present himself at Washington to attend the meeting
of Congress, a letter of remonstrance was addressed to him. He
replied, in a letter the tone of which departs from the usual style of
diplomatic correspondence, that he had not come to Washington to
form plots, to excite conspiracies, or to promote any attempte against
the United States Government, and as he had not directly or indirectly
committed any acts of that tendency, which alone, as he said, could
(a) Ghrotiiis, de Jur. Bel. acPac. lib. ii. Hist, of Law of Nations, pp. 250 — 254.
cap. 18, { 4. Ratherforth's Inst. vol. ii. {b) Froade, Hist, of England, vol. x.
b. ii. oh. 9, § 20. Bjnkershoek, de Foro p. 222 et seq. (ed. 1866).
Competent. Legat. cap. 17, 18, 19. {c) Ibid., toI. xL. p. 623.
Vattel, liv. iv. oh. 7, }§ 94—102. Mar- (rf) PMUimore, vol. ii. § 164.
tens, Fr^s, &o., liv. vii. ch. 5, § 218. (e) Hist, of England, Mahon, vol. i.
Ward's Hist, of the Law of Nations, p. 388 et seq,
vol. ii. oh. 17, pp. 291—334. Wheaton, (/) Ibid., vol. i. p. 484.
W. Z
338
RIGHTS OP LEGATION.
Part ni. justify the tenour and object of the letter of reznoostrance, he should
" live where he pleased and stay where he pleased, taking no orders but
from his Oatholic Majesty. This letter received no answer, but a copy
of the whole correspondence was transmitted to Spain to be laid before
the government. The Spanish Secretary replied supporting his
minister. It is not clear how the matter ended (^).
So recently as 1848, Sir H. Bulwer, the British ambassador in
Spain, had his passports returned, and was requested to leave Spanish
territory by the government. Certain disturbances had taken place in
various parts of Spain, and the government, without the least justifica-
tion, persuaded themselves that Sir H. Bulwer had lent his assistance
to the disaffected. This proceeding caused diplomatic relations to be
suspended between the two countries during two years, and the dispute
was only settled by the mediation of the King of the Belgians (A).
In the autumn of 1888, Lord Sackville, the British minister at
Washington, received a letter, purporting to come from a citizen in
California of English birth, asking advice as to which way the writer
should vote at the approaching Presidential election. The letter also
contained reflections upon the sincerity of the Senate in its rejection
of the Fisheries Treaty (t), and upon the subsequent conduct of the
government. Lord Sackville replied in a letter which he marked ** pri-
vate," and indicated that the then government were favourably disposed
towards Great Britain. He spoke of the opening of the questions with
Canada since the rejection of the treaty as ** unfortunate." This letter
was construed as sanctioning the reflection cast by Lord Sackville's
correspondent upon the Senate and government, and as an unwarrant-
able interference in the domestic affairs of the United States. It
seemed, indeed, to Mr. Bayard to threaten the dignity, security, and
independent sovereignty of the United States, and Lord Sackville
having also, as it was alleged, though without the slightest foundation,
spoken slightingly of the President and Senate in interviews with
reporters, the attention of the British Government was called to the
facts, and Lord Sackville's passports were sent to him (k).
Lord Salisbury, communicating with the American minister on the
subject, considered it '* hardly practicable to lay down the principle
that a diplomatic representative was prohibited from expressing, even
privately, any opinion on the events passing in the country to which
he was accredited." The language imputed to Lord Sackville in the
interviews with newspaper reporters was different, and must be taken
to have been intended for publication, and Lord Salisbury awaited
Lord Sackville's explanation, and a copy of the expressions actually
used by him. Before these could arrive the passports had been sent(/).
{ff) Wharton, Dig. i 84, p. 606 ; (Ar) Mr. Bayard to the Fresidait,
§ 106, Appendix. Times, Ist November, 1888.
(h) Calvo, Droit International, toI. i. (/) Parliamentary Papers, ITnited
§ 581. States, No. 3 (1888), Times, 7tfa No-
(») Antfy § 180a. vember, 1888.
RIGHTS OP LEGATION. 339
Diplomatic intercourse with Lord Sackyille was terminated on Chap. I.
30th of October, but the copies of the correspondence, and newspapers
containing reports of the interviews complained of, were not communi-
cated to Lord Salisbury till the 8th December. In his letter forward-
ing these documents the American minister wrote : — ** In asking from
Her Majesty's Government the recall or withdrawal of its minister,
upon a representation of the general purport of the letter and state-
ments above mentioned, the Government of the United States assumed
that such request would be sui&cient for that purpose, whatever con-
siderations the reason for it might afterwards demand and receive."
In his reply, Lord Salisbury combated this statement of the law and
usage, and maintained that although it was open to any government
to terminate its diplomatic relations with any particular minister of any
other State, it has no claim to demand that the other State shall make
itself the instrument of that proceeding, or concur in it, unless satisfied
on sufficient reasons, duly produced, of the justice of the demand.
With regard to the complaint which had been made by Mr. Bayard,
that Lord Sackville had made public no denial of the statements im-
puted to him by the reporters, Lord Sackville stated to Lord Salisbury
that Mr. Bayard, as Secretary of State, was in possession of his dis-
claimer, and that any communication through the press could only
have led to unseemly and undignified controversy (m). The British
government contented itself by treating the conduct of the President
and his secretary as personal to themselves, due to political exigencies
arising out of the Presidential campaign, and left the legation in
charge of the First Secretary till after the formal installation of the
new President in the following year.
If it appears that the ambassador has not fully entered upon his
functions, either by his credentials not having been presented, or by
his not having been fully invested with the character by his own
country, he cannot then claim the inviolability attached to regular
fimbassadors (n).
§226.
The wife and family, servants and suite, of the Peraonai
• ••• • exemption
minister, participate in the inviolability attached to his extendingr to
public character. The secretaries of embassy and lega- seOTetan^
tion are especially entitled, as oflScial persons, to the ^®^*^*^' *'•
privileges of the diplomatic corps, in respect to their
exemption from the local jurisdiction (o).
(m) Parliamentaiy Papers, United (o) Grotins, lib. ii. cap. 18, § 8.
States, No. 4 (1888), Times, 14th B7X]Jcer8hoek,oap.l5,20. Vattel, liy. iv.
Jannaiy, 1888. oh. 9, {§ 120—123. Martens, Freois,
(fi) See ease of Marquis de la Ghet- &c., liv. vn, ch. 5, ^ 219 ; ch. 9, §§ 234
ardie. Calvo, Droit Znteniational, vol. i. —237. FobILs, § 184. Taylor v. Best,
$561. Case of Da Sa. 5 Howell, State 14 0. B. 487 ; i>Mpo»»^ t. PM^Aon, 4 Dallas
Trials, 460. (2nd ed.), 800.
z2
340 EIGHTS OP LEGATION.
Part in. The municipal laws of some, and the usages of most
nations, require an official list of the domestic servants
of foreign ministers to be communicated to the secretar)"
or minister of foreign affairs, in order to entitle them to
the benefit of this exemption (p).
It follows from the principle of the extra-territoriality
of the minister, his family, and other persons attached to
the legation, or belonging to his suite, and their exemp-
tion from the local laws and jurisdiction of the country
where they reside, that the civil and criminal jurisdic-
tion over these persons rests with the minister, to be
exercised according to the laws and usages of his own
country. In respect to civil jurisdiction, both conten-
tious and voluntary, this rule is, with some exceptions,
followed in the practice of nations. But in respect to
criminal offences committed by his domestics, although
in strictness the minister has a right to try and punish
them, the modern usage merely authorizes him to arrest
and send them for trial to their own country. He may,
also, in the exercise of his discretion, discharge them
from his service, or deliver them up for trial under the
laws of the State where he resides ; as he may renounce
any other privilege to which he is entitled by the public
§227. ^^^(^y
Exemptioii of The personal effects or movables belonging to the
house and ^'* minister, within the territory of the State where he
property. rcsidos, are entirely exempt from the local jurisdiction ;
so, also, of his dwelling-house; but any other real pro-
perty, or immovables, of which he may be possessed
within the foreign territory, is subject to its laws and
jurisdiction. Nor is the personal property of which he
may be possessed as a merchant carrying on trade, or in
a fiduciary character, as an executor, &c., exempt from
the operation of the local laws (r).
{p) Blackstone's Commentaries, toI. i. Ft. II. tit. 2, {{ 212—214. Merlin, B^
oh. 7. liL. of the United States, toI. i. pertoire, tit. MinUtre Fuhlique^ sect ti.
ch. 9, } 26. (r) Vattel, Kv. iv. oh. 8, {$ 113—116.
(q) Bynkershoek, oap. 15, 20. Vattel, Martens, Precis, &o., IIt. vii. ch. 8,
liv. iv. ch. 9, § 124. Rutherforth's § 217. Kliiber, Pt. II. tit. 2, ch. 3,
Inst. YoL ii. b ii. ch. 9, § 20. Elilber, § 210. Merlin, sect. y. § iy. No. 6.
BIGHTS OF LEGATION.
341
The question, how far the personal effects of a public Chap. L
minister are liable to be seized or detained, in order to § 228.
enforce the performance on his part of the contract of be't^^^the
hiring of a dwelling-house, inhabited by him, has been ^^^^ ^^
recently discussed between the American and Prussian ^[^^^^'e
governments, in a case, the statement of which may exemption of
serve to illustrate the subject we are treating. ministera
The Prussian Civil Code declares, that *Hhe lessor is j^SdioUon.
entitled, as a security for the rent and other demands
arising under the contract, to the rights of a PfandgVm-
higer^ upon the goods brought by the tenant upon the
premises, and there remaining at the expiration of the
lease."
The same code defines the nature of the right of a
creditor whose debt is thus secured. "A real right, as
to a thing belonging to another, assigned to any person
as security for a debt, and in virtue of which he may
demand to be satisfied out of the substance of the thing
itself, is called Unterpfands-RechV^ (5).
Under this law the proprietor of the house in which the
minister of the United States accredited at the court of
Berlin resided, claimed the right of detaining the goods
of the minister found on the premises at the expiration
of the lease in order to secure the payment of damages
alleged to be due on account of injuries done to the
house during the contract. The Prussian government
decided that the general exemption, under the law of
nations, of the personal property of foreign ministers
from the local jurisdiction, did not extend to this case,
where, it was contended, the right of detention was
created by the contract itself, and by the legal effect
given to it by the local law. In thus granting to the
proprietor the rights of a creditor whose debt is secured
by hypothecation [^Pfandglduhiger)^ not only in respect to
the rent, but as to all other demands arising under the
contract, the Prussian Civil Code confers upon him a real
{$) Allgememes Landiecht fiii die Frenssisohen Staaten, Ft. I. tit. 21, § 395,
tit. 30, 5 1.
342
EIGHTS OF LEGATION.
Part m. right as to all the effects of the tenant, which may be
found on the premises at the expiration of the lease, by
means of which he may retain them, as a security for all
« 229. ^is claims derived from the contract.
^g™e^of It was stated, by the American minister, that this
states. decision placed the members of the corps diplomatique,
accredited at the Prussian court, on the same footing
with the subjects of the country, as to the right which
the Prussian code confers upon the lessor of distraining
the goods of the tenant, to enforce the performance of
the contract. The only reason alleged to justify such
an exception to the general principle of exemption was,
that the right in question was constituted by the con-
tract itself. It was not pretended that such an excep-
tion had been laid down by any writer of authority on
the law of nations; and this consideration alone pre-
sented a strong objection against its validity, it being
notorious that all the exceptions to the principle were
carefully enumerated by the most esteemed public
jurists. Not only is such an exception not confirmed
by them, but it is expressly repelled by these writers.
Nor could it be pretended that the practice of a single
government, in a single case, was sufficient to create an
exception to a principle which all nations regarded as
sacred and inviolable.
Doubtless, by the Prussian code, and that of most
other nations, the contract of hiring gives to the pro-
prietor the right of seizing, or detaining the goods
of the tenant, for the non-payment of rent, or damages
incurred by injuries done to the premises. But the
question here was, not what are the rights conferred
by the municipal laws of the country upon the pro-
prietor, in respect to the tenant, who is a subject of
that country ; but what are those rights in respect to a
foreign minister, whose dwelling is a sacred asylum;
whose person and property are entirely exempt from the
local jurisdiction; and who can only be compelled to
perform his contracts by an appeal to his own govern-
ment? Here the contract of hiring constitutes, joer se^
RIGHTS OP LEGATION. 843
the right in question, in this sense only, that the law Chap. I.
furnishes to one of the parties a special remedy to
compel the other to perform its stipulations. Instead of
compelling the lessor to resort to a personal action
against the tenant, it gives him a lien upon the goods
found on the premises. This lien may be enforced
against the subjects of the country, because their goods
are subject to its laws and its tribunals of justice ; but it
cannot be enforced against foreign ministers resident in
the country, because they are subject neither to the one
nor to the other.
Let us suppose that the contract in question had been
a bill of exchange drawn by the minister, not in the
character of a merchant, but for defraying his ordinary
expenses. The laws of every country, in such a case,
entitle the holder of the bill to arrest the person of his
debtor, in case of non-payment. It might be said, in
the case supposed, that the contract itself gives the right
of arresting the person, with the same reason that it was
pretended, in the case in question, that it gave the right
of seizing the goods of the debtor.
In fact, there was no one privilege of which a public
minister might not be deprived, by the same mode of
reasoning which was resorted to in order to deprive him
of the exemption to which he was entitled as to his
personal effects. But to deprive him of this right alone,
would be to deprive him of that independence and
security which are indispensably necessary to enable
him to fulfil the duties he owes to his own government.
If a single article of his furniture may be seized, it may
all be seized, and the minister, with his family, thus be
deprived of the means of subsistence. If the sanctity of
his dwelling may be violated for this purpose, it may be
violated for any other. If his private property may be
taken upon this pretext, the property of his government,
and even the archives of the legation, may be taken
upon the same pretext.
. ... §230-
The exemption of the goods of a public minister from Opinion of
Grotius.
344 RIGHTS OF LEGATION.
Partm. every species of seizure for debt, is laid down by
Grotius in the following manner : —
^' As to what respects the personal effects (mobilia) of
an ambassador, which are considered as belonging to his
person, they are not liable to seizure, neither for the
payment nor for security of a debt, either by order of a
court of justice, or, as some pretend, by command of
the sovereign. This, in my judgment, is the soundest
opinion ; for an ambassador, in order to enjoy complete
security, ought to be exempt from every species of
restraint, both as to his person, and as to those things
which are necessary for his use. If, then, he has con-
tracted debts, and if, which is usually the case, he has
no real property {immohilid) in the country, he should be
politely requested to pay, and if he refuses, resort must
be had to his sovereign " (J).
We here perceive that this great man himself, both as
a public minister and public jurist, was decidedly of
opinion that the personal property of an ambassador
could not be seized, either for the payment or for
security of a debt ; or, according to the original text —
Ad solutionem debiti aut pignoris causd. Bynkershoek, in
his treatise De foro competenti Legatorum^ cites with ap-
n 231 probation this passage of Grotius.
Opinion of Bynkershoek himself, in commenting upon the declara-
ratory edict of the States-General of the United Pro-
vinces, of 1679, exempting foreign ministers from arrest,
and their effects from attachment, for debts contracted
in the country, observes : —
"The declaration of the States-General does not
materially differ from the opinion of Grotius, which
I have quoted in the preceding chapter. To which
we may add, that this author states, that the effects
of an ambassador cannot be seized, either for payment
or for security of a debt, because they are considered as
appertaining to his person. Respecting this principle,
Antoine Momac reports that, in the year 1608, Henry IV.,
{t) Grotliis, de Jur. Bel. ac Pao. lib. i. cap. 18, § 9.
RiaHTB OP LEGATION. 345
king of France, pronounced against the legality of a CJhap. I.
seizure made at Paris, for the non-payment of rent, of the
goods of the Venetian ambassador. This decision has
been since constantly observed in every country.
*^ But this may be said to be carrying the privilege
too far, since the seizure of the efFects of an ambassador
is not so much on account of the person as to a right in
the thing thus seized; a right of which the proprietor
cannot be deprived by the ambassador."
This author had here anticipated the argument of the
Prussian government, to which he replies as follows : —
" But far from unduly pressing the principle, by the
effecU which are spoken of in the declaration of 1679,
I understood only personal effects, that is to say, those
which serve for the use of ambassadors {id est utensilia)^
as I shall point out in that part of this treatise where it
will be necessary to speak of their property. It is of
these effects that I affirm, that they are not, and never
have been, according to the law of nations, considered
as in the nature of a pledge, to secure the payment of
what is due from an ambassador. I even maintain that
it is not lawful to seize them, either in order to institute
a suit or to execute a judicial sentence " (w).
In his sixteenth chapter, Bynkershoek explains what
he means by those effects which serve for the use of
ambassadors, that is, utensilia. In this chapter he admits
that the property, both personal and real, of a public
minister, may, in some caseSy be attached, to compel him
to defend a suit commenced by those who might have
a claim against him : — " I say the property (bona) in
general, whether personal or real, unless they appertain
to the person of the ambassador, and he possess them as
ambassador ; in a word, all those things without which
he may conveniently perform the functions of his office.
I except, then, from the number of those goods of the
ambassador which may be thus attached, com, wine, oil,
every kind of provisions, furniture, gold, toilette oma-
(m) Bynkerehoek, de For. Legat., cap. iz. §§ 9, 10.
346 BIGHTS OP LEGATION.
Part in. ments, perfumes, drugs, clothing, carpets and tapestry,
coaches, horses, mules, and all other things which may
be comprised in the terms of the Roman law, leffati
instructi et cum instrumento.^^
In the following section he explains his doctrine, that
certain effects of a public minister may be attached, in
order to institute against him a suit, and to compel him
to defend it, by showing that it is meant to be limited
to the single case where the minister assumes on himself
the character of a merchant, in which case the goods pos-
sessed by him, as such, may be attached for this pm--
pose. ^* All these things," says he, ^^ ought not, accord-
ing to my view, to be excepted, unless they are destined
for the use of the ambassador and his household. For
it is not the same with com, wine, and oil, for example,
which an ambassador may have in his warehouses,
for the purposes of trade ; nor with horses and mules,
which he may keep for the purpose of breeding and
§ 232. selling." ^
Vattei. Vattel is equally explicit as to the extent of the privi-
lege in question. The only exception he admits to the
general rule is that of a public minister who engages in
trade, in which case his personal goods may be attached,
to compel him to answer to a suit. To this exception he
annexes two conditions, the latter of which was deemed
decisive of the present question.
"Let us subjoin two explanations of what has just
been said : 1. In case of doubt, the respect which is due
to the character of a public minister requires the most
favourable interpretation for the benefit of that charac-
ter. I mean to say that where there is reason to doubt
whether an article is really destined to the use of the
minister and his household, or whether it belongs to his
stock in trade, the question must be determined in
favour of the minister ; otherwise there might be danger
of violating his privilege. 2. When I say that the
effects of a minister, which have no connection with
his character, and especially those belonging to his
stock in trade, may be attached, this must be under-
RIGHTS OF LEGATION. 847
stood on the supposition that the attachment is not Chap. I.
grounded on any matter relating to his concerns as
minister; as, for instance, for supplies furnished to his
household, for the rent of his hotel, &c." (x).
, — ^ ^ , _„. ^^j. g^
In reply to these arguments and authorities it was Reply of
urged, on behalf of the Prussian government, that if, ™'^'
in the present case, any Prussian authority had pre-
tended to exercise a right of jurisdiction, either over the
person of the minister or his property, the solution of
the question would doubtless appertain to the l&w of
nations, and it must be determined according to the
precepts of that law. But the only question in the
present case could be, what are the legal rights estab-
lished by the contract of hiring, between the proprietor
and the tenant. To determine this question, there could
be no other rule than the civil law of the country where
the contract was made, and where it was to be executed,
that is, in the present case, the Civil Code of Prussia (^). « ^^
The controversy having been terminated, as between Settlement of
the parties, by the proprietor of the house restoring the * ^"^ °°'
effects which had been detained, on the payment of a
reasonable compensation for the injury done to the
premises, the Prussian government proposed to submit
to the American government the following question :
'^If a foreign diplomatic agent, accredited near the QaJtaon '
government of the United States, enters, of his own bj°^^.
accord, and in the prescribed forms, into a contract
with an American citizen ; and if, under such contract,
the laws of the country give to such citizen, in a given
case, a real right {droit riel) over personal property {biens
mobiliers) belonging to such agent: does the American
government assume the right of depriving the American
citizen of his real righty at the simple instance of the
diplomatic agent relying upon his extra-territoriality ? "
This question was answered on the part of the Ame- Reply of *
rican government, by assuming the instance contem- ^^*®d states.
(;r) Vattel, Droit des Gens, liv. ir. 1839.
oh. 8, } 114. Mr. Wheatoa to Baron (y) BarondeWerthertoMr.Wheaton.
de Werther. Note rerbale, 16th May, Note yerbale, 19th May, 1839.
348 RIGHTS OP LEGATION.
Fartm. plated by the Prussian government to be that of an
implied contract, growing out of the relation of landlord
and tenant, by which the former had secured to hun,
under the municipal laws of the country, a tacit hypothek
or lien upon the furniture of the latter. It was taken
for granted that there was no express hypothecation,
still less any giving in pledge^ which implies a transfer
of possession by way of security for a debt.
This distinction was deemed important. There could
be no doubt that, in this last case, the pawnee hsis a
complete right, a real right^ as it was called by the
Prussian government, or jus in re, not in the least
affected by diplomatic immunities. And accordingly,
this was the course pointed out to creditors by Bynker-
shoek, who denies them all other means of satisfying
themselves out of the minister's personal goods. Of
course, these words were used with the proper restric-
tion, which confines them to the apparatus legationisj or
such as pass under the description of legatus insiructus et
cum instrumento.
With these distinctions and qualifications, the Ame-
rican government had no doubt that the view taken by
its minister of this question of privilege was entirely
correct. The sense of that government had been clearly
expressed in the act of Congress, 1790, which includes
the very case of distress for rent, among other legal
remedies denied to the creditors of a foreign minister.
That this exemption was not peculiar to the statute
law of this country, but was strictly juris gentium,
appeared from the precedents mentioned by the great
public jurist just cited in his treatise De Foro Legatorum,
the great canon of this branch of public law {z).
Besides this conclusive authority upon the very point
in question, Bynkershoek states the principle (out of
Grotius) that the personal goods of a foreign minister
cannot be taken by way of distress or pledge, and gives
(z) De For, Legat. cap. ix. Compare the catalogue of the penonal goods so
privileged, id, cap. xvi.
RIGHTS OP LEGATION. 849
it the sanction of his most emphatic assent (a). Indeed Chap. I.
the whole scope of the treatise referred to went to
establish this very doctrine.
But to consider it on principle. Three several ques- § 287.
tions would arise upon the inquiry propounded by the
Prussian government. 1st. Is the landlord's right, in
such a case, a real right properly so called ? 2nd. Ad-
mitting it to be so, can it be asserted, consistently with
Prussian municipal law, against a foreign minister who
has not voluntarily parted with his possession, on an
express contract, to secure payment of rent or damages ?
3rd. Supposing the municipal law of Prussia to contem-
plate the case of a foreign minister, can that law be
enforced, in such a case, consistently with the law of
nations ?
There was, in all systems of jurisprudence, great § 238.
difficulty in settling the legal category of the landlord's
right. Pledge, although not property, is certainly a real
right ; but a mere lien or hypothek, in which there is no
transfer of possession, is not a pledge. In England, and
in the United States, the right of landlords was originally
a mere lien, reducible by distress into a right of pledge.
In Scotland the same right is sometimes called a right
of property, and sometimes a mere hypothek, springing
out of a tacit contract. Without pretending to determine
precisely whether its origin ought to be referred to the
one or the other principle (neither perhaps being f uUy
adequate to account for all its effects), it is considered by
the best writers as a right of hypothek, convertible by a
certain legal process into a real right of pledge.
If this be a proper view of the subject, there was
surely an end of the question : for the process of con-
version is as much the exercise of jurisdiction, as the
levying an execution ; and the public minister is exempt
from all jurisdiction whatever.
It was true that all hypothecations, or privileges upon
(a) Bynkenhoek, de For. Legat. cap. viii. Grofiiu, de Jnr. Bel. ac Fao.,
lib. ii. cap. 18, } 19.
350 BIGHTS OP LEGATION.
Part in. property, are classed by some writers under the head of
real rights, but this was by no means conclusive of the
case under consideration. In a conflict of rights, this
might entitle the privileged creditor to preference in the
distribution of an inadequate fund, but the question was,
how was he to assert that preference ? By means of
judicial process ? If so, he is without remedy against
one not subject to the jurisdiction, except by open
violence, which, of course, is not classed among rights.
Accordingly, privileges, and liens by mere operation of
law, are usually considered as matters of remedy ^ not of
right ; as belonging to the lex fori^ not to the essence of
the contract (A).
It might, therefore, be considered as doubtful, d priori,
whether, by the Prussian code, the right of the landlord
is a real right, to the effect, at least, of putting it on the
footing of property transferred by contract, for that was
the argument.
But suppose this to be the usual effect, by operation of
law, of the contract between landlord and tenant, does it
hold as against one not subject to the law ; not amenable
to the jurisdiction ; not, in legal contemplation, residing
within the country of the contract ?
By the supposition, it was an incident in law of the
relation between the landlord and his tenant, and it turns
upon an implied contract. It was supposed that the
tenant agreed to hire the house on the usual conditions ;
but one of them was, that if he failed to pay the rent, or
indemnify for damages done to the premises, the land-
lord should have a remedy by distress. It was, therefore,
inferred that it was not the law, or the judge, but the
tenant himself, who had transferred, quasi contractu^ this
interest in his own property. But if this reasoning was
correct, why should it not apply in the case of arrest
and holding to bail ? or in any case of attachment ? The
consent might as well be implied here as in favour of a land-
lord. Indeed, the same implication might as reasonably
{b) Story, Conflict of Laws, H 428—466, 2nd ed.
EIGHTS OF LEGATION. 351
be extended to all laws whatever, and foreign ministers Chap. I.
thus be held universally subject by contract to the muni-
cipal jurisdiction. The presumption implied in the
contract under the law of the place, and binding on the
pajrties subject to the jurisdiction, is repelled by the
immunity and extra-territoriality of the public minister.
He that enters into a contract with another knows, or
ought to know, his condition. So says Ulpian, (1. 19,
pref. de R. J.,) and the landlord who lets his house to a
foreign minister, waives his remedy under the law from
which he knows that minister is exempt.
The American government was therefore inclined, in
the absence of any authority to the contrary, to think
that the Prussian municipal law, properly interpreted,
did not, in fact, authorize any such pretension as that set
up by the landlord, in the present instance.
But even supposing it did authorize the pretension, it § 240.
ought no more to derogate from the established law of
nations in this case, than in that of personal arrest. The
authorities cited above seemed to the American govern-
ment entirely conclusive as to this point; and it was
greatly confirmed in this view of the subject by the act
of Congress declaratory of the law of nations, and by the
opinion of other governments. In short, all the reasons
on which diplomatic immunities have been asserted, and
are now universally allowed, seem just as applicable to
the case of liens and hypothecations in favour of land*
lords, as to remedies of any other kind. Indeed, nothing
could afford a better practical illustration of this than the
attempt of the landlord in the present case, by means of
his pretended lien, to force the minister to pay damages
assessed at his discretion, for an injury proved only by
his own allegation (c).
The Prussian government declared, that its opinion §241.
upon the point in controversy remained unchanged by
the above reasoning, and the authorities adduced in
support of it. According to its view, the question was
{e) Hr. Legar^'fl Deepatoh to Hr. Wheaton, 9th June, 1843.
862 RIGHTS OP LEGATION.
Part in. not whether the lessor had a right to retain a portion of
the effects belonging to the lessee, and found on the
premises at the expiration of the contract, as security for
the damages incurred by its breach; but whether the
lessor, by exerting his right of retention, had committed
a violation of the privileges of diplomatic agents, or, at
least, a punishable act ; and if, for this reason, he could
be compelled, summarily, and before the competent judge
had pronounced upon his claim, to restore the effects
thus retained. This last question being resolved nega-
tively, the decision of the first must necessarily be
reserved to the competent tribunals.
The privilege of extra-territoriality consists in the
right of the diplomatic agent to be exempt from all
dependence on the sovereign power of the country, near
the government of which he is accredited. It follows,
that the State cannot exercise against him any act of
jurisdiction whatsoever, and as by a natural consequence
of this principle, the tribunals of the country have, in
general, no right to take cognizance of controversies in
which foreign ministers are concerned, neither are they
authorized, in the particular case of a controversy arising
out of a contract of hiring, to ordain the seizure of the
effects of a public minister.
If, then, the privilege of extra-territoriality regards
only the relations which subsist between the diplomatic
agent and the sovereign power of the country where he
resides, it is also evident that a violation of this privilege
can only be committed by the public authorities of that
country, and not by a private person. The legal rela-
tions of the subjects of the country are in no respect
directly changed by the principle of extra-territoriality ;
it is only indirectly that this principle can operate upon
those relations; so that in respect to citizens' contro-
versies, the subject is not entitled to invoke the inter-
position of the authorities of his own country against the
foreign minister upon whom he may have a claim for
redress, and if he would commence a suit against him,
he must resort to the tribunals of the minister's country.
RIGHTS OP LEGATION. 853
If, on the other hand, the subject can do himself justice, Chap- 1»
without having recourse to the authorities of his own
country, his position in respect to the foreign minister is
absolutely the same as if the controversy had arisen with
one of his own fellow-citizens.
It was hardly necessary to observe that, in such a
case, the party must keep within the limits of what is
generally permitted. If he should resort to violence, he
would render himself guilty of an infraction of the law,
and would be punishable in the same manner as if the
adverse party were an inhabitant of the country.
In the controversy now in question, no authority
dependent on the Prussian government had participated,
either directly or indirectly, in the seizure of the effects
of the American minister; the proprietor of the house
having retained them by his own proper act, there was
then no violation of the privilege of extra-territoriality.
There was no proof of any act of violence having been
committed by him, and the mere act of retention could
not be considered as an unlawful act.
On principle, every proprietor of a house, even where
it is let to another person, remains in possession of his
property. It follows, that the effects brought on to the
premises by the tenant may be considered, in some
respects, as in possession of the landlord. It is for this
reason that the municipal law of Prussia, as well as that
of most other European States, gives to the landlord a
lien upon the goods of the tenant, as a security for the
payment of the rent. The question how far this right,
founded upon the positive law of a particular country,
can be exerted against a foreign minister, may be dis-
missed from consideration; since the act of retention
cannot be regarded as an unlawful and punishable act,
and, in such a case, it belongs to the tribunals of justice
to pronounce judgment upon the rights which the land-
lord may have acquired by the retention (d).
(d) Baron de BhIow'b Letter to Hr. troTersy hy M. FobIix, the learned editor
Wheaton, 6tli Jvlj, 1844. of the Bevne dn Droit Fran^ et
See an able reyiew of the above con- ifetrangeri tozne ii. p. 31.
W. A A
354 RIGHTS OF LEGATION.
Partm. The person and personal effects of the minister are
§ 242. not liable to taxation. He is exempt from the payment
r^uesand ^f (j^ties on the importation of articles for his own
personal use and that of his family. But this latter
exemption is, at present, by the usage of most nations,
limited to a fixed sum during the continuance of the
mission. He is liable to the payment of tolls and post-
ages. The hotel in which he resides, though exempt
from the quartering of troops, is subject to taxation, in
common with the other real property of the country,
whether it belongs to him or to his government (^).
And though, in general, his house is inviolable, and
cannot be entered, without his permission, by police,
custom-house, or excise officers, yet the abuse of this
privilege, by which it was converted in some countries
into an asylum for fugitives from justice, has caused
it to be very much restrained by the recent usage of
§848. iiations(/).
MMBengrera The practicc of nations has also extended the inviola-
bility of public ministers to the messengers and couriers,
sent with despatches to or from the legations established
in different countries. They are exempt from every
species of visitation and search, in passing through the
territories of those powers with whom their own govern-
ment is in amity. For the purpose of giving effect to
this exemption, they must be provided with passports
from their own government, attesting their official
character; and, in the case of despatches sent by sea,
the vessel or aviso must also be provided with a commis-
sion or pass. In time of war, a special arrangement, by
means of a cartel or flag of truce, furnished with pass-
ports, not only from their own government, but from its
enemy, is necessary, for the purpose of securing these
despatch vessels from interruption, as between the
belligerent powers. But an ambassador, or other public
(e) Macartney t. Garbutt^ 24 Q. B. D. § 220. Mannel Diplomatiqiie, cfa. 3,
3^^- {{ 30, 81. Merlin, Repertoire, tit.
(/) Vattel, Ut. iv. oh. 9, }{ 117, 118. v • . tl n- * t < -kt o o
*, _x T> / . o^ ,. .. J - Mimstre Publtqtte^ wot. v. § 5, Noe. 2, 3.
Martens, Precis, &o., liv. vii. oh. 5, ^ ' y » -»
RIGHTS OF LEGATION. 355
minister, resident in a neutral country for the purpose of Chap. L
preserving the relations of peace and amity between the
neutral State and his own government, has a right freely
to send his despatches in a neutral vessel, which cannot
lawfully be interrupted by the cruisers of a power at war
with his own country {g).
The opinion of public jurists appears to be somewhat pubL
divided upon the question of the respect and protection J^^'
to which a public minister is entitled, in passing through ^^^ ^®
the territories of a State other than that to which he is another state
accredited. The inviolability of ambassadors, under the wWoh heis
law of nations, is understood by Grotius and Bynker- *
shook, among others, as binding only on those to whom
they are sent, and by whom they are received (A).
Wicquefort, in particular, who has ever been considered
as the stoutest champion of ambassadorial rights, asserts
that the assassination of the ministers of the French
king, Francis I., in the territories of the Emperor
Charles V., though an atrocious murder, was no breach
of the law of nations, as to the privileges of ambassadors.
It might be regarded as a violation of the right of
innocent passage, aggravated by the circumstance of the
dignified character of the persons on whom the crime
was committed — and might even be considered a just
cause of war against the emperor, without involving the
question of protection in the character of ambassador,
which arises exclusively from a legal presumption which
can only exist between the sovereigns from and to whom
he is sent {i). g 245.
Vattel, on the other hand, states that passports are Opinion of
necessary to an ambassador, in passing through different
territories on his way to his destined post, in order to
make known his public character. It is true that the
sovereign to whom he is sent is more especially bound
to cause to be respected the rights attached to that
(^) Vaitel, liy. iv. oh. 9, { 123. Mar« ii. cap. 18, § 5. Bynkenhoek, de Foro
tens, Pr^ifl, &c., lir. yii. ch. 13, } 250. Comp. Legat. cap. ix. } 7*
Ths Caroline, 6 0. Bob. 466. («) Wicqaefort, de rAmbassadenr,
(A) Qrotliis, de Jvr. Bel. ao Pao. lib. liv. i. { 29, pp. 433—439.
A a2
356 RIGHTS OF LEGATION.
Part III. character ; but he is not the less entitled to be treated,
in the territory of a third power, with the respect due to
the envoy of a friendly sovereign. He is, above all,
entitled to enjoy complete personal security ; to injure
and insult him would be to injure and insult his sove-
reign and entire nation ; to arrest him, or commit any
other act of violence against his person, would be to
infringe the rights of legation which belong to every
sovereign. Francis I. was therefore fully justified in
complaining of the assassination of his ambassadors,
and, as Charles V. refused satisfaction, in declaring war
against him. *^ If an innocent passage, with complete
security, is due to a private individual, with still more
reason is it due to the public minister of a sovereign,
who is executing the orders of his master, and travelling
on the business of his nation. I say an innocent passage ;
for if the journey of the minister is liable to just sus-
picion, as to its motives and objects ; if the sovereign,
through whose territories he is about to pass, has reason
to apprehend that he may abuse the liberty of entering
them for sinister purposes, he may refuse the passage.
But he cannot maltreat him, or suffer others to
maltreat him. If he has not sufficient reasons for
refusing the passage, he may take such precautions as
are necessary to prevent the privilege being abused by
the minister" (A).
He afterwards limits this right of passage to the
ambassadors of sovereigns, with whom the State through
which the attempt to pass is, at the time, in the relations
of peace and amity; and adduces, in support of this
limitation of the right, the case of Marshal Belle-Isle,
French ambassador at the Prussian court, in 1744
(France and Great Britain being then at war), who, in
attempting to pass through Hanover, was arrested and
carried off a prisoner to England (l).
OfBynker- Bynkcrshock maintains that ambassadors, passing
through the territories of another State than that to
(k) Vattd, Droit des Gens, liv. it. (I) Oh. de Martens, GanseB G^^bres
ch. 7, {§ 84, 85. da Droit des Gens, tome i. p. 310.
shock.
RIGHTS OF LEGATION. 357
which they are accredited, are amenable to the local Chap. I.
jurisdiction, both civil and criminal, in the same manner
"with other aliens, who owe a temporary allegiance to the
State. He interprets the edict of the States-General, of
1679, exempting from arrest " the persons, domestics,
and effects of ambassadors, hier te lande komendej reside-
rende of passerende^^^ as extending only to those public
ministers actually accredited to their High Mighti-
nesses. He considers the last-mentioned term passe-
rende as referring not to those who, coming from
abroad, merely pass through the territories of the
State in order to proceed to another country, but to
those only who are about to leave the State where
they have been resident as ministers accredited to its
government {m).
This appears to Merlin to be a forced interpretation, of Moriin!
** The word passer in French, and passerende in Dutch,"
says he, " was never used to designate a person return-
ing from a given place ; but is applicable to one who,
having arrived at that place, does not stop there, but
proceeds on to another. We must, therefore, conclude
that the law in question attributes to ambassadors who
merely pass through the United Provinces the same
independence with those who are there resident. If it
be objected, as Bynkershoek does object, that the States-
General (that is, the authors of this very law) caused to
be arrested, in 1717, the Baron de Gortz, ambassador
of Sweden at the court of London, at the request of
George I., against the security of whose crown he had
been plotting, the answer to this example is furnished
by Bynkershoek himself. * The only reason/ says he,
* alleged by the States-General for this proceeding was,
that this ambassador had not presented to them his
letters of credence.' This reason (continues Merlin) is
not the less conclusive for being the only one alleged by
the States-General. When it is said that an ambassador
(m) Bynkershoek, de For. Legat. cap. iz. WheatoD, Hist. Law of NatiosB,
p. 243.
368 BIGHTS OF LEGATION,
Partm. is entitled, in the territories through which he merely
passes, to the independence belonging to his public
character, it must be understood with this qualification,
that he travels as an ambassador ; that is to say, after
haying caused himself to be announced as such, and
having obtained permission to pass in that character.
This permission places the sovereign, by whom it has
been granted, under the same obligation as if the public
minister had been accredited to and received by him.
Without this permission, the ambassador must be con-
sidered as an ordinary ti'aveller, and there is nothing to
prevent his being arrested for the same causes which
would justify the arrest of a private individual" («).
To these observations of the learned and accurate
Merlin it may be added, that the inviolability of a public
minister in this case depends upon the same principle
with that of his sovereign, coming into the territory of a
friendly State by the permission, express or implied, of
the local government. Both are equally entitled to the
protection of that government, against every act of
violence and every species of restraint, inconsistent with
their sacred character. We have used the term per-
mission^ express or implied; because a public minister
accredited to one country who enters the territory of
another, making known his official character in the
usual manner, is as much entitled to avail himself of the
permission which is implied from the absence of any
prohibition, as would be the sovereign himself in a
c 248. similar case {o).
Freedom of A minister resident in a foreign country is entitled to
worship. the privilege of religious worship in his own private
chapel, according to the peculiar forms of his national
faith, although it may not be generally tolerated by the
laws of the State where he resides. Even since the
epoch of the Reformation, this privilege has been
secured, by convention or usage, between the Catholic
and Protestant nations of Europe. It is also enjoyed
(») Merlin, Repertoire, tit. Minitire (^j ^,vfo tapra, Pt. ii. ch. 2, { 95.
Fublique, sect. v. § 3, No». 4, 12.
RIGHTS OP LEGATION. 369
by the pubKo ministers and consuls from the Christian Chap. I.
powers in Turkey and the Barbary States. The increas-
ing spirit of reKgious freedom and liberality has gradually
extended this privilege to the establishment, in most
countries, of public chapels, attached to the different
foreign embassies, in which not only foreigners of the
same nation, but even natives of the country of the same
religion, are allowed the free exercise of their peculiar
worship. This does not, in general, extend to public
processions, the use of bells, or other external rites
celebrated beyond the walls of the chapel (/?). « 249
Consuls are not public ministers. Whatever protec- Conauisnot
tion they may be entitled to in the discharge of their peculiar
official duties, and whatever special privileges may be puuio^^ ^
conferred upon them by the local laws and usages, or °*"*^**®"-
by international compact, they are not entitled, by the
general laws of nations, to the peculiar immunities of
ambassadors. No State is bound to permit the residence
of foreign consuls, unless it has stipulated by convention
to receive them. They are to be approved and admitted
by the local sovereign, and, if guilty of illegal or im-
proper conduct, are liable to have the exequatur, which
is granted them, withdrawn, and may be punished by
the laws of the State where they reside, or sent back to
their own country, at the discretion of the government
which they have offended. In civil and criminal cases,
they are subject to the local law in the same manner
with other foreign residents owing a temporary alle-
giance to the State (q\
Sir Eobert Phillimore says that " The privileges of consuls, so far PrivUeges of
as they are derived from the country to which they are sent, are,
generally speaking, an exemption from any personal tax, and generally
from the liability to have soldiers quartered in their houses. They are
usually allowed to grant passports to the subjects of their own country,
living within the range of their consulate, but not to foreigners. As a
(p) Vattel, liT. iv. oh. 7, § 104. Mar- (q) WioquGlort,derAjnl)a88adear,liv.
tens, Pr6ciB, &o.| lir. vii. ch. 6, {{ 222 — i. } 5. Bynkenhoek, oap. 10. Martens,
226. Eliiber, Droit des Gens Modeme Fr6ois, &o., lir. iv. ch. 8, § 148. Kent's
del'Europe, Pt. II. tit. ii. ch. 3, J§ 216, Comment, vol. i. pp. 43—46, 6th ed.
216. FoBlix, Droit Int. Prive, § 191.
360
RIGHTS OF LEGATION.
Partm.
§249b.
Oaaeof
Kr. Bunch.
§260.
Termination
of public
mission.
general rule, the muniments and papers of the oonsalate are inviolable,
and under no pretext to be seized or examined by the local authori-
ties " (r). There have been numerous judicial decisions on this sub-
ject. The general result of the English, American, and French cases
establishes that consuls have certain privileges, but that they are not
diplomatic officers, and that they cannot claim any of the immunities
accorded specially to members of the diplomatic service («).
A remarkable case of the withdrawal of a consul's exequatur took
place in America in 1861. In order to protect British commerce, Her
Majesty's Government were desirous that the Confederates should
observe the last three articles of the Declaration of Paris, and accord-
ingly Mr. Bunch, the British Consul at Charleston, was instructed to
communicate this desire of Her Majesty's Government to the Con-
federate authorities. The United States thereupon demanded that
Mr. Bunch should be removed from his office, on the ground that the
law of the United States forbad any person, not specially appointed,
from counselling, advising, &c., in any political correspondence with
the government of any foreign State, in relation to any disputes or
controversies with the United States, and that Mr. Bunch ought to
have known of this law, and to have communicated it to his govern-
ment before obeying their instructions. It was also urged that the
proper agents to make known the wishes of a foreign government
were its diplomatic and not its consular officers. On these grounds
Mr. Bunch's exequatur was withdrawn (/).
The mission of a foreign minister resident at a foreign
court, or at a congress of ambassadors, may terminate
during bis life in one of tbe following modes : —
1 . By tbe expiration of tbe period fixed for tbe dura-
tion of tbe mission ; or, wbere tbe minister is constituted
ad interim only, by tbe return of tbe ordinary minister
to bis post. In eitber of tbese cases, a formal recall is
unnecessary.
2. Wben tbe object of tbe mission is fulfilled, as in
tbe case of embassies of mere ceremony ; or wbere tbe
mission is special, and tbe object of the negotiation is
attained or has failed.
3. By tbe recall of tbe minister.
(r) Phillimore, vol. ii. § 248. lyim,
The Britiah Gonfiol Abroad, p. 17.
(») Vweath V. Beeher, 3 M. & S.
284 ; Clark v. Cretieo, 1 Taunt. 186 ;
AtpinwaU y. QueenU Proctor^ 2 Corteifl,
241 ; Sorensen v. £eff., 11 Moo. P. 0.
141 ; The OetavU, 33 L. J. Adm. 115;
DavU v. JPackhard, 7 PetoPB, 276; 8i.
Luke' 9 Hospital r. Barkley, 3 Blatobford,
259. Oalvo, Droit Int. vol. ii. { 485.
(0 Mr. Adams to Earl Rnnell, 2l8l
Not. 1861. IT. S. Dipl. Cor., 1862,
p.l.
BIGHTS OF LEGATION, 361
4. By the decease or abdication of his own sovereign, Chap. L
or the sovereign to whom he is accredited. In either of
these cases it is necessary that his letters of credence
should be renewed ; which, in the former instance, is
sometimes done in the letter of notification written by
the successor of the deceased sovereign to the foreign
prince at whose court the minister resides. In the latter
case he is provided with new letters of credence; but
where there is reason to believe that the mission will be
suspended for a short time only, a negotiation already
commenced may be continued with the same minister
confidentially sub spe rati.
5. When the minister, on account of any violation of
the law of nations, or any important incident in the
course of his negotiation, assumes on himself the respon-
sibility of declaring his mission terminated.
6. When, on account of the minister's misconduct or
the measures of his government, the court at which he
resides thinks fit to send him away without waiting for
his recall.
7. By a change in the diplomatic rank of the minister.
When, by any of the circumstances above mentioned,
the minister is suspended from his functions, and in
whatever manner his mission is terminated, he still
remains entitled to all the privileges of his public
character until his return to his own country (w). « ^^
A formal letter of recall must be sent to the minister Letter of '
by his government; 1. Where the object of his mission
has been accomplished, or has failed. 2. Where he is
recalled from motives which do not affect the friendly
relations of the two governments.
In these two cases, nearly the same formalities are
observed as on the arrival of the minister. He delivers
a copy of his letter of recall to the minister of foreign
affairs, and asks an audience of the sovereign, for the
purpose of taking leave. At this audience the minister
delivers the oi-iginal of his letter of recall to the sove-
(m) Martens, Manuel Diplomatique, Hr. yii. eh. 9, } 232. Vattel, Ut. iv.
ch. 7, } 59 ; oh. 2, } 15. Freda, &o., oh. 9, } 126.
362 MOHTS OF LEGATION,
Part in. reign, with a compKmentary address adapted to the
occasion.
If the minister is recalled on account of a misunder-
standing between the two governments, the peculiar
circumstances of the case must determine whether a
formal letter of recall is to be sent to him, or whether he
may quit the residence without waiting for it ; whether
the minister is to demand, and whether the sovereign is
to grant him, an audience of leave.
Where the diplomatic rank of the minister is raised or
lowered, as where an envoy becomes an ambassador, or
an ambassador has fulfilled his functions as such, and is
to remain as a minister of the second or third class, he
presents his letter of recall, and a letter of credence in
his new character.
Where the mission is terminated by the death of the
minister, his body is to be decently interred, or it may
be sent home for interment ; but the external religious
ceremonies to be observed on this occasion depend upon
the laws and usages of the place. The secretary of
legation, or, if there be no secretary, the ministeir of
some allied power, is to place the seals upon his efEects, and
the local authorities have no right to interfere, unless in
case of necessity. All questions respecting the succession
ab intestato to the minister's movable property, or the
validity of his testament, are to be determined by the
laws of his own country. His efEects may be removed
from the country where he resided, without the payment
of any droit d^aubaine or detraction (z).
Although in strictness the personal privileges of the
minister expire with the termination of liis mission by
death, the custom of nations entitles the widow and
family of the deceased minister, together with their
domestics, to a continuance, for a limited period, of the
same immunities which they enjoyed during his lifetime.
(x) But the estate of an attach^, or, payment of legacy duty. AtL-Gen, y.
senthU, of an ambassador, dying domi- jf^^^ 31 j^^ j, e^, gOl.
ciled in England, is not exempt from the
RIGHTS OF LEGATION. 363
It is the usage of certain courts to give presents to CJhap. I. *
foreign ministers on their recall, and on other special
occasions. Some governments prohibit their ministers
from receiving such presents. Such was formerly the
rule observed by the Venetian Republic, and such is now
the law of the United States (y).
(y) Martens, IVecU, &o., liy. yii. oh. 10, §} 240—246. ManneL Diplomatiqae,
oh. 7, §} 60^66.
364
Part in.
BIGHTS OF NEGOTIATION AND TREATIES.
CHAPTER II.
§252.
Faculty of
oontraoting
by treatr,
Low limited
or modified.
Form of
treaty.
RIGHTS OF NEGOTIATION AND TREATIES.
The power of negotiating and contracting public
treaties between nation and nation exists in full vigour
in every sovereign State which has not parted with this
portion of its sovereignty, or agreed to modify its exer-
cise by compact with other States.
Semi-sovereign or dependent States have, in general,
only a limited faculty of contracting in this manner;
and even sovereign and independent States may restrain
or modify this faculty by treaties of alliance or con-
federation with others. Thus the several States of the
North American Union are expressly prohibited from
entering into any treaty with foreign powers, or with
each other, without the consent of the Congress ; whilst
the sovereign members of the Germanic Confederation
formerly retained the power of concluding treaties of
alliance and commerce, not inconsistent with the funda-
mental laws of the Confederation (a).
The constitution or fundamental law of every particular
State must determine in whom is vested the power of
negotiating and contracting treaties with foreign powers.
In absolute, and even in constitutional monarchies, it is
usually vested in the reigning sovereign. In republics,
the chief magistrate, senate, or executive council is in-
trusted with the exercise of this sovereign power.
No particular form of words is essential to the conclu-
sion and validity of a binding compact between nations.
The mutual consent of the contracting parties may be
(a) See Ft. I. oh. 2, { 47 et nq.
RIGHTS OF NEGOTIATION AND TREATIES. 365
given expressly or tacitly ; and in the first case, either Chap. II.
verbally or in writing. It may be expressed by an in-
strument signed by the plenipotentiaries of both parties,
or by a declaration, and counter declaration, or in the
form of letters or notes exchanged between them. But
modem usage requires that verbal agreements should be,
as soon as possible, reduced to writing in order to avoid
disputes ; and all mere verbal communications preceding
the final signature of a written convention are considered
as merged in the instrument itself. The consent of the
parties may be given tacitly, in the case of an agreement
made under an imperfect authority, by acting under it
as if duly concluded (b). § 254.
There are certain compacts between nations which are 2*^^ ,
• . . • tmoes, and
concluded, not in virtue of any special authority, but in oapitniationa.
the exercise of a general implied power confided to
certain public agents, as incidental to their official
stations. Such are the official acts of generals and
admirals, suspending or limiting the exercise of hostili-
ties within the sphere of their respective military or
naval commands, by means of special licences to trade,
of cartels for the exchange of prisoners, of truces for the
suspension of arms, or capitulations for the surrender of
a fortress, city, or province. These conventions do not,
in general, require the ratification of the supreme power
of the State, unless such a ratification be expressly re-
served in the act itself (c). o 255
Such acts or engagements, when made without autho- Sponsions,
rity, or exceeding the limits of the authority under which
they purport to be made, are called sponsions. These
conventions must be confirmed by express or tacit ratifi-
cation. The former is given in positive terms, and with
the usual forms ; the latter is implied from the fact of •
acting under the agreement as if bound by its stipula-
tions. Mere silence is not sufficient to infer a ratifica-
(b) Martens, Precis, liy. ii. oh. 2, dera. The latter were considered the
}} 49, 51, 65. Heffter, } 87. most solemn. Gains, Comm. iii. } 94.
The Boman dyilians ananged all in- {e) Grotins, de Jnr. Bel. ac Pao. lih.
temational oontraots into three oUsses. iii. oap. 22, §§ 6 — 8. Vattel, Droit des
1. Paotiones. 2. Sponsiones. 3. F(b- Qens, Hy. ii. ch. 14, } 207.
366
BIGHTS OP NEGOTIATION AND TREATIES.
Partm.
§266.
Full power
and ratifica-
tion.
§267.
Opinions of
Grotius and
Puflendorf.
§268.
Of Bynkers-
hoek.
tion by either party, though good faith requires that the
party refusing it should notify its determination to the
other party, in order to prevent the latter from carrying
its own part of the agreement into effect. If, however,
it has been totally or partially executed by either party,
acting in good faith upon the supposition that the agent
was duly authorized, the party thus acting is entitled to
be indemnified or replaced in his former situation (rf).
As to other public treaties : in order to enable a public
minister or other diplomatic agent to conclude and sign
a treaty with the government to which he is accredited,
he must be furnished with a fiill powet^y independent of
his general letter of credence.
Grotius, and after him Puffendorf, consider treaties
and conventions, thus negotiated and signed, as binding
upon the sovereign in whose name they are concluded,
in the same manner as any other contract made by a
duly authorized agent binds his principal, according to
the general rules of civil jurisprudence. Grotius makes
a distinction between the procuration which is communi-
cated to the other contracting party, and the instructions
which are known only to the principal and his agent.
According to him, the sovereign is bound by the acts of
his ambassador, within the limits of his patent full-power,
although the latter may have transcended or violated his
secret instructions (e).
'This opinion of the earlier public jurists, founded
upon the analogies of the Roman law respecting the
contract of mandate or commission, has been contested
by more recent writers.
Bynkershoek lays down the true principles applicable
to this subject, with the clearness and practical precision
which distinguish the writings of that great public jurist.
In the second book of his QucesHonea Juris Publici
(cap. vii.), he propounds the question, whether the
(<Q Grotina, de Jur. Bel. ao Pao. lib. ii.
cap. 15, i 16 ; Ub. iii. cap. 22, §{ 1—3.
Vattel, Droit des Oens, liy. ii. oh. 14,
^^ 209—212. Biitherforth*B Inst. b. ii.
oh. 9, §21.
{e) Ghrotliu, de Jnr. Bel. ao Pao. lib.
ii. oap. zi. } 12. Poffeodorf, de Jur.
Natune et Gent. lib. iii. oap. ix. { 2.
RIGHTS OF NEGOTIATION AND TREATIES. 367
sovereign is bound by the acts of his minister, contrary Chap. II.
to his secret instructions. According to him, if the
question were to be determined by the ordinary rules
of private law, it is certain that the principal is not
bound where the agent exceeds his power. But in the
case of an ambassador, we must distinguish between the
general full-power which he exhibits to the sovereign to
whom he is accredited, and his special instructions,
which he may, and generally does, retain, as a secret
between his own sovereign and himself. He refers to
the opinion of Albericus Gentilis (de Jure Belli, lib. iii.
cap. xiv.), and that of Grotius above cited, that if the
minister has not exceeded the authority given in his
patent credentials, the sovereign is bound to ratify,
although the minister may have deviated from his secret
instructions. Bynkershoek admits that if the credentials
are special, and describe the particulars of the authority
conferred on the minister, the sovereign is bound to
ratify whatever is concluded in pursuance of this autho-
rity. But the credentials given to plenipotentiaries are
rarely special, still more rarely does the secret authority
contradict the public full-power, and most rarely of all
does a minister disregard his secret instructions (/).
But what if he should disregard them ? Is the sovereign
bound to ratify in pursuance of the promise contained in
the full-power ? According to Bynkershoek, the usage
of nations, at the time when he wrote, required a ratifi-
cation by the sovereign to give validity to treaties con-
cluded by his minister, in every instance, except in the
very rare case where the entire instructions were con-
tained in the patent full-power. He controverts the
position of Wicquefort {V Amhassadeur et ses FoncUonSj
liv. 2, § 16), condemning the conduct of those princes
who had refused to ratify the acts of their ministers on
the ground of their contravening secret instructions.
The analogies of the Roman law, and the usages of the
Roman people, were not to be considered as an unerring
(/} Bynkenhoeky Queest. Jar. Pub. lib. ii. cap. Tii.
36S RIGHTS OF NEGOTIATION AND TREATIES.
PartllL guide in this matter, since time had gradually worked a
change in the usage of nations, which constitutes the
law of nations; and Wicquefort himself, in another
passage, had admitted the necessity of a ratification
to give validity to the acts of a minister under his full-
power (y). Bynkershoek does not, however, deny that,
if the minister has acted precisely in conformity with
his patent full-power, which may be special, or his secret
instructions, which are always special, even the sovereign
is bound to ratify his acts, and subjects himself to the
imputation of bad faith if he refuses. But if the minister
exceed his authority, or undertake to treat points not
contained in his full-power and instructions, the sove-
reign is fully justified in delaying, or even refusing, his
ratification. The peculiar circumstances of each parti-
cular case must determine whether the rule or the excep-
„ 259 tio^ ought to be applied (A).
Of YatteL Vattcl Considers the sovereign as bound by the acts of
his minister, within the limits of his credentials, unless
the power of ratifying be expressly reserved, according
to the practice already established at the time when he
wrote.
" Sovereigns treat with each other through the medium
of their attorneys or agents, who are invested with suffi-
cient powers for the purpose, and are commonly called
plenipotentiaries. To their office we may apply all the
rules of natural law which respect things done by com-
mission. The rights of the agent are determined by the
instructions that are given him. He must not deviate
from them ; but every promise which he makes, within
the terms of his commission, and within the extent of
his powers, binds his constituent.
^^ At present, in order to avoid all danger and difficulty,
princes reserve to themselves the power of ratifying
what has been concluded in their name by their ministers.
The full power is but a procuration cum libera. If this
procuration were to have its full effect, they could not
{ff) Bynkenhoeky Quest. Jar. Pub. lib. ii. cap. yii. (A) Ibid.
lUGHTS OF NEGOTIATION AND TREATIES.
369
be too circumspect in giving it. But as princes cannot Chap, II.
be compelled to fulfil their engagements, otherwise than
by force of arms, it is customary to place no dependence
on their treaties, until they have agreed to and ratified
them. . Thus, as every agreement made by the minister
remains invalid until sanctioned by the ratification of the
prince, there is less danger in giving the minister a full-
power. But before a sovereign can honourably refuse
to ratify that which has been concluded in virtue of a
full-power, he must have strong and solid reasons, and,
in particular, he must show that his minister has deviated
from his instructions "(«).
The slightest reflection will show how wide is the
difference between the power given by sovereigns to
their ministers to negotiate treaties respecting vast and
complicated international concerns, and that given by an
individual to his agent or attorney to contract with
another in his name respecting mere private affairs.
The acts of public ministers under such full powers
have been considered from very early times as subject to
ratifiication (k). „ gg^
The reason on which this practice is founded is clearly Of sir e.
explained by a veteran diplomat, whose long experience
gives additional weight to his authority. ^* The forms
in which one State negotiates with another," says Sir
Robert Adair, "requiring, for the sake of the business
itself, that the powers to transact it should be as exten-
sire and general as words can render them, it is usual so
to draw them up, even to a promise to ratify ; although,
(0 Vattel, Droit dee Gens, liy. ii. It has been very juatly observed that
oh. 12, } 166. this example of the exchange of formal
{k) One of the earliest recorded ex-' ratifications, at a period of the world
amples of this praotioe was given in the like that of Jostinian, which invented
treaty of peace oondnded, in 661, by the nothing, but only collected and followed
Boman Emperor Justinian, with Cos- the precedents of the preceding ages, is
roes I., King of Persia. Both the pre- conclusive to show that this sanction
liminaries and the definitive treaty, signed was then deemed necessary by the gene-
by the respective plenipotentiaries, were ral usage of nations to give validity to
subsequently ratified by the two mon- treaties concluded under full powers,
arohs, and the ratifications formally ex- Wurm, Die Ratification von Staatsver-
changed. Barbeyrao, Histoire des an- tragen, Deutsche Vierteljahrs-Sdhrift,
dens traits, partie ii. p. 295. Nr. 29.
W. B B
370 RIGHTS OF NEQOTIITION AND TREATIES.
Part IIL in practice, the non-ratification of preliminaries is never
considered to be a contravention of the law of nations.
The reason is plain. A plenipotentiary, to obtain credit
with a State on an equality with his master, must be
invested with powers to do, and agree to, all that could
be done and agreed to by his master himself, even to the
alienating the best part of his territories. But the
exercise of these vast powers, always under the under-
stood control of non-ratification, is regulated by his
« 281 instructions (/).
OfKiuber. The cxpositiou of the approved practice of nations,
from which alone the law of nations applicable to this
matter can be deduced, conclusively shows that a full
power, however general, and even extending to a promise
to ratify, does not involve the obligation of ratifying in
a case where the plenipotentiary has deviated from his
instructions. Yet the contrary doctrine inferred, as we
have seen, by the earlier public jurists, from the analogies
of private law in respect to the obligation of contracts,
concluded by procuration, is countenanced by a modern
writer of no inconsiderable merit. Kliiber asserts that
"public treaties can only be concluded in a valid manner
by the ruler of the State, who represents it towards
foreign nations, either immediately by himself, or through
the agency of plenipotentiaries, and in a manner con-
formable to the constitutional laws of the State. A treaty
concluded by such a plenipotentiary is valid, provided he
has not transcended his patent full power ; and a subse-
quent ratification is only required in the case where it is
expressly reserved in the full power, or stipulated in the
treaty itself, as is usually the case at present in all those
conventions which are not, such as military arrange-
ments are, of urgent necessity. The ratification by one
of the contracting parties does not bind the other party
to give his in return. Except in the case of special
stipulations, a treaty is deemed to take effect from the
time of the signature, and not from that of the ratifica-
(/) Adair, Mission to the Court of Vienna, p. 54.
RIGHTS OP NEGOTIATION AND TREATIES. 371
tion. A simple sponsion, an engagement entered into Chap. II.
for the State, whether made by the representative of the
State or his agent, unless he has full authority for
making it, is not binding, except so far as it is ratified
by the State. The question whether a treaty, made in
the name of the State, by the chief of the government
with the enemy, while the former is a prisoner of war, is
binding on the State, or whether it is to be regarded even
as a sponsion, has given rise to serious disputes " (m). o 262.
Martens concurs with Kliiber so far as to admit, that Of Martena.
what he calls the universal law of nations, " does not
require a special ratification to render obligatory the
engagement of a minister acting within the limits of his
full power, on the faith of which the other contracting
party has entered into negotiation with him, even if the
minister has transcended his secret instructions." But
he very correctly adds, that *^the positive law of nations,
considering the necessity of giving to negotiators very
extensive full powers, has required a special ratification
so as not to expose the State to the irreparable injury
which the inadvertence or bad faith of a subordinate
authority might occasion it; so that treaties are only
relied on when ratified. But the reason of this usage,
which may be traced back to the remotest time, suffi-
ciently shows, that if one of the two parties duly offers
his ratification, the other party cannot refuse his in
return, except so far as his agent may have transcended
the limits of his instructions, and consequently is liable
to punishment ; and that, at least regularly, it does not
depend upon the unlimited discretion of one nation to
refuse its ratification by alleging mere reasons of con-
venience '^ (n).
Martens remarks, in a note to the third edition of his
work, published after Kluber's had appeared, that the
latter is of a contrary opinion, as to the obligation of one
party to exchange ratifications when proposed by the
other; "and as he (Kluber) considers the ratification as
(m) Eluber, Droit des Gens Modeme (n) Martens, Precis, &o., { 48.
de TEnzope, \ 142.
bb2
372 RIGHTS OP KEGOTIATION AND TREATIES.
Partin. necessary only where it is reserved in the full power, or
in the treaty itself (which is at present rarely omitted), it
seems that this author deduces from this reservation
the right of arbitrarily refusing the ratification, which I
doubt'' (o).
This observation of Martens appears to be founded
on a misapprehension of the meaning of Kliiber, into
which we had ourselves inadvertently fallen, in the first
edition of this work. Although he has not, perhaps,
guarded his meaning with sufficient caution, further
examination has convinced us that neither Kliiber, nor
any other institutional writer, has laid down so lax a
principle, as that the ratification of a treaty, concluded
in conformity with a full power, may be refused at the
mere caprice of one of the contracting parties, and with-
out assigning strong and solid reasons for such refusal.
The expressions used by Vattel, that " before a sove-
reign can honourably refuse to ratify that which has
been concluded in virtue of a full power, he must have
strong and solid reasons, and, in particular, he must show
that his minister has deviated from his instructions,"
may seem to imply that he considered such deviation as
a necessary ingredient in the strong and solid reasons to
be alleged for refusing to ratify. But several classes of
cases may be enumerated, in which, it is conceived, such
refusal might be justified, even where the minister had
not transcended or violated his instructions. Among
« ofio these the following may be mentioned : —
juBtification 1. Treaties may be avoided, even subsequent to rati-
ratify? ^ fication, upon the ground of the impossibility, physical
or moral, of fulfilling their stipulations. Physical im-
possibility is where the party making the stipulation is
disabled from fulfilling it for want of the necessary phy-
sical means depending on himself. Moral impossibility
is where the execution of the engagement wpuld affect
injuriously the rights of third parties. It follows, in both
cases, that if the impossibility of fulfilling the treaty
(o) MartenSj 3rd edit, note f .
EIGHTS OF NEGOTUTION AND TREATIES. 873
arises, or is discovered previous to the exchange of ratifi- Chap. ir.
cations, it may be refused on this ground.
2. Upon the ground of mutual error in the parties
respecting a matter of fact, which, had it been known in
its true circumstances, would have prevented the con-
clusion of the treaty. Here, also, if the error be discovered
previous to the ratification, it may be withheld upon this
ground.
3. In case of a change of circumstances, on which
the validity of the treaty is made to depend, either by an
express stipulation (clausula rebus sic stantibus), or by the
nature of the treaty itself. As such a change of circum-
stances would avoid the treaty, even after ratification, so
if it take place previous to the ratification, it will afford
a strong and solid reason for withholding that sanction. „ ^^
Every treaty is binding on the contracting parties When treaties
from the date of its signature, unless it contains an express ^^^
stipulation to the contrary. The exchange of ratifications
has a retroactive effect, confirming the treaty from its
date (/?).
The recent interference of four of the great European
powers in the internal affairs of the Ottoman Empire,
affords a remarkable example of a treaty concluded by
plenipotentiaries, wljich was not only held to be com-
pletely binding between the contracting parties, but the
execution of which was actually commenced before the
exchange of ratifications. Such was the case with the
Convention of the 15th July, 1840, between Austria,
Great Britain, Prussia, Russia, and Turkey. In the
secret protocol annexed to the treaty, it was stated that,
on account of the distance which separated the respec-
tive courts from each other, the interests of humanity,
and weighty considerations of European policy, the
plenipotentiaries, in virtue of their full powers, had
agreed that the preliminary measures should be imme-
diately carried into execution, and without waiting for the
ip) Martens, Pr6ds, &o., § 48. Essai rEurope, } 48. Heflfter, das Euro-
concemant les Armateurs, &o., } 48. ^^j^^ VSlkerwcht, § 87.
Eluber^ Droit dee Gens Modeme de *" '
374 BIGHTS OF NEGOTIATION AND TREATIES.
Partm. exchange of ratifications, consenting formally by the
present act, and with the assent of their courts, to the
immediate execution of these measures.
This anomalous case may, at first sight, seem to con-
tradict the principles above stated, as to the necessity of
a previous ratification, to give complete e£Fect to a treaty
concluded by plenipotentiaries. But further reflection
will show the obvious distinction which exists between a
declaration of the plenipotentiaries, authorized by the
instructions of their respective courts, dispensing by
mutual consent with the previous ratification ; and a de-
mand by one of the contracting parties, that the treaty
should be carried into execution without waiting for the
6 266 ratification of the other party (q).
The treaty- The municipal constitution of every particular State
dependrat on determines in whom resides the authority to ratify treaties
oonsti^oir negotiated and concluded with foreign powers, so as to
render them obligatory upon the nation. In absolute
monarchies, it is the prerogative of the sovereign himself
to confirm the act of his plenipotentiary by his final
sanction. In certain limited or constitutional monarchies,
the consent of the legislative power of the nation is,
in some cases, required for that purpose. In some re-
publics, as in that of the United States of America, the
advice and consent of the Senate are essential, to enable
the chief executive magistrate to pledge the national
faith in this form. In all these cases, it is, consequently,
an implied condition in negotiating with foreign powers,
that the treaties concluded by the executive government
shall be subject to ratification in the maimer prescribed
by the fundamental laws of the State.
"He who contracts with another,'' says Ulpian,
" knows, or ought to know, his condition." Qui cum
alio contrahit, vel est, vel debet esse non ignarus con-
ditionis ejus (1. 19, D. de div. R. J. 50, 17). But, in
practice, the full powers given by the government of the
United States to their plenipotentiaries always expressly
{q) Murhard, Nouyeau Beoueil Gdndml, tome i. p. 163.
BIGHTS OF NEGOTIATION AND TREATIES. 876
reserve the ratification of the treaties concluded by them, Chap. II.
by the President, with the advice and consent of the
Senate.
The treaty, when thus ratified, is obligatory upon the Auxiliary'
contracting States, independently of the auxiliary legis- ^^^^
lative measures, which may be necessary on the part of J^^^^"
either, in order to carry it into complete effect.f- Where, ^^^^ °* *
indeed, such auxiliary legislation becomes necessary, in
consequence of some limitation upon the treaty-making
power, expressed in the fundamental laws of the State,
or necessarily implied from the distribution of its con-
stitutional powers, — such, for example, as a prohibition
of alienating the national domain, — then the treaty may
be considered as imperfect in its obligation, until the
national assent has been given in the forms required by
the municipal constitution. A general power to make
treaties of peace necessarily implies a power to decide
the terms on which they shall be made; and, among
these, may properly be included the cession of the
public territory and other property, as well as of private
property included in the eminent domain annexed to the
national sovereignty. If there be no limitation expressed
in the fundamental laws of the State, or necessarily
implied from the distribution of its constitutional autho-
rities on the treaty-making power in this respect, it
necessarily extends to the alienation of public and
private property, when deemed necessary or expe-
dient (r).
Commercial treaties, which have the effect of altering
the existing laws of trade and navigation of the con-
tracting parties, may require the sanction of the legis-
lative power in each State for their execution. Thus the
commercial treaty of Utrecht, between France and
Great Britain, by which the trade between the two
countries was to be placed on the footing of reciprocity,
was never carried into effect : The British Parliament
(r) Grotiufl, de Jur. Bel. ac Pao. lib. Kent's Comment, on American law,
iu. cap. 20, {7. Vattel, Droit des Gens, ^ol. i. p. 164. 6th ed.
Uy. i. ch. 20, } 244 ; oh. 2, §§ 262-265. ^ , vu .
.876
BIGHTS OF NEGOTIATION AND TBEATIES.
Partni. having rejected the bill which was brought in for the
purpose of modifying the existing laws of trade and
navigation, so as to adapt them to the stipulations of the
treaty (5). In treaties requiring the appropriation of
moneys for their execution, it is the usual practice of the
British government to stipulate that the king will re-
commend to parliament to make the grant necessary for
that purpose. Under the Constitution of the United
States, by which treaties made and ratified by the
President, with the advice and consent of the Senate,
are declared to be "the supreme law of the land," it
seems to be understood that the Congress is bound to
redeem the national faith thus pledged, and to pass the
laws necessary to carry the treaty into effect (t).
The Supreme Court of the United States has laid down as a
principle of international law that, respecting the rights of either
government under it, a treaty is considered concluded and binding
from the date of its signature. In this regard the exchange of ratifi-
cations has, as stated in the text, a retroactive effect, confirming the
treaty from its date. But a different rule prevails where the treaty
operates on individual rights. The principle of relation does not
apply to rights of this character, which were vested before the treaty
was ratified. In so far as it affects them, it is not considered as con-
cluded until there is an exchange of ratifications (ti). The reason of
the rule is this. In America a treaty is something more than a
contract, for the Federal Constitution declares it to be the law of the
land. If so, before it can become a law, the Senate, in whom rests
the authority to ratify it, must agree to it. But the Senate are not
required to adopt or reject it as a whole, but may modify or amend it.
As the individual citizen on whose rights of property it operates has no
means of knowing anything of it while before the Senate, it would be
wrong in principle to hold him bound by it, as the law of the land,
until it was ratified and proclaimed. And to construe the law, so as to
make the ratification of the treaty relate back to its signing, thereby
divesting a title already vested, would be manifestly unjust (x).
Oommenoe'
ment of
treatiee.
Freeioinof By the general principles of private jurisprudence;
farneoMsary rocognized by most, if not all, civilized countries, a
(a) Lord Kahon*B History of England
from the Peace of Utrecht, vol. i. p. 24.
(t) Kent's Comment, vol. i. p. 285,
5th ed.
{u) r. S, T. ArrechndOf 6 Peters,
785.
(x) Haver y. Taker, 9 Wallace, 84.
See, also, U. S, y. Seynet, 9 Hofwaid,
148, 289 ; FofUr y. Ifeilton, 2 Petffv.
314.
BIGHTS OF NEGOTUTION AND TREATIES. 377
contract obtained by violence is void. Freedom of Chap. 11.
consent is essential to the validity of every agreement, totheysudity
and contracts obtained under duress are void, because ° *'^^®"-
the general welfare of society requires that they should
be so. If they were binding, the timid would constantly
be forced by threats, or by violence, into a surrender of
their just rights. The notoriety of the rule that such
engagements are void, makes the attempt to extort them
among the rarest of human crimes. On the other hand,
the welfare of society requires that the engagements
entered into by a nation under such duress as is implied
by the defeat of its military forces, the distress of its
people, and the occupation of its territories by an enemy,
should be held binding; for if they were not, wars
could only be terminated by the utter subjugation and
ruin of the weaker party. Nor does inadequacy of
consideration, or inequality in the conditions of a treaty
between nations, such as might be sufficient to set aside
a contract as between private individuals on the ground
of gross inequality or enormous lesion, form a sufficient
reason for refusing to execute the treaty (y).
General compacts between nations may be divided into TpalmtoiV
what are called trarmtory conventions, and treaties properly ^ulSTn
so termed. The first are perpetual in their nature, so *^«"^*i^-
that, being once carried into efPect, they subsist inde-
pendent of any change in the sovereignty and form of
government of the contracting parties; and although
their operation may, in some cases, be suspended during
war, they revive on the return of peace without any
express stipulation. Such are treaties of cession,
boundary, or exchange of territory, or those which
create a permanent servitude in favour of one nation
within the territory of another {z).
Thus the treaty of peace of 1783, between Great
Britain and the United States, by which the indepen-
(y) Senior, Edinburgh Bey. No. CLVI. (s) Vattel, Droit dea Qe&B, Uy. ii. oh.
art. 1. MartoM, Pr^ds, Hv. ii. oh. 2, 12, } 192. Martena, Pr^oifl, Ac, Uv. ii.
§{ 50, 62. GrotiuB, de Jur. Bel. ac Pao. oh 2 i fi8
Ub. U. fleet, xiv. {§ 4-12. '' '
378
RIGHTS OF NEGOTUTION AND TREATIES.
Part in. dence of the latter was acknowledged, prohibited future
confiscations of property ; and the Treaty of 1794,
between the same parties, confirmed the titles of British
subjects holding lands in the United States, and of
American citizens holding lands in Great Britain, which
might otherwise be forfeited for alienage. Under these
stipulations, the Supreme Court of the United States
determined that the title both of British natural subjects
and of corporations to lands in America was protected by
the treaty of peace, and confirmed by the Treaty of 1794,
so that it could not be forfeited by any intermediate
legislative act, or other proceeding, for alienage. Even
supposing the treaties were abrogated by the war which
broke out between the two countries in 1812, it would
not follow that the rights of property already vested |
under those treaties could be divested by supervening
hostilities. The extinction of the treaties would no i
more extinguish the title to real property acquired or |
secured under their stipulations than the repeal of a i
municipal law afPects rights of property vested under its |
provisions (a). But independent of this incontestable
principle, on which the security of all property rests,
the Court was not inclined to admit the doctrine, that
treaties become, by war between the two contracting
parties, ipso facto extinguished, if not revived by an
express or implied renewal on the return of peace.
Whatever might be the latitude of doctrine laid down by
elementary writers on the law of nations, dealing in
general terms in relation to the subject, it was satisfied
that the doctrine contended for was not universally true.
There might be treaties of such a nature as to their
object and import, as that war would necessarily put an
end to them ; but where treaties contemplated a perma-
nent arrangement of territory, and other national rights,
or in their terms were meant to provide for the event of
an intervening war, it would be against every principle
of just interpretation to hold them extinguished by war,
(a) Chirac v. Chirae^ 2 Wheaton, 277.
RIGHTS OF NEGOTIATION AND TREATIES, 379
If such were the law, even the Treaty of 1783, so far as Qiap. II,
it fixed the limits of the United States, and acknowledged
their independence, would be gone, and they would have
had again to struggle for both, upon original revolutionary
principles. Such a construction was never asserted, and
would be so monstrous as to supersede all reasoning.
The Court, therefore, concluded that treaties stipulating
for permanent rights and general arrangements, and
professing to aim at perpetuity, and to deal with the
case of war as well as of peace, do not cease on the
occurrence of war, but are, at most, only suspended
while it lasts ; and unless they are waived by the parties,
or new and repugnant stipulations are made, revive upon
the return of peace (J). « ^^
By the Srd article of the treaty of peace of 1783, Controversy
between the United States and Great Britain, it was Ame^an ^d
" agreed that the people of the United States shall con- Governments
tinue to enjoy unmolested the right to take fish of every ^J^^^ ^^
0 J o J nglits of
kind on the Grand Bank, and on all the other Banks of fisi^ery on the
Newfoundland ; also, in the Gulf of St. Lawrence, and British
at all other places in the sea, where the inhabitants of n^S^^^ "*
both countries used, at any time heretofore, to fish ; and
also that the inhabitants of the United States shall have
liberty to take fish of every kind on such part of the
coast of Newfoundland as British fishermen shall use (but
not to dry or cure the same on that island), and also on
the coasts, bays, and creeks of all other of his Britannic
Majesty's dominions in America ; and that the American
fishermen shall have liberty to dry and cure fish in any
of the unsettled bays, harbours, and creeks of Nova
Scotia, Magdalen Islands, and Labrador, so long as the
same shall remain unsettled ; but as soon as the same, or
either of them shall be settled, it shall not be lawful for
the said fishermen to dry or cure fish at such settlement,
without a previous agreement for that purpose with the
inhabitants, proprietors, or possessors of the ground."
(ft) The Society far the Fropagatiw of Court of Chancery, as to Amerioan citi-
the Gospel in Foreign Parts v. The Town of zens holding lands in Great Britain
New Haven, 8 Wlieaton, 464. The same under the Treaty of 1794, in Sutton v.
principle was asserted by the English Sutton, 1 Russell & Mihie, 663.
380
BIGHTS OF NKGOTIATION AND TBEATIES.
§270.
Negotiation
at Qhent.
Part in. During the negotiation at Ghent, in 1814, the British
plenipotentiaries gave notice that their government ^^ did
not intend to grant to the United States, gratuitously,
the privileges formerly granted by treaty to them of
fishing within the limits of the British sovereignty, and
of using the shores of the British territories for purposes
connected with the British fisheries." In answer to this
declaration the American plenipotentiaries stated that
they were " not authorized to bring into discussion any
of the rights or liberties which the United States have
heretofore enjoyed in relation thereto ; from their nature,
and from the peculiar character of the Treaty of 1783,
by which they were recognized, no further stipulation
has been deemed necessary by the government of the
United States to entitle them to the full enjoyment of
them all."
The treaty of peace concluded at Ghent, in 1814,
therefore, contained no stipulation on the subject ; and
the British government subsequently expressed its inten-
tion to exclude the American fishing vessels from the
liberty of fishing within one marine league of the shores
of the British territories in North America, and from that
of drying and curing their fish on the unsettled parts of
those territories, and, with the consent of the inhabitants,
within those parts which had become settled since the
peace of 1783.
In discussing this question, the American minister in
London, Mr. J. Q. Adams, stated, that from the time the
settlement in North America, constituting the United
States, was made, until their separation from Great
Britain and their establishment as distinct sovereignties,
these liberties of fishing, and of drying and curing fish,
had been enjoyed by them, in conunon with the other
subjects of the British empire. In point of principle,
they were pre-eminently entitled to the enjoyment ; and
in point of fact, they had enjoyed more of them than any
other portion of the empire; their settlement of the
neighbouring country having naturally led to the dis-
covery and improvement of these fisheries; and their
§271.
Argument of
Mr. J. Q.
Adams.
mGHTS OF NEGOTIATION AND TREATIES. 381
proximity to the places where they were prosecuted Chap. II.
having led them to the discovery of the most advan-
tageous fishing grounds, and given them facilities in the
pursuit of their occupation in those regions which the
remoter parts of the empire could not possess. It might
be added, that they had contributed their full share, and
more than their share, in securing the conquest from
France of the provinces on the coasts of which these
fisheries were situated.
It was doubtless upon considerations such as these that
an express stipulation was inserted in the Treaty of 1783,
recognizing the rights and liberties which had always
been enjoyed by the people of the United States in these
fisheries, and declaring that they should continue to enjoy
the right of fishing on the Grand Bank, and other places
of common jurisdiction, and have the liberty of fishing,
and drying and curing their fish, within the exclusive
British jurisdiction on the North American coasts, to
which they had been accustomed whilst they formed a
part of the British nation. This stipulation was a part
of that treaty by which his Majesty acknowledged the
United States as free, sovereign, and independent States,
and that he treated with them as such.
It could not be necessary to prove that this treaty
was not, in its general provisions, one of those which, by
the common understanding and usage of civilized nations,
is considered as annulled by a subsequent war between
the same parties. To suppose that it is, would imply
the inconsistency and absurdity of a sovereign and inde-
pendent State, liable to forfeit its right of sovereignty
by the act of exercising it on a declaration of war.
But the very words of the treaty attested that the
sovereignty and independence of the United States were
not considered as grants from his Majesty. They were
taken and expressed as existing before the treaty was
made, and as then only first formally recognized by Great
Britain.
Precisely of the same nature were the rights and
liberties in the fisheries. They were, in no respect,
382
RIGHTS OF NEGOTIATION AND TREATIES.
Part III, grants from the King of Great Britain to the United
States ; but the acknowledgment of them as rights and
liberties enjoyed before the separation of the two coun-
tries, and which it was mutually agreed should continue
to be enjoyed under the new relations which were to
subsist between them, constituted the essence of the
article concerning the fisheries. The very peculiarity of
the stipulation was an evidence that it was not, on either
side, understood or intended as a grant from one sove-
reign State to another. Had it been so understood, neither
coiJd the United States have claimed, nor would Great
Britain have granted, gratuitously, any such concession.
There was nothing, either in the state of things, or in
the disposition of the parties, which could have led to
such a stipulation on the part of Great Britain, as on the
ground of a grant, without an equivalent.
If the stipulation by the Treaty of 1783 was one of
the conditions by which his Majesty acknowledged the
sovereignty and independence of the United States ; if
it was the mere recognition of rights and liberties pre-
viously existing and enjoyed, — it was neither a privilege
gratuitously granted, nor liable to be forfeited by the
mere existence of a subsequent war. If it was not
forfeited by the war, neither could it be impaired by the
declaration of Great Britain at Ghent, that she did not
intend to renew the grant. Where there had been no
gratuitous concession, there could be none to renew;
the rights and liberties of the United States could not be
cancelled by the declaration of the British intentions.
Nothing could abrogate them but a renunciation by the
8 272 United States themselves (c).
Argmnent of In the answoT of the British Government to this cpm-
BoAtirst. munication, it was stated that Great Britain had always
considered the liberty formerly enjoyed by the United
States, of fishing within British limits and using British
territory, as derived from the 3rd article of the Treaty
of 1783, and from that alone ; and that the claim of an
{c) Mr. J. Q. Adams to Lord Bathnrst, Sept. 25, 1815. Amerioan State Fbpecs,
fol. edit. 1834, vol. iv. p. 352.
RIGHTS OF NEGOTIATION AND TREATIES. 383
independent State to occupy and use, at its discretion, Chap. IL
any portion of the territory of another, without compen-
sation or corresponding indulgence, could not rest on any
other foundation than conventional stipulation. It was
unnecessary to inquire into the motives which might have
originally influenced Great Britain in conceding such
liberties to the United States, or whether other articles
of the treaty did or did not, in fact, afford an equiva-
lent for them, because all the stipulations profess to be
founded on reciprocal advantage and mutual convenience.
If the United States derived from that treaty privileges,
from which other independent nations not admitted by
treaty were excluded, the duration of the privileges must
depend on the duration of the instrument by which they
were granted ; and if the war abrogated the treaty, it
determined the privileges. It had been urged, indeed,
on the part of the United States, that the Treaty of 1783
was of a peculiar character, and that, because it contained
a recognition of American independence, it could not be
abrogated by a subsequent war between the parties. To
a position of this novel nature Great Britain could not
accede. She knew of no exception to the rule, that all
treaties are put an end to by a subsequent war between
the same parties; she could not, therefore, consent to
give her diplomatic relations with one State a different
degree of permanency from that on which her connection
with all other States depended. Nor could she consider
any one State at liberty to assign to a treaty made with
her such a peculiarity of character as should make it, as
to duration, an exception to all other treaties, in order to
found, on a peculiarity thus assumed, an irrevocable
title to indulgences which had all the features of tem-
porary concessions.
It was by no means unusual for treaties containing
recognitions and acknowledgments of title, in the nature
of perpetual obligation, to contain, likewise, grants of
privileges liable to revocation. The Treaty of 1783, like
many others, contained provisions of different character ;
some in their own nature irrevocable, the others merely
384 RIGHTS OP NEGOTIATION AND TREATIES.
Part III. temporary. If it were thence inferred that, because
some advantages specified in that treaty would not be put
an end to by the war, therefore all the other advantages
were intended to be equally permanent, it must first be
shown that the advantages themselves are of the same,
or at least of a similar character ; for the character of
one advantage, recognized or conceded by treaty, can
have no connection with the character of another, though
conceded by the same instrument, unless it arises out of
a strict and necessary connection between the advantages
themselves. But what necessary connection could there
be between a right to independence and a liberty to fish
within British jurisdiction, or to use British territory?
Liberties within British limits were as capable of being
exercised by a dependent as by an independent State ;
and could not, therefore, be the necessary consequence
of independence.
The independence of a State could not be correctly
said to be granted by a treaty, but to be acknowledged
by one. In the Treaty of 1783, the independence of the
United States was certainly acknowledged, not merely
by the consent to make the treaty, but by the previous
consent to enter into the provisional articles, executed
in 1782. Their independence might have been acknow-
ledged, vsrithout either the treaty or the provisional
articles ; but by whatever mode acknowledged, the
acknowledgment was, in its own nature, irrevocable.
A power of revoking, or even of modifying it, would be
destructive of the thing itself; and, therefore, all such
power was necessarily renounced when the acknowledg-
ment was made. The war could not put an end to it,
for the reason justly assigned by the American minister;
because a nation could not forfeit its sovereignty by the
act of exercising it; and for the further reason that
Great Britain, when she declared war against the United
States, gave them, by that very act, a new recognition
of their independence.
The rights acknowledged by the Treaty of 1783 were
not only distinguishable from the liberties conceded by
RIGHTS OP NEGOTIATION AND TREATIES. 885
the same treaty, in the foundation on which they stand, Chap. II.
but they were carefully distinguished in the wording of
the treaty. In the Ist article, Great Britain acknow-
ledged an independence already expressly recognized by
the other powers of Europe, and by herself in her consent
to enter into the provisional articles of 1782. In the
3rd article, Great Britain acknowledged the right of the
United States to take fish on the Banks of Newfoundland
and other places, from which Great Britain had no right
to exclude any independent nation. But they were to
have the liberty to cure and dry them in certain unsettled
places within the British territory. If the liberties thus
granted were to be as perpetual and indefeasible as the
rights previously recognized, it was difficult to conceive
that the American plenipotentiaries would have admitted
a variation of language so adapted to produce a different
impression ; and, above all, that they should have ad-
mitted so strange a restriction of a perpetual and inde-
feasible right as that with which the article concludes,
which left a right so practical and so beneficial as this
was admitted to be, dependent on the will of British
subjects, proprietors, or possessors of the soil, to prohibit
its exercise altogether.
It was, therefore, surely obvious that the word right
was, throughout the treaty, used as applicable to what
the United States were to enjoy in virtue of a recog-
nized independence ; and the word liberty to what they
were to enjoy as concessions strictly dependent on the
treaty itself {d). « 273
The American minister, in his reply to this argument, Reply of
disavowed every pretence of claiming for the diplomatic
relations between the United States and Great Britain a
degree of permanency different from that of the same
relations between either of the parties and all other
powers. He disclaimed all pretence of assigning to any
treaty between the two nations any peculiarity not
founded in the nature of the treaty itself. But he sub-
(ct) Earl Bathnrdt to Mr. J. Q. Adftms, Oct. 30, 1816. American State Papers,
fol. edit. 1834, yol. iy. p. 354.
W. C C
386 RIGHTS OF NEGOTIATION AND TREATIKS.
Part m. mitted to the candour of the British government whether
the Treaty of 1783 was not, from the very nature of
its subject-matter, and from the relations previously
existing between the parties to it, peculiar ? Whether
it was a treaty which could have been made between
Great Britain and any other nation? And if not,
whether the whole scope and object of its stipulations
were not expressly intended to establish a new and
permanent state of diplomatic relations between the two
countries, which would not and could not be annulled
by the mere fact of a subsequent war ? And he made
this appeal with the more confidence, because the British
note admitted that treaties often contained recognitions
in the nature of perpetual obligation; and because it
implicitly admitted that the whole Treaty of 1783 is of
this character, with the exception of the article con-
cerning the navigation of the Mississippi, and a small
part of the article concerning the fisheries.
The position, that ^^ Great Britain knows of no excep-
tion to the rule, that all treaties are put an end to by
a subsequent war,-' appeared to the American minister
not only novel, but unwairanted by any of the received
authorities upon the law of nations; unsanctioned by
the practice and usages of sovereign States ; suited, in
its tendency, to multiply the incitements to war, and to
weaken the ties of peace between independent nations ;
and not easily reconciled with the admission that treaties
not unusually contain, together with articles of a tem-
porary character, liable to revocation, ^* recognitions
and acknowledgments in the nature of perpetual obli-
gation,"
A recognition or acknowledgment of title, stipulated
by convention, was as much a part of the treaty as any
other article ; and if all treaties are abrogated by war,
the recognitions and acknowledgments contained in
them must necessarily be null and void, as much as any
other part of the treaty.
If there were no exception to the rule, that war puts
an end to all treaties between the parties to it, what
RIGHTS OF NEGOTIATION AND TREATIES. 387
could be the purpose or meaning of those articles which, Chap. II.
in almost all treaties of commerce, were provided ex-
pressly for the contingency of war, and which during
the peace are without operation? For example, the
10th article of the Treaty of 1794, between the United
States and Great Britain, stipulated that ^'Neither the
debts due from individuals of the one nation to indi-
viduals of the other, nor shares, nor moneys, which they
may have in the public funds, or in the public or private
banks, shall ever, in any event of war^ or national differ-
ences, be sequestered or confiscated." If war put an end
to all treaties, what could the parties to this engagement
intend by making it formally an article of the treaty ?
According to the principle laid down, excluding all
exception, by the British note, the moment a war broke
out between the two countries this stipulation became a
dead letter, and either State might have sequestered or
confiscated those specified properties, without any viola-
tion of compact between the two nations.
The American minister believed that there were many
exceptions to the rule by which the treaties between
nations are mutually considered as terminated by the
intervention of a war ; that these exceptions extend to
all engagements contracted with the understanding that
they are to operate equally in war and peace, or exclu-
sively during war; to all engagements by which the
parties superadd the sanction of a formal compact to
principles dictated by the eternal laws of morality and
humanity; and, finally, to all engagements, which,
according to the expression of the British note, are in
the nature of perpetual obligation. To the first and second
of these classes might be referred the 10th article of the
Treaty of 1794, and all treaties or articles of treaties
stipulating the abolition of the slave trade. The treaty
of peace of 1783 belongs to the third class.
The reasoning of the British note seemed to confine
this perpetuity of obligation to recognitions and acknow-
ledgments of title, and to consider its perpetual nature
as resulting from the subject-matter of the contract, and
cc2
388 RIGHTS OF NEGOTIATION AND TREATIES.
PartnL not from the engagement of the contractor. While
Great Britain left the United States unmolested in the
enjoyment of all the advantages, rights and liberties
stipulated in their behalf in the Treaty of 1783, it was
immaterial whether she founded her conduct upon the
mere fact that the United States are in possession of
such rights, or whether she was governed by good faith
and respect for her own engagements. But if she con-
tested any of these rights, it was to her engagements
only that the United States could appeal, as the rule
for settling the question of right. If this appeal were
rejected, it ceased to be a discussion of right ; and this
observation applied as strongly to the recognition of
independence and the boundary line, in the Treaty of
1783, as to the fisheries. It was truly observed in the
British note, that in that treaty the independence of the
United States was not granted, but acknowledged ; and
it was added, that it might have been acknowledged
without any treaty, and that the acknowledgment, in
whatever mode, would have been irrevocable. But the
independence of the United States was precisely the
question upon which a previous war between them and
Great Britain had been waged. Other nations might
acknowledge their independence without a treaty, be-
cause they had no right or claim of right to contest it ;
but this acknowledgment, to be binding upon Great
Britain, could have been made only by treaty, because
it included the dissolution of one social compact between
the parties, as well as the formation of another. Peace
could exist between the two nations only by the mutual
pledge of faith to the new social relations established
between them; and hence it was that the stipulations
to that treaty were in the nature of perpetual obligation,
and not liable to be forfeited by a subsequent war, or
by any declaration of the will of either party, without
8 274 *^^^ assent of the other (e).
Reauitof tiii« The abovc analysis of the correspondence which took
(<•) Mr. J. Q. Adams to Lord Castlereagh, Jan. 22, 1816. Amerioan State Papers,
fol. edit. 1834, toL It. p. 366.
RIGHTS OF NEGOTIATION AND TREATIES. 389
place relating to this subject, has been inserted as illus- Chap« n.
trative of the general question, how far treaties are cwrreepon-
abrogated by war between the parties to them ; but the ^^^'
particular controversy itself was finally settled between
the two countries on the basis of compromise, by the
convention of 1818, in which the liberty claimed by
the United States in respect to the fishery within the
British jurisdiction and territory, was confined to certain
geographical limits (/). ^^^
Treaties J properly so called, or feeder a^ are those of Treaties, the
friendship and alliance, commerce and navigation, ^w^*omw^'
which, even if perpetual in terms, expire of course : — f^ certain
1. In case either of the contracting parties loses its
existence as an independent State.
2. Where the internal constitution of government of
either State is so changed as to render the treaty
inapplicable under circumstances different from those
with a view to which it was concluded.
Here the distinction laid down by institutional writers
between real and personal treaties becomes important.
The first bind the contracting parties independently of
any change in the sovereignty, or in the rulers of the
State. The latter include only treaties of mere personal
alliance, such as are expressly made with a view to the
person of the actual ruler or reigning sovereign, and
though they bind the State during his existence, expire
with his natural life or his public connection with the
State (ff).
3. In case of war between the contracting parties;
unless such stipulations as are made expressly with a
view to a rupture, such as the period of time allowed to
the respective subjects to retire with their effects, or
other limitations of the general rights of war. Such is
the stipulation contained in the 10th article of the
Treaty of 1794, between Great Britain and the United
States, — providing that private debts and shares or
moneys in the public funds, or in public or private
(/) Vidff ante, pt. ii. oh. iv. § 180. {$) Vide ante, pt. i. oh. 2, { 29,
390
EIGHTS OF NEGOTIATION AND TEEATIES,
Part III. banks belonging to private individuals, should never,
in the event of war, be sequestered or confiscated.
There can be no doubt that the obligation of this article
would not be impaired by a supervening war, being the
very contingency meant to be provided for, and that it
must remain in full force until mutually agreed to be
rescinded (A).
4. Treaties expire by their own limitation, unless
revived by express agreement, or when their stipulations
are fulfilled by the respective parties, or when a total
change of circumstances renders them no longer obliga-
§276. *^^^-
Treaties ' Most international compacts, and especially treaties of
"^rmJd^on pcacc, are of a mixed character, and contain articles of
S^p^^.''"^ both kinds, which renders it frequently difficult to dis-
tinguish between those stipulations which are perpetual
in their nature, and such as are extinguished by war
between the contracting parties, or by such changes of
circumstances as affect the being of either party, and
thus render the compact inapplicable to the new condi-
tion of things. It is for this reason, and from abundance
of caution, that stipulations are frequently inserted in
treaties of peace, expressly reviving and confirming the
treaties formerly subsisting between the contracting
parties, and containing stipulations of a permanent
character, or in some other mode excluding the con-
clusion that the obligation of such antecedent treaties
is meant to be waived by either party. The reiterated
confirmations of the treaties of Westphalia and Utrecht,
in almost every subsequent treaty of peace or commerce
between the same parties, constituted a sort of written
code of conventional law, by which the distribution of
power and territory among the principal European States
was permanently settled, until violently disturbed by
the partition of Poland and the wars of the French
revolution. The an-angements of territory and political
relations substituted by the treaties of Vienna for the
(A) Vattely liy. iii. ch. 10, { 175. Kent's Comment, on American Law, yd. i.
p. 176, 5th ed.
RIGHTS OF NEGOTUTION AND TREATIES. 391
ancient conventional law of Europe, and doubtless in- Chap, n.
tended to be of a similar permanent character, have
already undergone, in consequence of the French, Polish,
and Belgic revolutions of 1830, very important modifi-
cations, of which we have given an account in another
work(i). ^ ^^
The convention of guaranty is one of the most usual Treatiee of
international contracts. It is an engagement by which fi^"^*^-
one State promises to aid another where it is interrupted,
or threatened to be disturbed, in the peaceable enjoy-
ment of its rights by a third power. It may be applied
to every species of right and obligation that can exist
between nations; to the possession and boundaries of
. territories, the sovereignty of the State, its constitution of
government, the right of succession, &c. ; but it is most
commonly applied to treaties of peace. The guaranty
may also be contained in a distinct and separate conven-
tion, or included among the stipulations annexed to the
principal treaty intended to be guaranteed. It then
becomes an accessory obligation (k).
The guaranty may be stipulated by a third power not
a party to the principal treaty, by one of the contracting
parties in favour of another, or mutually between all the
parties. Thus, by the treaty of peace concluded at Aix-
la-Chapelle in 1748, the eight high contracting parties
mutually guaranteed to each other all the stipulations of
the treaty.
The guaranteeing party is bound to nothing more
than to render the assistance stipulated. If it prove
insufficient, he is not obliged to indemnify the power to
whom his aid has been promised. Nor is he bound to
interfere to the prejudice of the just rights of a thii-d
party, or in violation of a previous treaty rendering the
guaranty inapplicable in a particular case. Guaranties
apply only to rights and possessions existing at the time
(0 Wheston, Hist. Law of Nationn, Qens Modeme de r Europe, R. II. tit. u.
{k) Vattel, Droit des GeiiB, liv. u. oh. \ to
16, §§ 236-239. Kliiber, Droit des *^^^' *°' ? ^^'
892
BIGUT8 OF KEGOTIATION AMD TREATIES.
Paitm.
§278.
Treaties of
§279.
Dktinotion
between
allianoeaid
treaties of
they are stipulated* It was upon these grounds that
Louis XV. declared, in 1741, in favour of the Elector
of Bavaria against Maria Theresa, the heiress of the
Emperor Charles VI., although the court of France had
previously guaranteed the Pragmatic Sanction of that
Emperor, regulating the succession to his hereditary
States. And it was upon similar grounds that France
refused to fulfil the Treaty of Alliance of 1756 with
Austria, in respect to the pretensions of the latter power
upon Bavaria, in 1778, which threatened to produce a
war with Russia. Whatever doubts may be suggested
as to the application of these principles to the above
cases, there can be none respecting the principles them-
selves, which are recognized by all the text writers (/).
These writers make a distinction between a surety and
a guarantee. Thus Vattel lays it down, that where the
matter relates to things which another may do or give
as well as he who makes the original promise, as, for
instance, the payment of a sum of money, it is safer to
demand a surety (caution) than a guarantee (gai^ant). For
the surety is bound to make good the promise in default
of the principal ; whereas the guarantee is only obliged
to use his best endeavours to obtain a performance of the
promise from him who has made it {m).
Treaties of alliance may be either defensive or o£Een-
sive. In the first case, the engagements of the ally
extend only to a war really and truly defensive ; to a
war of aggression first commenced, in point of fact,
against the other contracting party. In the second, the
ally engages generally to co-operate in hostilities against
a specified power, or against any power with whom the
other party may be engaged in war.
An alliance may also be both offensive and defensive.
General alliances are to be distinguished from treaties
of limited succour and subsidy. Where one State stipu-
lates to furnish to another a limited succour of troops.
(/) Vattel, Uv. ii. oh. 16, § 238.
Fladsan, Histoir^ de la Biplomatie Fran-
^aise, torn. yii. p. 196.
(m) Vattel, § 239. See Hertslet,
Hap of Europe by Treaty, Index, tit.
Guaxantj.
RIGHTS OF NEGOTIATION AND TREATIES. 393
ships of war, money, or provisions, without any promise Chap, n.
looking to an eventual enfi^affement in ffenoral hostilities, limited
^ ^^ Ml BQCooupand
such a treaty does not necessarily render the party subsidy.
furnishing this limited succour, the enemy of the
opposite belligerent. It only becomes such, so far as
respects the auxiliary forces thus supplied ; in all other
respects it remains neutral. Such, for example, have
long been the accustomed relations of the confederated
Cantons of Switzerland with the other European
powers (w). § 280.
Grotius, and the ' other text writers, hold that the Oasusfced^is
, . of a defenBire
casus foederis of a defensive alliance does not apply to alliance.
the case of a war manifestly unjust, that is, to a war of
aggression on the part of the power claiming the benefit
of the alliance. And it is even said to be a tacit condi-
tion annexed to every treaty made in time of peace,
stipulating to afford succour in time of war, that the
stipulation is applicable only to a just war. To promise
assistance in an unjust war would be an obligation to
commit injustice, and no such contract is valid. But, it
is added, this tacit restriction in the terms of a general
alliance can be applied only to a manifest case of unjust
aggression on the part of the other contracting party,
and cannot be used as a pretext to elude the performance
of a positive and unequivocal engagement, without
justly exposing the ally to the imputation of bad faith.
In doubtful cases, the presumption ought rather to be
in favour of our confederate, and of the justice of his
quarrel {o).
The application of these general principles miist
depend upon the nature and terms of the particular
guaranties contained in the treaty in question* This
will best be illustrated by specific examples. g 281.
Thus, the States-General of Holland were engaged, ^^^
previously to the war of 1756, between France and ^"a* Britain
^ -^ ' and Holland.
(«) Vattd, Droit des Oena, Uv. iii. ahoek, QnsBst. Jnr. Pub. lib. 1. oap. 9.
"*: f 'iii?""^^* T ,. , ,. ,.v .. Vattd, Droit d68 Gents Uv. u. oh. 12,
(o) Grotius, de Jnr. Bel.aoPac. lib. ii. . . .7
cap. 16, { 13 J oap. 26, } 4. Bynker- * ^^^ ' ^^- ^- ^^- «' » 8«-^«-
394 KIGHTS OF NEGOTIATION AND TREATIES.
Part in. Great Britain^ in three different guaranties and defen-
sive treaties with the latter power. The first was the
original defensive alliance, forming the basis of all the
subsequent compacts between the two countries, con-
cluded at Westminster in 1678. In the preamble to this
treaty, the preservation of each other's dominions was
stated as the cause of making it ; and it stipulated a
mutual guaranty of all they already enjoyed, or might
thereafter acquire by treaties of peace, " in Europe
only." They further guaranteed all treaties which were
at that time made, or might thereafter conjointly be
made, with any other power. They stipulated also to
defend and preserve each other in the possession of all
towns and fortresses which did at that time belong, or
should in future belong, to either of them ; and, that for
this pm'pose, when either nation was attacked or molested,
the other should immediately succour it with a certain
number of troops and ships, and should be obliged to
break with the aggressor in two months after the party
that was already at war should require it ; and that
they should then act conjointly, with all their forces,
to bring the common enemy to a reasonable accommo-
dation.
The second defensive alliance then subsisting between
Great Britain and Holland was that stipulated by the
treaties of barrier and succession, of 1709 and 1713, by
which the Dutch barrier on the side of Flanders was
guaranteed on the one part, and the Protestant succes-
sion to the British crown on the other; and it was
mutually stipulated, that, in case either party should be
attacked, the other should furnish, at the requisition of
the injured party, certain specified succours; and if the
danger should be such as to require a greater force, the
other ally should be obliged to augment his succours, and
ultimately to act with all his power in open war against
the aggressor.
The third and last defensive alliance between the same
powers was the treaty concluded at the Hague in 1717,
to which France was also a party. The object of this
BIGHTS OF NEGOTUTION AND TREATIES.
395
treaty was declared to be the preservation of each other Chap.n,
reciprocally, and the possession of their dominions, as
established by the Treaty of Utrecht. The contracting
parties stipulated to defend all and each of the articles of
the said treaty, as far as they relate to the contracting
parties respectively, or each of them in particular ; and
they guarantee all the kingdoms, provinces, states,
rights, and advantages, which each of the parties at the
signing of that treaty possessed, confining this guaranty
to Europe only. The succours stipulated by this treaty
were similar to those above mentioned ; first, interposi-
tion of good offices, then a certain number of forces, and
lastly, declaration of war. This treaty was renewed by
the quadruple alliance of 1718, and by the Treaty of
Aix-la-Chapelle, 1748. ^^^
It was alleged on the part of the British court, that En^d and
the States-General had refused to comply with the terms owierai. '
of these treaties, although Minorca, a possession in
Europe which had been secured to Great Britain by the
Treaty of Utrecht, was attacked by France.
Two answers were given by the Dutch government to
the demand of the stipulated succours : —
1. That Great Britain was the aggressor in the war;
and that, unless she had been first attacked by France,
the casus foederis did not arise.
2. That admitting that France was the aggressor in
Europe, yet it was only in consequence of the hostilities
previously commenced in America, which were expressly
excepted from the terms of the guaranties.
To the first of these objections it was irresistibly replied Repij of Lard
by the elder Lord Liverpool, that although the treaties ^^^^'^p^'-
which contained these guaranties were called defensive
treaties only, yet the words of them, and particularly
that of 1678, which was the basis of all the rest, by no
means expressed the point clearly in the sense of the
objection, since they guaranteed *^all the rights and
possessions" of both parties against ^^all kings, princes,
republics, and states;" so that if either should ^*be
attacked or molested by hostile act, or open war, or in
896 RIGHT8 OF NEGOTUTION AND TREATIES.
PartlH. any other manner disturbed in the possession of his
states, territories, rights, immunities, and freedom of
commerce," it was then declared what should be done in
defence of these objects of the guaranty, by the ally who
was not at war, but it was nowhere mentioned as neces-
sary that the attack of these should be the first injury or
attack. " Nor," continues Lord Liverpool, " doth this
loose manner of expression appear to have been an omis-
sion or inaccuracy. They who framed these guaranties
certainly chose to leave this question, without any
further explanation, to that good faith which must ulti-
mately decide upon all contracts between sovereign
States. It is not presumed that they hereby meant, that
either party should be obliged to support every act of
violence or injustice which his ally might be prompted
to commit through views of interest or ambition; but,
on the other hand, they were cautious of affording too
frequent opportunities to pretend that the case of the
guaranties did not exist, and of eluding thereby the
principal intention of the alliance; both these incon-
veniences were equally to be avoided ; and they wisely
thought fit to guard against the latter, no less than the
former. They knew that in every war between civilized
nations, each party endeavours to throw upon the other
the odium and guilt of the first act of provocation and
aggression; and that the worst of causes was never
without its excuse. They foresaw that this alone would
unavoidably give sufficient occasion to endless cavils and
disputes, whenever the infidelity of an ally inclined him
to avail himself of them. To have confined, therefore,
the case of the guaranty by a more minute description
of it, and under closer restrictions of form, would have
subjected to still greater uncertainty a point which, from
the nature of the thing itself, was already too liable to
doubt: — they were sensible that the cases would be
infinitely various; that the motives to self-defence,
though just, might not always be apparent; that an
artful enemy might disguise the most alarming prepara-
tions ; and that an injured nation might be necessitated
RIGHTS OF NEGOTIATION AND TREATIES. 397
to commit even a preventive hostility, before the danger Chap. II.
which caused it could be publicly known. Upon such
considerations, these negotiators wisely thought proper
to give the greatest latitude to this question, and to leave
it open to a fair and liberal construction, such as might
be expected from friends, whose interests these treaties
were supposed to have for ever united " ( p).
His lordship's answer to the next objection, that the
hostilities, commenced by France in Europe, were only
in consequence of hostilities previously commenced in
America, seems equally satisfactory, and will serve to
illustrate the good faith by which these contracts ought
to be interpreted. ^*If the reasoning on which this
objection is founded was admitted, it would alone be
sufficient to destroy the effects of every guaranty, and to
extinguish the confidence which nations mutually place
in each other, on the faith of defensive alliances; it
points out to the enemy a certain method of avoiding
the inconvenience of such an alliance ; it shows him
where he ought to begin his attack. Let only the first
effort be made upon some place not included in the
guaranty, and, after that, he may pursue his views
against its very object, without any apprehension of the
consequence. Let France first attack some little spot
belonging to Holland, in America, and her barrier would
be no longer guaranteed. To argue in this manner is to
trifle with the most solemn engagements. The proper
object of guaranties is the preservation of some particular
country to some particular power. The treaties above
mentioned promise the defence of the dominions of each
party in Europe, simply and absolutely, whenever they
are attacked or molested. If, in the present war, the first
attack was made out of Europe, it is manifest that long
ago an attack hath been made in Europe ; and that is,
beyond a doubt, the case of these guaranties.
'* Let us try, however, if we cannot discover what hath
once been the opinion of Holland upon a point of this
[p) Diflooxirse on the Conduot of tlie to Neutral Nations. By Charles, Earl
GoYemment of Great Britain in respect of liyerpool. let ed. 1757.
898 BIGHTS OF NEGOTIATION AND TREATIES.
Part in. nature. It hath already been observed that the def en-
sive alliance between England and Holland, of 1678, is
but a copy of the first twelve articles of the French
Treaty of 1 662. Soon after Holland had concluded this
last alliance with France, she became engaged in a war
with England. The attack then began, as in the present
case, out of Europe, on the coast of Guinea; and the
cause of the war was also the same, — ^a disputed right to
certain possessions out of the bounds of Europe, some in
Africa, and others in the East Indies. Hostilities having
continued for some time in those parts, they afterwards
commenced also in Europe. Immediately upon this,
Holland declared that the case of that guaranty did
exist, and demanded the succours which were stipulated.
I need not produce the memorials of their ministers to
prove this; history sufficiently informs us that France
acknowledged the claim, granted the succours, and
entered even into open war in the defence of her ally.
Here, then, we have the sentiments of Holland on the
same article, in a case minutely parallel. The conduct
of France also pleads in favour of the same opinion,
though her concession, in this respect, checked at that
time her youthful monarch in the first essay of his ambi-
tion, delayed for some months his entrance into the
Spanish provinces, and brought on him the enmity of
§284. England "(y).
AiUanoe ' The uaturc and extent of the obligations contracted
Gr^t^ritain by treaties of defensive alliance and guaranty, will be
and Portugal, f^^j^^j, illustrated by the case of the treaties subsisting
between Great Britain and Portugal, which has been
before alluded to for another purpose (r). The treaty of
alliance, originally concluded between these powers in
1642, immediately after the revolt of the Portuguese
nation against Spain, and the establishment of the House
of Braganza on the throne, was renewed, in 1654, by
the Protector, Cromwell, and again confirmed by the
Treaty of 1661, between Charles II. and Alfonzo VI.,
{g) LiverpooVp Disooone, p. 86. (r) Vide anie, pt. ii. ok, 1, } 68.
RIGHTS OF NEGOTIATION AND TREATIES. 399
for the marriage of the former prince with Catharine of Chap. II.
Braganza. This last-mentioned treaty fixes the aid to
be given, and declares that Great Britain will succour
Portugal " on all occasions, when that country is
attacked," By a secret article, Charles II., in con-
sideration of the cession of Tangier and Bombay, binds
himself 'Ho defend the colonies and conquests of Por-
tugal against all enemies, present or future." In 1703,
another treaty of defensive and perpetual alliance was
concluded at Lisbon, between Great Britain and the
States-General on the one side, and the King of Portugal
on the other; the guaranties contained in which were
again confirmed by the treaties of peace at Utrecht,
between Portugal and France, in 1713, and between
Portugal and Spain, in 1715. On the emigration of
the Portuguese royal family to Brazil, in 1807, a con-
vention was concluded between Great Britain and
Portugal, by which the latter kingdom is guaranteed to
the lawful heir of the House of Braganza, and the
British government promises never to recognize any
other ruler. By the more recent treaty between the
two powers, concluded at Rio Janeiro, in 1810, it was
declared ^Hhat the two powers have agreed on an alli-
ance for defence, and reciprocal guaranty against every
hostile attack, conformably to the treaties already sub-
sisting between them, the stipulations of which shall
remain in full force, and are renewed by the present
treaty in their fullest and most extensive interpretation."
This treaty confirms the stipulation of Great Britain to
acknowledge no other sovereign of Portugal but the heir
of the House of Braganza. The Treaty of Vienna, of
the 22nd January, 1815, between Great Britain and
Portugal, contains the following article : — *^ The treaty
of alliance at Rio Janeiro, of the 19th February, 1810,
being founded on temporary circumstances, which have
happily ceased to exist, the said treaty is hereby declared
to be of no effect; without prejudice, however, to the
ancient treaties of alliance, friendship, and guaranty,
which have so long and so happily subsisted between the
400 RIGHTS OP NEGOTIATION AND TREATIES.
Partin> two crowns, and which are hereby renewed by the high
contracting parties, and acknowledged to be of full force
a^^d effect."
§ 285.
canufad^ia Such was the nature of the compacts of alliance and
aiiianoe. guaranty subsisting between Great Britain and Portugal,
at the time when the interference of Spain in the affairs
of the latter kingdom compelled the British government
to interfere, for the protection of the Portuguese nation
against the hostile designs of the Spanish court. In
addition to the grounds stated in the Britisli Parliament,
to justify this counteracting interference, it was urged,
in a very able article on the affairs of Portugal, contem-
poraneously published in the Edinburgh Review, that
although, in general, an alliance for defence and
guaranty does not impose any obligation, nor, indeed,
give any warrant to interfere in intestine divisions, the
peculiar circumstances of the case did constitute the
casus foederis contemplated by the treaties in question,
A defensive alliance is a contract between several States,
by which they agree to aid each other in their defensive
(or, in other words, in their just) wars against other
States. Morally speaking, no other species of alliance is
just, because no other species of war can be just. The
simplest case of defensive war is, where our ally is
openly invaded with military force, by a power to
whom she has given no just cause of war. If France or
Spain, for instance, had marched an army into Portugal
to subvert its constitutional government, the duty of
England would have been too evident to render a state-
ment of it necessary. But this was not the only case
to which the treaties were applicable. If troops were
assembled and preparations made, with the manifest
purpose of aggression against an ally; if his subjects
were instigated to revolt, and his soldiers to mutiny ; if
insurgents on his territory were supplied with money,
with arms, and military stores ; if, at the same time, his
authority were treated as an usurpation, and all partici-
pation in the protection granted to other foreigners
refused to the well-affected part of his subjects, while
RIGHTS OP NEGOTIATION AND TREATIES. 401
those who proclaimed their hostility to his person were Chap. IL
received as the most favoured strangers; in such a
combination of circumstances, it could not be doubted
that the case foreseen bj defensive alliances would arise,
and that he would be entitled to claim that succour,
either general or specific, for which his alliances had
been stipulated. The wrong would be as complete, and
the danger might be as great, as if his territory were
invaded by a foreign force. The mode chosen by his
enemy might even be more effectual, and more certainly
destructive, than open war. Whether the attack made
on him be open or secret, or if it be equally unjust, and
expose him to the same peril, he is equally authorized to
call for aid. All contracts, under the law of nations, are
interpreted as extending to every case manifestly and
certainly parallel to those cases for which they provide
by express words. In that law, which has no tribunal
but the conscience of mankind, there is no distinction
between the evasion and the violation of a contract. It
requires aid against disguised as much as against avowed
injustice ; and it does not fall into so gross an absurdity
as to make the obligation to succour less where the
danger is greater. The only rule for the interpretation
of defensive alliances seems to be, that every wrong
which gives to one ally a just cause of war entitles him
to succour from the other ally. The right to aid is a
secondary right, incident to that of repelling injustice
by force. Wherever he may morally employ his own
strength for that purpose, he may, with reason, demand
the auxiliary strength of his ally (5). Fraud neither
gives nor takes away any right. Had France, in the
year 1715, assembled squadrons in her harbours and
troops on her coasts ; had she prompted and distributed
writings against the legitimate government of George I. ;
had she received with open arms battalions of deserters
from his troops, and furnished the army of the Earl of
(«) Vattel*8 Teasoning is still more condnmve in a case of guaranty. Liv. iii.
oh. 6, }91.
W. D D
402 RIGHTS OF NEGOTIATION AND TREATIES.
Partin. Mar with pay and arms when he proclaimed the Pre-
tender; Great Britain, after demand and refusal of
reparation, would have had a perfect right to declare
war against France, and, consequently, as complete a
title to the succour which the States-Greneral were bound
to furnish, by their treaties of alliance and guaranty of
the succession of the House of Hanover, as if the pre-
tended king, James III., at the head of the French army,
were marching on London. The war would be equally
defensive on the part of England, and the obligation
equally incumbent on Holland. It would show a more
than ordinary defect of understanding, to confound a
war defensive in its principka with a war defensive in its
operations. Where attack is the best mode of providing
for the defence of a State, the war is defensive in prin-
ciple, though the operations are offensive. Where the
war is unnecessary to safety, its offemive character is not
altered, because the wrongdoer is reduced to defensive
warfare. So a State, against which dangerous wrong is
manifestly meditated, may prevent it by striking the
first blow, without thereby waging a war in its principle
offensive. Accordingly, it is not every attack made on
a State that will entitle it to aid under a defensive
alliance ; for if that State had given just cause of war to
the invader, the war would not be, on its part, defensive
in principle.
The most recent example of a treaty of guarantee is that condnded
between Great Britain and Japan in 1902, in which the contracting
parties mutually guaranteed the territorial independence of China and
Korea. They further undertook that if either were assailed by more
than one foreign power on any question of dispute arising in Asia, the
other would come to her assistance {t),
§ 286.
Hostages for The cxecution of a treaty is sometimes secured by
oflrcau^/'^ hostages given by one party to the other. The most
recent and remarkable example of this practice occurred
at the peace of Aix-la-Chapelle, in 1748 ; where the
restitution of Cape Breton, in North America, by Great
(0 Vattel, liy. iii. ch. 6, $ 90. Annual Register, 1902, p. 68.
RiaHTS OF JffEGOTIATION AND TREATIES. 403
Britain to France, was secured by several British peers Chap. II.
sent as hostages to Paris («). « ogT
Public treaties are to be interpreted like other laws interpreta-
and contracts. Such is the inevitable imperfection and treatiea.
ambiguity of all human language, that the mere words
alone of any writing, literally expounded, will go a very
little way towards explaining its meaning. Certain
technical rules of interpretation have, therefore, been
adopted by writers on ethics and public law, to explain
the meaning of international compacts, in cases of doubt.
These rules are fully expounded by Grotius and his
commentators ; and the reader is referred especially to
the principles laid down by Vattel and Rutherforth, as
containing the most complete view of this important
subject (:p).
§287a.
The dispute between England and the United States respecting the Rules for
settlement of the north-west boundary between the Union and Canada, ^terpreta-
tumed on the interpretation to be put upon existing treaties. England
submitted to the German Emperor, who was appointed arbitrator, the
following rules of interpretation.
1. The words of a treaty are to be taken to be used in the sense in
which they were commonly used at the time when the treaty was
entered into.
2. In interpreting any expressions in a treaty, regard must be had
to the context and spirit of the whole treaty.
3. The interpretation should be drawn from the connection and
relation of the different parts.
4. The interpretation should be suitable to the reason of the treaty.
5. Treaties are to be interpreted in a favourable, rather than an
odious sense.
6. Whatever interpretation tends to change the existing state of
things at the time the treaty was made is to be ranked in the class of
odious things (y).
Negotiations are sometimes conducted under the media- Mediation!
tion of a third power, spontaneously tendering its good
offices for that purpose, or upon the request of one or
both of the litigating powers, or in virtue of a previous
(«) Vattd, Hv.ii.oh. 16, §§ 245—261. (y) Pari. Papers, N. America, 1873
(jt) Grotius, de Jar. Bel. ac Pac. lib. (No. 3), pp. 6—9. Vattel, liv. ii. oh. 17,
u. cap. 16. Vattel, Ut. ii. oh. 17. H 271, 285—287, 301 ; ch. 18, § 305 :
Butherforfch, Inst. b. ii. oh. 7. and see antfy §{ 176, 176a.
dd2
404
BIGHTS OF NEGOTIATION AND TREATIES.
§288a.
The Treskty of
ParU, 1866.
Part in, stipulation for that purpose. If the mediation is spon-
taneously offered, it may be refused by either party;
but if it is the result of a previous agreement between
the two parties, it cannot be refused without a breach of
good faith. When accepted by both parties, it becomes
the right and the duty of the mediating power to inter-
pose its advice, with a view to the adjustment of their
differences. It thus becomes a party to the negotiation,
but has no authority to constrain either party to adopt
its opinion. Nor is it obliged to guarantee the perform-
ance of the treaty concluded under its mediation, though,
in point of fact, it frequently does so (^).
/ It WEB stipulated at the Treaty of Paris (1856), that '* If there should
arise between the Sublime Porte and one or more of the other signisg
powers, any misimderstandiug which might endanger the maintenance
of their relations, the Sublime Porte and each of such powers, before
having recourse to the use of force, shall afford the other contracting
parties the opportunity of preventing such an extremity by means of
their mediation " (a). At a Conference of the powers who signed the
Treaty of Paris, their Plenipotentiaries, in a protocol dated 14th April,
1856, expressed ''in the name of their governments, the wish that
States between which any serious misunderstanding may arise, should,
before appealing to arms, have recourse, as far as circumstances might
allow, to the good offices of a friendly power. The Plenipotentiaries
hope that the governments not represented at the Congress will unite
in the sentiment which has inspired the wish recorded in the present
protocol" (A).
Nevertheless, it can hardly be said that wars have been less frequent
since these declarations, even among the powers actually making them.
The protocol w£ts invoked to prevent the Dano-German war of 1864,
and the Austro-Prussian war of 1866, but without effect. The Con-
ference which met at Constantinople in 1876 attempted to settle the
dispute between Eussia and Turkey in a peaceable manner, but it
failed to bring about such a result. Lord QranviUe, in 1870, appealed
to France and Prussia to have recourse to mediation, but in vain (c).
Even after hostilities had commenced, Her Majesty's Government
assured France that ^* if at any time recourse should be had to their
8 oQQi. good offices, they would be freely given and zealously exerted " (rf).
Arbitration. ^®* though wars have been unfortimately frequent of late years
(z) Eliiber, Droit des G^s Hodeme
de TEtirope, pt. ii. tit. 2, § 1 ; ch. 2,
§ 160.
(a) Art. Tiii. See Hertslet, Map of
Europe, yoI. ii. p. 1256.
(b) Ibid. p. 1279.
{e) Annual Register, 1870. Pah.
Docs. p. 204.
{d) Annual Begiater, 1871. Pub.
Docs. p. 248.
BIGHTS OF NEGOTIATION AND TREATIES. 406
several serious disputes have also been settled by the peaceful method Chap. II.
of an appeal to arbitration («). Notable instances of this in recent
times are afforded by the Treaty of Washington, 1871, and by the
recent arbitrations in connection with the Behring Sea fisheries and
the disputed boundaries of Alaska and Venezuela. By the Treaty of
Washington five different causes of disagreement between England
and the United States, some of them of very long standing, were
referred to different tribunals of arbitration, and a peaceful solution
obtained. A treaty of arbitration, by which the contracting parties
bind themselves to submit to arbitration all differences and disputes 'l .
between them which they cannot settle by negotiation, has been con- i
eluded between the United States of Colombia and the Eepublic of (j
Honduras ; and a treaty of a like nature has been entered into between '
Switzerland, the United States, and other American Powers (/). By
the 12th Article of the General Act of the Berlin Conference, 1885, the
signatory powers declare that in case a serious disagreement originat-
ing on the subject of, or in the limits of the territories mentioned in
Article 1 (the Congo Basin and circumjacent regions), and placed
under the free trade system, shall arise between any of them, or the
powers which may become parties to the Act, these powers bind them-
selves, before appealing to arms, to have recourse to the mediation of
one or more of the friendly powers, and in a similar case reserve to
themselves the option of having recourse to arbitration (j), c 288c.
In the year 1898 the Czar of Eussia invited the governments of The Hague
nearly all the recognized States on the surface of the globe to send f^^, ^'
representatives to a Conference which should consider how best to
check the progressive increase of military and naval armaments, study
any possible means of effecting their eventual reduction, and devise
means for averting armed conflicts between States by the employment
of pacific methods of international diplomacy. The invitation was
accepted by Germany, Austria, Belgiimi, China, Denmark, Spain, the
United States, Mexico, France, Great Britain, Greece, Italy, Japan,
Luxembourg, Montenegro, Holland, Persia, Portugal, Eoumania,
Bussia, Servia, Siam, Sweden and Norway, Switzerland, Turkey, and
Bulgaria; and in the spring of 1899 the Conference duly assembled
at the Hague. Great Britain was represented by Sir Julian (after-
.wards Lord) Pauncefote and Sir Henry Howard, with Vice- Admiral
Sir John Fisher and Major-General Sir John Ardagh as technical
delegates ; the United States by Messrs. M. White, Stanford Newell,
Seth Low, Captain Mahan and Captain Crozier. From the 18th of
May to the 29th of July the International Peace Conference, as it was
designated, held continual session, the members being divided for
greater convenience into three commissions to deal with the various
topics propoimded. The labours of the Conference with regard to
{e) Calvo, Droit Int. vol. u. p. 649. (/) Lawrence, Modem I. L. p. 269.
Several instances are there collected. , v ^. . . ... . ., «,
See, .180, Eeyue de Droit Int. 1874, ^^ ^- ^- "~»- "* *• ^"^^ «*
p. 117, and 1876, p. 67. P«™'
406 BIGHTS OF NEGOTIATION AND TREATIES,
Part ni. formulating a sclieme for the gradual reduction of existing armaments
and for checking any further increase were doomed to failure from the
first. But it did not separate until some highly important conventions
and declarations dealing with the amelioration of the laws and customs
of war had been concluded and executed. These will find their place
in the later pages of this book. The most striking success, however,
of the Conference was the ** Convention for the pacific settlement of
international disputes " which was agreed to by the delegates of all
the powers represented, and was subsequently ratified by their respec-
tive governments.
Under it the signatory powers bound themselves, in case of eerious
disagreement or conflict, to have recourse before appealing to arms,
'' as far as circumstances allow," to the good offices or mediation of
one or more friendly power. This agreement, elaborated in eight
articles, may be regarded as little more than a platonic generality,
especially as it was provided that the acceptance of mediation cannot,
unless there be an agreement to the contrary, have the effect of
interrupting, delaying, or hindering mobilisation or other measures of
preparation for war. But by later articles it was recommended that
^* in differences of an international nature involving neither honour nor
vital interests, and arising from a difference of opinion on points of
fact," the parties who had not been able to come to an agreement by
means of diplomacy should institute an ** international commission of
inquiry" to elucidate the facts by means of an impartial and con-
scientious investigation. And in order to facilitate an immediate
recourse to arbitration for international differences of this characteri
the Conference undertook to organise a permanent Court of Arbitration
which should be competent for all arbitration cases.
This scheme has been carried into effect with very little loss of time,
and, in accordance with the terms of the Convention, an International
Bureau has been established at the Hague, with a secretary and other
permanent officials. Each of the signatory powers has nominated a
limited number of persons '* of known competency in questions of
international law and of the highest moral reputations." These jurists
are inscribed as the members of the court, and from them the arbitra-
tors in any given dispute are chosen. The general control of the
Bureau is under the direction of a Permanent Administrative Council,
composed of the diplomatic representatives of the signatory powers
accredited to the Hag^e and of the Netherlands Minister for Foreign
Affairs, who acts as president. The expenses of the Bureau are borne
by the signatory powers in the proportion fixed for the international
bureau of the Universal Postal Union. An elaborate code of arbitral
procedure is provided by the Convention, the text of which is given in
the Appendix; and access to the tribunal is not confined to the
original signatories of that instrument.
So far the tribunal has not received any very extensive patronage.
In October, 1902, it brought to a satisfactory termination a long-
EIGHTS OF NEGOTIATION AND TREATIES. 407
standing pecuniaiy dispute between the United States and Mexico Chap. II.
with regard to the " Pious Fund of the Oalifomias," a great Eoman
Catholic missionary charity founded during the closing years of the
sixteenth century. In February, 1904, it pronounced judgment on
the preferential claims made against Venezuela by Great Britain,
Germany and Italy, arising out of the pacific blockade of December,
1902. And by the terms of an agreement entered into between
England and France in October, 1903, all differences of a judicial
order, or such as relate to the interpretation of the treaties existing
between the parties which it may not be possible to settle by means of
diplomacy, are to be submitted to the Hague tribunal, '* on condition,
howeyer, that they do not involve eithear the vital interests or the
independence or honour of the two contracting parties, and that they
do not affect the interests of a third power." Similar agreements are
being negotiated between England and other continental powers.
Thus limited, it is probable that the Hague tribunal will fill a gradually
increasing rdle of usefulness, and will save much of that friction which
constantly militates against international goodwill. The fact that
questions of ** vital interest" or "involving national honour" are
excluded from its jurisdiction must largely limit its scope, and it
cannot be accepted as offering any reasonable probability of acting as
a check on popular passions when once excited. But by showing that
it is possible in smaller matters to submit to a pacific solution without
a sacrifice of national self-esteem, it may eventually help to render
public opinion more and more averse to the arbitrament of war, and
prepare it to accept an adverse decision in the spirit of resignation
which society enforces upon a civil litigant (A).
A question was raised under the Treaty of Washington between Decision of
England and the United States as to the effect to be given to an award °»J<«»*7-
in which only a majority of the arbitrators concurred, and when no pro-
vision had been made for this in the agreement of reference. The treaty
had constituted four boards of arbitrators. As regards three of these
boards, it was provided that the votes of a majority should be conclu-
sive ; but as regards the fourth, viz., the one to meet at Halifax and
decide the fishery question, no such provision was made. When the
award was published, Mr. Evarts, the American Foreign Secretary, raised
an objection to its validity on the ground (among others) that only
two out of the three arbitrators had concurred in it. Lord Salisbury
declined to give any weight to this objection, and asserted it to be a
principle of international law that, in arbitrations of a public nature,
the majority of the arbitrators binds the minority, unless the contrary
be expressed («).
(A) For the general history of the pendix H.
Hagne Convention, see Parliamentary ... j^^ Saliflbury to Mr. Webh,
Papers, Miaeellaneous, No. 1 (1899) [Cd. ^^i' ,^^^ ^ ^ , ^ /
953^0; De Martens, Nouv. Ree. G^., J^ f^\ ''I'' , I^^ ^"^,^^''1 '
2- ser. vol. 26, and for the text of the ^^^^"^ ^^^^> ^^^ ^^^' ^^78. Hal-
Convention for tiie pacific regulation of ^^""^^ ^ir S. Baker's edition, ch. xiv. s. 6.
international conflicts, see post, Ap- BluntsohU, sec. 493. Cairo, loc. cit.
408 RIGHTS OF NEGOTIATION AND TREATIES.
Part ni. Another method of peaceably settling intematLonal disputes is by
g ooo^ summoning a oonference or congress of various States, and discussbg
Conferencee. ^^^ claims of each party. This has frequently been done in Europe,
the last instance being the Congress of Berlin in 1878 {k).
m^mA^o The art of negotiation seems, from its very nature,
hardly capable of being reduced to a systematic science.
It depends essentially on personal character and qualities,
united with a knowledge of the world and experience in
business. These talents may be strengthened by the
study of history, and especially the history of diplomatic
negotiations ; but the want of them can hardly be
supplied by any knowledge derived merely from books.
One of the earliest works of this kind is that commonly
called Le Parfait Ambassadeur, originally published in
Spanish by Don Antonio de Vera, long time ambassador
of Spain at Venice, who died in 1658. It was subse-
quently published by the author in Latin, and different
translations appeared in Italian and French. Wicque-
fort's book, published in 1679, under the title of
V Amhassadeur et ses FonctionSy although its principal
object is to treat of the rights of legation, contains much
valuable information upon the art of negotiation. Cal-
liJjres, one of the French plenipotentiaries at the Treaty
of Ryswick, published, in 1716, a work entitled Be La
Manihre de NSgocier avec les Souverains^ which obtained
considerable reputation. The Abb^ Mably also attempted
to treat this subject systematically, in an essay entitled
Principes des NSgotiationSy which is commonly prefixed
as an introduction to his Droit Puhlique de V Europe in the
various editions of the works of that author. A catalogue
of the different histories which have appeared of parti-
cular negotiations would be almost interminable, but
nearly all that is valuable in them will be found collected
in the excellent work of M. Flassan, entitled VHistovre
de la Diplomatie Frangaise. The late Count de Sugar's
compilation from the papers of Favier, one of the prin-
ce) Sm Calvo, i 640.
KIGHTS OF NEGOTUTION AND TREATIES. 409
cipal secret agents employed in the double diplomacy of Chap, n.
Louis XV., entitled Politique de tons les Cabinets de
V Europe pendant les Regnes de Louis XV. etde Louis XVI.y
with the notes of the able and experienced editor, is a
work which also throws great light upon the history of
French diplomacy. A history of treaties from the
earliest times to the Emperor Charlemagne, collected
from the ancient Latin and Greek authors, and from
other monuments of antiquity, was published by Bar-
beyrac in 1739 (/). It had been preceded by the
immense collection of Dumont, embracing all the public
treaties of Europe from the age of Charlemagne to the
commencement of the eighteenth century (w). The best
collection of the more modern European treaties are
tliose published at different periods by Professor Martens,
of Gottingen, including the most important public acts
upon which the present conventional law of Europe is
founded. To these may be added Koch's Histoire
abregSe des TraitSs de Paix depuis la Paix de Westphaliey
continued by SchoU. A complete collection of the pro-
ceedings of the Congress of Vienna has also been pub-
lished in German by Kliiber (n\
^ ^ ^ §289a.
The most complete collection of the treaties by which Qreat Britain Hertalet's
is bound is published under the name of Hertslet's Commercial ^^' '
Treaties. One of the most useful works to all students of international
law and modem European history has recently been published by
Sir Edward Hertslet, entitled " The Map of Europe by Treaty." All
treaties and other important documents relating to the international
affairs of Europe, from 1815tol891, are there collected and arranged
in chronological order, and the same writer's ''Map of Africa by
Treaty," of which the second edition was published in 1896, is con-
ceived on the same plan.
The indices to these works are among the most remarkable and
lucid ever compiled, and a reference to them will enable the student to
(/) Histoire des Anoiens Traites, par is oontinued down to the present day.
Barbeyrac, forming the first volume of xhe latest series is the Nouveau Seetieil
Dumonfs SnppltoeDt an Corps Diplo- ^^^^^^ ^^^.^^^ ^;^^^ ^.^ p^^
matiane.
.. ^ TT . , ^. , .. ^ fessor Felix Stoerk.
(m) Corps Umversel Diplomatique du , . . , „,.
Droit des Geus, &c., 8 tomes, fol. Am- W ^'^'' ^^ ^^^^^^^ Congresses in
Bterd. 1726— 1731. Supplement an Corps den Jahren 1814 und 1816; von J. L.
TJniTersel Diplomatique, 6 tomes, fol. Kliiber, Erlangen, 1816 und 1816 ; 6
1739. The Grand ReeueU of de Martens Bde. Sro.
410
KIGHT« OF NEGOTIATION AND TREATIES.
Partm.
HoUand^s
European
Concert.
Wharton's
Digest.
trace the histoiy of any international transaction, within the specified
period, with the greatest ease.
The collection of treaties and other public acts by Professor Holland,
entitled ''The European Concert in the Eastern Question," forms,
with the introductions and notes, an indispensable companion for any
one desirous of arriving at an intelligent understanding of the stages
of that difficult subject.
The second yolume of Dr. Wharton's Digest contains a valuable
index and comment to the treaties concluded at various times between
the United States and other powers.
411
PAET FOUETH.
INTESNATIONAL EIGHTS OF STATES IN THEIE HOSTILE
BELATIONS.
CHAPTER I.
COMMENCEMENT OF WAB, AND ITS IMMEDIATE EFFECTS.
§200.
The independent societies of men, called States, ac- Redreaa by
, , n ... .1 , , fordble means
knowledge no common arbiter or judge, except such as between
are constituted by special compact. The law by which ^**^®"**
they are governed, or profess to be governed, is deficient
in those positive sanctions which are annexed to the
municipal code of each distinct society. Every State
has therefore a right to resort to force, as the only means
of redress for injuries inflicted upon it by others, in the
same manner as individuals would be entitled to that
remedy were they not subject to the laws of civil society.
Each State is also entitled to judge for itself what are
the nature and extent of the injuries which will justify
such a means of redress.
Among the various modes of terminating the differ-
ences between nations, by forcible means short of actual
war, are the following : —
1. By laying an embargo or sequestration on the ships
and goods, or other property of the offending nation,
found within the territory of the injured State.
2. By taking forcible possession of the thing in con-
troversy, by securing to yourself by force, and refusing
to the other nation, the enjoyment of the right drawn in
question.
412 COMMENCEMENT OP WAB,
Partrv. 3. By exercising the right of vindictive retaliation
{retorsio facti\ or of amicable retaliation {retorsion do
droit)] by which last, the one nation applies, in its
transactions with the other, the same rule of conduct
by which that other is governed under similar circum-
stances.
4. By making reprisals upon the persons and things
belonging to the offending nation, until a satisfactory
o 291 reparation is made for the alleged injury (a).
ReprUais. This last sceuis to extend to every species of forcible
means for procuring redress, short of actual war, and,
of course, to include all the others above enumerated.
Reprisals are negative^ when a State refuses to fulfil a
perfect obligation which it has contracted, or to permit
another nation to enjoy a right which it claims. They
are positive^ when they consist in seizing the persons
and effects belonging to the other nation, in order to
obtain satisfaction (b).
Reprisals are also either gemral or special. They are
general^ when a State which has received, or supposes it
has received, an injury from another nation, delivers
commissions to its officers and subjects to take the
persons and property belonging to the other nation,
wherever the same may be found. It is, according to
present usage, the first step which is usually taken at the
commencement of a public war, and may be considered
as amounting to a declaration of hostilities, unless satis-
faction is made by the offending State. Special reprisals
are, where letters of marque are granted, in time of peace,
to particular individuals who have suffered an injury
from the government or subjects of another nation (c).
Reprisals are to be granted only in case of a clear and
open denial of justice. The right of granting them is
vested in the sovereign or supreme power of the State,
and, in former times, was regulated by treaties and by
the municipal ordinances of different nations. Thus,
{a) Vattel, liv. ii. oh. 18. Kliiber, {h) Kliiber, § 234, note (c).
Droit des Gens Modeme de TEnrope, {c) Bynkerahoek, QnsBSt. Jar. Pub.
{ 234. lib. i. Daponoeau's Tnmal. p. 182, not*.
AND ITS I^niEDIATE EFFECTS. 413
in England, the statute of 4 Hen. V., cap. 7, declares, Chap. I.
" That if any subjects of the realm are oppressed in time
of peace by any foreigners, the king will grant marque
in due form to all that feel themselves grieved ; " which
form is specially pointed out, and directed to be observed
in the statute. So also, in France, the celebrated marine
ordinance of Louis XIV. of 1681, prescribed the forms
to be observed for obtaining special letters of marque by
French subjects against those of other nations. But
these special reprisals in time of peace have almost
entirely fallen into disuse (d). ^ ^
Any of these acts of reprisal, or resort to forcible Eflfect of
means of redress between nations, may assume the cha- "^p™* *"
racter of war in case adequate satisfaction is refused by
the offending State. -'Reprisals," says Vattel, ''are
used between nation and nation, in order to do them-
selves justice when they cannot otherwise obtain it. If
a nation has taken possession of what belongs to another,
if it refuses to pay a debt, to repair an injury, or give
adequate satisfaction for it, the latter may seize something
belonging to the former, and apply it to its own advan-
tage, till it obtains payment of what is due, together
with interest and damages ; or keep it as a pledge till
the offending nation has refused ample satisfaction.
The effects thus seized are preserved, while there is any
hope of obtaining satisfaction or justice. As soon as
that hope disappears they are confiscated, and then re-
prisals are accomplished. If the two nations, upon this
ground of quarrel, come to an open rupture, satisfaction
is considered as refused from the moment that war is
declared, or hostilities commenced; and then, also, the.
effects seized may be confiscated " (e).
Thus, where an embargo was laid on Dutch proj^erty Embargo'
in the ports of Great Britain, on the rupture of the SSS^onof
peace of Amiens, in 1803, under such circumstances as.^^®*^*^^'
{d) Vattel, Droit des G^s, liv. ii. tens, Essai oonoemant les Armateurs,
oh. 18, a 342—346. Bynkershoek, §4.
QoiBst. Jar. Pab. lib. i. oap. 24. Mar- {e) Vattel, Droit des OenB, lir. ii. oh.
tens, FrMsy liv. yiii. oh. 2, § 260. Mar- 18, § 342.
414 COMMENCEMENT OP WAR,
Partly, were considered by the British government as consti-
tuting a hostile aggression on the part of Holland, Sir W.
Scott (Lord Stowell), in delivering his judgment in this
case, said, that ^^ the seizure was at first equivocal ; and
if the matter in dispute had terminated in reconciliation,
the seizure would have been converted into a mere civil
embargo, so terminated. Such would have been the
retroactive effect of that course of circumstances. On
the contrary, if the transaction end in hostility, the
retroactive effect is exactly the other way. It impresses
the direct hostile character upon the original seizure ; it
is declared to be no embargo ; it is no longer an equi-
vocal act, subject to two interpretations ; there is a de-
claration of the animus by which it is done ; that it was
done hostili animo^ and it is to be considered as a hostile
measure, ah initio^ against persons guilty of injuries
which they refuse to redeem, by any amicable alteration
of their measures. This is the necessary courae, if no
particular compact intervenes for the restoration of such
property, taken before a formal declaration of hosti-
Case of Don One of the last cases of reprisals being enforced by England was
not a veiy dignified one, and ended in something like a farce. Don
Pacifico, a native of Gibraltar, and consequently a British subject,
went to reside at Athens, and while there, in 1849, a mob, aided, it
was said, by Qreek soldiers, broke into and plundered his house.
Pacifico did not apply to the (Jreek tribunals for redress, but inroked
the aid of England. On the refusal of Greece to grant compensation,
the British fleet was ordered to lay an embargo on all Gh^ek vessels
in Greek ports. France offered her mediation, but Greece was practi-
cally compelled fco accept the terms imposed by England. Three com-
missioners were appointed to examine Pacifico's claims. These had
now swollen to £21,295 Is, 4d,y and the commissioners, after duly
examining them, awarded him £150 !(y) The English Foreign
Secretary defended these proceedings by alleging that to have recourse
to the Greek tribunals was at that time ridiculous, and that no justice
could be expected from them. Sir B. Phillimore, however, thinks
that the evidence of this was *' not of that overwhelming character
which alone could warrant an exception from the well-known and
(/) Th4 B<Bde$ Ztut, 6 0. Rob. 246 ; ^) CorreBpondence Mpedaixg U. Pii-
ne ^«;J^*'' 2 a Rob 219; m eiWs daima. Pari. Papen^ 1851.
Thereia Sonita, 4 C. Rob. 481. *^^
Fadfloo.
AND ITS IMMEDIATE EFFKCTS. '415
Taloable rule of international law npon questions of this descrip- Clhap. I.
tion" (A), viz., the rule that application must first be made to the local
courts.
In 1861, a British ship, The Prince of Wales^ was wrecked on the Beprisals
Brazilian coast, and the English consul came to the conclusion that W?^ Brazil
the wreck had been plundered, and some of the sailors murdered.
Compensation was demanded by England, and, on its refusal, a British
ship of war blockaded !Rio de Janeiro for six days, and five Brazilian
ships were captured. These were shortiy after restored, and the sum
of £3,200 paid by Brazil under protest. International relations were
suspended between England and Brazil until 1865, when the affair
was settled by the mediation of the King of Portugal (t). d 293b
The above-mentioned proceediogs against Greece and Brazil furnish Paoific
instances of what is called "pacific blockade*'; the blockading power 1>1<><**^®-
blockading the coast, or a certain portion of the coast, of the blockaded
power, but declaring, at the same time, that a state of peace is main-
tained. The earliest affair of this kind was the blockade, in 1827, by
Prance, Great Britain, and Eussia, of aU the coasts of Greece occupied
by Turkish forces. Later, Prance blockaded the Tagus in 1831;
in 1833, Prance and Great Britain blockaded the ports of Holland;
in 1838, Prance blockaded Mexico; from 1838 to 1848, Prance and
€b«at Britain blockaded the ports of the Argentine Eepublic ; in 1860,
the King of Piedmont joined the revolutionary government in Naples
in blockading Sicilian ports held by the King of Naples; in 1879,
Chili blockaded the coast of Bolivia; in 1880, the <^ naval demonstra-
tion " by the six Great Powers at Dulcigno would have become a
pacific blockade if Turkey had delayed giving up that town to Monte-
negro (A); and, in 1886, the Great Powers, with the exception of
Prance, blockaded parts of the Greek coast (/). In 1897, an endeavour
was made by the same powers, this time including Prance, to localise
the Cretan insurrection and to prevent the landing of Greek troops
on that island. Ships from their various navies blockaded it for this pur-
pose, and effectually prevented the landing of reinforcements for Colonel
Yassos and the supply of arms or stores to the insurgents. Greece,
within a very few days, went to war with Turkey, and had events taken a
course different to what actually happened, it is difficult to see how powers
professedly neutral could have forbidden one belligerent access to the
territory of another. The whole incident is an illustration of the
difficulties attending pacific blockade ; and in the latest instance, when
in December, 1902, the fleets of Great Britain and Germany instituted
a pacific blockade of the ports of Venezuela, the sinking of Venezuelan
ships by the latter power was an act of war which would fully have
justified Venezuela in having recourse to retaliatory measures which
would not have been confined to the German fleet. The legality of thus
(A) Phillimore, yol. iii. p. 41 (2nd (h) Wharton, Dig. { 364.
ed.). (0 Ante, { 70k ; put, } 501h, which
(%) Calyo, vol. ii. { 605. see for the conditions of the blockade.
416
COMMENCEMENT OP WAR
Part IV.
S293e.
Dnnt
d'anguie.
§294.
Riflrht of
making war,
in whom
vested.
§2
PuDlio or
solemn war.
instituting a lilockade in timo of peace has been much disputed (m).
It will be obserred that the practice of the Great European Powers is
in its favour ; but great irritation, partly due, no doubt, to sensitiveness
on the score of the Monroe doctrine, was caused in the United States
by the Venezuela blockade.
" There is yet another measure," says Sir R. Phillimore, "partaking
also of a belligerent character, though exercised, strictly speaking, in
time of peace, called by the French ie droit d'angarie. It is an act of
the State by which foreign as well as private domestic vessels which
happen to be within the jurisdiction of the State are seized upon and
compelled to transport soldiers, ammunition, or other instruments of
war ; in other words, to become parties against their will to carrying
on direct hostilities against a power with whom they are at peace" (n).
During the Franco-German war of 1870, the German troops seized
upon six English vessels in the Seine, and scuttled them. Prince
Bismarck admitted their destruction, and offered to jmy the value
according to equitable estimation. He contended '* that the measure
in question, however exceptional in its nature, did not overstep the
bounds of international warlike usages. A pressing danger was at
hand, and every other means of averting it was wanting ; the case was
therefore one of necessity, which even in time of peace may render
the employment or destruction of foreign property admissible, under
reservation of indemnification." The German Chancellor then quoted
the above passage from Sir H. Phillimore's work(o). The English
shipowners were afterwards compensated for their loss.
The right of making war, as well as of authorizing
reprisals, or other acts of vindictive retaliation, belongs
in every civilized nation to the supreme power of the
State. The exercise of this right is regulated by the
fundamental laws or municipal constitution in each
country, and may be delegated to its inferior authorities
in remote possessions, or even to a commercial cor-
poration— such, for example, as the British East India
Company — exercising, under the authority of the State,
sovereign rights in respect to foreign nations (/?).
A contest by force between independent sovereign
States is called a public war. If it is declared in form,
or duly commenced, it entitles both the belligerent
parties to all the rights of war against each other. The
(m) WhartoD, loc. cit.
(n) PhilliinoTe, vol. iii. p. 49.
(o) Annual Beg. 1871. Pab.
p. 257.
Doctfl.
(p) Vattel, liv. iii. ch. 1, § 4. Miir.
tens, Fr6oifl, &o., liv. nil. oh. 2, ${ 260,
264. See ante, \ 17.
AND ITS IMMEDIATE EFFECTS. 417
voluntary or positive law of nations makes no distinction Chap. I
in this respect between a just and an unjust war. A
war in form, or duly commenced, is to be considered, as
to its effects, as just on both sides. Whatever is per-
mitted, by the laws of war, to one of the belligerent
parties, is equally permitted to the other (y).
A perfect war is where one whole nation is at war Perfect or
with another nation, and all the members of both ™p^®^*
nations are authorized to commit hostilities against all
the members of the other, in every case and under
every circumstance permitted by the general laws of
war. An imperfect war is limited as to places, persons,
and things (r).
A civil war between the different members of the
same society is what Groiius calls a mixed war ; it is,
according to hiaij public on the side of the established
government, and private on the part of the people re-
sisting its authority. But the general usage of nations
regards such a war as entitling both the contending
parties to all the rights of war as against each other,
and even as respects neutral nations {s).
\
It seems to be now settled that it is unnecessaTy in order to Civil war.
constitute a war, that both parties should be acknowledged as inde-
pendent nations or sovereign States. A war may exist where one of
the belligerents claims sovereign rights as against the other (^).
Whether the straggle is a war, or is not, is to be determined, not
from the relation of the combatants to each other, but from the mode
in which it is carried on.
During the civil war, the United States government treated the
Confederates as belligerents in all matters relating to the war. Thus
their territoiy was for the time being considered as enemy territory,
and the subjects of the rebellious States as alien enemies (u). But
this was only a belligerent status. The union was declared to be
indissoluble, and the Confederate States, while endeavouring to leave
it, never legally ceased to be within it, or their subjects citizens of the
Union (x). It was, however, necessary to accord a de facto existence
{q) Vattd, Droit des GenB, liy. iii. («) Vide ante, pt. i. oh. 2, {§ 26 et seq,
oil. 12. Ratherforth's Inst. b. ii. oh. 9, (Q The Prize Causes, 2 Blaok. 666 ;
{15. Rose y. Himehj, 4 Cranoh, 272.
(r) Suoh were the limited hostilities (u) TAorifa^^imy. iSmtM, 8 Wallaoe, 10;
authorized by the IJDited States against Mrs, Alexander's Cotton, 2 Wallaoe, 404.
Franoe in 1798. Dallas' Bep. vol. ii. (x) Texas y. White, 7 Wallaoe, 726 ;
p. 21 ; yol. iy. p. 37. WhiU y. Mart, 13 Wallace, 646.
W. E E
418 COMMENCEMENT OF WAR,
Part rV. to the Confederate gOTemment, in certain matters not strictly rights
' of war. Thus the Supreme Court held, that where land was sold to
the rebel government, and was then captured by the United States, it
became the property of the United States, thus recognizing the
yalidity of a sale from the owner to the Confederate government (y).
Again, contracts payable in Confederate notes were enforced, and the
parties compelled to pay at the real, and not the nominal, value of the
notes, at the time when payment was due. The notes were treated as
a currency imposed upon the community by irresistible force (z).
S297.
i^claration ^ formal declaration of war to the enemy was once
far neoesaaiy. considered neccssary to legalize hostilities between
nations. It was uniformly practised by the ancient
Romans, and by the States of modem Europe until
about the middle of the seventeenth century. The
latest example of this kind was the declaration of war
by France against Spain, at Brussels, in 1685, by heralds
at arms, according to the forms observed during the
middle age. The present usage is to publish a mani-
festo, within the territory of the State declaring war,
announcing the existence of hostilities and the motives
for commencing them. This publication may be neces-
sary for the instruction and direction of the subjects of
the belligerent State in respect to their intercourse with
the enemy, and regarding certain effects which the
voluntary law of nations attributes to war in form.
Without such a declaration, it might be difficult to dis-
tinguish in a treaty of peace those acts which are to be
accounted lawful effects of war, from those which either
nation may consider as naked wrongs, and for which they
may, under certain circumstances, claim reparation (a).
§297a.
No declars- A civil war is never declared, it becomes sucb by its accidents — the
tion ol a dvil number, power, and organization of the persons who originate and
carry it on. The American civil war '' sprang forth suddenly from the
parent brain, a Minerva in the full panoply of war " (&). The Crimean
(y) U, S,, Lyon et al, y. Euekahee^ 16 cap. 8, § 4. Bynkenboek, QiuQst. Jar.
Wallace, 414. Fab. lib. i. cap. 2. Bntberfoith's Inst.
(z) The Confederate Note eaae, 19 Wal- b. ii. oh. 9, § 10. Vattel, Droit des
lace, 656 ; Thorittffton y. Smith, 8 Wal- Oens, liy. iii. oh. 4, i 66. Eluber,
lace, 1 ; Hardner y. Woodruff, 15 Wal- Droit des Gens Modeme de TEiirope,
lace, 448. $§ 288, 289.
(a) OrotinB, de Jar. Bel. ao Pao. lib. i. {b) The Frite dmee, 2 BUok. 669.
war.
AND ITS IMMEDIATE EFFECTS. 419
war was preceded by every possible formality between England and Chap. I.
Bossia; in 1870 war was formally declared by France on July 19tli, "
and tbe first Hostilities, with the exception of a skirmish of outposts,
took place at Saarbriiok on August 2nd; but in 1877 the Eussian
troops entered Turkish territory some hours before any dedaration of
war was issued (c). M. Calvo deems a declaration necessary, ^'pour
Ugitimer Pitat de guerre " {d)j but he admits that many recent wars
have been commenced without this formality («). A war can exist
de facto without any declaration, but in such a case hostilities must
have actuaUy commenced {f).
The hostilities of 1884-5 between France and China were com-
menced and continued without any formal declaration of war. But
early in 1885 Great Britain decided to regard the French notification
of the blockade of Formosa as tantamount to a declaration so far as
concerned the rights and duties of neutrals (y). In 1884, the French
admiral, under cover of a nominal state of peace, passed, without
opposition, the forts and obstructions in the Min river, and subse-
quently availed himself of the position thus obtained to destroy the
Chinese vessels and arsenal at Foochow, bombard and fire the neigh-
bouring villages, and take the forts in flank and rear. This conduct
was the subject of much hostile criticism in the European press, and
seems unworthy of an officer of a great and brave nation. In 1885,
the Servian army invaded Bulgaria without any previous declaration
of war ; and the war between China and Japan began with the sink-
ing of a British merchant steamer laden with Chinese troops, the
Kowehing^ on July 25th, 1894, by a Japanese cruiser; early in
the following month Japan made a formal declaration of war. In
1897, Greek irregulars crossed the Turkish frontier on April 8th, and
after several engagements, Turkey declared war on the 17th of that
month. In 1898, the Spanish Cortes formally recognized a state of
war on April 24th, and on the next day the American Congress voted
that war had existed between the United States and Spain from
April 21st, for on that day the President had proclaimed the blockade
of the Cuban coast, and on the 23rd he had issued a proclamation
calling for 125,000 volunteers to serve for two years or the war. On
October 10th, 1899, the Transvaal government presented the British
agent with an ultimatum, and on the evening of the following day,
the time allowed for the withdrawal of the British troops from the
frontier districts having expired, the Boer burghers crossed Laing's
Nek into Natal. On the 17th of June, 1900, the allied fleets
bombarded and took the Taku forts, while the nations to which they
belonged were still at peace with China. The Tsung-li-yamen treated
this as a declaration of war, and ordered all the foreign ministers to
quit Fekin within twenty-four hours, a request with which events
{c) PhiUimore, vol. iii. § 64 ; Pari. 253 ; The Eliza Ann, 1 Dods. Ad. 247 ;
Papers. Turkey, 1877 (No. 26), p. 86. The Success, 1 Dods. Ad. 133.
(rf) Calvo, vol. iii. p. 40. (/) The Teutonia^ L. R. 4 P. 0. 179.
(e) See, also. The Nayade, 4 0. Rob. [g) f 501h, post,
£ E 2
420 COMMENCEMENT OP WAR,
Part rV. rendered it impossible to eomplj ; from that date the Chinese regular
army was ranged by the side of the Boxers. The exact sequence of
events attending the commencement of the Kusso-Japanese War is not
yet (March, 1904) absolutely dear, nor is it certain which of the
combatants struck the first blow. It is not disputed, however, that the
torpedo attack on Port Arthur and the naval engagement in the Bay of
Chemulpo preceded by some days any formal declaration of war (A).
Enemy's As HO decIaratioD, or other notice to the enemy, of
F^I^Sdmthe the existence of war, is necessary, in order to legalize
ttTrom-*^ hostilities, and as the property of the enemy is, in
wlrjb^wiM geiieralj liable to seizure and confiscation as prize of war,
^^oto it would seem to follow as a consequence, that the pro-
perty belonging to him and found within the territory
of the belligerent State at the commencement of hosti-
lities, is liable to the same fate with his other property
wheresoever situated. But there is a great diversity of
opinions upon this subject among institutional writers,
and the tendency of modern usage between nations seems
to be to exempt such property from the operations of war.
One of the exceptions to the general rule, laid down
by the text writers, which subjects all the property of
the enemy to capture, respects property locally situated
within the jurisdiction of a neutral State; but this
exemption is referred to the right of the neutral State,
not to any privilege which the situation gives to the
hostile owner. Does reason, or the approved practice of
nations, suggest any other exception ?
With the Romans, who considered it lawful to enslave,
or even to kill an enemy found within the territory of
the State on the breaking out of war, it would very
naturally follow that his property found in the same
situation would become the spoil of the first taker.
Grotius, whose great work on the laws of war and peace
appeared in 1625, adopts as the basis of his opinion upon
this question the rules of the Roman law, but qualifies
them by the more humane sentiments which began to
prevail in the intercourse of mankind at the time he
(A) See Annual Itegi8ter,jM»«tm. The Frederick Maurice in Hs "Hostiliiies
subject has been historically and exhaus- without declaration of war."
tively treated by Major-(}eneral Sir
AND ITS IMMEDUTE EFFECTS. 421
wrote. In respect to debts, due to private persons, he Chap. L
considers the right to demand them as suspended only
during the war, and reviving with the peace. Bynker-
shoek, who wrote about the year 1737, adopts the same
rules, and follows them to all their consequences. He
holds that, as no declaration of war to the enemy is
necessary, no notice is necessary to legalize the capture
of his property, unless he has, by express compact,
reserved the right to withdraw it on the breaking out of
hostilities. This rule he extends to things in action, as
debts and credits, as well as to things in possession. He
adduces, in confirmation of tliis doctrine, a variety of
examples from the conduct of different States, embracing
a period of something more than a century, beginning in
the year 1556 and ending in 1657. But he acknow-
ledges that the right had been questioned, and especially
by the States-General of Holland ; and he adduces no
precedent of its exercise later than the year 1667,
seventy years before his publication. Against the
ancient examples cited by him, there is the negative
usage of the subsequent period of nearly a century and
a half previously to the wars of the French revolution.
During all this period, the only exception to be found is
the case of the Silesian loan, in 1753. In the argument
of the English civilians against the reprisals made by the
King of Prussia in that case, on account of the capture
of Prussian vessels by the cruisers of Great Britain, it is
stated that " it would not be easy to find an instance
where a prince had thought fit to make reprisals upon a
debt due from himself to private men. There is a confi-
dence that this will not be done. A private man lends
money to a prince upon an engagement of honour;
because a prince cannot be compelled, like other men,
by a court of justice. So scrupulously did England and
France adhere to this public faith, that even during the
war " (alluding to the war terminated by the peace of
Aix-la-Chapelle), ^* they suffered no inquiry to be made
whether any part of the public debt was due to the
subjects of the enemy, though it is certain many English
422 COMMENCEMENT OF WAB,
Partly, had money in the French funds, and many French had
§ 299. money in ours " («).
Vatt^"* **' Vattel, who wrote about twenty years after Bynker-
shoek, after laying down the general principle, that the
property of the enemy is liable to seizure and confisca-
tion, qualifies it by the exception of real property (les
immeuhles) held by the enemy's subjects within the belli-
gerent State, which, having been acquired by the consent
of the sovereign, is to be considered as on the same foot-
ing with the property of his own subjects, and not liable
to confiscation /wr^ belli. But ho adds that the rents and
l^rofits may be sequestrated, in order to prevent their
being remitted to the enemy. As to debts, and other
things in action, he holds that war gives the same right
to them as to the other property belonging to the enemy.
He then quotes the example referred to by Grotius, of
the hundred talents due by the Thebans to the Thessa-
lians, of which Alexander had become master by right
of conquest, but which he remitted to the Thessalians as
an act of favour ; and proceeds to state, that the " sove-
reign has naturally the same right over what his subjects
may be indebted to the enemy ; therefore he may confis-
cate debts of this nature, if the term of payment happen
in time of war, or at least he may prohibit his subjects
from paying while the war lasts. But at present, the
advantage and safety of commerce have induced all the
sovereigns of Europe to relax from this rigour. And as
this custom has been generally received, he who should
act contrary to it would injure the public faith ; since
foreigners have confided in his subjects only in the firm
persuasion that the general usage would be observed.
The State does not even touch the sums which it owes
to the enemy ; everywhere, in case of war, the funds
confided to the public are exempt from seizure and
(i) GrotiaB, de Jur. Bel. ao Pao. lib. dyilianB *'imexoelleiit moroean de droit
iii. cap. 20, } 18. Bynkerahoek, Qaeest. dea Genfi " (Uv. ii. ch. 7, § 34, note •) ;
Jur. Pub. lib. i. cap. 2, 7. Letters of « j, -u- j. . . .^ ,,
CamUlu^ by A. U^L^J^, No. 20. '^ Monte«jmea tem« rt " one rfpo^e
Vattel oaUs tiie report of the Engliah "^ r^pUqw-" (Euyree, torn. Ti. p. 4«.
AND ITS IMMEDIATE EFFECTS. 423
confiscation.'^ In another passage, Vattel gives the Chap. I.
reason of this exemption. " In reprisals, the property
of subjects is seized, as well as that belonging to the
sovereign or State. Everything which belongs to the
nation is liable to reprisals as soon as it can be seized,
provided it be not a deposit confided to the public faith.
This deposit, being found in our hands only on account
of that confidence which the proprietor has reposed in
our good faith, ought to be respected even in case of
open war. Such is the usage in France, in England,
and elsewhere, in respect to money placed by foreigners
in the public funds." Again, he says : " The sovereign
declaring war can neither detain those subjects of the
enemy who were within his dominions at the time of the
declaration, nor their effects. They came into his
country on the public faith ; by permitting them to
enter his territories, and continue there, he has tacitly
promised them liberty and perfect security for their
return. He ought, then, to allow them a reasonable time
to retire with their effects, and if they remain beyond
the time fixed, he may treat them as enemies ; but only
as enemies disarmed " (k). ^^
It appears, then, to be the modern rule of inter- Themodom
national usage, that property of the enemy found within ^ ^'
the territory of the belligerent State, or debts due to his
subjects by the government or individuals, at the com-
mencement of hostilities, are not liable to be seized and
confiscated as prize of war. This rule is frequently
enforced by treaty stipulations, but unless it be thus
enforced, it cannot be considered as an inflexible, though
an established rule. " The rule," as it has been beauti-
fully observed, " like other precepts of morality, of
humanity, and even of wisdom, is addressed to the
judgment of the sovereign — ^it is a guide which he
follows or abandons at his will ; and although it cannot
be disregarded by him without obloquy, yet it may be
disregarded. It is not an immutable rule of law, but
{k) Vattel, Droit des Genu, liv. ii. ch. 18, i 344 ; liv. ill. ch. 4, ( 63 ; ch. 5,
a 73—77.
424
COMMENCEMENT OF WAB,
Partly.
§801.
Rale of
reciprooitjr.
§302.
Droits of
Admirally.
depends on political considerations, which may con-
tinually vary " (/).
Among these considerations is the conduct observed
by the enemy. If he confiscates property found within
his territory, or debts due to our subjects on the break-
ing out of war, it would certainly be just, and it may,
under certain circumstances, be politic, to retort upon
his subjects by a similar proceeding. This principle of
reciprocity operates in many cases of international law.
It is stated by Sir W. Scott to be the constant practice of
Great Britain, on the breaking out of war, to condemn
property seized before the war, if the enemy condemns,
and to restore if the enemy restores. " It is," says he,
^^ a principle sanctioned by that great foundation of the
law of England, Magna Charta itself, which prescribes,
that, at the commencement of a war, the enemy's mer-
chants shall be kept and treated as our own merchants
are kept and treated in their country " (m). And it is
also stated in the report of the English civilians, in 1753,
before referred to, in order to enforce their argument
that the King of Prussia could not justly extend his
reprisals to the Silesian loan, that •* French ships and
effects, wrongfully taken, after the Spanish war, and
before the French war, have, during the heat of the war
with France, and since, been restored by sentence of
your Majesty's courts to the French owners. No such
ships or effects ever were attempted to be confiscated as
enemy's property, here, during the war ; because, had it
not been for the wrong first done, these effects would
not have been in your Majesty's dominions."
The ancient law of England seems thus to have sur-
passed in liberality its modem practice. In the recent
maritime wars commenced by that country, it has been
the constant usage to seize and condemn as droits of
admiralty the property of the enemy found in its ports
at the breaking out of hostilities, and this practice does
not appear to have been influenced by the corresponding
(/) Mr. Chief JuBtioe Manhall, in (m) 7%e Santa OruM, 1 G. Bob. 64.
£r<ncn t. UhitHi StaUt, 8 Onnbh, 110. Magna Oburta, art. 41.
. AND ITS IMMEDUTE EFFECTS. 425
conduct of the enemy in that respect. As has been ob- Chap. I.
served by an English writer, commenting on the judg-
ment of Sir W. Scott in the case of the Dutch ships,
^^ there seems something of subtlety in the distinction
between the virtual and the actual declaration of hosti-
lities, and in the device of giving to the actual declaration
a retrospective- eflScacy, in order to cover the defect of
the virtual declaration previously implied " (n). ^^
During the war between the United States and Great Seizure of
Britain, which commenced in 1812, it was determined ^^^fou^d'
by the Supreme Court, that the enemy's property, found J^Stoii^f
within the territory of the United States on the decla- {j^^^nt ^
ration of war, could not be seized and condemned as state, on the
, , , dedaratioxi of
prize of war, without some legislative act expressly war.
authorizing its confiscation. The court held that the law
of Congress declaring war was not such an act. That
declaration did not, by its own operation, so vest the
property of the enemy in the government, as to support
judicial proceedings for its seizure and confiscation. It
vested only a right to confiscate, the assertion of which
depended on the will of the sovereign power. o 3^^
The judgment of the court stated, that the universal ^rown v.
practice of forbearing to seize and confiscate debts and
credits, the principle universally received, that the right
to them revives on the restoration of peace, would seem
to prove that war is not an absolute confiscation of
this property, but that it simply confers the right of
confiscation.
Between debts contracted under the faith of laws, and
property acquired in the course of trade on the faith of
the same laws, reason draws no distinction ; and although,
in practice, vessels with their cargoes found in port at
the declaration of war may have been seized, it was not
believed that modem usage would sanction the seizure of
the goods of an enemy on land, which were acquired in
peace in the course of trade. Such a proceeding was
rare, and would be deemed a harsh exercise of the rights
(f>) Clutty*B Law of Nations, oh. 3, p. 80.
4^6 COMHENCElfEMT OF WAR,
PartlDT. of war. But although the practice in this respect might
not be uniform^ that circumstance- did not essentially
a£Pect the question. The inquiry was, whether such
property vests in the sovereign by the mere declaration
of war, or remains subject to a right of confiscation, the
exercise of which depends upon the national will : and
the rule which applies to one case, so far as respects the
operation of the declaration of war on the thing itself,
must apply to all others over which war gives an equal
right. The right of the sovereign to confiscate debts
being precisely the same with the right to confiscate
other property found in the country, the operation of a
declaration of war on debts, and on other property found
within the countiy, must be the same.
Even Bynkershoek — who maintains the broad principle,
that in war everything done against an enemy is lawful;
that he may be destroyed, though unarmed and defence-
less; that fraud, or even poison, may be employed
against him ; that a most unlimited right is acquired to
his person and property — admits that war does not
transfer to the sovereign a debt due to his enemy ; and,
therefore, if payment of such debt be not exacted, peace
revives the former right of the creditor ; " because," he
says, " the occupation which is had by war consists more
in fact than in law." He adds to his observations on
this subject : " Let it not, however, be supposed that it is
only true of actions that they are not condemned ipso
jurcy for other things also belonging to tihe enemy may
be concealed and escape confiscation " (o).
Vattel says that "the sovereign can neither detain
the persons nor the property of those subjects of the
enemy who are within his dominions at the time of the
declaration."
It was true that this rule was, in terms, applied by
Vattel to the property of those only who are personally
within the territory at the commencement of hostilities ;
but it applied equally to things in action and to things in
(o) Bjnkerslioek, Quaefit. Jiir. Fab. lib. i. oap. vii.
AND ITS IMMEDUTE EFFECTS. 427
possession ; and if war did, of itself, without any further Chap. L
exercise of the sovereign will, vest the property of the
enemy in the sovereign, the presence of the owner could
not exempt it from this operation of war. Nor could a
reason be perceived for maintaining that the public faith
is more entirely pledged for the security of property,
trusted in the territory of the nation in the time of
peace, if it be accompanied by its owner, than if it be
confided to the care of others.
The modem rule, then, would seem to be, that tangible
property belonging to an enemy, and found in the country
at the commencement of war, ought not to be immediately
confiscated; and in almost every commercial treaty an
article is inserted, stipulating for the right to withdraw
such property (p).
This rule appeared to be totally incompatible with the
idea, that war does, of itself, vest the property in the
belligerent government. It might 'be considered as the
opinion of all who have written on the jus belli, that war
gives the right to confiscate, but does not itself confiscate,
the property of the enemy; and the rules laid down by
these writers went to the exercise of the right.
The Constitution of the United States was framed at a
time when this rule, introduced by commerce in favour
of moderation and humanity, was received throughout
the civilized world. In expounding that Constitution, a
construction ought not lightly to be admitted, which
would give to a declaration of war an effect in this
country it did not possess elsewhere, and which would
fetter the exercise of that entire discretion respecting
enemy's property, which might enable the government
to apply to the enemy the rule which he applied to us.
This general reasoning would bo found to be much
strengthened by the words of the Constitution itself.
That the declaration of war had only the effect of
placing the two nations in a state of hostility, of pro-
ducing a state of war, of giving those rights which war
{p) For lists of these treaties, see Hall's International Law (4th ed.), pp. 409,
410, 457.
428 COMMENCEMENT OF WAE,
Part IV. confers ; but not of operating, by its own force, any of
those results — such as a transfer of property — ^which are
usually produced by ulterior measures of government,
was fairly deducible from the enumeration of powers
which accompanied that of declaring war: — "Congress
shall have power to declare war, grant letters of marque
and reprisal, and make rules concerning captures on land
and water."
It would be restraining this clause within narrower
limits than the words themselves import, to say that the
power to make rules concerning captures on land and
water was to be confined to captures which are extra-
territorial. If it extended to rules respecting enemy's
property found within the territory, then the Court
perceived a fresh grant to Congress of the power in
question as an independent substantive power, not in-
cluded in that of declaring war.
The acts of Congress furnished many instances of an
opinion, that the declaration of war does not, of itself,
authorize proceedings against the persons or property of
the enemy, found at the time within the territory.
War gives an equal right over persons and property;
and if its declaration was not considered as prescribing
a law respecting the person of an enemy found in our
country, neither did it prescribe a law for his property.
The act concerning alien enemies, which conferred on
the President very great discretionary powers respecting
their persons, afforded a strong implication that he did
not possess those powers by virtue of the declaration
of war.
The act "for the safe keeping anji accommodation of
prisoners of war " was of the same character.
The act prohibiting trade with the enemy contained
this clause: — "That the President of the United States
be, and he is hereby authorized to give, at any time
within six months after the passage of this act, passports
for the safe transportation of any ship or other property
belonging to British subjects, and which is now within
the limits of the United States.''
AND ITS IMMEDIATE EFFECTS.
429
The phraseology of this law showed that the property Chap. L
of a British subject was not considered by the legislature
as being vested in the United States by the declaration
of war ; and the authority which the act conferred on
the President was manifestly considered as one which he
did not previously possess.
The proposition that a declaration of war does not, in
itself, enact a confiscation of the property of the enemy
within the territory of the belligerent, was believed to
be entirely free from doubt. Was there in the Act of
Congress, by which war was declared against Great
Britain, any expression which would indicate such an
intention ?
That act, after placing the two nations in a state of
war, authorizes the President to use the whole land and
naval force of the United States, to carry the war into
effect; and ^^ to issue to private armed vessels of the
United States commissions, or letters of marque and
general reprisal, against the vessels, goods, and effects of
the Government of the United Kingdom of Great Britain
and Ireland, and the subjects thereof.'*
That reprisals may be made on enemy's property
found within the United States at the declaration of war,
if such be the will of the nation, had been admitted;
but it was not admitted that, in the declaration of war,
the nation had expressed its will to that effect.
It could not be necessary to employ argument in
showing, that when the Attorney for the United States
institutes proceedings at law for the confiscation of
enemy's property found on land, or floating in one of
our creeks, in the care and custody of one of our citizens,
he is not acting under the authority of letters of marque
and reprisal, still less under the authority of such letters
issued to a private armed vessel.
The act "concerning letters of marque, prizes, and
prize goods," certainly contained nothing to authorize
that seizm^e.
There being no other Act of Congress which bore
upon the subject, it was considered as proved that the
430 COMMENCEMENT OF WAR,
Part IV. legislature had not confiscated enemy's property which
was within the United States at the declaration of war,
and that the sentence of condemnation pronounced in
the Court below could not be sustained.
One view, however, had been taken of this subject,
which deserved to be further considered. It was urged
that, in executing the laws of war, the executive may
seize and the courts condemn all property which, ac-
cording to the modem law of nations, is subject to confis-
cation; although it might require an act of the legislature
to justify the condemnation of that property, which,
according to modem usage, ought not to be confiscated.
This argument must assume for its basis that modem
usage constitutes a rule which acts directly upon the thing
itself, by its own force, and not through the sovereign
power. This position was not allowed. This usage was
a guide which the sovereign follows or abandons at
his will. The rule, like other precepts of morality, of
humanity, and even of wisdom, was addressed to the
judgment of the sovereign ; and although it could not
be disregarded by him without obloquy, yet it might be
disregarded.
The rule was, in its nature, flexible. It was subject to
infinite modifications. It was not an immutable rule of
law, but depended on political considerations, which
might continually vary. Commercial nations, in the
situation of the United States, had always a considerable
quantity of property in the possession of their neigh-
bours. When war breaks out, the question, what shall be
done with enemy's property in our country, is a question
rather of policy than of law. The rule which we apply
to the property of our enemy, will be applied by him to
the property of our citizens. Like all other questions of
policy, it was proper for the consideration of a depart-
ment which can modify it at will ; not for the considera-
tion of a department which can pursue only the law as
it is written. It was proper for the consideration of the
legislature, not of the executive or judiciary. It appeared
to the Court that the power of confiscating enemy's pro-
AND ITS IMMEDIATE EFFECTS. 431
perty was in the legislature, and that the legislature had Chap. I.
not yet declared its will to confiscate property which was
within our territory at the declaration of war (q).
§ 304a.
On the outbreak of the Orimean war, Bussia permitted Turkish Practice of
vessels to leave her ports on the ground that a similar indulgence had *^® Crimean
been granted to Bussian vessels by Turkey. When England and
France took' part in the war, they allowed Bussian vessels in their
ports six weeks to complete their cargoes and depart. This exemption
from the effects of the war was afterwards extended to all Bussian
ships that put to sea before the 16th of May, 1854. Bussia also
allowed English and French vessels a period of six weeks for depar-
ture, and for vessels in the White Sea the period of six weeks com-
menced from the date when the navigation was opened. A similar
principle was followed in the Franco- Austrian war of 1869, the Danish
war in 1862, and the war of 1866 between Austria and Prussia, not to
quote more recent examples (r).
g OA r
In respect to debts due to an enemy, previously to the Debts due to
commencement of hostilities, the law of Great Britain ® ^^7-
pursues a policy of a more liberal, or at least of a wiser
character, than in respect to droits of admiralty. A
maritime power, which has an overwhelming naval
superiority, may have an interest, or may suppose it has
an interest, in asserting the right of confiscating enemy's
property, seized before an actual declaration of war ; but
a nation which, by the extent of its capital, must gener-
ally be the creditor of every other commercial country,
can certainly have no interest in confiscating debts due
to an enemy, since that enemy might, in almost every
instance, retaliate with much more injurious effect.
Hence, though the prerogative of confiscating such
debts, and compelling their payment to the crown, still
theoretically exists, it is seldom or never practically
exerted. The right of the original creditor to sue for
the recovery of the debt is not extinguished ; it is only
suspended during the war, and revives, in full force, on
the restoration of peace («).
(q) Mr. Chief Jnstice Marshall, in the Spanish war of 1898, Hertslet, Com-
Sroum V. United States, 8 Oranch, 123— meroial Treaties, xxi. p. 1075.
(«) Furtado t. Rogers, 3 Bos. & PuL
191 ; Ex parte Bouumaker, 12 Ves. 71 ;
(r) Calvo, vol. ii. p. 609. And see, The Nuestra Signora de Ics dolores, Edw.
129.
w
for the Amerifian praotioe as shown in Ad. 60,
432 COMMENCEMENT OF WAR,
Part IV. Such, too, is the law and practice of the United States.
§ 306. The debts due by American citizens to British subjects
thetJ^t^ before the war of the Revolution, and not actually con-
states, fiscated, were judicially considered as revived, together
with the right to sue for their recovery on the restoration
of peace between the two countries. The impediments
which had existed to the collection of British debts,
under the local laws of the different States of the Con-
federation, were stipulated to be removed by the treaty
of peace, in 1783 ; but this stipulation proving ineffectual
for the complete indemnification of the creditors, the
controversy between the two countries on this subject
was finally adjusted by the payment of a sum en bloc by
the government of the United States, for the use of the
British creditors. The commercial treaty of 1794 also
contained an express declaration, that it was unjust and
impolitic that private contracts should be impaired by
national differences ; with a mutual stipulation, that
" neither the debts due from individuals of the one nation
to individuals of the other, nor shares, nor moneys which
they may have in the public funds, or in the public or
private banks, shall ever, in any event of war, or national
„ 307 differences, be sequestered or confiscated" (t).
Of England On the Commencement of hostilities between France
and Great Britain, in 1793, the former power sequestrated
the debts and other property belonging to the subjects of
her enemy, which decree was retaliated by a counter-
vailing measure on the part of the British Government.
By the additional articles to the treaty of peace between
the two powers, concluded at Paris, in April, 1814, the
sequestrations were removed on both sides, and commis-
saries were appointed to liquidate the claims of British
subjects for the value of their property unduly confiscated
by the French authorities, and also for the total or
partial loss of the debts due to them, or other property
imduly retained under sequestration, subsequently to
1792. The engagement thus extorted from France may
(0 Dallas's Bep. yol. iii. pp. i, 6, 199*285.
and France.
AND ITS IMMEDUTE EFFECTS. 483
be considered as a severe application of the riglits of *^P' ^'
conquest to a fallen enemy, rather than a measure of
even-handed justice ; since it does not appear that French
property, seized in the ports of Great Britain and at sea,
in anticipation of hostilities, and subsequently condemned
as droits of admiralty, was restored to the original
owners under this treaty, on the return of peace between
the two countries (u). ^ 3Qg
So, also, on the rupture between Great Britain and Of England
, *■ , , and Denmark.
Denmark, in 1807, the Danish ships and other property,
which had been seized in the British ports and on the
high seas, before the actual declaration of hostilities,
were condemned as droits of admiralty by the retrospec-
tive operation of the declaration. The Danish govern-
ment issued an ordinance, retaliating this seizure by
sequestrating all debts due from Danish to British sub-
jects, and causing them to be paid into the Danish royal
treasury. The English Court of King's Bench deter-
mined that this ordinance was not a legal defence to a
suit in England for such a debt, not being conformable
to the usage of nations ; the text writers having con-
demned the practice, and no instance having occurred of
the exercise of the right, except the ordinance in ques-
tion, for upwards of a century. The soundness of this
judgment may well be questioned. It has been justly
observed, that between debts contracted under the faith
of laws, and property acquired on the faith of the same
laws, reason draws no distinction ; and the right of the
sovereign to confiscate debts is precisely the same with
the right to confiscate other property found within the
country on the breaking out of the war. Both require
some special act expressing the sovereign will, and both
depend, not on any inflexible rule of international law,
but on political considerations by which the judgment of
the sovereign may be guided (x).
§ 308a.
Some writers have drawn a distinction between debts due from a Public and
subject of one belligerent to a subject of the other, and debts due from private debts.
(m) Martens, NoaveaaKeoaeil, torn. ii. {x) Wolf y. Oxholm, 6 M. & S. 92 ;
p. 16. Broum t. United Slates, 8 Granch, 110.
W. F F
434 COMMENCEMENT OF WAR,
Part IV. a belligerent State to the sabjects of the other. It is said that there
exists a right to confiscate the former, while the latter are to be
exempt. The Confederate States acted upon this distinction, and
confiscated all property and all rights, credits, and interests held
within the confederacy, by or for any alien enemy, except public stocks
and securities. Lord Bussell strongly protested against this as being
an act as unusual as it was unjust (y). Many of the individual inhabi-
tants of the South carried this principle further, and repudiated all
their debts due to citizens of the Northern States (z). But this is the
only instance in recent times of such measures having been adopted,
and it is an example that seems unlikely to be imitated. The confisca-
tion of private debts of any sort, besides exposing the State doing so to
retaliation, only cripples the enemy in a very indirect way. It has no
effect at all on the military or naval operations of the war, and cannot,
therefore, be justified on any principle.
§309.
Trading with One of the immediate consequences of the commence-
uniawfuion mcnt of hostilities is, the interdiction of all commercial
Bubjestsofthe intercourse between the subjects of the States at war,
Mhgerent ^itliout the liccnsc of their respective governments. In
Sir W. Scott's judgment, in the case of The Hoop^ this is
stated to be a principle of universal law, and not peculiar
to the maritime jurisprudence of England, It is laid
down by Bynkershoek as a universal principle of law.
^' There can be no doubt," says that writer, "that, from
the nature of war itself, all commercial intercourse ceases
between enemies. Although there bo no special inter-
diction of such intercourse, as is often the case, com-
merce is forbidden by the mere operation of the law of
war. Declarations of war themselves sufficiently mani-
fest it, for they enjoin on every subject to attack the
subjects of the other prince, seize on their goods, and do
tliem all the harm in their power. The utility, however,
of merchants, and the mutual wants of nations, have
almost got the better of the law of war, as to commerce.
Hence it is alternately permitted and forbidden in time
of war, as princes think it most for the interests of their
subjects. A commercial nation is anxious to tmde, and
accommodates the laws of war to the greater or lesser
• (f/) Pari. Papers, 1862. Correspond- (z) Draper, Hist, of American CitiI
ence relating to Civil War, p. 108. War, vol. i. p. 537.
AND ITS IMMEDIATE EFFECTS. 435
want that it may be in of the goods of others. Thus, Chap. I.
sometimes a mutual commerce is permitted generally;
sometimes as to certain merchandises only, while others
are prohibited; and sometimes it is prohibited altogether.
But in whatever manner it may be permitted, whether
generally or specially, it is always, in my opinion, so
far a suspension of the laws of war; and in this manner
there is partly war and partly peace between the sub-
jects of both countries " (a).
It appears from these passages to have been the law of
Holland. Valin states it to have been the law of France,
whether the trade was attempted to be carried on in
national or neutral vessels; and it appears from a case
cited (in The Hoop) to have been the law of Spain ; and
it may without rashness be affirmed to be a general
principle of law in most of the countries in Europe {b). « ^^q
Sir W. Scott proceeds to state two grounds upon which The soop.
this sort of communication is forbidden. The first is,
that "by the law and constitution of Great Britain the
sovereign alone has the power of declaring war and
peace. He alone, thei*efore, who has the power of
entirely removing the state of war, has the power of
removing it in part, by permitting, where he sees proper,
that commercial intercourse which is a partial suspension
of the war. There may be occasions on which such an
intercourse may be highly expedient; but it is not for
individuals to determine on the expediency of such
occasions, on their own notions of commerce merely, and
possibly on grounds of private advantage, not very re-
concilable with the general interests of the State. It is
for the State alone, on more enlarged views of policy,
and of all the circumstances that may be connected with
such an intercourse, to determine when it shall be
permitted, and under what regulations. No principle
ought to be held more sacred than that this intercourse
cannot subsist on any other footing than that of the direct
permission of the State. Who can be insensible to the
(a) Bynkershoeky Qnaest. Jur. Pab. {b) Valin, Comm. sur TOrdoxm. de la
lib. 1. cap. 8. Marine, liv. iii. tit. 6, art. 3.
ff2
436 COMMENCEMENT OF WAR,
Part IV. consequences that might follow, if every person in time
of war had a right to carry on a commercial intercourse
with the enemy, and, under colour of that, had the
means of carrying on any other species of intercourse he
might think fit ? The inconvenience to the public might
be extreme ; and where is the inconvenience on the
other side, that the merchant should be compelled, in
such a situation of the two countries, to carry on his
trade between them (if necessary) under the eye and
control of the government charged with the care of the
public safety ?
" Another principle of law, of a less politic nature, but
equally general in its reception and direct in its applica-
tion, forbids this sort of communication, as fundamentally
inconsistent with the relation existing between the two
belligerent countries ; and that is, the total inability to
sustain any contract, by an appeal to the tribunals of
the one country, on the part of the subjects of the other.
In the law of almost every country, the character of
alien enemy carries with it a disability to sue, or to
sustain, in the language of the civilians, a persona standi
injudicio, A state in which contracts cannot be enforced,
cannot be a state of legal commerce. If the parties who
are to contract have no right to compel the performance
of the contract, nor even to appear in a court of justice
for that purpose, can there be a stronger proof that the
law imposes a legal inability to contmct ? To such
transactions it gives no sanction ; they have no legal
existence ; and the whole of such commerce is attempted
without its protection, and against its authority. Byn-
kershoek expresses himself with force upon this argument,
in his first book, Chapter VII., where he lays down that
the legality of commerce and the mutual use of courts of
justice are inseparable. He says that, in this respect,
cases of commerce are undistinguishable from any other
kinds of case : ' But if the enemy be once permitted to
bring actions, it is difficult to distinguish from what
causes they may arise ; nor have I been able to
observe that this distinction has ever been carried into
practice.' "
AND ITS IMMEDIATE Ei^FECTS. 437
Sir W. Scott then notices the constant current of €hap. I.
decision in the British Courts of Prize, where the rule
had been rigidly enforced in cases where acts of parlia-
ment had, on different occasions, been made to relax the
Navigation Law, and other revenue acts ; where the
government had authorized, under the sanction of an
act of parliament, a homeward trade from the enemy's
possessions, but had not specifically protected an out-
ward trade to the same, though intimately connected
with that homeward trade, and almost necessary to its
existence; where strong claims, not merely of conve-
nience, but of necessity, excused it on the part of the
individual ; where cargoes had been laden before the
war, but the parties had not used all possible diligence
to countermand the voyage, after the first notice of
hostilities; and where it had been enforced, not only
against British subjects, but also against those of its
allies in the war, upon the supposition that the rule was
founded upon a universal principle, which States allied
in war had a right to notice and apply mutually to each
other's subjects.
Such, according to this eminent civilian, are the
general principles of the rule under which the public
law of Europe, and the municipal law of its different
States, have interdicted all commerce with an enemy.
It is thus sanctioned by the double authority of public
and of private jurisprudence ; and is founded both upon
the sound and salutary principle forbidding all inter-
course with an enemy, unless by permission of the
sovereign or State, and upon the doctrine that he who is
hostis — who has no persona standi in judicio^ no means of
enforcing contracts, — cannot make contracts, unless by
such permission ((?). § 311^
The same principles were applied by the American J^^^^j^gri^
courts of justice to the intercourse of their citizens with Courts, as to
the enemy, on the breaking out of the late war between the public
the United States and Great Britain. A case occurred ^TheBapid.
{e) The Moop, 1 C. Bob. 196.
438 COMMENCEMENT OF WAR,
Part rv. in which a citizen had purchased a quantity of goods
within the British territory, a long time previous to the
declaration of hostilities, and had deposited them on
an island near the frontier ; upon tlie breaking out of
hostilities, his agents had hired a vessel to proceed to
the place of deposit, and bring away the goods ; on her
return she was captured, and, with the cargo, condemned
as prize of war. It was contended for the claimant that
this was not a trading, within the meaning of the cases
cited to support the condemnation ; that, on the breaking
out of war, every citizen had a right, and it was the
interest of the community to permit its members, to
withdraw property purchased before the war, and lying
in the enemy's country. But the Supreme Court deter-
mined, that whatever relaxation of the strict rights of
war the more mitigated and mild practice of modern
times might have established, there had been none on
this subject. The universal sense of nations had ac-
knowledged the demoralizing effects which would result
from the admission of individual intercourse between the
States at war. The whole nation is embarked in one
common bottom, and must be reconciled to one common
fate. Every individual of the one nation must acknow-
ledge every individual of the other nation as his own
enemy, because he is the enemy of his country. This
being the duty of the citizen, what is the ^consequence of
a breach of that duty ? The law of prize is a part of
the law of nations. By it a hostile character is attached
to trade, independent of the character of the trader who
pursues or directs it. Condemnation to the captor is
equally the fate of the enemy^s property, and of that
found engaged in an anti-neutral trade. But a citizen
or ally may be engaged in a hostile trade, and thereby
involve his property in the fate of those in whose cause
he embarks. This liability of the property of a citizen
to condemnation, as prize of war, may likewise be
accounted for on other considerations. Every thing
that issues from a hostile country is, prima fack^ the
property of the enemy, and it is incumbent upon the
AND ITS IMMEDIATE EFFECTS.
439
claimant to support the negative of the proposition. Chap. I.
But if the claimant be a citizen, or an ally, at the same
time that he makes out his interest he confesses the
commission of an offence, which, under a well-known
rule of the municipal law, deprives him of his right to
prosecute his claim. Nor did this doctrine rest upon
abstract reasoning only ; it was supported by the prac-
tice of the most enlightened, perhaps it might be said,
of all commercial nations ; and it afforded the Court full
confidence in their judgment in this case, that they
found, upon recurring to the records of the Court of
Appeals in Prize Causes, established during the war of
the Revolution, that, in various cases, it was reasoned
upon as the established law of that Court, Certain it
was, that it was the law of England before the American
Revolution, and therefore formed a part of the admiralty
and maritime jurisdiction conferred upon the United
States Courts by their Federal Constitution. Whether
the trading, in that case, was such as, in the eye of the
prize law, subjects the property to capture and confisca-
tion, depended on the legal force of the term. If by
trading^ in the law of prize, were meant that signification
of the term which consists in negotiation or contract, the
case would certainly not come under the penalty of the
rule. But the object, policy, and spirit of the rule are
intended to cut off all communication, or actual loco-
motive intercourse between individuals of the States at
war. Negotiation or contract had, therefore, no neces-
sary connection with the offence. Intercourse incon-
sistent with actual hostility, is the offence against which
the rule is directed; and by substituting this term for
that of trading with the enemy ^ an answer was given to the
argument, that this was not a trading within the mean-
ing of the cases cited. Whether, on the breaking out of
war, a citizen has a right to remove to his own country,
with his property, or not, the claimant certainly had not
a right to leave his own country for the purpose of
bringing home his property from an enemy's country.
As to the claim for the vessel, it was held to be founded
440
COMMENCEMENT OF WAB,
Part IV.
§312.
ander.
§313.
The St.
Lawrence,
§313s.
Quittiog
hostile
territory at
the outbreak
of war.
upon no pretext whatever; for the undertaking was
altogether voluntary and inexcusable (d).
So where hostilities had broken out, and the vessel in
question, with a full knowledge of the war, and unpressed
by any peculiar danger, changed her course and sought
an enemy's port, where she traded and took in a cargo,
it was determined to be a cause of confiscation. If such
an act could be justified, it would be in vain to prohibit
trade with an enemy. The subsequent traffic in the
enemy's country, by which her return cargo was obtained,
connected itself with a voluntary sailing for a hostile
port ; nor did the circumstance that she was carried by
force into one part of the enemy's dominions, when her
actual destination was another, break the chain. The
conduct of this ship was much less to be defended than
that of The Rapid {e).
So, also, where goods were purchased some time before
the war, by the agent of an American citizen in Great
Britain, but not shipped until nearly a year after the
declaration of hostilities, they were pronounced liable to
confiscation. Supposing a citizen had a right, on the
breaking out of hostilities, to withdraw from the enemy's
country his property purchased before the war, (on which
the Court gave no opinion,) such right must be exercised
with due diligence, and within a reasonable time after a
knowledge of hostilities. To admit a citizen to withdraw
property from a hostile country a long time after the
commencement of war, upon the pretext of its having
been purchased before the war, would lead to the most
injurious consequences, and hold out temptations to
every species of fraudulent and illegal traffic with the
enemy. To such an unlimited extent the right could
not exist (/).
In December, 1863, The Oray Jacket sailed from Mobile Bay, a
Confederate port at that time blockaded by the Federal fleets, and the
next day was captured on the high seas by a Federal cruiser. The
owner of The Gray Jacket asserted that he was endeaTOuring to quit
(^ The Rapid, 8 Granoh, 165.
(<•) The Alexander, 8 Cranoh, 169.
(/) The St, Lawrence, 8 Gianoh, 48i ;
S. C, 9 Cnmoh, 120.
AND ITS IMMEDIATE EFFECTS, 441
the rebel States with the phip and as much property as he could take Chap. I.
in her, in order to repair to one of the loyal States. The Court below,
however, condemned the ship as prizo. The Supremo Court, on
appeal, said, the liability of the property was irrespective of the
status domicilii, guilt or innocence of the owner. If it came from
enemy territory, it bore the impress of enemy property. If it belonged
to a loyal citizen of the country of the captors, it was neyertheless as
much liable to condemnation as if owned by a citizen or subject of the
hostile country or by the hostile government itself. The only qualifi-
cation of these rules is, that where, upon the breaking out of hostilities,
or as soon after as possible, the owner escapes with such property as
he can take with him, or in good faith thus early removes his property
with a view of putting it beyond the dominion of the hostile power,
the property in such cases is exempt from the liability which would
otherwise attend it. The Gray Jacket having only sailed in December,
1863, whereas the war broke out in April, 1861, her removal was held
to be too late, and she was condemned as prize (y).
§314.
In another case, tlie vessel, owned by citizens of the Thejowph,
United States, sailed from thence before the war, with a
cargo or freight, on a voyage to Liverpool and the north
of Europe, and thence back to the United States. She
arrived in Liverpool, there discharged her cargo, and
took in another at Hull, and sailed for St. Petersburg
under a British license, granted the 8th June, 1812,
authorizing the export of mahogany to Russia, and the
importation of a return cargo to England. On her
arrival at St. Petersburg, she received news of the war,
and sailed to London with a Russian cargo, consigned to
British merchants; wintered in Sweden, and, in the
spring of 1813, sailed under convoy of a British man-of-
war for England, where she arrived and delivered her
cargo, and sailed for the United States in ballast, under
a British license, and was captured near Boston Light-
house. The Court stated, in delivering its judgment,
that, after the decisions above cited, it was not to be
contended that the sailing with a cargo or freight, from
Russia to the enemy's country, after a full knowledge of
the war, did not amount to such a trading with the
enemy as to subject both vessel and cargo to condemna-
(y) Th^ Gray Jacket, 5 Wallftce, 342, 369.
442 COMMENCEMENT OF WAR,
Part IV. tion, as prize of war, had they been captured whilst
proceeding on that voyage. The alleged necessity of
undertaking that voyage to enable the master, out of
tlie freight, to discharge his expenses at St. Petersburg,
countenanced, as the master declared, by the opinion of
the United States minister there, that, by undertaking
such a voyage, he would violate no law of his own
country; although those considerations, if founded in
truth, presented a case of peculiar hardship, yet they
afforded no legal excuse which it was competent for the
Court to admit as the basis of its decision. The coimsel
for the claimant seemed to be aware of the insufficiency
of this ground, and had applied their strength to show
that the vessel was not taken in delicto^ having finished
the offensive voyage in which she was engaged in the
eneniy's country, and having been captured on her
return home in ballast. It was not denied that, if she
had been taken in the same voyage in which the offence
was committed, she would be considered as still in delicto^
and subject to confiscation; but it was contended that
her voyage terminated at the enemy's port, and that she
was, on her return, on a new voyage. But the Court
said, that even admitting that the outward and home-
ward voyage could be separated, so as to render them
two distinct voyages, still, it could not be denied that
the termini of the homeward voyage were St. Petersburg
and the United States. The continuity of such a
voyage could not be broken by a voluntary deviation of
the master, for the purpose of carrying on an inter-
mediate trade. That the going from the neutral to the
enemy's country was not undertaken as a new voyage,
was admitted by the claimants, who alleged that it was
undertaken as subsidiary to the voyage home. It was,
in short, a voyage from the neutral country, by the way
of the enemy's country; and, consequently, the vessel,
during any part of that voyage, if seized for any con-
duct subjecting her to confiscation as prize of war, was
seized in delicto (A).
{h) The Joseph, 8 Cranch, 451.
AND ITS IMMEDIATE EFFECTS. 443
We have seen what is the rule of public and municipal Chap. I.
law on this subject, and what are the sanctions by which § 315.
it is guarded. Various attempts have been made to f^erSe*^'
evade its operation, and to escape its penalties ; but its
inflexible rigour has defeated all these attempts. The
apparent exceptions to the rule, far from weakening its
force, confirm and strengthen it. They all resolve them-
selves into cases where the trading was with a neutral,
or the circumstances were considered as implying a
license, or the trading was not consummated until the
enemy had ceased to be such. In all other cases, an
express license from the government is held to be
necessary to legalize commercial intercourse with the
enemy («).
These principles are still applicable to war except when belligerents RefiizatioD of
have, of their own accord, chosen to modify them by regulations for "iles agalnflt
the guidance of their subjects in any particular case. During the enemy^*
Crimean war, England, France, and Eussia all permitted their respec-
tive subjects to trade with the enemy, provided the trade was carried
on through the medium of a neutral flag {k). This relaxation of the
rules of international law only applied to that particular war. England
at the same time prohibited her subjects from dealing with any secu-
rities issued by the Bussian government during the war. Such an act
was made a misdemeanour (/). At the outbreak of the Franco-German
war, France permitted German vessels that had left Germany before
the declaration of war, and were destined to carry goods to French
ports, to proceed to such ports and discharge the goods, but German
vessels which, under the same circumstances, were destined for neutral
porta were held to be liable to capture as prize (m). o 315V
The law of nations prohibits all intercourse between subjects of the Extent of
two belliirerents which is inconsistent with the state of war between pro^iWiion of
, , , . . intercourse
their countries. This includes any act of voluntary submission to the between
enemy, or receiving his protection ; any act or contract which tends to ^J^^""©*'
increase his resources, and every kind of trading or commercial dealing
or intercourse, whether by transmission of money or goods, or orders
for the delivery of either, between the two countries, directly or indi-
rectly, or through the intervention of third persons or partnerships, or
by contracts in any form looking to, or involving such transmission,
(•) The Franklitiy 6 C. Rob. 127; The v. U. S., 21 Wallace, 360; Radieh v.
Madonna delta Graeia, 4 C. Rob. 195 ; Hutehim, 5 Otto, 210.
The JuffrwD Catharina, 5 0. Rob. 141 ; (Ar) Kent by Abdy (2nd ed.), p. 190.
The Alby, Ibid. 251. See Wheaton'a {I) 17 & 18 Vict. o. 123.
Reports, vol. ii., App. note (i), p. 34 ; (/w) Archives Diplomatiques, 1871-2,
Wbcaton on Captures, 220. Mitchell Pt. I. pp. 246, 251.
444
COMMENCEMENT OF WAE
Part IV.
Debts
between
enemies.
§ 3160.
Contracts
with neutrals
to be per-
formed in
enemy's
country.
The Teutonia,
or by Insurances upon trade by or with tbe enemy. Beyond this the
prohibition does not extend (n). It does not apply to transactions
which are to take place entirely in the territory of one belligerent.
Thus, where a creditor residing in one of the States at war has an
agent in the other State, to whom a debtor could pay the money,
which agent was appointed before the war broke out, the payment by
the debtor to such agent is lawful. It does not follow that the agent,
if he receives the money, will violate the law by remitting it to his
principal (o).
If a debt between enemies is contracted during the war, it cannot be
sued for when the war is over (p) ; but when debts have been contracted
before war breaks out, the existence of the war does not extinguish
the debts, it simply suspends the remedy of the creditor {q). If the
debts are not confiscated during the war, the right to enforce payment
revives with peace (r). As the creditor cannot sue for his debt during
the war, it has been held in America that a statute of limita-
tions does not run against the creditor while the war lasts («). But
there is no exception in this respect in the English Statute of Limita-
tions (/). In a case where the parties had agreed in their contract
that no suit or action should be sustainable unless commenced within
twelve months after a certain event should occur, the Court held, that
as this contract was followed by a war, by which the parties became
enemies, the plaintiff was relieved from his disability to sue within the
twelve months (w).
Another result of war is, that a contract between a belligerent subject
and a neutral cannot, so long as the war lasts, be performed if the
belligerent subject has agreed to carry it out in the enemy's country.
Before the outbreak of the war between France and Germany in 1870,
a German vessel was chartered by a British subject to carry a cargo of
nitrate of soda (contraband of war) from Pisagua to Cork, Cowes, or
Falmouth, and then to receive orders to proceed to any safe port in
Great Britain, or on the continent between Havre and Hamburgh.
On arriving at Falmouth the master received orders to go to Dunkirk,
and started for that port. Shortly before arriving there, he was told
by a French pilot that war had broken out between France and
Germany, and thereupon he sailed to Dover to obtain accurate infor-
mation. He had appeared off Dunkirk on the 16th of July, 1870, and
(m) Kerthaw v. KeUey^ 100 Massa-
chusetts, 572 ; Jeeker v. Montgotnery^ 18
Howard, 111 ; Hanger v. Abbott, 6 Wal-
lace, 635 ; Montgomery v. V, 6'., 16 Ibid.
396 ; Snell v. JDwight, 120 Massachu-
setts, 9.
(o) Ward t. Smith, 7 Wallace, 452 ;
U. S. V. Grossmayer, 9 Ibid. 75.
(p) Williwn V. Fatrrsortf 7 Taunton,
439.
(q) Ware r. Hilton^ 3 Dallas, 199;
Upton, Maritime Law, p. 42.
(r) Manning, by Amos (ed. 1875],
p. 176 ; Manger v. Abbott, 6 Wallace,
537.
{») Sanger v. Abbott; 6 Wallaoe, 632 ;
The Protector, 9 Ibid. 687 ; U. S, v.
Witey, 11 Ibid. 508.
{t) De Wahl v. Braune, 25 L. J. Ex.
343, 345.
(m) Semme* v. Hartford Ins, Oo., 13
Wallaoe, 168.
AND ITS mMEDIATE EFFECTS.
445
war was actually declared on the 19th. At Dover he refused to give Clhap. I.
up the cargo unless the freight was paid. The ship was therefore
sued by the consignees of the cargo. The Privy Council held that he
was justified in putting back to Dover, and had been guilty of no
improper delay or deviation from the voyage. As war was declared,
his vessel, being German, could not go to Dunkirk, and he was therefore
not bound to carry out his contract in that respect. In this particular
case the Court allowed the master the freight from Pisagua to Dover,
because Dunkirk was not the only port stipulated for in the charter
party, and delivery at Dover was within the terms of the contrewjt.
They declined to decide whether the freight would have been earned
if no other port but Dunkirk had been mentioned (x).
8 816.
Not only is such intercourse with the enemy, on the Trade with
i» 1 • P 1 1 IT c^ 1 M • 1 J the common
part of subjects of the belligerent btate, prohibited and enemy un-
punished with confiscation in the Prize Courts of their p*a!rt of^iSued
own country, but, during a conjoint war, no subject of •''^^J^**-
an ally can trade with the common enemy, without being
liable to the forfeiture, in the Prize Courts of the ally, of
his property engaged in such trade. This rule is a
corollary of the other ; and is founded upon the principle
that such trade is forbidden to the subjects of the
co-belligerent by the municipal law of his own country,
by the universal law of nations, and by the express or
implied terms of the treaty of alliance subsisting between
the allied powers. And as the former rule can be relaxed
only by the permission of the sovereign power of the
State, so this can be relaxed only by the permission of
the allied nations, according to their mutual agreement.
A declaration of hostilities naturally carries with it an
interdiction of all commercial intercourse. Where one
State only is at war, this interdiction may be relaxed, as
to its own subjects, without injuring any other State ;
but when allied nations are pursuing a common cause
against a common enemy, there is an implied, if not an
express contract, that neither of the co-belligerent States
shall do anything to defeat the common object. If one
State allows its subjects to carry on an uninterrupted
trade with the enemy, the consequence will be, that it
(x) The Teutonia, L. B. 4 P. C. 171. E. 583 ; The Expreat^ Ibid. 697 ; The
See also The San S&man, L. B. 3 A. & Pairia, Ibid. 436.
446
COMMENCEMENT OF WAR,
Part IV.
§817.
Contracts
with the
enemj prO"
hibited.
§818.
Persons
domiciled in
the enemy's
coaDtry liable
to reprisals.
will supply aid and comfort to the enemy, which may be
injurious to the common cause. It should seem that it is
not enough, therefore, to satisfy the Prize Court of one
of the allied States, to say that the other has allowed this
practice to its own subjects; it should also be shown,
either that the practice is of such a nature as cannot
interfere with the common operations, or that it has the
allowance of the other confederate State (y).
It follows as a corollary from the principle, interdicting
all commercial and other pacific intercourse with the
public enemy, that every species of private contract made
with his subjects during the war is unlawful. The rule
thus deduced is applicable to insurance on enemy's pro-
perty and trade ; to the drawing and negotiating of bills
of exchange between subjects of the powers at war; to
the remission of funds, in money or bills, to the enemy's
country; to commercial partnerships entered into between
tlie subjects of the two countries, after the declaration of
war, or existing previous to the declaration ; which last
are dissolved by the mere force and act of the war itself,
although, as to other contracts, it only suspends the
remedy (^).
Grotius, in the second chapter of his third book, where
he is treating of the liability of the property of subjects
for the injuries committed by the State to other commu-
nities, lays down that *'by the law of nations, all the
subjects of the offending State, who are such from a
permanent cause, whether natives, or emigrants from
another country, are liable to reprisals, but not so those
who are only travelling or sojourning for a little time; —
for reprisals," says he, ^'have been introduced as a species
of charge imposed in order to pay the debts of the public;
from which are exempt those who are only temporarily
subject to the laws. Ambassadors and their goods are,
(y) Bynkenthoek, Qasest. Jur. Pub.
lib. i. cap. 10 ; The Neptunm, 6 0. Rob.
403; 4 Ibid. 251.
(z) Bynkershoek, Quaest. Jar. Pab.
lib. i. cap. 21. Daponceau's Transl.
p. 165, Note. Kent's Commentaries on
American Law, vol. i. pp. 67, 68, 6th
ed. Ormcold v. TFaddinfftm, 16 John-
son, 438 ; Etpofito y. Bowdm, 7 £. &
B. 785 ; Th4 WilUam Bagaiey, 6 Wal-
lace, 377.
AND ITS IMMEDIATE EFFECTS. 447
however, excepted from this liability of subjects, but not Chap. I.
those sent to an enemy," In the fourth chapter of the
same book, where he is treating of the right of killing
and doing other bodily harm to enemies, in what he calls
solemn war^ he holds that this right extends, "not only to
those who bear arms, or are subjects of the author of the
war, but to all those who are found within the enemy's
territory. In fact, as we have reason to fear the hostile
intentions even of strangers who are within the enemy's
territory at the time, that is sufficient to render the right
of which we are speaking applicable even to them in a
general war. In which respect there is a distinction
between war and reprisals, which last, as we have seen,
are a kind of contribution paid by the subjects for the
debts of the State" (a). o g^g
Barbeyrac, in a note collating these passages, observes. Criticism of
that "the late M. Cocceius, in a dissertation which I have
already cited, De Jure Belli in Amicos, rejects this dis-
tinction, and insists that even those foreigners who have
not been allowed time to retire ought to be considered
as adhering to the enemy, and for that reason justly
exposed to acts of hostility. In order to supply this
pretended defect, he afterwards distinguishes foreigners,
who remain in the country, from those who only transi-
ently pass through it, and are constrained by sickness
or the necessity of their afPairs. But this is alone
sufficient to show that, in this place, as in many others,
he criticized our author without understanding him. In
the following paragraph, Grotius manifestly distinguishes
from the foreigners of whom he has just spoken those
who are the permanent subjects of the enemy, by whom
he doubtless understands, as the learned Gronovius has
already explained, those who are domiciled in the country.
Our author explains his own meaning in the second
chapter of this book, in speaking of reprisals, which he
allows against this species of f oreignei's, whilst he does
(a) Grotiiis, de Jar. Bel. ac Pao. lib. iii. cap. ii. \ 7, No. 1. Ibid. lib. iii.
cap. It. J} 6—7.
448 COMMKNCEMENT OF WAR,
Part IV. not grant tlieni against those who only pass through the
country, or are temporarily resident in it" (b).
Whatever may be the extent of the claims of a man's
native country upon his political allegiance, there can be
no doubt that the natural-born subject of one country
may become the citizen of another, in time of peace, for
the purposes of trade, and may become entitled to all
the commercial privileges attached to his acquired domi-
cile. On the other hand, if war breaks out between his
adopted country and his native country, or any other,
his property becomes liable to reprisals in the same
manner as the efPects of those who owe a permanent
o 320. allegiance to the enemy State.
Spedesof As to what spccics of residence constitutes such a
conatitutinf domicile as will render the party liable to reprisals, the
omi e. ^^^^ writers are deficient in definitions and details. Their
defects are supplied by the precedents furnished by the
British Prize Courts, which, if they have not applied the
principle with undue severity in the case of neutrals,
have certainly not mitigated it in its application to that
of British subjects resident in the enemy's country on
o 321 the commencement of hostilities.
27i4 St. £ttt(a' In the judgment of the Lords of Appeal in Prize
Causes, upon the cases arising out of the capture of
St. Eustatius by Admiral Rodney, delivered in 1785, by
Lord Camden, he stated that ''if a man went into a
foreign country upon a visit, to travel for health, to
settle a particular business, or the like, he thought it
would be hard to seize upon his goods ; but a residence,
not attended with these circumstances, ought to be con-
sidered as a permanent residence." Li applying the
evidence and the law to the resident foreigners in St.
Eustatius, he said, that '' in every point of ^^[ew, they
ought to be considered resident subjects. Their persons,
their lives, their industry, were employed for the benefit
of the State under whose protection they lived ; and if
war broke out, they, continuing to reside there, paid their
(h) Qrotiufl, par Barbeyrao, in he. under the Constitution of the United
See on this point Whiting, War Powers States (43rd ed.), p. 334. ^
AND ITS IMMEDIATE EFFECTS. 449
proportion of taxes, imposts, and the like, equally with Chap. J.
natural-bom subjects, and no doubt come within that
description "(4 ^^
^* Time," says Sir W. Scott, " is the grand ingredient The Mamiony.
in constituting domicile. In most cases it is unavoidably
conclusive. It is not unfrequently said that if a person
comes only for a special purpose, that shall not fix a
domicile. This is not to be taken in an unqualified
latitude, and without some respect to the time which
such a purpose may or shall occupy ; for if the purpose
be of such a nature as may probably^ or does actually ^
detain the person for a great length of time, a general
residence might grow upon the special purpose, A
special purpose may lead a man to a country, where it
shall detain him the whole of his life. Against such a
long residence, the plea of an original special purpose
could not be averred ; it must be inferred in such a case
that other purposes forced themselves upon him, and
mixed themselves with the original design, and impressed
upon him the character of the country where he resided.
Supposing a man comes into a belligerent country at or
before the beginning of the war, it is certainly reason-
able not to bind him too soon to an acquired character,
and to allow him a fair time to disentangle himself ; but
if he continues to reside during a good part of the war,
contributing by the payment of taxes and other means
to the strength of that country, he could not plead his
special purpose with any effect against the rights of
hostility. If he could, there would be no sufficient
guard against the frauds and abuses of masked, pre-
tended, original, and sole purposes of a long-continued
residence. There is a time which will estop such a plea ;
no rule can fix the time d priori^ but such a rule there
rrmst be. In proof of the efficacy of mere time, it is not
impertinent to remark that the same quantity of business,
which would not fix a domicile in a certain quantity of
{o) M.S. Proceedings of the Com- States. OpiDion of Mr. W. Pinkney,
inianioners under tiie Treaty of 1794, fa, ^le case of The Betsey.
between Great Britain and the United
W. GO
ChUf,
450 COMMENCEMENT OP WAR,
^^"^^- time, would nevertheless have that efifect if distributed
over a larger space of time. This matter is to be taken
in the compound ratio of the time and the occupation,
with a great preponderance on the article of time : be
the occupation what it may, it cannot happen, with but
few exceptions, that mere length of time shall not con-
« 82S stitute a domicile '^ {d).
^Indian In the case of TJie Indian Chiefs determined in 1800,
Mr. Johnson, a citizen of the United States, domiciled
in England, had engaged in a mercantile enterprise to
the British East Indies, a trade prohibited to British
subjects, but allowed to American citizens under the
commercial treaty of 1794, between the United States
and Grreat Britain. The vessel came into a British port
on its return voyage, and was seized as engaged in illicit
trade. Mr. Johnson, having then left England, was
determined not to be a British subject at the time of
capture, and restitution was decreed. In delivering his
judgment in this case. Sir W. Scott said, " Taking it to
be clear that the national character of Mr. Johnson, as a
British merchant, was founded in residence only, that it
was acquired by residence, and rested on that circum-
stance alone, it must be held, that, from the moment he
turned his back on the country where he had resided on
his way to his own country, he was in the act of re-
suming his original character, and must be considered as
an American. The character that is gained by resi-
dence, ceases by non-residence. It is an adventitious
character, and no longer adheres to him from the moment
that he puts himself in motion, bond fide^ to quit the
country, sine animo revertendi^^ (e).
The native The native character easily reverts, and it requires
eaaUj rererts. fcwcr circumstances to constitute domicile, in the case of
a native subject, than to impress the national character
on one who is originally of another country. Thus, the
property of a Frenchman who had been residing, and
{d^ The Sarmonff, 2 0. Rob. 324.
{e) The Indian Chiefs 3 C. Rob. 12. Nelson, Private International Law, 34.
AND ITS IMMEDIATE EFFECTS. 451
was probably naturalized, in the United States, but who Chap. I.
had returned to St. Domingo, and shipped from thence
the produce of that island to France, was condemned in
the High Court of Admiralty (/).
In The Indian Chief, the case of Mr. Dutilth is referred
to by the claimant's counsel as having obtained restitu-
tion, though at the time of sailing he was resident in the
enemy's country; but the decision of the Lords of Appeal,
in 1800, is mentioned by Sir C. Robinson, in which dif-
ferent portions of Mr. Dutilth's property were condemned
or restored, according to the circumstances of his residence
at the time of capture. That decision is more particu-
larly stated by Sir J. Nicholl, at the hearing of the case
of The Harmony before the Lords, July 7, 1803. " The
case of Mr. Dutilth also illustrates the present. He came
to Europe about the end of July, 1793, at the time when
there was a great deal of alarm on account of the state of
commerce. He went to Holland, then not only in a state
of amity, but of alliance with this country ; he continued
there until the French entered. During the whole time
he was there, he was without any establishment ; he had
no counting-house ; he had no contracts or dealings with
contractors there ; he employed merchants there to sell
his property, paying them a commission. Upon the
French entering into Holland, he applied for advice to
know what was left for him to do under the circum-
stances, having remained there on account of the doubtful
state of mercantile credit, which not only affected Dutch
and American, but English houses, who were all looking
after the state of credit in that country. In 1794, when
the French came there, Mr. D. applied to Mr. Adams,
the American minister, who advised him to stay until he
could get a passport. He continued there until the latter
end of that year, and, having wound up his concerns,
came away. Some part of his property was captured
before he came there. That part which was taken before
(/) La Vtrginie^ 5 0. Rob. 99. The pp. 92, 139, 303, and by the American
same rule is also adopted in the prize Prize Courts. The Dos Hermanosj 2
law of Franoe, Code des Prises, torn. i. Wheaton, 76.
gg2
452 COMMENCE^IENT OP WAR,
Part IV. he came there was restored to him {The Fair American^
Adm., 1796), but that part which was taken while he
was there was condemned, and that because he was in
Holland at the time of the capture." The Hannibal and
6 325 Pomona^ Lords, 1800 (^).
The Diana'. The casc of The Dianay determined by Sir W. Scott, in
1803, is also full of instruction on this subject. During
the war which commenced in 1795 between Great Britain
and Holland, the colony of Demerara surrendered to the
British arms, and by the treaty of Amiens it was restored
to the Dutch. That treaty contained an article allowing
the inhabitants, of whatever country they might be, a
term of three years, to be computed from the notification
of the treaty, for the purpose of disposing of their effects
acquired before or during the war, in which term they
might have the free enjoyment of their property. Pre-
vious to the declaration of war against Holland, in 1803,
The Diana and several other vessels, laden with colonial
produce, were captured on a voyage from Demerara to
Holland. Immediately after the declaration, and before
the expiration of the three years from the notification
of the treaty of Amiens, Demerara again surrendered to
Great Britain, Claims to the captured property were
filed by original British subjects, inhabitants of Demerara,
some of whom had settled in the colony while it was in
possession of Great Britain; others before that event.
The cause came on for hearing after it had again become
a British colony.
Sir W. Scott decreed restitution to those British subjects
who had settled in the colony while in British possession,
but condemned the property of those who had settled
there before that time. He held that those of the first
class, by settling in Demerara while belonging to Great
Britain, afforded a presumption of their intending to
return, if the island should be transferred to a foreign
power, which presumption, recognized by the treaty,
relieved those claimants from the necessity of proving
(^) Wheaton's Rep. vol. li. Appendix, 27, 28, 29.
AND ITS IMMEDUTE EFFECTS. 453
such intention. He thought it reasonable that they Chap. I.
should be admitted to their jw postliminii^ and he held
them entitled to the protection of British subjects. But
he was clearly of opinion that "mere recency of estab-
lishment would not avail, if the intention of making a
permanent residence there was fixed upon the party.
The case of Mr. Whitehill fully established this point.
He had arrived at St. Eustatius only a day or two before
Admiral Rodney and the British forces made their appear-
ance; but it was proved that he had gone to establish
himself there, and his property was condemned. Here
recency, therefore, would not be sufficient.^'
But the property of those claimants who had settled in
Demerara before that colony came into the possession of
Great Britain was condemned. " Having settled without
any faith in British possession, it cannot be supposed,'-
he said, "that they would have relinquished their resi-
dence because that possession had ceased. They had
passed from one sovereignty with indifference, and if
they may be supposed to have looked again to a connec-
tion with this country, they must have viewed it as a
circumstance that was in no degree likely to affect their
intention of remaining there. On the situation of persons
settled there previous to the time of British possession, I
feel myself obliged to pronounce, that they must be con-
sidered in the same light as persons resident in Amsterdam.
It must be understood, however, that if there were among
these any who were actually removing, and that fact is
properly ascertained, their goods may be capable of
restitution. All that I mean to express is, that there
must be evidence of an intention to remove on the part
of those who settled prior to British possession, the
presumption not being in their favour " (A). „ ooa
The case of The OceaUy determined in 1804, was a Case of
claim relating to British subjects settled in foreign States rom!?Xg
in time of amity, and taking early measures to withdraw ^^y^^
themselves on the breaking out of war. It appeared S" b^Sig
out of war.
Th$ Ocean,
(h) The Diana, 5 0. Bob. 60.
454 COMM£NC£M£MT OF WAR,
Part IV. that the claimant had been settled as a partner in a house
of trade in Holland, but that he had made arrangements
for the dissolution of the partnership, and was prevented
from removing personally only by the violent detention of
all British subjects who happened to be within the terri-
tories of the enemy at the breaking out of the war. In
this case Sir W. Scott said: "It would, I think, bo
going further than the law requires, to conclude this
person by his former occupation, and by his present
constrained residence in France, so as not to admit him
to have taken himself out of the effect of supervening
hostilities, by the means which he had used for his
removal. On sufficient proof being made of the pro-
perty, I shall be disposed to hold him entitled to restitu-
tion "(t)-
In a note to this case, Sir C. Robinson states that the
situation of British subjects wishing to remove from
the enemy's country on the event of a war, but prevented
by the sudden occurrence of hostilities from taking
measures sufficiently early to obtain restitution, formed
not unfrequently a case of considerable hardship in the
Prize Court. He advises persons so situated, on their
actual removal, to make application to government for
a special pass, rather than to trust valuable property to
the effect of a mere intention to remove, dubious ss that
intention may frequently appear under the circumstances
that prevent it from being carried into execution. And
Sir W. Scott, in the case of The Dree GebroederSj observes,
" that pretences of withdrawing funds are at all times to
be watched with considerable jealousy; but when the
transaction appears to have been conducted bond fide with
that view, and to be directed only to the removal of
property, which the accidents of war may have lodged
in the belligerent country, cases of this kind are entitled to
be treated with some indulgence." But in a subsequent
case, where an indulgence was allowed by the Court for
the withdrawal of British property under peculiar cir-
(t) 5 C. Bob. 91.
AND ITS IMMEDIATE EFFECTS. 455
cumstances, he intimated that the decree of restitution. Chap. I.
in that particular case, was not to be understood as in
any degree relaxing the necessity of obtaining a Kcense,
wherever property is to be withdrawn from the enemy's
country (A). ^ ^ . . 6327
The same principles, as to the effect of domicile, orDe(&ion8of
commercial inhabitancy in the enemy's coimtry, were TO^rtgr**^^**"
adopted by the prize tribunals of the United States, ^« Venus.
during the late war with Great Britain, The rule was
applied to the case of native British subjects, who had
emigrated to the United States long before the war, and
became naturalized citizens under the laws of the Union,
as well as to native citizens residing in Great Britain at
the time of the declaration. The naturalized citizens
in question had, long prior to the declaration of war,
returned to their native country, where they were domi-
ciled and engaged in trade at the time the shipments in
question were made. The goods were shipped before
they had a knowledge of the war. At the time of the
capture, one of the claimants was yet in the enemy's
country, but had, since he heard of the capture, expressed
his anxiety to return to the United States, but had been
prevented by various causes set forth in his affidavit.
Another had actually returned some time after the
capture, and a third was still in the enemy's country.
In pronouncing its judgment in this case, the Supreme
Court stated that, there being no dispute as to the facts
upon which the domicile of the claimants was asserted,
the questions of law to be considered were two : Firsts
by what means, and to what extent, a national character
may be impressed upon a person, different from that
which permanent allegiance gives him; and, secondly ^
what are the legal consequences to which this acquired
character may expose him, in the event of a war taking
place between the country of his residence and that of
his birth, or that in which he had been naturalized.
Upon the first of these questions, the opinions of the DomioUe *
distingiuBhed
(h) 4 C. Bob. 234. The Jufi-ow CatUrina, 6 0. Bob. 141.
456 COMMENCEMENT OF WAR,
Partrv. text writers and the decisions of the British Courts of
from Prize already cited, were referred to ; but it was added
^^**^^* that, in deciding whether a person has obtained the right
of an acquired domicile, it was not to be expected that
much, if any assistance, should be derived from mere
elementary writers on the law of nations. They can
only lay down the general principles of law ; and it be-
comes the duty of courts of justice to establish rules for
the proper application of those principles. The question,
whether the person to be aflFected by the right of domicile
has sufficiently made known his intention of fixing him-
self permanently in the foreign country, must depend
upon all the circumstances of the case. If he has made
no express declaration on the subject, and his secret
intention is to be discovered, his acts must be attended
to as affording the most satisfactory evidence of his
intention. On this ground the courts of England have
decided, that a person who removes to a foreign country,
settles himself there, and engages in the trade of the
country, furnishes by these acts such evidences of an
intention permanently to reside there, as to stamp him
with the national character of the State where he resides.
In questions on this subject, the chief point to be con-
sidered is the animus manendi; and courts are to devise
such reasonable rules of evidence as may establish the
fact of intention. If it sufficiently appears that the
intention of removing was to make a permanent settle-
ment, or for an indefinite time, the right of domicile is
acquired by residence even of a few days. This was one
of the rules of the British Prize Courts, and it appeared
to be perfectly reasonable. Another was that a neutral
or subject, found residing in a foreign country, is
presumed to be there animo manendi; and if a State at
war should bring his national character into question, it
lies upon him to explain the circumstances of his residence.
As to some other rules of the Prize Courts of England,
particularly those which fix the national character of a
person, on the ground of constructive residence or the
peculiar nature of his trade, the Court was not called
AND ITS IMMEDUTE EFFECTS. 457
upon to give an opinion at that time ; because, in the Cfhap. I.
present case, it was admitted that the claimants had
acquired a right of domicile in Great Britain at the time
of the breaking out of the war between that country and
the United States.
§ I
The next question was, what are the consequences to Effect of
i«i.-i. • t 1 • '^ 1 11 ji domicile in ft
which this acquired domicile may legally expose the foreign state.
person entitled to it, in the event of a war taking place
between the government under which he resides and that
to which he owes permanent allegiance. A neutral, in
this situation, if he should engage in open hostilities
with the other belligerent, would be considered and
treated as an enemy. A citizen of the other belligerent
could not be so considered, because he could not, by any
act of hostility, render himself, strictly speaking, an
enemy, contrary to his permanent allegiance; but al-
though he cannot be considered an enemy, in the strict
sense of the word, yet he is deemed such with reference
to the seizure of so much of his property concerned in the
enemy^s trade, as is connected with his residence. It is
found adhering to the enemy ; he is himself adhering to
the enemy, although not criminally so, unless he engages
in acts of hostility against his native country, or perhaps
refuses, when required by his country, to return. The
same rule, as to property engaged in the commerce of the
enemy, applies to neutrals, and for the same reason.
The converse of this rule inevitably applies to the subject
of a belligerent State domiciled in a neutral country ; he
is deemed a neutral by both belligerents, with reference
to the trade which he carries on with the adverse belli-
gerent, and with the rest of the world. « jjq
But this national character which a man acquires by Bennnoiation
, •'of domicnle.
residence may be thrown off at pleasure, by a return to
his native country, or even by turning his back on the
country in which he resided, on his way to another.
The reasonableness of this rule can hardly be disputed.
Having once acquired a national character, by residence
in a foreign country, he ought to be bound by all the
consequences of it until he has thrown it oflF, either by an
458 COMMENCEMENT OF WAE,
Part IV. actual return to his native country, or to that where he
was naturalized, or by commencing his removal, bond
fide^ and without an intention of returning. If anything
short of actual removal be admitted to work a change in
the national character acquired by residence, it seems
perfectly reasonable that the evidence of a hona fide
intention should be .such as to leave no doubt of its
sincerity. Mere declarations of such an intention ought
never to be relied upon, when contradicted, or at least
rendered doubtful, by a continuance of that residence
which impressed the character. They may have been
made to deceive ; or, if sincerely made, they may never
be executed. Even the party himself ought not to be
bound by them, because he may afterwards find reason to
change his determination, and ought to be permitted to
do so. But when he accompanies these declarations by
acts which speak a language not to be mistaken, and can
hardly fail to be consummated by actual removal, the
strongest evidence is afforded which the nature of such
a case can furnish. And is it not proper that the Courts
of a belligerent nation should deny to any person the
right to use a character so equivocal as to put it in his
power to claim whichever may best suit his purpose,
when it is called in question ? If his property be taken
trading with the enemy, shall he be allowed to shield it
from confiscation by alleging that he had intended to
remove from the enemy's country to his own, then
neutral, and therefore that, as a neutral, the trade was
to him lawful ? If war exists between the country of
his residence and his native country, and his property
be seized by the former or by the latter, shall he be
heard to say, in the former case, that he was a domiciled
subject in the country of the captor; and in the latter,
that he was a native subject of the country of that captor
also, because he had declared an intention to resume his
native character, and thus to parry the belligerent rights
of both ? It was to guard against such inconsistencies,
and against the frauds which such pretensions, if tole-
rated, would sanction, that the rule above mentioned had
AND ITS IMMEDUTE EFFECTS. 469
been adopted. Upon what sound principle could a dis- Chap. I.
tinction be framed between the case of a neutral, and
the subject of one belligerent domiciled in the country
of the other, at the breaking out of the war ? The pro-
perty of each, found engaged in the commerce of their
adopted country, belonged to them, before the war, in
the character of subjects of that country, so long as they
continued to retain their domicile ; and when war takes
place between that country and any other, by which the
two nations and all their subjects become enemies to
each other, it follows that this property, which was once
the property of a friend, belongs now to him who, in
reference to that property, is an enemy. « ggj
This doctrine of the common-law Courts and prize Effect of
tribunals of England is founded, like that mentioned forei^
under the first head, upon international law, and was ^*°"° ^'
believed to be strongly supported by reason and justice.
And why, it might be confidently asked, should not the
property of enemy's subjects be exposed to the law of
reprisals and of war, so long as the owner retains his
acquired domicile, or, in the words of Grotius, continues
a permanent residence in the country of the enemy?
They were before, and continue after the war, bound
by such residence to the society of which they were
members, subject to the laws of the State, and owing a
qualified allegiance thereto. They are obliged to defend
it (with an exception of such subject with relation to his
native country), in retmTi for the protection it affords
them, and the privileges which the laws bestow upon
them as subjects. The property of such persons, equally
-with that of the native subjects in their locality is to be
considered as the goods of the nation, in regard to other
States. It belongs in som^ sort to the State, from the
right which the State has over the. goods of its citizens,
which make a part of the sum total of its riches and
augment its power. Vattel, liv. i., ch. 14, § 182. "In
reprisals," continues the same author, " we seize on the
property of the subject, just as on that of the sovereign ;
everything that belongs to the nation is subject to re-
460
COMMENCEMENT OF WAR.
Partly, prisals, wherever it can be seized, with the exception of
a deposit intrusted to the public faith." Liv. ii., ch. 18,
§ 844. Now, if a permanent residence constitutes the
person a subject of the country where he is settled, so
long as he continues to reside there, and subjects his
property to the law of reprisals, as a part of the property
of the nation, it would seem difficult to maintain that the
same consequences would not follow, in the case of an
open and public war, whether between the adopted and
native countries of persons so domiciled, or between the
former and any other nation.
If, then, nothing but an actual removal, or a bond fide
beginning to remove, could change a national character
acquired by domicile; and if, at the time of the inception
of the voyage, as well as at the time of capture, the
property belonged to such domiciled person, in his
character of a subject; what was there that did or ought
to exempt it from capture by the cruisers of his native
country, if, at the time of capture, he continues to reside
in the country of the adverse belligerent ?
It was contended that a native or naturalized subject
of one country, who is surprised in the country where he
was domiciled, by a declaration of war, ought to have
time to make his election to continue there, or to remove
to the country to which he owes permanent allegiance ;
and that, until such election be made, his property ought
to be protected from capture by the cruisers of the latter.
This doctrine was believed to be as unfounded in reason
and justice, as it clearly was in law. In the first place
it was founded upon a presumption that the person will
certainly remove, before it can possibly be known whether
he may elect to do so or not. It was said, that the pre-
sumption ought to be made, because, upon receiving
information of the war, it would be his duty to return
home. This position was denied. It was his duty to
commit no acts of hostility against his native country,
and to return to her assistance when required to do so ;
nor would any just nation, regarding the mild principles
of the law of nations, require him to take arms against
Time for
eleotion to
change
domicile not
aUowed.
AND ITS IMMEDIATE EFFECTS. 461
his native country, or refuse permission to him to with- ^^P- ^'
draw whenever he wished to do so, unless under peculiar
circumstances, which, by such removal, at a critical
period, might endanger the public safety. The conven-
tional law of nations was in conformity with these
principles. It is not uncommon to stipulate in treaties,
that the subjects of each party shall be allowed to remove
with their property, or to remain unmolested. Such a
stipulation does not coerce those subjects to remove or
remain. They are left free to choose for themselves ;
and, when they have made their election, may claim the
right of enjoying it, under the treaty. But until the
election is made, their former character continues un-
changed. Until this election is made, if the claimant's
property found upon the high seas, engaged in the
commerce of his adopted country, should be permitted
by the cruisers of the other belligerent to pass free, under
a notion that he may elect to remove upon notice of the
war, and should arrive safe ; what is to be done, in case
the owner of it should elect to remain where he is ? For
if captured, and brought immediately to adjudication, it
must, upon this doctrine, be acquitted, until the election
to remain is made and known. In short, the point con-
tended for would apply the doctrine of relation to cases
where the party claiming the benefit of it may gain all
and can lose nothing. If he, after the capture, should
find it for his interest to remain where he is domiciled,
his property, embarked before his election was made, is
safe ; and if he finds it best to return, it is safe, of course.
It is safe, whether he goes or stays. This doctrine pro-
ducing such contradictory consequences was not only
unsupported by any authority, but would violate prin-
ciples long and well established in the Prize Courts of
England, and which ought not, without strong reasons
which may render them inapplicable to America, to be
disregarded by the Court. The rule there was, that the
character of property during war cannot be changed in
transitu^ by any act of the party, subsequent to the
capture. The rule indeed went further: as to the
462 COMMENCEMENT OP WAR,
Part IV. correctness of which, in its greatest extension, no judg-
ment needed then to be given ; but it might safely be
affirmed, that the change could not and ought not to be
effected by an election of the owner and shipper, made
subsequent to the capture, and more especially after a
knowledge of the capture is obtained by the owner.
Observe the consequences. The capture is made and
known. The owner is allowed to deliberate whether it
is his intention to remain a subject of his adopted or of
his native country. If the capture be made by the
former, then he elects to become a subject of that
country ; if by the latter, then a subject of that. Could
such a privileged situation be tolerated by either belli-
gerent? Could any system of law be correct which
places an individual, who adheres to one belligerent, and
down to the period of his election to remove, contributes
to increase her wealth, in so anomalous a situation as to
bo clothed with the privileges of a neutral as to both
belligerents? This notion about a temporary state of
neutrality impressed upon a subject of one of the belli-
gerents, and the consequent exemption of his property
from capture by either, until he has had notice of the
war and made his election, was altogether a novel theory,
and seemed from the course of the argument to owe its
origin to a supposed hardship to which the contrary
doctrine exposes him. But if the reasoning employed on
the. subject was correct, no such hardship could exist;
for if before the election is made, his property on the
ocean is liable to capture by the cruisers of his native
and deserted country, it is not only free from capture by
those of his adopted country, but is under its protection.
The privilege is supposed to be equal to the disadvantage,
and is therefore just. The double privilege claimed
seems too unreasonable to be granted (/).
Meroiui^* The national character of merchants residing in Europe
2^^ ^ and America is derived from that of the country in which
(/) The Venut, 8 Cnmoh, 263 ; The Mary and 8man, 1 Wheaton, 64 ; U, 8, t.
OuiUm, 9 Howaid, 60.
AND ITS IMMEDIATE EFFECTS,
463
they reside. In the eastern parts of the world, European Chap. I.
persons, trading under the shelter and protection of the
factories founded there, take their national character from
that association under which they live and carry on their
trade : this distinction arises from the nature and habits
of the countries. In the western part of the world, alien
merchants mix in the society of the natives ; access and
intermixture are permitted, and they become incorporated
to nearly the full extent. But in the east, from almost
the oldest times, an immiscible character has been kept
up; foreigners are not admitted into the general body
and mass of the nation; they continue strangers and
sojourners, as all their fathers were. Thus, with respect
to establishments in Turkey, the British Courts of Prize,
during war with Holland, determined that a merchant,
carrying on trade at Smyrna, under the protection of
the Dutch consul, was to be considered a Dutchman, and
condemned his property as belonging to an enemy.
And thus in China, and generally throughout the east,
persons admitted into a factory are not known in their
own peculiar national character : and not being permitted
to assume the character of the country, are considered
only in the character of that association or factory.
But these principles are considered not to be applicable
to the vast territories occupied by the British in Hindo-
stan ; because, as Sir W. Scott observes, " though the
sovereignty of the Mogul is occasionally brought forward
for the purposes of policy, it hardly exists otherwise than
as a phantom : it is not applied in any way for the regu-
lation of their establishments. Great Britain exercises
the power of declaring war and peace, which is among
the strongest marks of actual sovereignty; and if the
high and empyrean sovereignty of the Mogul is sometimes
brought down from the clouds, as it were, for the purposes
of policy, it by no means interferes with the actual
authority which that country, and the East India Com-
pany, a creature of that country, exercise there with full
effect. Merchants residing there are hence considered
as British subjects " (m).
(w) Th^ Jndim Chief, 3 C. Rob. 12.
464
COMIIENCEMENT OP WAH,
Part IV.
§334.
House of
trade in the
enemy's
oonntiy.
§385.
Gonvene of
the role.
§336.
Prodaoe of
the enemy's
territory
considered as
hostile, so
long as it
belongs to the
owner of the
soil, whatever
may be his
national
character or
personal
domicile.
In general, the national character of a person, as neutral
or enemy, is determined by that of his domicile; but the
property of a person may acquire a hostile character,
independently of his national character, derived from
personal residence. Thus, the property of a house of
trade established in the enemy's country is considered
liable to capture and condemnation as prize. This rule
does not apply to cases arising at the commencement of
a war, in reference to persons who, during peace, had
habitually carried on trade in the enemy's country,
though not resident there, and are therefore entitled to
time to withdraw from that commerce. But if a person
enters into a house of trade in the enemy's country, or
continues that connection during the war, he cannot
protect himself by mere residence in a neutral country (n).
The converse of this rule of the British Prize Courts,
which has also been adopted by those of America, is not
extended to the case of a merchant residing in a hostile
country, and having a share in a house of trade in a
neutral country. Residence in a neutral country will
not protect his share in a house established in the
enemy's country, though residence in the enemy's country
will condemn his share in a house established in a neutral
country. It is impossible not to see, in this want of
reciprocity, strong marks of the partiality towards the
interests of captors, which is perhaps inseparable from a
prize code framed by judicial legislation in a belligerent
country, and adapted to encourage its naval exertions (o).
The produce of an enemy's colony, or other territory,
is to be considered as hostile property so long as it
belongs to the owner of the soil, whatever may be his
national character in other respects, or wherever may be
his place of residence.
This rule of the British Prize Courts was adopted by
the Supreme Court of the United States during the late
war with Great Britain, in the following case. The
(n) The VigUantia, 1 0. Bob. 1 ; The
Suaa, 2 G. Bob. 265 ; The Portland, 3 C.
Bob. 41 ; The Jonge Klas9xna, 5 0. Bob.
297 ; The Atttmia Johanm, 1 Wheaton,
159 ; The Freundtehaft, 4 Wheaton, 105.
(o) Mr. Chief Justice Marshall^ in
The Venuiy 8 Cranob, 253.
AND ITS IMMEDIATE EFFECTS. 465
island of Santa Cruz, belonging to the King of Denmark, Chap. I.
was subdued during the late European war by the arms
of his Britannic Majesty.
Adrian Benjamin Bentzon, an officer of the Danish
government, and a proprietor of land in the island, with-
drew from the island on its surrender, and had since
resided in Denmark. The property of the inhabitants
being secured to them by the capitulation, he still re-
tained his estate in the island under the management of
an agent, who shipped thirty hogsheads of sugar, the
produce of that estate, on board a British ship, and con-
signed to a commercial house in London, on account and
risk of the owner. On her passage the vessel was
captured by an American privateer, and brought in for
adjudication. The sugars were condemned in the Court
below as prize of war, and the sentence of condemnation
was affirmed on appeal by the Supreme Court.
In pronouncing its judgment, it was stated by the The Thirty
Court, that some doubt had been suggested whether s^ar,
Santa Cruz, while in the possession of Great Britain,
could properly be considered as a British island. But
for this doubt there could be no foundation. Although
acquisitions, made during war, are not considered as
permanent, until confirmed by treaty, yet to every com-
mercial and belligerent purpose they are considered as
a part of the domain of the conqueror, so long as he
retains the possession and government of them. The
island of Santa Cruz, after its capitulation, remained a
British island until it was restored to Denmark,
The question was, whether the produce of a plantation
in that island, shipped by the proprietor himself, who
was a Dane residing in Denmark, must be considered as
British, and therefore enemy's property.
In arguing this question the counsel for the claimants
had made two points. 1. That the case did not come
within the rule applicable to shipments from an enemy's
country, even as laid down in the British Courts of
Admiralty. 2. That the rule had not been rightly laid
W. H H
466 COMMENCEMENT OF WAB,
Partly, down in those Courts, and consequently would not be
§ 338. adopted in those of the United States.
^^*°fif**^°^ 1. Did the rule laid down in the British Courts of
of British
\ by the Admiralty embrace this case ? It appeared to the Court
SuprGme • • • -r
Court. that the case of The Phcenix was precisely in pomt. In
that case a vessel was captured in a voyage from Surinam
to Holland, and a part of the cargo was claimed by
persons residing in Germany, then a neutral country, as
the produce of their estates in Surinam. The counsel
for the captors considered the law of the case as entirely
settled. The counsel for the claimants did not controvert
this position. They admitted it, but endeavoured to
extricate their case from the general principle by giving
it the protection of the Treaty of Amiens. In pronounc-
ing his judgment, Sir William Scott laid down the
general rule thus: "Certainly nothing can be more
decided and fixed, as the principle of this Court, and of
the Supreme Court, upon very solemn argimient there,
than that the possession of the soil does impress upon the
owner the character of the country, so far as the produce
of that plantation is concerned, in its transportation to
any other country, whatever the local residence of the
owner may be. This has been so repeatedly decided,
both in this and the Superior Court, that it is no longer
open to discussion. No question can -be made upon the
point of law at this day " {p).
Afterwards, in the case of The Vrow Anna Catharina^
Sir William Scott laid down the rule, and stated its
reason: "It cannot be doubted," said he, "that there
are transactions so radically and fundamentally national
as to impress the national character, independent of
peace or war, and the local residence of the parties.
The produce of a person's own plantation in the colony
of the enemy, though shipped in time of peace, is liable
to be considered as the property of the enemy, by reason
that the proprietor has incorporated himself with the
permanent interests of the nation as a holder of the soil,
and is to be taken as a part of that country in that par-
ip) The Fhcmix, 6 0. Bob. 21.
AND ITS IMMEDIATE EFFECTS.
467
ticular transaction, independent of his own personal Chap. I.
residence and occupation " (q).
It was contended that this rule, laid down with so
much precision, did not embrace Mr. Bentzon's claim,
because he had " not incorporated himself with the
permanent interests of the nation." He acquired the
property while Santa Cruz was a Danish colony, and he
withdrew from the island when it became British.
This distinction did not appear to the Court to be a
sound one. The identification of the national character
of the owner with that of the soil, in the particular trans-
action, is not placed on the dispositions with which he
acquires the soil, or on his general national character.
The acquisition of land in Santa Cruz bound the claimant,
so far as respects that land, to the fate of Santa Cruz,
whatever its destiny might be. While that island belonged
to Denmark, the produce of the soil, while imsold, was,
according to this rule, Danish property, whatever might
be the general national character of the particular pro-
prietor. When the island became British, the soil and
its produce, while that produce remained unsold, were
British. The general commercial or political character
of Mr. Bentzon could not, according to this rule, affect
that particular transaction. Although incorporated, so
far as respects his general national character, with the
permanent interests of Denmark, he was incorporated,
so far as respected his plantation in Santa Cruz, with the
permanent interests of Santa Cruz, which was at that
time British ; and though, as a Dane, he was at war with
Great Britain, and an enemy, yet as a proprietor of land
in Santa Cruz, he was no enemy: he could ship his
produce to Great Britain in perfect safety.
2. The case was therefore certainly within the rule as
laid down by the British Prize Courts. The next inquiry
was, how far that rule will be adopted in this country ? « q^q
The law of nations is the great source from which we Adoption of
derive those rules, respecting belligerent and neutral mie in^
America.
(q) The Vrow Anna Catharina^ 5 0. Rob. 167.
hh2
468 COMMENCEMENT OP WAK,
PartIY> rights, which are recognized by all civilized and com-
mercial States throughout Europe and America. This
law is in part unwritten, and in part conventional. To
ascertain that which is unwritten, we resort to the great
principles of reason and justice : but, as these principles
will be diflferently understood by diflferent nations under
different circumstances, we consider them as being, in
some degree, fixed and rendered stable by a series of
judicial decisions. The decisions of the Courts of every
country, so far as they are founded upon a law common
to every country, will be received, not as authority, but
with respect. The decisions of the Courts of every
country show how the law of nations, in the given case,
is understood in that country, and will be considered in
adopting the rule which is to prevail in this.
Without taking a comparative view of the justice or
fairness of the rules established in the British Prize
Courts, and of those established in the Courts of other
nations, there were circumstances not to be excluded
from consideration, which give to those rules a claim to
our consideration that we cannot entirely disregard.
The United States having, at one time, formed a com-
ponent part of the British empire, their prize law was our
prize law. When we separated, it continued to be our
prize law, so far as it was adapted to our circumstances,
and was not varied by the power which was capable of
changing it.
It would not be advanced, in consequence of this former
relation between the two countries, that any obvious mis-
construction of public law made by the British Courts is
entitled to more respect than the recent rules of other
countries. But a case professing to be decided entirely
on ancient principles, will not be entirely disregarded,
unless it be very unreasonable, or be founded on a con-
struction rejected by other nations.
The rule laid down in The Phoenix was said to be a
recent rule, because a case solemnly decided before the
Lords Commissioners, in 1783, is quoted in the margin
as its authority. But that case was not suggested to
AND ITS IICMEDUTE EFFECTS. 469
have been determined contrary to former practice or Chap> I.
former opinions. Nor did the Court perceive any reason
for supposing it to be contrary to the rule of other nations
in a similar case.
The opinion that ownership of the soil does, in some
degree, connect the owner with the property, so far as
respects that soil, was an opinion which certainly pre-
vailed very extensively. It was not an unreasonable
opinion. Personal property may follow the person any-
where; and its character, if found on the ocean, may
depend on the domicile of the owner. But land is fixed.
Wherever the owner may reside, that land is hostile or
friendly according to the condition of the country in
which it is placed. It was no extravagant perversion of
principle, nor was it a violent offence to the course of
human opinion to say, that the proprietor, so far as
respects his interest in the land, partakes of its character,
and that its produce, while the owner remains unchanged,
is subject to the same disabilities (r).
So, also, in general, and unless under special circum- National '
stances, the character of ships depends on the national shlpB.
character of the owner, as ascertained by his domicile ;
but if a vessel is navigating under the flag and pass of a
foreign country, she is to be considered as beariug the
national character of the country under whose flag
she sails : she makes a part of its navigation, and is in
every respect liable to be considered as a vessel of the
country ; for ships have a peculiar character impressed
upon them by the special nature of their documents, and
are always held to the character with which they are so
invested, to the exclusion of any claims of interest which
persons resident in neutral countries may actually have
in them. But where the cargo is laden on board in time
of peace, and documented as foreign property in the
same manner with the ship, with the view of avoiding
alien duties, the sailing under the foreign flag and pass
is not held conclusive as to the cargo. A distinction is
made between the ship, which is held bound by the
(r) Thirty Hogtheadt of Sitgar, Bentzon, Claimant^ 9 Cranch, 191.
470
COMMENCEMENT OF WAR,
Part IV.
^ 34llft«
The flag as
evidence of
•bi^'fl
nationaHtj.
§340b.
Ownership of
Britiflh ships.
character imposed upon it by the authority of the
Groyemment from which all tibe documents issue, and
the goods, whose character has no such dependence upon
the authority of the State. In time of war a more strict
principle may be necessary; but where the transaction
takes place in peace, and without any expectation of
war, the cargo ought not to be involved in the condem-
nation of the vessel, which, under these circumstances, is
considered as incorporated into the navigation of that
country whose flag and pass she bears (s).
An exceptional case was decided by the French Conseil des Prises in
1872, in which a vessel was held not to be condaded as to her national
character by the flag she carried. 7^ Palme was, in 1871, captured
by a French cruiser, on a voyage from Accra to Bremen. She carried
the German flag, and was therefore primd facie lawful prize. Evidence
was produced which showed that The Palme was a GFerman- built
vessel; that in 1866 she was sold to the Sociiti du Commerce des
Missions Proiestantes, a Swiss corporation ; and that she still belonged
to the Sociiti at the time of capture, though she then carried the
German flag. It also appeared that the Swiss Federal Goimcil did
not permit Swiss subjects to fly the Federal flag, and that France had,
in 1854, refused to acknowledge any Swiss maritime flag. Thus, the
Sociiti being compelled to sail its ship under some flag, that of Ger-
many had been retained. In order to do this, the ship was nominally
assigned to an agent of the Sociiti at Bremen, while the real owners
were the Sociiti itself. Under these circumstances, the vessel being
in reality owned by Swiss, and consequently neutral subjects, the
Conseil des Prises held that she was not a German vessel, and there-
fore restored her to the owners, reversing the decree of the Court
below (/).
By the law of England, no ship shall be deemed to be a British ship
unless she belongs wholly to owners of the following description : —
1. Natural born British subjects. 2. Persons made denizens or
naturalized, by letters of denization, or by Act of Parliament, or the
proper authority in any British possession. 3. Bodies corporate
established under, and subject to the laws of, and having their prin-
cipal place of business in the United Kingdom or some British posses-
sion (u). If any person uses the British flag and assumes the British
national character on board any ship owned in whole or in part by any
persons not entitled by law to own British ships, for the purpose of
making such ship appear to be a British ship, such ship shall be for-
(/«) The Viffilantia, 1 C. Rob. 1 ; The
Vrow Anna Catharina, 6 G. Bob. 161 ;
The Success, 1 Doda. Ad. 131.
(t) Dalloz, JuziBpmdenoe Qenerale,
Ft. in. p. 94 (U espdce).
(«) 57 & 68 Viot. o. 60, s. 1 ; and see
SomitQa, Merchant Shipping Act, 1891,
p. 8.
AND ITS IMMEDIATE EFFECTS. 471
feited to Hifl Majesty, unless such assumption has been made for the Chap. I.
purpose of escaping capture by an enemy, or by a foreign ship of war
in exercise of some belligerent right; and in any proceeding for
enforcing any such forfeiture, the burden of proving a title to use the
British flag and assume the British national character shall lie upon
the person using and assuming the same (x). When a ship has
become forfeited for such an offence, she may be seized by the Crown
wheneyer she returns within British jurisdiction, and even if trans-
ferred to a bond fide purchaser (y).
§ 341.
We have already seen that no commercial intercourse Sailing under
can be lawfully carried on between the subjects of States uo^^^™^ '
at war with each other, except by the special permission
of their respective governments. As such intercourse can
only be legalized in the subjects of one belligerent State
by a licence from their own government, it is evident
that the use of such a licence from the enemy must be
illegal unless authorized by their own government; for it
is the sovereign power of the State alone which is com-
petent to act on the considerations of policy by which
such an exception from the ordinary consequences of
war must be controlled. And this principle is applicable
not only to a licence protecting a direct commercial
intercourse with the enemy, but to a voyage to a country
in alliance with the enemy, or even to a neutral port ;
for the very act of purchasing or procuring the licence
from the enemy is an intercourse with him prohibited by
the laws of war ; and even supposing it to be gratuitously
issued, it must be for the special purpose of furthering
the enemy's interests, by securing supplies necessary to
prosecute the war, to which the subjects of the belligerent
State have no right to lend their aid by sailing under
these documents of protection {z).
(x) 67 & 68 Viot. 0. 60, b. 69 ; and flee i^f) The Annandale, 2 P. D. 218.
Sorutton, p. 66; R. v. SOerg, L. B. 1 W The Julia, 8 Cranch, 181 ; The
p r R 9AA Aurora, B). 203 ; The Ariadne, 2 Whea-
C. U. K. 264. ^^ ^^g . y^ Cafefowta, 4 Wheaton, 100.
472 EIGHTS OF WAE AS BETWEEN ENEMIES.
Part IV.
CHAPTER II.
EIGHTS OF WAS AS BETWEEN ENEMIES.
Eighte of war jjj general it may be stated that the rights of war, in
enemy. respect to the enemy, are to be measured by the object
of the war. Until that object is attained, the belligerent
has, strictly speaking, a right to use every means neces-
sary to accomplish the end for which he has taken up
arms. We have already seen that the practice of the
ancient world, and even the opinion of some modem
writers on public law, made no distinction as to the
means to be employed for this purpose. Even such
institutional writers as Bynkershoek and Wolf, who lived
in the most learned and not least civilized countries of
Europe, at the commencement of the eighteenth century,
assert the broad principle, that everything done against
an enemy is lawful ; that he may be destroyed, though
unarmed and defenceless ; that fraud, and even poison,
may be employed against him ; and that an unlimited
right is acquired by the victor to his person and property.
Such, however, was not the sentiment and pf-actice of
enlightened Europe at the period when they wrote, since
Grotius had long before inculcated milder and more
humane principles, which Vattel subsequently enforced
and illustrated, and which are adopted by the unanimous
s 343 concurrence of all the public jurists of the present age (a).
Linuta to the The law of nature has not precisely determined how far
r^Mt^thl" an individual is allowed to make use of force, either to
person of an
enemy,
(a) Bynkenhoek, Qneest. Jar. Pub. lib. iii. cap. 4, {§ 6—7. Vattel, Bioit
lib. i. cap. 1. Wolfius, Jus. Gent. dea Gens, liv. iii. ch. 8.
} 878. Grotius, de Jnr. Bel. ac Fac.
RIGHTS OP WAR AS BETWEEN ENEMIES. 478
defend himself against an attempted injury, or to obtain Chap. II.
reparation when refused by the aggressor, or to bring
an offender to punishment. We can only collect, from
this law, the general rule, that such use of force as is
necessary for obtaining these ends is not forbidden.
The same principle applies to the conduct of sovereign
States existing in a state of natural independence with
respect to each other. No use of force is lawful, except
so far as it is necessary. A belligerent has, therefore,
no right to take away the lives of those subjects of the
enemy whom he can subdue by any other means. Those
who are actually in arms, and continue to resist, may be
lawfully killed; but the inhabitants of the enemy^s
country who are not in arms, or who, being in arms,
submit and surrender themselves, may not be slain,
because their destruction is not necessary for obtaining
the just ends of war. Those ends may be accomplished
by making prisoners of those who are taken in arms, or
compelling them to give security that they will not bear
arms against the victor for a limited period, or during
the continuance of the war. The killing of prisoners
can only be justifiable in those extreme cases where
resistance on their part, or on the part of others who
come to their rescue, renders it impossible to keep them.
Both reason and general opinion concur in showing that
nothing but the strongest necessity will justify such an
act (ft).
^343a.
From the immense armies at present maintained by most European Tendency in
States, there seems to be little prospect of their resorting to anything modem
but hostilities for the settlement of their difEerences. But there is a
very widespread desire to alleviate the horrors of war as much as
possible, and to confbie its operation to disabling the enemy without
inflicting unnecessary suffering upon him. Civilization has a double
effect upon war. It tends to make men more humane, but it also
enables them to devise more terrible engines of destruction. The result
is that while civilized nations are continually adopting more and more
terrible weapons for defending themselves or attacking others, they
are at the same time endeavouring to establish rules of international
law which shall make the use of their weapons as consistent with
{b) Butherforth'B Inst., b. ii. oh. 9, § 16. Qeepott, § 411e.
474 BIGHTS OF WAB AS BETWEEN ENEMIES.
Part IV. homanitj as the nature of things will permit. This is iUustrated hj
€~S43b *^^ well-known conventions of recent times.
The Genera ^ 1^^^ Switzerland^ Belgimn, Denmark, Spain, France, Italy, the
ConToitioii. Netherlands, Portugal, Prussia, and most of the GFennan States, entered
into an agreement, known as the Geneva Convention, for ameliorating
the condition of the wounded in war. Austria, England, Ghreece,
Persia, Bussia, Sweden and Norway, Turkey, the United States of
America, Japan, the Balkan States, and the majority of the South
American Bepublics subsequently acceded to it. By the 2l8t Article
of the Hague Convention, for regulating the laws and customs of land
warfare, the Geneva Convention was re-enacted and rendered obliga-
tory on all the powers which ratified the former agreement, thus
bringing both Portugal and Mexico, which had hitherto failed to
accede to the Geneva Convention, within its terms, which are as
follows : —
I. Ambulances and military hospitals shall be acknowledged to be
neuter, and, as such, shall be protected and respected by belligerents
so long as any sick or wounded may be therein. Such neutrality shall
cease if the ambulances or hospitals should be held by a military
force.
II. Persons employed in hospitals and ambulances, comprising the
staff for superintendence, medical service, administration, transport of
wounded, as well as chaplains, shall participate in the benefit of neu-
trality while so employed, and so long as there remain any wounded to
bring in or succour.
III. The persons designated in the preceding article may, even after
occupation by the enemy, continue to fulfil their duties in the hospital
or ambulance which they serve, or may withdraw in order to rejoin the
corps to which they belong. Under such circumstances, when those
persons shall cease from their functions, they shall be delivered by the
occupying army to the outposts of the enemy.
lY. As the equipment of military hospitals remains subject to the
laws of war, persons attached to such hospitals cannot, in withdrawing,
carry away any articles but such as are their private property. Under
the same circumstances an ambulance shall, on the contraiy, retain its
equipment.
Y. Inhabitants of the coimtry who may bring help to the wounded
shall be respected and shall remain free. The generals of the belli-
gerent powers shall make it their care to inform the inhabitants of the
appeal addressed to their humanity, and of the neutrality which will
be the consequence of it. Any wounded men entertained and taken
care of in a house shall be considered as a protection thereto. Any
inhabitant who shall have entertained a woimded man in his house
shall be exempted from the quartering of troops, as well as from a
part of the contributions of war which may be imposed.
YI. Wounded or sick soldiers shall be entertained and taken care
of, to whatever nation they may belong. Commanders-in-chief shall
BIGHTS OF WAR AH BETWEEN ENEMIES. 476
have the power to deliyer immediately to the outposts of the enemy Chap. II.
soldiers who have been wounded in an engagement when circumstances
permit this to be done, and with the consent of both parties. Those
who are recognized, after their wounds are healed, as incapable of
serving, shall be sent back to their country. The others may also be
sent back on condition of not again bectring arms during the con-
tinuance of the war. Evacuations, together with the persons under
whose directions they take place, shall be protected by an absolute
neutrality.
Yn. A distinctive and uniform flag shall be adopted for hospitals,
ambulances, and evacuations. It must on every occasion be accom-
panied by the national flag.* An arm-badge {brassard) shall also be
allowed for individuals neutralized, but the delivery thereof shall be
left to military authority. The flag and arm-badge shall bear a red
cross on a white ground (e).
This Oonvention has very materially improved the condition of sick
and wounded soldiers, and its terms have been generally observed in
the subsequent wars between civilized powers. In the Kusso-Turkish
war of 1877-8, the Turkish ambulances were distinguished by a red
crescent instead of a red cross, but the reported violations of the
Convention by the Turks caused Germany to address a remonstrance
to the Sublime Porte {d). It should be said, in justice to the Turk,
that, during the Franco-Prussian and Anglo-Boer wars, both com-
batants in each instance raised similar complaints as to the conduct of
their adversaries in abusing as well as in neglecting the terms of the
Convention. Indeed, under the modem developments of warfare
and of long-range Are, it is becoming increasingly difficult to afford
protection to the dressing stations and collecting hospitals which are
in any degree of proximity to the firing line. o o^^
At the Hague Peace Conference a Convention for the adaptation to The Hague
maritime warfare of the principles of the Geneva Convention was ^nrentionM
signed by representatives of the following powers : — Germany, Austria, warfare.
Belgium, China, Denmark, Spain, the United States, Mexico, France,
Gh:eat Britain, Greece, Italy, Japan, Luxembourg, Montenegro,
Holland, Persia, Portugal, Eoumania, Eussia, Servia, Siam, Sweden
and Norway, Switzerland, Turkey and Bulgaria. Its provisions are
as follows : —
I. Military hospital ships, that is to say, ships constructed or
assigned by States specially and solely for the purpose of assisting the
wounded, sick, or shipwrecked, and the names of which shall have
been communicated to the belligerent powers at the commencement of
or during the course of hostilities, and in any case before they are
employed, shall be respected and cannot be captured while hostilities
(«) Hertdet, Map of Europe by (rf) Pari. Papers, Turkey, 1878 (No. 1),
Treaty, vol. Hi. p. 1624. pp. 168, 209.
476
BIGHTS OF WAB AS BETWEEN ENEMIES.
Part IV. last. These ships, moreover, are not on the same footing as men-of-
war as regards their stay in a neutral port.
II. Hospital ships, equipped wholly or in part at the cost of private
individuals or officiallj recognized relief societiee, shall likewise be
respected and exempt from capture, provided the belligerent power to
whom they belong has given them an official conmussion and has
notified their names to the hostile power at the commencement of or
during hostilities, and in any case before they are employed. These
ships should be furnished with a certificate from the competent autho-
rities, declaring that they had been under their control while fitting
out and on final departure.
m. Hospital ships, equipped wholly or in x>art at the cost of private
individuals or officially recognized societies of neutral countries, shall
be respected and exempt from capture if the neutral power to whom
they belong has given them an official commission and notified their
names to the belligerent powers at the conmiencement of or during
hostilities, and in any case before they are employed.
lY. The ships mentioned in the first three articles shall afford relief
and assistance to the wounded, sick, and shipwrecked of the belligerents
independently of their nationality. The governments engage not to
use these ships for any military purpose. These ships must not in
any way hamper the movements of the combatants. Daring and
after an engagement they will act at their own risk and peril. The
belligerents will have the right to control and visit them ; they can
refuse to help them, order them off, make them take a certain course
and put a commissioner on board: they can even detain them if
important circumstances require it. As far as possible the belligerents
shall inscribe in the sailing papers of the hospital ships the orders they
give them.
V. The military hospital ships shall be distinguished by being
painted white outside, with a horizontal band of green about a metre
and a half in breadth. The ships mentioned in Articles 11. and m.
shall be distinguished by being painted white outside, with a horizontal
band of red about a metre and a half in breadth. The boats of the
ships above mentioned, as also small craft, which may be used for
hospital work, shall be distinguished by similar painting. AU hospital
ships shall make themselves known by hoisting, together with their
red national flag, the white flag with a red cross provided by the
Geneva Convention.
YI. Neutral merchantmen, yachts or vessels having or taking on
board sick, wounded, or shipwrecked of the belligerents cannot be
captured for so doing, but they are liable to capture for any violation
of neutrality they may have committed.
YII. The religious, medical, or hospital staff of any captured ship
is inviolable, and its members cannot be made prisoners of war. On
leaving the ship they take with them the objects and surgical instru-
ments which are their own private property. This staff shall continue
BIGHTS OP WAB AS BETWEEK ENEMIES. 477
to discharge its duties while necessary, and can afterwards leave, when Chap. 11.
the commander-in-chief considers it possible. The belligerents must
guarantee to the staff that has fallen into their hands the enjoyment
of their salaries intact.
Yin. Sailors and soldiers who are taken on board when sick or
wounded, to whatever nation they belong, shall be protected and
looked after by the captors.
IX. The shipwrecked, wounded, or sick of one of the belligerents
who fall into the hands of the other are prisoners of war. The captor
must decide, according to circumstances, if it is best to keep them or
send them to a port of his own country, to a neutral port, or even to a
hostile port. In the last case prisoners repatriated cannot serve as
long as the war lasts.
X. The shipwrecked, wounded, or sick who are landed at a neutral
port with the consent of the local authorities must, failing a contrary
arrangement between the neutral State and the belligerents, be guarded
by the neutral State, so that they cannot again take part in the
military operations. The expenses of entertainment and internment
shall be borne by the State to which the shipwrecked, wounded, or
sick belong.
XI. The rules contained in the above articles are binding only on
the contracting powers in case of war between two or more of them.
The said rules shall cease to be binding from the time when, in a war
between the contracting powers, one of the belligerents is joined by a
non-contracting power.
Articles XII., XIII., XIY. are formal, except that under Article
XIII. the non-signatory powers who accepted the Geneva Convention
are allowed to adhere to the present Convention (0). o 040^
By the St. Petersburg Declaration, the use during war by military The St.
or naval troops of any projectile of a weight below fourteen ounces, Petersburg
which is either explosive or charged with fulminating or inflammable
substances, was renounced by the contracting powers. It was entered
into in 1868 between Great Britain, Austria, Bavaria, Belgium,
Denmark, France, Greece, Italy, the Netherlands, Persia, Portugal,
Prussia and the North German Confederation, Eussia, Sweden and
Norway, Switzerland, Turkey, and Wurtemburg, and is obligatory
only upon the contracting or acceding parties thereto, in case of war
between two or more of themselves : it is not applicable with regard
to non-contracting parties, or parties who shall not have acceded to it ;
it will also cease to be obligatory from the moment when, in a war
between contracting or acceding parties, a non-contracting party, or
a non-acceding party shall join one of the belligerents. g a^
The final Act of the Hague Peace Conference contained three The Hague
Declarations, which prohibit on the part of the contracting powers — Dedarations.
(I) For a period of five years, the launching of projectiles from
balloons or by other similar new methods ;
(e) Pari. Papers, MisceUaneoas (No. 1), (1899) [C. 9531], and De Martens, Noar.
Beo. G^. 2nd ser. xxvi. 979.
478 BIGHTS OP WAB AS BETWEEN ENEMIES.
Part IV. (2) The uae of projeddles the only object of which is the diffaaioii
of asphjziatiiig or deleteriouB gases ;
(3) The use of bullets which expand or flatten easily in the human
body, such as bullets with a hard enyelope, of which the
enyelope does not entirely coyer the core, or is pierced with
incisions.
None of these Declarations were signed by the British representa-
tives, and only the first of them by the United States (/).
S 311
Eiohange'of According to the law of war, as still practised by
T^^^ ^^ savage nations, prisoners taken in war are put to death.
Among the more polished nations of antiquity, this
practice gradually gave way to ihsi of making slaves of
them. For this, again, was substituted that of ransoming,
which continued through the feudal wars of the middle
age. The present usage of exchanging prisoners was not
firmly established in Europe until some time in the course
of the seventeenth century. Even now, this usage is not
obligatory among nations who choose to insist upon a
ransom for the prisoners taken by them, or to leave their
own countrymen in the enemy's hands until the termina-
tion of the war. Cartels for the mutual exchange of
prisoners of war are regulated by special convention
between the belligerent States, according to their respec-
tive interests and views of policy. Sometimes prisoners
of war are permitted, by capitulation, to return to their
own country, upon condition not to serve again during
the war, or until duly exchanged ; and officers are fre-
quently released upon their parole subject to the same
condition. Good faith and humanity ought to preside
over the execution of these compacts, which are designed
to mitigate the evils of war, without defeating its legiti-
mate purposes. By the modern usage of nations, commis-
saries are permitted to reside in the respective belligerent
countries, to negotiate and carry into effect the arrange-
ments necessary for this object. Breach of good faith in
these transactions can be punished only by withholding
from the party guilty of such violation the advantages
stipulated by the cartel ; or, in cases which may be supposed
(/) De Martens, loc. cit. pp. 994 — 1002.
BIGHTS OF WAB AS BETWEEN ENEMIES. 479
to warrant such a resort, by reprisals or vindictive (Jhap. n.
retaKation (a).
§344a.
Sir Eobert Phillimore enumerates tl^e following classes of persons as Persons not
haying no claim to the treatment of prisoners of war : — ^^ ^ ^
1. Bands of marauders, acting without the authority of the soye- prisoners of
reign, or the order of the military commander, — a class which, of course, ^^"'
does not include yolunteer corps permitted to attach themselyes to the
army, and under the command of the general of the army.
2. Deserters, captured among the enemy's troops.
3. Spies, eyen if they belong to the regular army (A).
The laws of war justify the execution of spies when found by a com-
mander within the lines of his army, or giying information of his plans
and moyements to the enemy. Deserters found in the enemy's ranks
may be treated in whatever manner the mimicipal laws of their country
ordain. The penalty is not unfrequently capital punishment (»). The
employmeoit of bands of marauders or sayages, eyen though acknow-
ledged by the soyereign, cannot be too strongly denounced, and justifies
the other side in treating such auxiliaries with great seyerity when
they are captured. The melancholy effects of using such allies haye
repeatedly been seen during the recent Busso-Turkish war. The
atrocities committed by Cossacks and Bulgarians in the seryice of
Bussia, and by Circassians and Bashi-Bazouks in that of Turkey, haye
fixed an indelible stain on the whole war. a oaau
A question arose during the Franco-German war as to what treat- Persons in'
ment persons should receiye who ascended in balloons in order to 1>*Uoom.
reconnoitre the enemy's forces. Those who were captured by the
Germans were imprisoned in fortresses, and brought to trial before a
council of war. M. Calyo and Sir E. Phillimore considered that they
ought to be treated as prisoners of war {k). Under the Hague Con-
vention for the regulation of the laws and customs of land warfare,
^'individuals sent in balloons to deliver despatches and generally to
maintain communications between the various parts of an army or a
territory" are not considered as spies. The German practice of 1870-1
is now generally reprobated, but the studiously inexact language of the
Hague Delegates does not cover the case of reconnaissance by balloon.
All the members of the enemy State may lawfully be Persons
treated as enemies in a public war; but it does not ^toS ™°*
hostility.
(^) Grotins, de Jar. Bel. ac Pao. (State Papers.) Wheaton*s Hist. Law
lib. iii. oap. 7, §§ 8, 9 ; cap. 11, §§ 9— of Nations, pp. 162—164. See pott,
13. Vattel, Droit des Gens, liv. iii. { 411h.
ch. 8, { 153. G. Bobinson*s Adm. Rep. (A) Phillimore, rol. iii. § xoTi. p. 164.
Tol. iii. Note, Appendix A. Ooire- See also Field, International Gode, { 802.
spondence between M. Otto, French (») Galvo, iii. p. 162.
Gomnussarj of Prisoners in England, {k) lb. pp. 168, 201 ; Phillimore, iii.
and the British Transport Board, 1801, { 97, p. 164. Hague Gonvention, Art. 29,
Annual Beg^ter, vol. zlir. p. 265. pcdi, p. 560.
^0 RIGHTS OP WAR AS BETWEEN ENEMIES.
Part IV. therefore follow, that all these enemies may be lawfully
treated alike ; though we may lawfully destroy some of
them, it does not therefore follow, that we may lawfully
destroy all. For the general rule, derived from the
natural law, is still the same, that no use of force against
an enemy is lawful, unless it is necessary to accomphsh
the purposes of war. The custom of civilized nations,
founded upon this principle, has therefore exempted the
persons of the sovereign and his family, the members of
the civil government, women and children, cultivators of
the earth, artisans, labourers, merchants, men of science
and letters, and, generally, all other public or private
individuals engaged in the ordinary civil pursuits of
life, from the direct effect of military operations, unless
actually taken in arms, or guilty of some misconduct in
violation of the usages of war, by which they forfeit
§346a. *^^i^^™°^^^i*y(0-
OrewB of During the Franco- German war of 1870 Count Bismarck maintained
Sim. *^** *^® treatment of the crews of merchant vessels as prisoners of war
was not in conformity with International Law ; and adroitly died
against the French contention to the contrary the decree of Berlin of
18th November, 1806, in which Napoleon assigned as a reason for the
establishment of the continental blockade that England rejected the
law of nations uniyersally practised, and made prisoners of war " les
Equipages des vaisseauz de conmierce et des navires marchands." The
custom of making prisoners of such persons is justified on the ground
that seamen, and now persons experienced in the use of marine
engines and machinery, form a valuable part of the effective fighting
strength of any State waging war at sea (m).
§346.
Enemy's pro- The application of the same principle has also limited
Krrobjeot to and restrained the operations of war against the territory
wnfl^^n. and other property of the enemy. From the moment
one State is at war with another, it has, on general prin-
ciples, a right to seize on all the enemy's property, of
whatsoever kind and wheresoever found, and to appro-
priate the property thus taken to its own use, or to that
(/) Rntherforth'B Inst. b. ii. oh. 9, tit. 2, sect. 2, ch. 1, §§ 245—247.
} 16. Vattel, Droit des Gens, Uv. iii. ^^^ g^ ^^^^^ ^^ 1833j ^^^ ^
ch. 8, «« U5— 147, 169. Kluber, Droit ^' ' , , ,«^ \«^
V^ A ^ J A 1.T? W TT Goffcken to § 126, p. 289.
des Gens Modeme de 1' Europe, Pt. II. j » *-
RIGHTS OF WAR AS BETWEEN ENEBHES.
481
of the captors. By the ancient law of nations, even what Chap. II.
were called res sacrce were not exempt from capture and
confiscation. Cicero has conveyed this idea in his expres-
sive metaphorical language, in the Fourth Oration against
Verres, where he says that " Victory made all the sacred
things of the Syracusans profaned But by the modem
usage of nations, which has now acquired the force of
law, temples of religion, public edifices devoted to civil
purposes only, monuments of art, and repositories of
science, are exempted from the general operations of war.
Private property on land is also exempt from confiscation,
with the exception of such as may become booty in special
cases, when taken from enemies in the field or in besieged
towns, and of military contributions levied upon the
inhabitants of the hostile territory. This exemption
extends even to the case of an absolute and unqualified
conquest of the enemy's country. In ancient times, both
the moveable and immoveable property of the vanquished
passed to the conqueror. Such was the Roman law of
war, often asserted with unrelenting severity ; and such
was the fate of the Roman provinces subdued by the
northern barbarians, on the decline and fall of the western
empire. A large portion, from one-third to two-thirds,
of the lands belonging to the vanquished provincials,
was confiscated and partitioned among their conquerors.
The last example in Europe of such a conquest was that
of England, by William of Normandy. Since that
period, among the civilized nations of Christendom, con-
quest, even when confirmed by a treaty of peace, has
been followed by no general or partial transmutation of
landed property. The property belonging to the govern-
ment of the vanquished nation passes to the victorious
State, which also takes the place of the former sovereign,
in respect to the eminent domain. In other respects,
private rights are unaffected by conquest (w).
(n) Vattel, Droit des Gens, liv. iii. 2, ch. 1, §§ 250—253. Martens, Precis,
oh. 9, § 18. Kluber, Droit dee Qens ft^., liv. viii. oh. iv. J§ 279—282.
Modeme de T Europe, Ft. II. tit. 2, sect.
W. I I
482 RIGHTS OF WAR AS BETWEEN ENEMIES.
Part rV. The modem practice of nations has firmly established the general
rule of exempting private property on land from confiscation (o).
§346a
Enemy's "^^^ ^^^^ ^^ ^^ subject to certain limitations. General Halleck, who
private pro- has treated the subject very fully, gives three exceptions — (1) con-
perty on land, fig^atione or seizures by way of penalty for military ofPences ; (2) forced
contributions for the support of the invading armies, or as an indem-
nity for the expenses of maintaining order and affording protection
to the conquered inhabitants ; and (3) property taken on the field of
battle, or in storming a fortress or town(/>). Private property is
exempt from the operations of war only so long as its owners obey the
laws of war. An invader protects non-combatants and their property
as long as they take no part in the struggle. As soon as they
relinquish this character, the reasons which restrained the invader
cease, and he may then punish such individuals by seizing their pro-
perty, or if this cannot be discovered and secured, their offence may
be visited upon the community to which they belong (9). Forced
contributions for the support of the invading army should only be
resorted to in cases of necessity (r). If a general is not provided with
the necessaries for an army by his own government, he must o| course
obtain them from the invaded provinces. These should, however, be
paid for either out of the invader's own funds, or by money collected
from the whole district, so that the actual individuals to whom the
necessaries belong should nol suffer more than the rest of the com-
munity. Napoleon attributed his losses in the Peninsula in a great
measure to the bitter feeling created among the Spaniards by his
forced requisitions and pillage for the supply of his army («).
Private property found on the field of battle belongs to the conqueror,
and so does that which is taken at the sack of a town, but a general
cannot be too careful in repressing pillage in the latter case. It, how-
ever, unfortunately often happens that military discipline is relaxed
after an assault, and the general is unable to restrain his soldiers from
plundering private houses. The plunder of the Emperor of China's
summer palace by the troops of France and England, in the 1860 war
against China, and still more, the organized looting that was permitted
to some of the European contingents after the relief of the Pekin
Legations in 1900, show that the most civilized nations do not. even
now, invariably restrain their troops from pillaging private property (/).
Seizure of There is yet another case when private property may be seized. If
cotton.*" it be such that it ministers directly to the strengdi of the enemy, and
its possession alone enables him to supply himself with the munitions
of war, and to continue the struggle, it may then be confiscated. Thus
(0) Field. Int. Code, oh. Ixiv. p. 626. of the seizor's own state.
Bliintschli, Droit Int. Godifi6, {651. («) Napier, Peninsular War, b. 24,
(p) Halleok, ch. xix. { 13, p. 467. oh. 6 ; and on the general qnestion
{q) Ibid. p. 468. of requisitions and contributions, see
(r) See Mitchell T. Sarmony, 13 How- Hague Convention, Art. 62, po$t^ p. 662.
ard, 134, as to seizing goods in the (t) Calvo, ii. { 897. Halleck, oh. xix.
enemy's country belonging to a subject } 12.
RIGHTS OF WAE AS BETWEEN ENEMIES. 483
during the American oiyil war cotton was the mainstay of the Con- Chap. 11.
federates; without it they could not have continued the rebellion.
The Supreme Oourt therefore decided that it could lawfully be captured
by the Federal troops, notwithstanding that it was strictly private
property (ti). ** The whole doctrine of confiscation," said the Supreme
Court in a recent case, '*is built upon the foundation that it is an
instrument of coercion, which, by depriving an enemy of property
within reach of his power, whether within his territory or without,
impairs his ability to resist the confiscating goTcmment, while at the
same time it furnishes to that government means for carrying on the
war. Hence any property which the enemy can use, either by actual
appropriation or by the exercise of control over its owner, or which
the adherents of the enemy have the power of devoting to the enemy's
use, is a proper subject of confiscation " («).
In France the power of directing the seizure of an enemy's property
on land is held to belong exclusively to the legislature. No other
authority can legally authorize such a course (y). g A&fib
When a district or province has fallen into the hands of an enemy, Effects of *
the political status of the inhabitants is changed. The sovereignty of military
their former government is suspended, and their allegiance to it is, for
the time being, dissolved. During the occupation they become subject
to such laws as the conqueror may choose to impose. No other laws
can in the nature of things be obligatory upon them, for where there
is no protection or sovereignty there can be no claim to obedience (z).
The inhabitants, however, cannot be required to take up arms against
their own country. At the same time their private rights, and their rela-
tions to each other, unless specially altered by the conqueror, remain the
same (a). Firm military occupation transfers aU the rights of the dis-
placed sovereignty to the victor, and he may therefore use the public
property of the former as he thinks fit, and may appropriate to himself
the rates and taxes due to it. But this is only the case so long as the
occupation lasts ; as soon as the district is lost, the rights of military
occupation over it are also lost (5). If the district is retaken by its
original sovereign, it reverts to the same state it was in before it was
lost (o). The effects of military occupation are different with regard to
moveable and to immoveable property. It gives the conqueror the right
to acquire a complete title to moveables, and to transfer them to any one
he pleases, but it only gives him a qualified right over immoveables.
He may use real property as he pleases during his occupation, but if
(«) Mrs. Alexander's Cotton, 2 Wal- y. I>^heman, 7 Peters, 86 ; Zeitent-
laoe, 429 ; U. 8. v. Tadelford, 9 Wal- Oorfer t. Webby 20 Howard, 176 ; U, S.
lace, 640 ; ffayeraft t. U. 5., 22 Wallace, y. jforeno, 1 Wallace, 631 ; and see post,
^^' p. 661 ; and the Hague Conyention,
(x) MiUerT. U. S,, II Wallace, 806. Arte. 42—66.
(Sf) Dalloz, Jiiriap. a^drale, 1872, (i) Halleck, eh. xxxii. { 4 ; V^- S. r.
Pt. III. pp. 94, 96. jgj^^ 4 Wheaton, 246 ; lUminff t, Poffe^
(<) U. 8. T. Hayward, 2 OaUison, 602. 9 Howard, 614.
(a) The Fama, 6 C. Bob. 126 ; U, 8. («) 0%mib<^9 case, 2 Enapp, P. C. 869.
Il2
484
RTGHTS OP WAR AS BETWEEN ENEMIES.
Part IT. be sells it, the purchaser takes it at the risk of being evicted by the
original owner. It is only on the conclusion of peace that the invader's
rights over such property become fixed (rf). Military occupation must
be distinguished from complete conquest. The former is only a
temporary state, lasting during the war ; the latter is permanent, and
its conditions are provided for in the treaty of peace. The Supreme
Court of the United States has decided that when a portion of the
American Union is occupied by a public enemy, that portion is to be
deemed a foreign country so far as respects revenue laws, and that
goods imported into it are not imported into the Union («). On the
other hand, when the forces of the Union occupy a foreign territory,
such territory comes under the sovereignty of the Union, but does not
become part of the United States, although foreign nations are bound
to regard it as such. It is to be governed by military law, as regulated
by public law. This results from the President having power to make
war, and subject the enemy's country, but only in a military sense.
He has no power to enlarge the boundaries of the Union. This can
only be done by Congress, the treaty-making power (/). According
to British law, an occupied territory becomes ipso facto a part of the
§ 346c. British dominions (y).
Martial and Martial law has been defined to be, the will of the commanding
officer of an armed force, or of a geographical military department,
expressed in time of war within the limits of his military jurisdiction,
as necessity demands and prudence dictates, restrained or enlarged by
the orders of his military chief or supreme executive ruler (A). Military
law consists in the rules and regulations made by the legislative power
of the State for the government of its naval or military forces. The
military law of England is chiefly contained in the Mutiny Acts and
the Articles of War (t). Military law exists equally in time of peace
as in time of war ; it is quite distinct from martial law {k). The laws
of war (when that expression is not used as a generic term) are the
laws which govern the conduct of belligerents towards each other and
other nations, flagrante hello {I). Military government is the govern-
ment imposed by a successful belligerent, either over a foreign province
or over a district retaken from insurgents, treated as belligerents.
(d) HaUeok, ch. zix. { 4. See also (argument]. Hansard, Pari. Beb. (Sid
jDM^, {{ 398 and 411o. series), vol. zov. p. 80. OpinionB of
(<?) U. 8, V. Rice, 4 Curtis, 391. Attys.-Gen. (U. S.), vol. viii. p. 367.
(/) Fletning v. Page^ 9 Howard, 616 ; And see Bedreeehund v. ElphimUme, as
Neeley v. Henkei, 180 U. S. Reports, 109. reported in 2 State Trials, New Series,
See on this subject Whiting, War Powers p. 395, note, and also note top. 976 of
of the President under the United States the same voiume.
Constitution (43rd ed.). (•) Wolfe Tone's eon, 27 State Trials,
(y) Halleck, ch. xxxii. § 7. See, as 615 ; JFoUon v. Gavin, 16 Q. B. 61.
to cession of territory, arguments in (k) Kent, Commentaries, vol. i. (12tfa
JDamodhar Oordhan v. Deoram Kami, I ed.) p. 341, note (a).
App. Cas. 853. (Q Argument in Ex parte MiUiffan, 4
(A) Ex parte MiUigan, 4 Waliaoe, 14 Wallace, 14.
BIGHTS OF WAB AS BETWEEN ENEMIES. 486
This supersedes, as far as may be deemed expedient, the local law, Chap. II.
and continues until the war or rebellion is terminated, and a regular
civil authority is instituted (m).
Martial law is founded on paramount necessity. It is the will of the Martial law is
commander of the forces. In the proper sense it is not law at all («). ^ na)e6dt
It is merely a cessation from necessity of all municipal law, and what
necessity requires it justifies (o). Under it, a man in actual armed
resistance may be put to death on the spot by anyone acting under the
orders of competent authority; or, if arrested, may be tried in any
manner which such authority shall direct. But if there be an abuse of
the power so given, and acts are done under it, not bondjide to suppress
rebellion and in self-defence, but to gratify malice or in the caprice of
tyranny, then for such acts the party doing them is responsible (p).
Sir James Mackintosh has said on this subject, ** The only principle Opinion of
on which the law of England tolerates what is called * martial law' is Maddnk»h
necessity. Its introduction can be justified only by necessity; its con-
tinuance requires precisely the same justification of necessity ; and if
it survives the necessity, in which alone it rests, for a single minute, it
becomes instantly a mere exercise of lawless violence. When foreign
invasion or civil war renders it impossible for courts of law to sit, or
to enforce the execution of their judgments, it becomes necessary to
find some rude substitute for them, and to employ for that purpose the
military, which is the only remaining force in the community.
'' While the laws are silenced by the noise of arms, the rulers of the
armed force must punish as equitably as they can those crimes which
threaten their own safety and that of society, but no longer ; every
moment beyond is usurpation. As soon as the laws can act, every
other mode of punishing supposed crimes is itself an enormous crime.
If argument be not enough on this subject — if, indeed, the mere state-
ment be not the evidence of its own truth — ^I appeal to the highest and
most venerable authority known to our law."
He then quotes Sir Matthew Hale, and cites the case of the Duke of *
Lancaster, who was executed when taken prisoner at the battle of
Boroughbridge, 1322 (y), and proceeds: —
''No other doctrine has ever been maintained in this country since
the solemn parliamentary condemnation of the usurpation of Charles I.,
which he was himself compelled to sanction in the Petition of
Bight" (r).
If in foreign invasion or civil war the courts of law are actually
dosed, and it is then impossible to administer criminal justice according
(ffi) Argnment in JEx parte Milligan, 4 (p) Ibid. p. 214. Finlason on Mar-
Wallace, pp. 141, 142. tial Law (London, 1867).
(n) Speech of Dake of Wellington, {q) Hale, Fleas of the Grown, pp.
1st April, 1861. Field, International 499, 600. Home, Hist, of England,
Code (2nd ed.), p. 478. vol. i. p. 169.
(o) Forsjth, Cases and Opinions on (r) Mackintosh'sMisoellaneoas Works,
Ckmstitutional Law, p. 201. p. 734 (London, 1861).
486
BIGHTS OF WAR AS BETWEEN ENEMIES.
Part IV.
Martial law
during the
American
civil war.
MiUigafCB
Martial law
in France.
Qeoffroy'B
ea*e.
to law, then, ou the theatre of actual military operations, where war
" really preyaile, there is a necessity to famish a substitute for the civil
authority, thus overthrown, to preserve the safety of the army and
society ; as no power is left but the military, it is allowed to govern by
martial rule until the laws can have their free course, and where
actual war is raging, acts done by the nulitaiy authorities are not
justiciable by the ordinary tribunals («). As necessity creates the rule,
so it Hmits its duration ; for, if this government is continued after the
courts are reinstated, it is a gross usurpation of power. Martial rule
ought to never exist where the courts are open, and in the proper and
unobstructed exercise of their jurisdiction. It should also be confined
to the locality of actual war or insurrection ; but the fact that for
some purposes some tribunals have been permitted to pursue their
ordinary course in a district in which martial law has been proclaimed
is not conclusive that war is not raging {t).
In October, 1864, during the civil war, Lambdin P. MiUigan, a citizen
of the United States, and an inhabitant of Indiana, was arrested, while
at home, by order of the Federal general commanding the military
district of Indiana. Though not a military person, he was sent to
Indianapolis, and brought before a military commission sitting there,
tried on certain charges of conspiring against the government, found
guilty, and sentenced to be hanged. The question, which was brought
before the Supreme Court, was whether the military commission had
jurisdiction legally to try and sentence him. In Indiana the Federal
authority was not opposed by force, and its courts were always open
to hear criminal accusations and redress grievances. But a powerful
secret association, which plotted insurrection and armed co-operation
with the rebels, existed in the State. On the question as to whether,
under such circumstances. Congress had power to appoint a military
commission to try and condemn citizens, not being military persons —
that is, whether martial law could be proclaimed — ^the judges of the
Supreme Court differed. But they were unanimous in holding that,
as this power had not been distinctly exercised, Milligan, being a
citizen not connected with the military service, could not be tried,
convicted, and sentenced otherwise than by the ordinary courts of law (i«).
A somewhat similar case was decided in France in 1832. A royal
order, dated the 6th of June, 1832, had put Paris in a state of siege,
and under it military commissions were appointed, which tried and
convicted several persons. One Geoffroy was declared guilty of an
attack with intent to subvert the government, and was condemned to
death. He appealed to the Court of Cassation. This Court held that
Oeoffroy not being a military person, or subject to military authority,
the military commission had no jurisdiction over him, and its sentence
(«) £x parte Maraia, (1902) A. G. 109.
(0 Ex parte Milligan, 4 Wallace, 127.
See also 8mUh t. Shaw, 12 Johnaon, 257 ;
MeConneU v. Hampden, Ibid. 234 ; Luther
T. Borden, 7 Howard, 42; Ex porU
Maraitj supra,
(m) JSx parte MiUigan, 4 Wallace, 6—
142.
BIGHTS OF WAR A8 BETWEEN ENEMIES. 487
was accordingly annulled (v). Martial law has on several occasions Chap. II.
been proclaimed in Ireland and in some of the British colonies for the
suppression of disturbances. But it has not been put in force in In England.
England against civilians (x).
The exceptions to these general mitigations of the Ravaging the
extreme rights of war, considered as a contest of force, tei^ry
all grow out of the same original principle of natural ^^®^ lawful.
law, which authorizes us to use against an enemy such
a degree of violence, and such only, as may be necessary
to secure the object of hostilities. The same general
rule, which determines how far it is lawful to destroy
the persons of enemies, will serve as a guide in judging
how far it is lawful to ravage or lay waste their country.
If this be necessary, in order to accomplish the just ends
of war, it may be lawfully done, but not otherwise.
Thus, if the progress of an enemy cannot be stopped,
nor our own frontier secured, or if the approaches to a
town intended to be attacked cannot be made without
laying waste the intermediate territory, the extreme case
may justify a resort to measures not warranted by the
ordinary purposes of war. If modem usage has sanc-
tioned any other exceptions, they will be found in the
right of reprisals, or vindictive retaliation. The whole
international code is founded upon reciprocity. The
rules it prescribes are observed by one nation, in con-
fidence that they will be so by others. Wliere, then, the
established usages of war are violated by an enemy, and
there are no other means of restraining his excesses,
retaliation may justly be resorted to by the sufFering
nation, in order to compel the enemy to return to the
observance of the law which he has violated (y).
(r) Fonjth, Gases and Opinionsi (arising out of the case of Governor
p. 483. See on this subject Mr. Field's Eyre) : Annual Begister, 1867, p. 226 ;
argument in HoCardale*s case, Ibid. and special report by Frederick Cock-
p. 491. And his argn^ment in Milligan's bum. See also The Law Magazine, Not.
case, published separately, with an ap- 1861, p. 171.
pendix (New York, 1866) ; also in 4 (y) Vattel, liv. iii. ch. 8, { 142 ; ch. 9,
Wallace, 4. FhUlipp9r,£yre,lj.'R,eQ,B. §{ 166—173. Martens, Pr6cis du Droit
1. Law Magazine, Not. 1861, p. 170. des Gens Modeme de I'Europe, liv. viii.
(x) Forsyth, Cases and Opinions, ch. 4, ^ 272—280. Kliiber, Pt. II.
p. 212. Sir A. Cookbnm's charge to tit. 2, sect. 2, ch. 1, {{ 262—266.
the grand jury in £, v. I^elton and Brand Twiss, War, p. 124.
488
EIGHTS OF WAB AS B£TW£EN EKEMIES.
Part IV.
Biscu^Bions
between the
American
and British
gfovemments
upon this
subject.
§349.
Answer of
the United
States.
The last war between the United States and Great
Britain was marked by a series of destructive measures
on the part of the latter, directed against both persons
and property hitherto deemed exempt from hostilities by
the general usage of civilized nations. These measures
were attempted to be justified, as acts of retaliation for
similar excesses on the part of the American forces on
the frontiers of Canada, in a letter addressed to Mr.
Secretary Monroe, by Admiral Cochrane, commanding
the British naval forces on the North American station,
dated on board his flagship in the Patuxent river, on the
18th of August, 1814. In this communication it was
stated that the British admiral, having been called upon
by the governor-general of the Canadas to aid him in
carrjdng into effect measures of retaliation against the
inhabitants of the United States for the wanton destruc-
tion committed by their army in Upper Canada, it had
become the duty of the admiral to issue to the naval
forces under his command an order to destroy and lay
waste such towns and districts on the coast as might be
found assailable.
In the answer of the American government to this
communication, dated at Washington on the 6th of
September, 1814, it was stated that it had seen, with
the greatest surprise, that this system of devastation
which had been practised by the British forces, so mani-
festly contrary to the usages of civilized warfare, was
placed on the ground of retaliation. No sooner were
the United States compelled to resort to war against
Great Britain, than they resolved to wage it in a manner
most consonant to the principles of humanity, and to
those friendly relations which it was desirable to pre-
serve between the two nations, after the restoration of
peace. They perceived, however, with the deepest
regret, that a spirit alike just and humane was neither
cherished nor acted upon by the British government.
Without dwelling on the deplorable cruelties committed
by the Indian savages, in the British ranks and in
British pay, at the river Raisin, which had never been
BIGHTS OP WAR AS BETWEEN ENEMIES. 489
disavowed or atoned for, the American government Chap. 11.
referred, as more particularly connected with the subject
of the above communication, to the wanton desolation
that was committed, in 1813, at Havre-de-Grace and
Georgetown, in the Chesapeake Bay. These villages
were burnt and ravaged by the British naval forces, to
the ruin of their unarmed inhabitants, who saw with
astonishment that they derived no protection to their
property from the laws of war. During the same season,
scenes of invasion and pillage, carried on under the
same authority, were witnessed all along the shores of
the Chesapeake, to an extent inflicting the most serious
private distress, and under circumstances that justified
the suspicion, that revenge and cupidity, rather than the
manly motives that should dictate the hostility of a high-
minded foe, led to their perpetration. The late destruc-
tion of the houses of the government at Washington was
another act which came necessarily into view. In the
wars of modern Europe, no example of the kind, even
among nations the most hostile to each other, could be
traced. In the course of ten years past, the capitals of
the principal powers of the European continent had been
conquered, and occupied alternately by the victorious
armies of each other, and no instance of such wanton
and unjustifiable destruction had been seen. They must
go back to distant and barbarous ages, to find a parallel
for the acts of which the American government com-
plained.
Although these acts of desolation invited, if they did
not impose on that government the necessity of retalia-
tion, yet in no instance had it been authorized.
The burning of the village of Newark, in Upper
Canada,. posterior to the early outrages above enumerated,
was not executed on the principle of retaliation. The
village of Newark adjoined Fort George, and its de-
struction was justified, by the officers who ordered it, on
the ground that it became necessary in the military
operations there. The act, however, was disavowed by
the American government. The burning which took
490 BIGHTS OF WAB AS BETWEEN ENEMIES.
Part IV. place at Long Point was unauthorized by the govem-
menty and the conduct of the officer had been subjected
to the investigation of a military tribunal. For the
burning at St. David^s, committ^ by stragglers, the
officer who commanded in that quarter was dismissed,
without a trial, for not preventing it.
The American government stated, that it as little
comported with any orders which had been issued to its
military and naval commanders, as it did with the
known humanity of the American nation, to pursue the
system which had been adopted by the British. That
government owed to itself, and to the principles it
had ever held sacred, to disavow, as justly chargeable to
it, any such wanton, cruel, and unjustifiable warfare.
Whatever unauthorised irregularities might have been
committed by any of its troops, it would have been
ready, acting on the principles of sacred and eternal
obligation, to disavow, and as far as might be practi-
cable, to repair them. But in the plan of desolating
warfare which Admiral Cochrane's letter so explicitly
made known, and which was attempted to be excused on
a plea so utterly groundless, the American government
perceived a spirit of deep-rooted hostility, which, without
the evidence of such fact, it could not have believed to
exist, or that it would have been carried to such an
extremity for the reparation of injuries, of whatsoever
nature they might be, not sanctioned by the law of
nations, which the naval or military foi'ces of either
power might have committed against the other. That
the government would always be ready to enter into
reciprocal arrangements ; but should the British govern-
ment adhere to a system of desolation, so contrary to the
views and practices of the United States, so revolting to
humanity, and so repugnant to the sentiments and usages
of the civilized world, whilst it would be seen with the
deepest regret, it must and would be met with a de-
termination and constancy becoming a free people,
contending in a just cause for their essential rights and
their dearest interests.
BIGHTS OF WAR AS BETWEEN ENEMIES. 491
In the reply of Admiral Cochrane to f he above Chap. II.
communication, dated on the 19th September, 1814, it § 350.
was stated that he had no authority from his govern- J^J^jJ^^.g
ment to enter into any kind of discussion relative to the ^v^J-
point contained in that communication. He had only to
regret that there did not appear to be any hope that he
should be authorized to recall his general order, which
had been further sanctioned by a subsequent request,
from the governor-general of the Ganadas. Until the
admiral received instructions from his government, the
measures he had adopted must be persisted in, unless
remuneration should be made to the Canadians for the
injuries they had sustained from the outrages committed
by the troops of the United States {^).
The disavowal of the burning of Newark by the
American government had been communicated to the
governor-general of the Canadas, who answered, on the
10th February, 1814, that it had been with great satis-
faction that he had received the assurance that it was
unauthorized by the American government and abhorrent
to every American feeling ; that if any outrages had en-
sued, in the wanton and unjustifiable destruction of
Newark, passing the bounds of just retaliation, they
were to be attributed to the influence of irritated pas-
sions on the part of the unfortunate sufferers by that
event, which it had not been possible altogether to
restrain; and that it was as little congenial to the
disposition of the British government as it was to that of
the United States, deliberately to adopt any plan of
hostilities which had for its object the devastation of
private property. 3^^
Under these circumstances, the destruction of the Bumipg d
Capitol, of the President's house, and other public ^^
buildings at Washington, in August, 1814, could not but
be considered by the whole world as a most unjustifiable
departure from the laws of civilized warfare. .In the
(z) Oozrespondenoe Iwtween Mr. Sec- Amerioan State Papers, fol. edit. t61. iii.
retaiy Monroe and Adsdral Ooobrane, pp. 693, 694.
492
BIGHTS OF WAB AS BETWEEN ENEBOES.
Part IV. debate which took place in the House of Commons on
the 11th of April, 1815, on the Address to the Prince
Regent on the treaty of peace with the United States,
Sir James Mackintosh accused the ministers of culpable
delay in opening the negotiations at Ghent ; which, he
said, could not be explained, except on the miserable
policy of protracting the war for the sake of striking a
blow against America. The disgrace of the naval war,
of balanced success between the British navy and the
new-bom marine of America, was to be redeemed by
protracted warfare, and by pouring their victorious
armies upon the American continent. That opportunity,
fatally for them, arose. If the Congress had opened in
June, it was impossible that they should have sent out
orders for the attack on Washington. They would have
been saved from that success, which he considered as a
thousand times more disgraceful and disastrous than the
worst defeat. It was a success which had made their
naval power hateful and alarming to all Europe. It was
a success which gave the hearts of the American people
to every enemy who might rise against England. It
was an enterprise which most exasperated a people, and
least weakened a government, of any recorded in the
annals of war. For every justifiable purpose of present
warfare, it was almost impotent. To every wise object
of prospective policy, it was hostile. It was an attack,
not against the strength or the resources of a State, but
against the national honour and public affections of a
people. After twenty-five years of the fiercest warfare,
in which every great capital of the European continent
had been spared, he had almost said respected, by
enemies, it was reserved for England to violate all that
decent courtesy towards the seats of national dignity,
which, in the midst of enmity, manifests the respect of
nations for each other, by an expedition deliberately
and principally directed against palaces of government,
halls of legislation, tribunals of justice, repositories of
the muniments of property, and of the records of history ;
objects, among civilized nations exempted from the
BIGHTS OF WAB AS BETWEEN ENEMIES. 49*^
ravages of war, and secured, as far as possible, even (jj^ap. n.
from its accidental operation, because they contribute
nothing to the means of hostility, but are consecrated
to purposes of peace, and minister to the common and
perpetual interest of all human society. It seemed to
him an aggravation of this atrocious measure, that
ministers had endeavoured to justify the destruction of a
distinguished capital, as a retaliation for some violences
of inferior American oflficers, unauthorized and disavowed
by their government, against he knew not what village
in Upper Canada. To make such retaliation just, there
must always be clear proof of the outrage ; in general
also, sufficient evidence that the adverse government had
refused to make due reparation for it ; and, lastly, some
proportion of the punishment to the offence. Here there
was very imperfect evidence of the outrage — no proof of
refusal to repair — and demonstration of the excessive
and monstrous iniquity of what was falsely called re-
taliation. The value of a capital is not to be estimated
by its houses, and warehouses, and shops. It consisted
chiefly in what could be neither numbered nor weighed.
It was not even by the elegance or grandeur of its
monuments that it was most endeared to a generous
people. They looked upon it with affection and pride
as the seat of legislation, as the sanctuary of public
justice, often as linked with the memory of past
times, sometimes still more as connected with their
fondest and proudest hopes of greatness to come. To
put all these respectable feelings of a great people,
sanctified by the illustrious name of Washington, on a
level with half a dozen wooden sheds in the temporary
seat of a provincial government, was an act of intolerable
insolence, and implied as much contempt for the feelings
of America as for the common sense of mankind (a).
The deyastation of his own territory has sometimes been resorted to itavac^ff
by a belligerent, for the purpose of impeding the advance of the enemy, territory,
and this is perfectly justifiable. Thus, Peter the Great contributed to
(a) Hansard's Parliamentary Debates, vol. xxx. pp. 626, 527.
494
RIGHTS OF WAR A8 BETWEEN ENEMIES.
Part rV. bis Tiotory oyer Charles Xll. at Pultawa by laying waste eighty square
~ leagues of Bussian territory that lay in the path of the Swedish army.
In 1812y the Bussians caused the destruction of Napoleon's army by
burning down Moscow (6). The ravaging of Georgia and Carolina by
General Sherman during the American Gvil War, was perhaps a
necessary military operation on the part of the Federal troops, and it
certainly tended to bring the war to a more rapid conclusion (c).
Rfisfitution of The invasion of France by the allied powers of Europe,
arti^tiie^ in 1815, was foUowod by the forcible restitution of the
theioSro at pictures, statues, and other monuments of art, collected
ooimtries
from whioh
they had been LoUVrC,
taken daring
the wars of
the French
revolution.
to^e"^ ^^^^' from different conquered countries during the wars of the
French revolution, and deposited in the museum of the
The grounds upon which this measure was
the wars of ^ adopted are fully explained in a note delivered by the
British minister. Lord Castlereagh, to the ministers of
the other allied powers at Paris, on the llth September,
1815. In this note it was stated by the British pleni-
potentiary, that representations had been laid before the
Congress, assembled in that capital, from the Pope, the
Grand Duke of Tuscany, the King of the Netherlands,
claiming, through the intervention of the allied powers,
the restoration of the statues, pictures, and other works
of art, of which their respective States had been succes-
sively stripped by the late revolutionary government of
France, contrary to every principle of justice, and to the
usages of modem warfare; — and the same having been
referred for the consideration of his Court, he had received
the Prince Regent's commands to submit, for the con-
sideration of his allies, the following remarks upon that
interesting subject.
It was now the second time that the powers of Europe
reach's note, had been compelled, in vindication of their own liberties
and for the settlement of the world, to invade France,
and twice their armies had possessed themselves of the
capital of the State, in which these, the spoils of the
greater part of Europe, were accumulated. The legitimate
sovereign of France had as often, under the protection of
§353
Lord Gafctle<
{b) CalYO, ii. { 893.
{e) North American HeYiew, April, 1872, p. 405.
RIGHTS OF WAB AS BETWEEN ENEMIES.
495
those armies, been enabled to resume his throne, and to Chap. II.
mediate for his people a peace with the allies, to the
marked indulgence of which neither their conduct to
their own monarch, nor towards other States, had given
them just pretensions to aspire. That the purest senti-
ments of regard for Louis XVIII., deference for his
ancient and illustrious house, and respect for his mis-
fortunes, had invariably guided the allied councils, had
been proved beyond a question, by their having, in 1814,
framed the treaty of Paris on the basis of preserving to
France its complete integrity ; and still more, after their
late disappointment, by the endeavours they were again
making, ultimately to combine the substantial interests
of France with such an adequate system of temporary
precaution as might satisfy what they owed to the secu-
rity of their own subjects. But it would be the height of
weakness, as well as of injustice, and in its effects much
more likely to mislead than to bring back the people of
France to moral and peaceful habits, if the allied sove-
reigns, to whom the world was anxiously looking up for
protection and repose, were to deny that principle of in-
tegrity in its just and liberal application to other nations,
their allies, (more especially to the feeble and the help-
less,) which they were about, for a second time, to concede
to a nation against which they had had occasion so long
to contend in war. Upon what principle could France,
at the close of the war, expect to sit down with the same
extent of possessions which she held before the revolution,
and desire, at the same time, to retain the ornamental
spoils of all other countries ? Was there any possible
doubt of the issue of the contest, or of the power of the
allies to effectuate what justice and policy required ? If
not, upon what principle would they deprive France of
her late territorial acquisitions, and preserve to her the
spoliations consisting of objects of art appertaining to
those territories, which all modem conquerors had invari-
ably respected, as inseparable from the country to which
they belonged ?
These remarks were amplified by a variety of con-
496 BIGHTS OP WAR AS BETWEEN ENEMIES.
Part IV. siderations of political expediency, not necessary to be
recapitulated, and the note concluded by declaring that,
in applying a remedy to this offensive evil, it did not
appear that any middle line could be adopted which did
not go to recognize a variety of spoliations, under the
cover of treaties, if possible, more flagrant in their cha-
racter than the acts of undisguised rapine by which these
remains were, in general, brought together. The prin-
ciple of property regulated by the claims of the territories
from whence these works were taken, is the surest and
only guide to justice ; and perhaps there was nothing
which would more tend to settle the public mind of
Europe at this day, than such a homage on the part of
the King of France, to a principle of virtue, conciliation,
§854. and peace (rf).
ViewB of Sir jn t^Q debate which took place in the House of Com-
S. Bomillj. ^
mons, on the 20th of February, 1816, on the Peace with
France, Sir Samuel Romilly, speaking incidentally of
this proceeding, stated that he was by no means satisfied
of its justice. It was not true that the works of art
deposited in the museum of the Louvre had all been
carried away as the spoils of war ; many, and the most
valuable of them, had become the property of France by
express treaty stipulations ; and it was no answer to say
that those treaties had been made necessary by unjust
aggressions and unprincipled wars ; because there would
be an end of all faith between nations, if treaties were to
be held not to be binding, because the wars out of which
they arose were unjust, especially as there could be no
competent judge to decide upon the justice of the war,
but the nation itself. By whom, too, was it that this
supposed act of justice and this " great moral lesson," as
it was called, had been read ? By the very powers who
had, at different times, abetted France in these her unjust
wars. Among other articles carried from Paris, under
the pretence of restoring them to their rightful owners,
were the celebrated Corinthian horses which had been
(i) Hartenf, Noavean Beoneil, torn. Si. p. 632.
RIGHTS OP WAR AS BETWEEN ENEMIES. 497
brought from Venice ; but how strange an act of justice Chap. H.
was this to give them back their statues, but not to restore
to them those far more valuable possessions, their territoiy
and their republic, which were, at the same time, wrested
from the Venetians ! But the reason of this was obvious :
the city and the territory of Venice had been transferred
to Austria by the treaty of Campo Formio, but the horses
had remained the trophy of France ; and Austria, whilst
she was thus hypocritically reading this moral lesson to
nations, not only quietly retained the rich and unjust
spoils she had got, but restored these splendid works of
art, not to the Venice which had been despoiled of them,
the ancient, independent, republican Venice; but to
Austrian Venice — to that country which, in defiance of all
the principles she pretended to be acting on, she still
retained as part of her own dominions (e). « ggg
The progress of civilization has slowly, but constantly, Digtmction
tended to soften the extreme severity of the operations private pro-
of war by land; but it still remains unrelaxed in respect St^ won
to maritime warfare, in which the private property of ^^^'
the enemy taken at sea or afloat in port, is indiscrimi-
nately liable to capture and confiscation. This inequality
in the operation of the laws of war, by land and by sea,
has been justified by alleging the usage of considering
private property when captured in cities taken by storm,
as booty; and the well-known fact that contributions are
levied upon territories occupied by a hostile army, in lieu
of a general confiscation of the property belonging to the
inhabitants ; and that the object of wars by land being
conquest, or the acquisition of territory to be exchanged
as an equivalent for other territory lost, the regard of the
victor for those who are to be or have been his subjects,
naturally restrains him from the exercise of his extreme
rights in this particular; whereas, the object of maritime
wars is the destruction of the enemy's commerce and
navigation, the . sources and sinews of his naval power —
which object can only be attained by the capture and
confiscation of private property.
• {e) Life of Romillj, edited by hig sons, vol. ii. p. 404.
W. K K
498 RIGHTS OF WAR AS BETWEEN ENEMIES.
Part IV. The Btrictness of the rule subjecting all the enemy's property on the
— g Qjrc high seas to confiscation was somewhat modified by the Declaration of
EnemyU * Paris, 1856, which provides, in its second article, that ''The neutral
goods under a flag coYors enemy's goods, with the exception of contraband of
fif- war"(/). Almost all civilized powers, with the exception of the
United States and Spain, are parties to this Declaration. During
the war of 1898 between these two nations, a Boyal Decree, issued by
the Queen Begent of Spain, declared that her government, ''guided by
the principles of international law, intends to observe" the second
article of the Declaration of Paris, and the President of the United
S S66b States issued a proclamation to the same efEect (^).
Capture of The indiscriminate seizure of private property on land would cause
g»P«^y oa the most terrible hardship, without conferring any corresponding advan-
tage on the invader. It cannot be effected without in some measure
relaxing military discipline, and is sure to be accompanied by violence
and outrage. On the other hand, the capture of merchant vessels is
usually a bloodless act, most merchant vessels being incapable of resisting
a ship of war. Again, property on land consists of endless varieties,
much of it being absolutely useless for any hostile purpose, while
property at sea is almost always purely merchandise, and thus is part
of the enemy's strength. It is, moreover, embarked voluntarily, and
with a knowledge of the risk incurred, and its loss can be covered by
insurance (A). An invader on land can levy contributions or a war
indemnity from a vanquished coiuitry, he can occupy part of its territory
and appropriate its rates and taxes, and by these and other methods,
he can enfeeble the enemy and terminate the war. But in a maritime
war, a belligerent has none of these resources, and his main instrument
of coercion is crippling the enemy's commerce (t ). If war at sea were
to be restricted to the naval forces, a country possessing a powerful fleet
would have very little advantage over a country with a small fleet or
with none at all. If the enemy kept his ships of war in port, a powerful
fleet, being unable to operate against conmierce, would have little or no
occupation (k). The United States proposed to add to the Declaration
of Paris a clause exempting all private property on the high seas from
seizure by public armed vessels of the other belligerent, except it be
contraband; but this proposal was not acceded to(/). Nor does it
seem likely, for the reasons stated above, that maritime nations will
forego their rights in this respect.
On the other hand, the enormous extension of railways, the increase
of the practice of marine insurance, and the dependence of the greatest
naval power in the world upon an ocean-borne food supply, have
deprived many of the older arguments in favour of the retention of
(/) See Appendix F. {h) Wheaton, by Dana, n. 171.
W Hertalet, Map of Europe, vol. ii. ,. W..^'**^^' Diplomatie de la Mer,
liv. 111. oh. u.
p. 1282. Commeroial Treaties, xii. pp. ^^j ^^^ J^^ q^^ ^^ai ed), p. 627. .
836, 1075. (/) H«Ue«*, oh. xx. § 3.
filG&TS OF WAE AS BETWEEN ENEMIES. 499
the claim to capture prirate property at sea of their force, while at the Chap. II.
same time it has inclined many persons in Great Britain, more "' '^
especially those interested in shipping, to look fayonrably on a pro-
posed abandonment of the daim. A nation which could blockade and
harass its enemy's coasts, cut him off from his colonies, interdict the
transport of his troops by water, and dominate by the guns of its fleet
many most important strategical positions, would remain no mean ally
and no contemptible foe, eren apart from the power, as illustrated in
Egypt in 1 88 1 , and in the recent South African War, of making its base
of operations wherever ships can float, and of transporting its armies
to whatever striking point was required. The preponderating import-
ance of the commerce of Ghreat Britain, and the protection afforded
under the neutral flag by the Declaration of Paris, also materially
affect the consideration of this question as a matter of policy (m). It
may be answered, again, that French predominance on the sea in
1870-71, as against Germany, was undisputed, but little harm was
inflicted on German commerce ; and the depredations of The Alahama^
so often dted by the other side, were mainly possible because British
ports all over the world, and British coaling stations all over the
world, were open to her for refuge, for coaling, as a base of operations,
and even to reflt.
The United States gave expression to the principle of exemption of
private property at sea from capture, for which it has long contended,
in its treaty with Italy of 26th February, 1871. The maritime code of
the latter country enunciates the same principle, on the condition of
reciprocity. In the Austro-Prussian war of 1866, the principle of
inviolability was adhered to by both parties. Germany proclaimed the
same principle in 1870. The minister of the United States was in-
structed to express the gratification of his government ; but the position
of Prussia, though consistent with former policy, was no sacrifice
of Prussian interests. The proclamation was not conditional upon
reciprocity ; but France captured German trading ships, and the Ger-
mans abandoned their proclamation in January, 1871 (n). c 265e.
It is often a matter of difficulty for a prize court to determine to What are
whom property captured at sea actually belongs. The general rule is ^^^ "
that if goods are shipped on account and at the risk of the con-
signee, they are considered his goods during the voyage. In such a
case delivery of the goods to the master is a delivery to the con-
signee (o). In time of peace the parties may of course agree to any
terms they please, as to whose risk the property should be at during
the voyage, but in time of war, or in contemplation of war, the rule of
prize courts is, that property which has a hostile character at the com-
(m) Maine, I. L. Lect. YI. ; Heffter, note 2 G, for an able oonnderation of
Geffcken, note 2, § 139 ; Lawrence, t^® ^^ol« qnestion.
jjgg^ yjj (o) The Packet de Bilboa, 2 0. Rob.
133. Dner on Insarance, vol. i. pp.
(») See Heifter, Geffoken, { 139, 421-2.
kk2
500 RIGHTS OP WAR AS BETWEEN ENEMIES.
Part IV. mencement of the voyage, cannot change that character by assignment
while it is in transitu, so as to protect it from capture ( p). Unless
such a rule were adopted, all property passing between a neutral and
a belligerent would be colourably assigned to the neutral, and the
belligerent right of capture would be comparatively worthless. It is
therefore the duty of a prize court to ascertain in whom the property
was vested at the outset of the voyage, and in this inquiry all equitable
liens on enemy's property are disregarded, and all revelations of risk
to neutral consignors are held to be fraudulent (9). On the other hand,
enemy's liens on neutral property are equally disregarded, being held
not to confer such an enemy character on the ship or goods as to sub-
ject them to confiscation (r). If, however, the shipment, as well as the
contract, laying the risk on the neutral consignor, were both made in
time of peace and are proved to have been bond Jide, and not in con-
templation of war, the ownership which was in the neutral consignor
at the beginning of the voyage remains in him until its termination^
and the goods will not be condemned («). Nor are they condemned
when shipped by an enemy during war, if it is proved beyond all doubt
that they were shipped absolutely at the risk of a neutral consignee.
Such transactions are, however, carefully scrutinized in a prize court (/).
The only case in which the right of stoppage in transitu can be exer-
cised during war is in the expectation, confirmed by the event, of the
g orr J insolvency of the consignee («).
Sale of Bhipe The transfer of ships from belligerents to neutrals during war is
^ ^te'to always looked upon very suspiciously, and dear proof of bona fides is
neatraln. required to save the ship from condemnation (jc). Thus, a British ship
alleged to have been sold to a neutral after hostilities had broken out
between England and Holland was captured while trading between
Guernsey and Amsterdam under the command of her former master,
who had also been the owner. She was condemned as prize for
trading with the enemy, the transfer being deemed colourable and
void (y). But if the sale of a ship by a belligerent to a neutral be
absolute and bond fide, it is then permitted, either during war or in con-
templation of it, and whether she is lying in an enemy or a neutral
port. All interest of the vendor in the ship must be completely
divested, but the mere non-payment of part of the price is not con-
clusive evidence of itself that the vendor's interest is not entirely
(p) Kent, Comm. vol. i. p. 86 (12th Rob. 299.
ed.). Ducr on Insuranoe, vol. i. p. 431. (t) Halleck, oh. xz. § 10. Daer on
The Francitf 1 Gallison, 446. Insurance, i. p. 426. ITie Awrora, 4 C.
(q) Kent, vol. i. p. 87 (12th ed.). Rob. 219.
The Josephine^ 4 G. Rob. 76; The Tobago, (u) Daer on InBuranoe, i. p. 433. Th^
6 G. Rob. 218 ; i:^^ Marianna, 6 G. Rob. ComCaneia, 6 G. Rob. 324 ; Opptnkeim r.
24 ; The Ida, 1 Spinks, 26. Jtuesel, 3 Bos. & Pol. 484.
(r) The Ariel, 11 Moo. P. G. 119. (x) Daer, i. p. 444.
(«) Haileck, ch. xx. § 9. Dner on (y) The Omnibue, 6 G. Rob. 71 ; The
InAorance, i. p. 426. The Atlas, 3 G. Odin, I G. Rob. 262.
BIGHTS OP WAH AS BETWEEN ENEMIES. 601
transferred (s). Vessels of war lying in neutral ports cannot be sold Chap. II.
by their belligerent owners at any time during the war. If so sold, a ^
ship of war, even though purchased in good faith, and fitted up as a
merchant vessel, remains liable to capture by the other belligerent as
long as the war lasts (a). Capture as prize overrides all previous
liens (&), and it gives the captor all the owner's rights when the
voyage began (c). Even a bond fide mortgagee, a subject of the
captor's country, is not entitled to have his mortgage paid out of the
proceeds of the sale of the prize {d).
The effect of a state of war, lawfully declared to exist, whEt persons
is to place all the subjects of each belligerent power in a STen^^^
state of mutual hostility. The usage of nations has a^a^t ttie
modified this maxim by legalising such acts of hostility «iomy-
only as are committed by those who are authorized by
the express or implied command of the State. Such are
the regularly commissioned naval and military forces of
the nation, and all others called out in its defence, or
spontaneously defending themselves in cases of urgent
necessity, without any express authority for that pur-
pose. Cicero tells us, in his Offices^ that by the Eoman
fecial law, no person could lawfully engage in battle
with the public enemy, without being regularly enrolled
and taking the military oath. This was a regulation
sanctioned both by policy and religion. The horrors of
war would indeed be greatly aggravated, if every in-
dividual of the belligerent States was allowed to plunder
and slay indiscriminately the enemy's subjects without
being in any manner accountable for his conduct. Hence
it is that in land wars, irregular bands of marauders are
liable to be treated as lawless banditti, not entitled to the
protection of the mitigated usages of war as practised by
civilized nations {e). n gg^
It must probably be considered as a remnant of the Non-oom-
barbarous practices of those ages when maritime war and captors.
(z) The Ariel, 11 Moo. P. G. 129 ; (<0 The Hampton, 6 Wallace, 372 ;
The Seehs Oeeehwieiem, 4 G. Bob. 100. Le Turner, Barboux, Jurisp. da GoDsell
(a) The Georgia, 7 Wallace, 32. des Prises, 1870-71, p. 76; The Aina,
\b) The Battle, 6 Wallace, 498 ; The 1 Spinks, 19.
Steamer Naaeau, Blatchfoid, Ptue Cas. {e) Vattel, Droifc des Gens, liv. iii.
665 ; The Ida, 1 Spinks, 36. ch. 16, {} 223—228. Kliiber, Droit des
{e) The Sally Magee, 3 Wallace, 461. Gens Moderne de TEarope, § 267.
602 RIGHT8 OF WAB A8 B13TWJEEN ENEM1*:S.
Part IV. piracy were synonymous, that captures made by private
armed vessels without a commission, not merely in self-
defence, but even by attacking the enemy, are considered
lawful, not indeed for the purpose of vesting the enemy's
property thus seized in the captors, but to prevent their
conduct from being regarded as piratical, either by their
own government or by the other belligerent State (/).
Property thus seized is condemned to the government as
prize of war, or, as these captures are technically called.
Droits of Admiralty. The same principle is applied to
the captures made by armed vessels commissioned against
one power, when war breaks out with another; the
captures made from that other are condemned, not to the
§ 368. captors, but to the government (y).
Privateera. The practice of cruising with private armed vessels
commissioned by the State, has been hitherto sanctioned
by the laws of every maritime nation, as a legitimate
means of destroying the commerce of an enemy. The
practice has been justly arraigned as liable to gross
abuses, as tending to encourage a spirit of lawless de-
predation, and as being in glaring contradiction to the
more mitigated modes of warfare practised by land.
Powerful efforts have been made by humane and en-
lightened individuals to suppress it, as inconsistent with
the liberal spirit of the age. The treaty negotiated by
Franklin, between the United States and Prussia, in
1785, by which it was stipulated that, in case of war,
neither power should commission privateers to depredate
upon the commerce of the other, furnishes an example
worthy of applause and imitation. But this stipulation
was not revived on the renewal of the treaty, in 1799 ;
and it is much to be feared that, so long as maritime
captures of private property are tolerated, this particular
mode of injuring the enemy's commerce will continue
(/) See Sir L. JeDldns' Charge to the vol. ii. p. 626, Appendix. The Abigail^
Qrand Jury at the Admiralty Sessions 4 G. Bob. 72 ; The Gcorgiana, 1 Doda.
in Soathwark, 18th Feb. 1680. Mars- Ad. 397. Sparks's Biplomatio Corre-
den, Adm. Cases, p. 256. spondence, vol. i. p. 443. Wheaton'a
(^) Brown's Ci7. and Adm. Law, Bep. rol. ii. Appendix, Note I. p. 7.
.KIGHTS OP WAB A8 BETWEEN ENEMIES, 603
to be practised, especially where it affords the means of Chap. II.
countervailing the superiority of the public marine of an
enemy (A). ^ ^^
. The first article of the Declaration of Paris recites that ** Privateer- Abolition of
ing is and remains abolished." Spain and Mexico, though parties P"^t©6nng.
to the rest of the Declaration, have not acceded to this article, and
although various attempts have been made to induce the United
States to become an accessory, that power is as yet not bound by any
part of the Declaration ; but in the war of 1898, as we have already
seen, it issued a proclamation stating its intention ^'to adhere to
the rules of the Declaration of Paris." The Spanish government,
while accepting the three last articles of the Declaration, maintained
their right to issue letters of marque, but postponed the authorization
of privateers, and contented itself with the organization of a service
of auxiliary cruisers. The utter collapse of the Spanish naval power,
and the consequent cessation of hostilities, prevented further develop-
ments (t). During the American civil war. Congress authorized the
President to issue letters of marque, but he did not avail himself of
this power. The Confederates offered their letters of marque to
foreigners, but the restrictive legislation of the maritime powers, and
the threat of the United States of treating such vessels as pirates, pre-
vented their being accepted. It is not yet known whether a similar
offer was made by the Presidents of the Boer Eepublics during the
last South African war, but we may fairly assume tJiat similar con-
siderations would have interfered with their acceptance. The Con-
federate vessels were commissioned as of their regular navy {k),
§ 369.
The title to property lawfully taken in war may, '^^^^
upon general principles, be considered as immediately captured in
divested from the original owner, and transferred to the
captor. This general principle is modified by the posi-
tive law of nations, in its application both to personal
and real property. As to personal property or move-
ables, the title is, in general, considered as lost to the
former proprietor as soon as the enemy has acquired a
film possession ; which, as a general rule, is considered
as taking place after the lapse of twenty-four hours, or
after the booty has been carried into a place of safety,
infra prcesidia of the captor {I).
(h) Vattel, Hv. iii. ch. 15, { 229. Nations, p. 308.
Franklin's Works, voL ii. pp. 447, 630. (t) See Hertslet, Commercial Treaties,
Edinburgh BeTiew, vol. iii. pp. 13—16. xxi. pp. 836, 1075.
North Amcirioan Kenew, vol. ii. (N. S.) (*) Wheaton, by Dana, n, 173.
pp. 166—196. Wheaton's Hist. Law of (/) Grotius, de Jar. BeL ao V^x^, lib.
604 BiaHTS OF WAR AS BETWEEN £N£B£I£S.
Part IV. Property of the enemy taken on land is usually called hooty, -while
— T^irr that captured on the high seas has acquired the name of prize (m).
Booty and' There is a very important distinction between them as regards the
prize. mode in which the captor acquires a title to the captured property.
As stated in the text, booty belongs to the captor as soon as he has
acquired a firm possession of it. No adjudication of any court is
necessary to establish his title (n). On the other hand, a title to prize
is acquired, as a general rule, only after the property has been
condemned by a competent court (o). By the modem usage of nations
neither the twenty-four hours' possession, nor the bringing the prize
tn/ra prcesidtay is sufficient to change the property in the case of a
maritime capture. Until the capture becomes invested with the
character of prize by a sentence of condenmation, the right of property
is in abeyance, or in a state of legal sequestration ( p). Ships and
their cargoes are not invariably prize. Thus during the American
civil war a ship captured in a river by a detached naval force in boats
^ 359b. ^^^ ^Adi not to be a maritime prize, or to be condemned as such (9).
Prize and The primary title to all property taken in war, whether on land or
booty ^ojfif at sea, is in the sovereign (r). The law of England on this point has
the BOTereign. been thus laid down by Lord Brougham : — ^' That prize is clearly and
distinctly the property of the Grown, that the sovereign in this country,
the executive government in all countries in whom is vested the power
of levying the forces of the State, and of making war and peace, is
alone possessed of all property in prize, is a principle not to be dis-
puted. It is equally incontestable that the Crown possesses this
-pTO-pertj pleno Jure absolutely and wholly without control ; that it may
deal with it entirely at its pleasure, may keep it for its own use, may
abandon or restore it to the enemy, or, finally, may distribute it in
whole or in part among the persons instrumental in its capture,
making that distribution according to whatever scheme and under
whatever regulations and conditions it sees fit. It is equally dear,
and it follows from the two former propositions, that the title of a
party claiming prize must needs in all cases be the act of the Crown,
by which the royal pleasure to grant the prize shall have been signified
to the subject ; whether, even in that case, the same paramount and
transcendent power of the Crown might not enure to the effect of
preserving to His Majesty the right of modifying or altogether
revoking, the grant, is a question which has never yet arisen, and
iii. oap. 6, } 8 ; cap. 9, } 14. Eluber, Code, § 896. Oou t. Withers, 2 Bnr-
Droit des Gkns Modeme de PEurope, rows, 693.
§ 264. Yattel, Droit des GexiB, liv. iii. {p) Kent, vol. i. p. 103 (12th ed.).
ch. 13, { 196; ch. 14, §209. Heffter, Tador, Leading Gases on Maritime Law,
Das Eoropaisohe Yolkerreoht, { 136. pp. 819—821. Galvo, ii. § 1236.
(m) Genoa and iU Dependencies, 2 Dods. (q) The Cotton FUmt, 10 Wallace, 677.
Ad. 446. (r PhiUunore, vol. iii. § cxzx. OalTO,
(«) Lamar v. Browne, 2 Otto, 195. ii. } 1237. Halleok, ch. zzx. § 3. And
(0) Opinions of Att.-aen. (U. S.) see the Manila Friae Cases, 188 United
vol. Hi. p. 379. Field, Intematioiial States Beporta, 254.
EIGHTS OF WAB AS BETWEEN ENEMIES. 606
^hich, when it does arise, will be foiuid never to have been deter- Chap. II.
mined in the negative. But this, at all events, is clear, that when the ^
-Crown, by an act of grace and bounty, parts, for certain purposes, and
subject to certain modifications, with the property in prize, it by
that act plainly signifies its intention that the prize shall continue
subject to the power of the Crown, and as it was before the act was
done.
" This doctrine has been frequently recognized in cases where the
question has arisen subsequently to the capture, and before condemna-
tion ; but the same principle was afterwards extended in the case of
The Elsebe («), at the cockpit, in which, after final adjudication in the
Court below, but pending an appeal, the Crown thought proper, for
reasons of State and public policy, to restore the prize at the expense
of the captors. In other words, it was then determined, and that too
upon a solemn and most able argument, and by a j udge the most learned
and eminent of his time, the present Lord Stoi^ell, that when the
Crown saw fit to restore the capture, the captors, who had run the
risk and suffered the loss, who had, moreover, borne the charge of
bringing the prize into port, and the further costs of proceeding in the
Admiralty to adjudication, and had even undergone additional expenses
in contesting their claim upon appeal, were altogether without a
remedy. * It is admitted,' says Lord Stowell — in language which it
would be vain to praise or to attempt to imitate^— * it is admitted on
the part of the captors, whose interests have been argued with great
force (and not the less effective, surely, for the extreme decorum with
which that force hc» been tempered), that their claim rests wholly on
the Order of Council, the Proclamation, and the Prize Act. It is not,
as it cannot be, denied that, independent of these instruments, the
whole subject-matter is in the hands of the Crown, as well in point of
interest as in point of authority. Prize is altogether a creature of the
Crown. No man has, or can have, any interest but what he takes as
the mere gift of the Crown ; beyond the extent of that gift he has
nothing. This is the principle of law on the subject, and founded
on the wisest reasons. The right of making war and peace is ex-
clusively in the Crown. The acquisitions of war belong to the
Crown, and the disposal of these acquisitions may be of the utmost
importance for the purposes both of war and peace. This is no
peculiar doctrine of our constitution ; it is universally received as a
necessary principle of public jurisprudence by all writers on the
subject, Bella parta cedunt retpublica ' " (/).
On the completion of a capture it is the duty of the captor to bring Dutie» of '
his prize, as soon as his other duties permit it, before a competent captors,
court (u). Since the property in a prize is in abeyance until a com-
petent court has pronounced upon the capture, it is the interest of all
(«) 6 C. Rob. 173. Stoweirs remarks are to be found in
(t) Alexander v. The Luke of WeU The Elsebe, 6 C. Rob. 581.
lingUmj 2 Russell ft Mylne, 64. Lord (u) PhilUmore, vol. iii. § 841.
606
BIGHTS OF WAB AS BETWEEN ENEMIES.
Dostruotionof
prizes at sea.
Part 17. parties to obtain a judicial decree as soon as possible. As the custodj
of the prize remains with the captor, it therefore lies upon him to
bring it before the Court. But if prevented by imperious circum-
stances from bringing it to his own country, he may be excused for
taking it to a foreign port, or for selling it, provided he afterwards
reasonably subjects its proceeds to the Court (x). By unreasonable
delay in bringing in the prize for adjudication, or by other mis-
conduct, the captor may forfeit all his right of prize, and in this case
the prize is condemned to the State, if the capture was originally
lawful (y). If the capture was made entirely without probable cause,
the captor is liable for costs, and for the damages resulting from the
illegal seizure, and the latter are decreed to the injured owner (z).
'^ Sometimes," says Chancellor Kent, '* circumstances will not permit
property captured at sea to be sent into port ; and the captor in such
cases may destroy it, or permit the original owner to ransom it " (a).
If the vessel belong to the enemy, and the captor has no means of
retaining possession of her, or of bringing her into port, he is then
justified in destroying her, but it is his duty to preserve her papers
and as much of the cargo as he can secure. The Confederate cruisers
burnt many of their prizes at sea during the civil war, as their own
ports were all blockaded by the Federal fleets ; and though this was
not a proceeding to be approved of, it was not a violation of inter-
national law (b). At the conclusion of the war the Federal govern-
ment wished to proceed against Captain Semmes of The Alabama for
burning and destroying ships and cargoes belonging to American
citizens. They could not indict him for high treason as he had been
treated as a prisoner of war. But no proceedings were actually taken.
Mr. BoUes, the law officer to whom the case was referred, gave it as
his opinion that Captain Semmes had done no more than the United
States had themselves done to England in the war of 1812-14. During
that war orders had been given that no prize should be manned or
preserved unless circumstances should render her safe arrival morally
certain. No prizes were to be ransomed, and almost all were to be
destroyed. Mr. Bolles also pointed out that it might be policy of the
Union to pursue a similar course in some future war, and therefore he
deemed it improper to prosecute a person who had, under orders, simply
followed an example previously set by the government (c).
During the Eusso-Turkish war of 1877 the former power was alleged
to have made a practice of sending out fast steamers from Odessa,
Destmction
of Turkish
vessels by
Russian
steamers.
{x) HaUeck, oh. xxx. } 6. The Pea^
eock, 4 C. Rob. 192.
(y) The BothrtM, 2 GallisoD, 78 ; The
Triton, 4 0. Rob. 78. PhilJimore, vol.
iii- } 381. Miller v. The ReeolutioH, 2
Dallas, 1.
(2) HaUeck, oh. xxx. } 29. Philii-
more, vol. iii. § 452. Del Col v. Arnold,
3 Dallas, 333. The Anna Maria, 2
Wheaton, 327.
(a) Kent, by Abdy, p. 276.
(h) Montague Bernard, Keutrality of
England daring Civil War, p. 419.
Luflhington, Mannal of Navfti Prize
Law, HOI.
(c) Atlantic Monthly, Jnlj, 1866,
p. 89, Pari. Tapers, 1873 (No. 2),
p. 92.
EIGHTS OP WAE AS BETWEEN ENEMIES* 607
wMch, while they avoided the Turkish oruisers, captured Turkish Chap. II.
merchantmen, burnt them on the spot, and then set the crews adrift in
boats. If this was true, it was an undeniable violation of international
law. It was, moreover, an act of wanton and tmnecessary cruelty to
bum the ships and then expose the lives of their crews in open boats,
and it was an act which could only influence the war by exasperating
the other side, and inducing it to retaliate by similar measures (d), o 369e.
If the prize is a neutral ship, no circumstances will justify her I>estraotion of
destruction before condemnation. The only proper reparation to the ^ m^ o ^
neutral is to pay him the full value of the property destroyed («)•
Neutral cargoes are not always equally privileged. In 1870, The
DesaiXf a French cruiser, captured two German vessels, The Ludwig
and The Norivaeris, and burnt them on the day of capture. Part of
the cargo of these vessels belonged to neutral owners (British subjects),
and w£is therefore under the express protection of the third artide of
the Declaration of Paris. The owners claimed compensation for the
destruction of their goods, but the Conseil d^&taty in a judgment
delivered by the President of the French Eepublic, held that though
the Declaration of Paris exempts the goods of a neutral on board an
enemy's ship from confiscation, and entitles the owner to their proceeds
in case of a sale, yet it gives him no claim to compensation for any
damage resulting from the lawful capture of the ship, or from any
subsequent and justifiable proceedings of the captors. As the de-
struction of the two vessels was held to have been necessary tmder the .
circumstances, no compensation was awarded to the owners of the
neutral cargo (/).
As to ships and goods captured at sea, and afterwards ueoapturei
recaptured, rules are adopted somewhat different from ^'^^s'^^fif®-
those which are applicable to other personal property.
These rules depend upon the nature of the different
classes of cases to which they are to be applied. Thus
the recapture may be made either from a pirate ; from a
captor, clothed with a lawful commission, but not an
enemy ; or, lastly, from an enemy. o ggj
1. In the first case, there can be no doubt the property Recaptiiree
ought to be restored to the original owner ; for as pirates
have no lawful right to make captures, the property has
not been divested. The owner has merely been de-
prived of his possession, to which he is restored by the
(rf) See Pari. Papers, Turkey (No. 1), War, § 167, p. 331. The Felicity^ 2
1878, p. 313 ; and the Times, 16th Dec. Dods. Ad. 386.
1877. (/) Dalloz, JoriBprudence Gh4n6rale,
(tf) Twiss, International Law daring 1872, Pt. III. p. 94.
508 RIGHTS OF WAR AS BETWEEN ENEMIES.
Part IV. recapture. For the service thus rendered to him, the
recaptor is entitled to a remuneration in the nature of
salvage (^).
Thus, by the Marine Ordinance of, Louis XIV., of
1681, liv. iii., tit. 9, des Prises, art. 10, it is provided,
that the ships and effects of the subjects or allies of
France, retaken from pirates, and claimed within a year
and a day after being reported at the Admiralty, shall
be restored to the owner, upon payment of one-third of
the value of the vessel and goods, as salvage. And the
same is the law of Great Britain, but there is no doubt
that the municipal law of any particular State ma}^
ordain a different rule as to its own subjects. Thus the
former usage of Holland and Venice gave the whole
property to the retakers, on the principle of pubKc
utility ; as does that of Spain, if the property has been
n 3g2 ^^ *^® possession of the pirates twenty -four hours (A).
Opinions of Valin, in his commentary upon the above article of
Pothier. the French Ordinance, is of opinion that if the recapture
be made by a foreigner, who is the subject of a State,
the law of which gives to the recaptors the whole of
the property, it could not be restored to the former
owner : and he cites, in support of this opinion, a decree
of the Parliament of Bordeaux, in favour of a Dutch
subject, who had retaken a French vessel from pirates (f).
To this interpretation Pothier objects that the laws of
Holland having no power over Frenchmen and their
property within the territory of France, the French sub-
ject could not thereby be deprived of the property in his
vessel, which was not divested by the piratical capture
according to the law of nations, and that it ought
consequently to be restored to him upon payment of the
salvage prescribed by the ordinance (k).
(y) GrotiuB, de Jar. Bel. ao Pao. lib. Postl. reyers.
iii. cap. 9, { 17. Loccenius, de Jur. (A) GroUus, par Barbeyrao, liv. 3,
Marit. lib. ii. o. 2, No. 4. Brown's ©h. 9, { xvi. No. 1, and note.
Civ. and Adm. Law^vol. ii. c. 3, p. 461. ,- ^ ,. ^ „^ , ,. ^
., ^ .X T-. • ^ (D Valin, Oomm. anr I'Ord. liv. 3.
"EaqnsB piraite nobis enpnenint, non . ^' ^•""> ^^-m". o"^ * vxu. hv. o,
7 ^ X ^T . • . . tit. 9, art. 10.
opus habent poetliminio ; quia jus gen- *
tiam illis non concedit, nt jus dominii (*) Pothier, Traits de Propri6t^, No.
mutari possint." Dig. de Oapt. et 1^1 •
RIGHTS OP WAE AS BETWEEN ENEMIES. 509
' Under the term allies in this article are included Chap. II.
neutrals; and Valin holds that the property of the
subjects of friendly powers, retaken from pirates by
French captors, ought not to be restored to them upon
the payment of salvage, if the law of their own country
gives it wholly to the retakers ; otherwise there would
be a defect of reciprocity, which would offend against
that impartial justice due from one State to another (/). o 3^3
2. If the ptoperty be retaken from a captor clothed Recapture
> 1 -, fl ^ . > J , of neutral
With a lawful commission, but not an enemy, there property,
would still be as little doubt that it must be restored to
the original owner. For the act of taking being in
itself a wrongful act, could not change the property,
which must still remain in him.
If, however, the neutral vessel thus recaptured were
laden with contraband goods destined to an enemy of
the first captor, it may, perhaps, be doubted whether
they should be restored, inasmuch as they w^re liable to
be confiscated as prize of war to the first captor. Martens
states the case of a Dutch ship, captured by the British,
under the rule of the war of 1756, and recaptured by the
French, which was adjudged to be restored by the
Council of Prizes, upon the ground that the Dutch vessel
could not have been justly condemned in the British
prize courts. But if the case had been that of a trade,
considered contraband by the law of nations and treaties,
the original owner would not have been entitled to resti-
tution (m). g3g^
In general, no salvage is due for the recapture of NoBaivageoa
neutral vessels and goods, upon the principle that the ntlTteii^ ^
liberation of a bonce fidei neutral from the hands of the p^p®'^^-
enemy of the captor is no beneficial service to the
neutral, inasmuch as the same enemy would be compelled
by the tribunals of his own country to make restitution
of the property thus unjustly seized. S 365
It was upon this principle that the French Council of '^^ ^^ o^
(I) Valin, Gomm. sur I'Oid. liy. 3, (m) liCartens, Essai snr les Frifles et le^
tit. 9, art. 10. Rinses, § 62. Code des Prises, an. 1784,
toin. ii.
510 BIGHTS OF WAR AS BETWEEN ENEMIES.
Part IV. Prizes determined, in 1800, that the American ship
Sfatiraj captured by a British, and recaptured by a
French, cruiser, should be restored to the original owner,
although the cargo was condemned as contraband or
enemy's property. The sentence of the Court was
founded upon the conclusions of M. Portalis, who stated
that the recapture of foreign neutral vessels by French
cruisers, whether public ships or privateers, gave no
title to the retakers. The French prize code only
applied to French vessels and goods recaptured from"
the enemy. According to the universal law of nations,
a neutral vessel ought to be respected by all nations. If
she is unjustly seized by the cruisers of any one belli-
gerent nation, this is no reason why another should
become an accomplice in this act of injustice, or should
endeavour to profit by it. From this maxim it followed
as a corollary that a foreign vessel, asserted to be
neutral, and recaptured by a French cruiser from the
enemy, ought to be restored on due proof of its neutrality.
But, it might be asked, why treat a foreign vessel with
more favour in this case than a French vessel ? The
reason was obvious. On the supposition on which the
regulations relating to this matter were founded, the
French ship fallen into the hands of the enemy would
have been lost for ever, if it had not been retaken;
consequently the recapture is a prize taken from the
enemy. If the case, however, be that of a foreign
vessel, asserted to be neutral, the seizure of this vessel
by the enemy does not render it ipso facto the property
of the enemy, since its confiscation has not yet been
pronounced by the competent judge; until that judg-
ment has been pronounced, the vessel thus navigating
under the neutral flag loses neither its national character
nor its rights. Although it has been seized as prize of
war, it may ultimately be restored to the original owner.
Under such circumstances, the recapture of this vessel
cannot transfer the property to the recaptor. The
question of neutrality remains entire, and must be
determined, before such a transmutation of property can
BIGHTS OF WAR AS BETWEEN ENEMIES.
611
take place. Such was the language of all public jurists, Chap- n.
and such was the general usage of all civilized nations.
It followed that the vessel in question was not confiscable
by the mere fact of its having been captured by the
enemy. Before such a sentence could be pronounced,
the French tribunal must do what the enemy's tribunal
would have done; it must determine the question of
neutrality; and that being determined in favour of the
claimant, restitution would follow of course (n). o ggg
To this general rule, however, an important exception Exception
- IP 11 i«»ii "1 when ship
has been made, lounded on the principle above quoted might have
from the Code des Prises, in the case where the vessel or fiacatedbythe
cargo recaptured was practically liable to be confiscated ®^®™y^-
by the enemy. In that case, it is immaterial whether
the property be justly liable to be thus confiscated
according to the law of nations ; since that can make no
difference in the meritorious nature of the service ren-
dered to the original owner by the recaptor. For the
ground upon which salvage is refused by the general
rule, is, that the prize court of the captor's country will
duly respect the obligations of that law ; a presumption
which, in the wars of civilized States, as they are usually
carried on, each belligerent nation is bound to entertain
in its dealings with neutrals. But if, in point of fact,
those obligations are not duly observed by those tribu-
nals, and, in consequence, neutral property is unjustly
subjected to confiscation in them, a substantial benefit is
conferred upon the original owner in rescuing his pro-
perty from this peril, which ought to be remunerated by
the payment of salvage. It was upon this principle that
the Courts of Admiralty, both of Great Britain and the
United States, during the maritime war which was
terminated by the peace of Amiens, pronounced salvage
to be due upon neutral property retaken from French
cruisers. During the revolution in France, great irre-
gularity and confusion had arisen in the prize code
(n) Decision relative k la priae da navire Ze Statira, 6 Thermidor, an 8,
pp. 2-4.
512 RIGHTS OF WAR AS BETWEEN ENEMIES.
Part rv. formerly adopted, and had crept into the tribunals of
that country, by which neutral property was liable to
condemnation upon grounds both unjust and unknown
to the law of nations. The recapture of neutral property
which might have been exposed to confiscation by,means
of this irregularity and confusion, was, therefoie, con-
sidered by the American and British courts of prize, as a
meritorious service, and was accordingly remunerated by
the pajnment of salvage (o). These abuses were corrected
under the consular government, and so long as the
decisions of the Council of Prizes were conducted by
that learned and virtuous magistrate, M. Portalis, there
was no particular ground of complaint on the part of
neutral nations as to the practical administration of the
prize code until the promulgation of the Berlin decree in
1806. This measure occasioned the exception to the
rule as to salvage to be revived in the practice of the
British Courts of Admiralty, who again adjudged sal-
A'-age to be paid for the recapture of neutral property
which was liable to condemnation under that decree (/?).
It is true that the decree had remained practically in-
operative upon American property, until the condemna-
tion of the cargo of The Horizon hy the Council of Prizes,
in October, 1807; and, therefore, it may perhaps be
thought, in strictness, that the English Court of Admi-
ralty ought not to have decreed salvage in the case of
The Sansomy more especially as the convention of 1800,
between the United States and France, was still in force,
the terms of which were entirely inconsistent with the
provisions of the Berlin decree. But as the cargo of
The Horizon was condemned in obedience to the imperial
rescript of the 18th September, 1807, having been taken
before the capture of The Sansontj whether that rescript
be considered as an interpretation of a doubtful point in
the original decree, or as a declaration of an anterior and
(o) The War Onskan, 2 C. Rob. 299 ; S. C, 4 Dallas, 34.
TheEleonora Catherina, 4 Ibid. 156; The (^j y;^^ Sansom, 6 C. Rob. 410 ; Th4
Carlotta^ 6 Ibid. 64 ; The Huntnss, 6 Ibid. Aeteon, Edw. Ad. 254 .
104 ; Talbot v. Seefnan, 1 Oanch, 1 ;
RIGHTS OP WAR AS BETWEEN ENEMIES. 513
positive provision, there can be no doubt The Sansom Chap. II,
would have been condemned under it ; consequently a
substantial benefit was rendered to the neutral owner by
the recapture, and salvage was due on the principle of
the exception to the general rule. And the same prin-
ciple might justly be successively applied to the prize
proceedings of all the belligerent powers during the last
European war, which was characterized by the most
flagrant violations of the ancient law of nations, which,
in many cases, rendered the rescue of neutral property
from the grasp of their cruisers and prize courts, a valu-
able service entitling the recaptor to a remuneration in
the shape of salvage. § 867.
3. Lastly, the recapture maybe made from an enemy, ^^p*'*™
The JUS postliminii was a fiction of the Roman law, by enemy,
which persons or things taken by the enemy were held
to be restored to their former state, when coming again
under the power of the nation to which they formerly
belonged. It was applied to free persons or slaves re-
turning postliminii ; and to real property and certain
moveables, such as ships of war and private vessels,
except fishing and pleasure boats. These things, there-
fore, when retaken, were restored to the original pro-
prietor, as if they had never been out of his control and
possession {q). Grotius attests, and his authority is sup-
ported by that of the Consolato del Mare, that by the
ancient maritime law of Europe, if the thing captured
were carried infra prcesidia of the enemy, the jus post-
liminii was considered as forfeited, and the former owner
was not entitled to restitution. Grotius also states, that
by the more recent law established among the European
nations, a possession of twenty-four hours was deemed
suflScient to divest the property of the original proprietor,
even if the captured thing had not been carried infra
prcesidia {r). And Loccenius considers the rule of
(q) Inst. Ub. i. tit. 12 ; Dig. 1. 49, (r) Grotius, de Jur. Bel. ao Pac. Hb.
tit. 15. '^Nayis longis atqne onerariis, lii. cap. 6, } 3. Consolato del Mare,
postliminium est, non pisoatils aut to- cap. 287, § 1. Wbeaton's Rep. vol. y.
luptatis cans4." Dig. 49. Appendix, p. 66. Ajala, de Jur. Bel.
W. LL
514 RIGHTS OF WAR AS BETWEEN ENEBCIES.
Partrv. twenty-four hours' possession as the general law of
Christendom at the time when he wrote (s). So, also,
Bynkershoek states the general maritime law to be, that
if a ship or goods be carried infra prcesidia of the enemy,
or of his ally, or of a neutral, the title of the original
§ 368. proprietor is completely divested {t).
iwtiLwe ^^^ ^' S^^**** ^^ delivering the judgment of the English
retaliation, or Court of Admiralty, in the case of The Santa Cruz and
applied to' othoT Portugueso vesscls recaptured, in 1796 and 1797,
orSfep^. from the common enemy by a British cruiser, stated that
aiues.^' i* '^M certainly a question of much curiosity to inquire
what was the true rule on this subject. " When I say
the true ruky I mean only the rule to which civiUzed
nations, attending to just principles, ought to adhere;
for the moment you admit, as admitted it must be, that
the practice of nations is various, you admit that there is
no rule operating with the proper force and authority of
a general law. It may be fit there should be some rule,
and it might be either the rule of immediate possession,
or the rule of pernoctation and twenty-four hours' pos-
session ; or it might be the rule of bringing infra prcesidia ;
or it might be a rule requiring an actual sentence or con-
demnation : either of these rules might be sufficient for
general practical convenience, although in theory perhaps
one might appear more just than another ; but the fact is
that there is no such rule of practice. Nations concur in
principles, indeed, so far as to require firm and secure
possession ; but these rules of evidence respecting that
possession are so discordant, and lead to such opposite
conclusions, that the mere unity of principle forms no
uniform rule to regulate the general practice. But were
the public opinion of European States more distinctly
agreed on any principle, as fit to form the rule of the
law of nations on this subject, it by no means follows
that any one nation would lie under an obligation to
observe it. That obligation could only arise from a
ao Fao. cap. y. Wheaton's Hist. Law cap. 4, § 4.
of Kations, p. 46. {t) Bynkershoek, Qiuest. Jnr. Pab.
(«) LocoemoBi de Jure Marit. lib. ii. lib. i. cap. 6.
BIGHTS OP WAR AS BETWEEN ENEMIES. 516
reciprocity of practice in other nations ; for, from the Chap. II.
very circumstance of the prevalence of a different rule
among other nations, it would become not only lawful,
but necessary to that one nation to pursue a different
conduct : for instance, were there a rule prevailing among
other nations, that the immediate possession, and the
very act of capture should divest the property from the
first owner, it would be absurd in Great Britain to act
towards them on a more extended principle, and to lay it
down as a general rule, that a bringing infra prcesidia^
though probably the true rule, should in all cases of re-
capture be deemed necessary to divest the original pro-
prietor of his right. The effect of adhering to such a
rule would be gross injustice to British subjects ; and a
rule, from which gross injustice must ensue in practice,
can never be the true rule of law between independent
nations ; for it cannot be supposed to be the duty of any
country to make itself a martyr to speculative propriety,
were that established on clearer demonstration than such
questions will generally admit. Where mere abstract
propriety, therefore, is on one side, and real practical
justice on the other, the rule of substantial justice must
be held to be the true rule of the law of nations between
independent States. § seg.
" If I am asked, under the known diversity of practice g^^^'g^tt
on this subject, what is the proper rule for a State to i^TheSanta
apply to the recaptured property of its allies ? I should
answer that the liberal and rational proceeding would be
to apply in the first instance the rule of that country to
which the recaptured property belongs. I admit the
practice of nations is not so ; but I think such a rule
would be both Kberal and just. To the recaptured, it
presents his own consent, bound up in the legislative
wisdom of his own country : to the recaptor, it cannot
be considered as injurious, — ^where the rule of the recap-
tured would condemn, whilst the rule of the recaptor
prevailing among his own countrymen would restore,
it brings an obvious advantage; and even in case of
immediate restitution, under the rules of the recaptured,
ll2
516 RIGHTS OF WAB AS BETWEEN ENEMIES.
Part rv. the recapturing country would rest secure in the reKance
of receiving reciprocal justice in its turn.
" It may be said, what if this reliance should be disap-
pointed ? — Redress must then be sought from retaliation;
which, in the disputes of independent States, is not to be
considered as vindictive retaliation, but as the just and
equal measure of civil retribution. This wiU be their
ultimate security, and it is a security sufficient to warrant
the trust. For the transactions of States cannot be bal-
anced by minute arithmetic; something must, on all
occasions, be hazarded on just and liberal presumption.
" Or it may be asked, what if there is no rule in the
country of the recaptured? — I answer, first, this is
scarcely to be supposed ; there may be no ordinance, no
prize acts immediately applying to recapture ; but there
is a law of habit, a law of usage, a standing and known
principle on the subject, in all civilized commercial
countries : it is the common practice of European States,
in every war, to issue proclamations and edicts on the
subject of prize ; but till they appear. Courts of Admi-
ralty have a law and usage on which they proceed, from
habit and ancient practice, as regularly as they after-
wards conform to the express regulations of their prize
acts. But secondly, if there should exist a country in
which no rule prevails, — the recapturing country must of
necessity apply its own rule, and rest on the presumption
that that rule will be adopted and administered in the
future practice of its allies.
"Again, it is said that a country applying to other
countries their own respective rules, will have a practice
discordant and irregular : it may be so, but it will be a
discordance proceeding from the most exact uniformity
of principle ; it will be idem per diveraa. If it is asked,
also, will you adopt the rules of Tunis and Algiers ? if
you take the people of Tunis and Algiers for your allies,
undoubtedly you must ; you must act towards them on
the same rules of relative justice on which you conduct
yourselves towards other nations. And upon the whole
of these objections it is to be observed, that a rule may
EIGHTS OP WAB AS BETWEEN ENEMIES. 6J7
bear marks of apparent inconsistency, and yet contain Chap. II.
much relative fitness and propriety ; a regulation may be
extremely unfit to be made, which yet shall be extremely
fit, and shall indeed be the only fit rule to be observed
towards other parties, who have originally established it
for themselves.
" So much it might be necessary to explain myself on
the mere question of propriety; but it is much more
material to consider, what is the actual rule of the mari-
time law of England on this subject. I understand it to
be clearly this, that the maritime law of England, having
adopted a most liberal rule of restitution or salvage with
respect to the recaptured property of its own subjects,
gives the benefit of that rule to its allies, till it appears
that they act towards British property on a less liberal
principle. In such a case, it adopts their rule, and treats
them according to their own measure of justice. This I
consider to be the true statement of the law of England
on this subject: it was clearly so recognized in the case
of The San Jago ; a case which was not, as it has been
insinuated, decided on special circumstances, nor on
novel principles, but on principles of established use and
authority in the jurisprudence of this country. In the
discussion of that case, much attention was paid to an
opinion found among the manuscript collections of a
very distinguished practitioner in this profession (Sir E.
Simpson), which records the practice and the rule as
it was understood to prevail in his time. The rule is :
that England restores, on salvage, to its allies; but if
instances can be given of British property retaken by
them and condemned as pize, the Court of Admiralty
will determine their cases according to their own
The law of our own country proceeds on the same American
principle of reciprocity, as to the restitution of vessels or thlruie^f
goods belonging to friendly foreign nations, and recap- Ti^^^S
tured from the enemy by our ships of war. By the act ^^^
(m) Th^ Sonta Oruz, I 0. Bob. pp. 68—63.
518 RIGHTS OF WAB A8 BETWEEN ENEMIES.
Part IV. of Congress of the 3rd March, 1800, ch. xiv. § 3, it is pro-
friendiy vidcd that the vessels or goods of persons permanently
captMwi7rom resident within the territory and under the protection of
an enemy. ^^y foreign government in amity with the United States,
and retaken by their vessels, shall be restored to the owner,
he paying, for salvage, such portion of the value thereof,
as by the law and usage of such foreign governments
shall be required of any vessel or goods of the United
States under like circumstances of recapture ; and where
no such law or usage shall be known, the same salvage
shall be allowed as is provided in the case of the recap-
ture of the property of persons resident within, or under
the protection of the United States. Provided that no
such vessel or goods shall be restored to such former
owner, in any case where the same shall have been con-
demned as prize by competent authority, before the
recapture ; nor in any case, where by the law and usage
of such foreign government, the vessels or goods of
citizens of the United States would not be restored in
o 3^2 like circumstances.
liftWB of It becomes then material to ascertain what is the law
different
countries as of different maritime nations on the subject of recap-
' tures ; and this must be sought for either in the prize
code and judicial decisions of each country, or in the
treaties by which they are bound to each other,
Britoh Uw. The present British law of military salvage was estab-
lished by the statutes of the 48rd Geo. III. ch. 160, and
the 45th Geo. III. ch. 72, which provide that any vessel
or goods therein, belonging to British subjects, and taken
by the enemy as prize, which shall be retaken, shall be
restored to the former owners, upon payment for salvage
of one-eighth part of the value thereof, if retaken by his
Majesty's ships; and if retaken by any privateer, or
other ship or vessel under his Majesty's protection, of
one-sixth part of such value. And if the same shall have
been retaken by the joint operation of his Majesty's ships
and privateers, then the proper court shall order such
salvage to be paid as shall be deemed fit and reasonable.
But i£ the vessel so retaken shall appear to have been set
BIGHTS OF WAR AS BETWEEN ENEMIES.
619
forth by the enemy as a ship of war, then the same shall Chap. Ill
not be restored to the former owners, but shall be
adjudged lawful prize for the benefit of the captors (x). o 3^3
The act of Congress of the 3rd March, 1800, ch. xiv. American
§§1,2, provides that, in case of recaptures of vessels or
goods belonging to persons resident within, or under the
protection of the United States, the same not having been
condemned as prize hy competent authority^ before the recap-
ture, shall be restored on payment of salvage of one-
eighth of the value if recaptured by a public ship ; and
if the recaptured vessel shall appear to have been set
forth and armed as a vessel of war before such cap-
ture, or afterwards, and before the recapture, then the
salvage to be one moiety of the value. If the recaptured
vessel previously belonged to the Government of the
United States and be unarmed^ the salvage is one-sixth, if
recaptured by a private vessel, and one-twelfth, if recap-
tured by a public ship ; if armedy then the salvage to be
one moiety if recaptured by a private vessel, and one-
fourth if recaptured by a pubKc ship. In respect to
public armed ships, the cargo pays the same rate of sal-
vage as the vessel, by the express words of the act ; but
in respect to private vessels, the rate of salvage (probably
by some unintentional omission in the act) is the
same on the cargo^ whether the vessel be armed or un-
armed (y).
It will be perceived, that there is a material difference
between the American and British laws on this subject;
the Act of Parliament continuing the jtis postliminii for
ever between the original owners and recapto^s, even
if there has been a previous sentence of condemnation,
unless the vessel retaken appears to have been set forth
by the enemy as a ship of war ; whilst the act of Con-
gress continues the jus postliminii until the property is
divested by a sentence of condemnation in a competent
(x) Theee Acts are now repealed (27 See also The Froffress, Edw. Ad. 210, as
& 28 Viot. 0. 23), and the Naval Prize to the Talnation of a prize.
Act, 1864 (27 & 28 Vict. c. 25), re-enaote (y) ne Adeline, 9 Cranoh, 244. See
their proviaionB with Bome modifications. U. S. Revised Statutes, tit. Prize.
620 BIGHTS OF WAB AS BETWEEN ENEMIES.
Part rv. court, and no longer ; which was also the maritime law
of England, until the statute stepped in, and, as to
British subjects y rewiY^ ^e jus postliminii oi the original
owner.
But now under sect. 13 of the Act of Congress of Marcli 3, 1899,
for *' reorganising and increasing the efficiency of the personnel of the
Navy and Marine Corps of the United States" prize and bounty for
destroying enemy vessels are abolished, and all provisions of law
authorising the distribution among captors of the whole or any portion
of the proceeds of vessels or any property hereafter captured con-
demned as prize, or providing for the payment of bounty for the
sinking or destruction of vessels of the enemy hereafter occurring in
time of war, are hereby repealed.
§ 874.
French law. By the moro recent French law on the subject of re-
captures, if a French vessel be retaken from the enemy-
after being in his hands more than twenty-four hours, it
is good prize to the recaptor; but if retaken before
twenty-four hours have elapsed, it is restored to the
owner, with the cargo, upon the payment of one-third
the value for salvage, in case of recapture by a privateer,
and one-thirtieth in case of recapture by a public ship.
But in case of recapture by a public ship, after twenty-
four hours' possession, the vessel and cargo are restored
on a salvage of one-tenth.
Although the letter of the ordinances, previous to the
revolution, condemned as good prize, French property
recaptured after being twenty-four hours in possession of
the enemy, whether the same be retaken by public or
private armed vessels: yet it seems to have been the
constant practice in France to restore such property when
recaptured by the king's ships {z). The reservation con-
tained in the ordinance of the 15th of June, 1779, by which
property recaptured after twenty-four hours' possession
by the enemy, was condemned to the crown, which re-
served to itself the right of granting to the recaptors
such reward as it thought fit, made the salvage discre-
{z) Valin, 8ur TOrd. Ii7. iii. tit. 9, pri6t6, No. 97. Emdiigon, dee Abbq-
art. 3. Traits des Prises, ch. 6, § 1, ranoes, torn. i. p. 497.
No. 8, \ 88. PoUiier, Traits de Fro*
RIGHTS OF WAR AS BETWEEN ENEMIES. 02X
tionary in every case, it being regulated by the king in Chap. II.
council according to circumstances («)•
France applies her own rule to the recapture of the
property of her allies* Thus, the Council of Prizes de-
cided on the 9th February, 1801, as to two Spanish
vessels recaptured by a French privateer after the twenty-
four hours had elapsed, that they should be condemned
as good prize by the recaptor. Had the recapture been
made by a public ship, whether before or after twenty-
four hours' possession by the enemy, the property would
have been restored to the original owner, according to
the usage with respect to French subjects, and on ac-
count of the intimate relation subsisting between the two
powers (b).
The French law also restores, on payment of salvage,
even after twenty-four hours' possession by the enemy,
in cases where the enemy leaves the prize a derelict, or
where it reverts to the original proprietor in consequence
of the perils of the seas, without a military recapture.
Thus the Marine Ordinance of Louis XIV., of 1681, liv.
iii. tit. 9, art. 9, provides that, *^ if the vessel, without
being recaptured, is abandoned by the enemy, or if in
consequence of storms or other accident, it comes into
the possession of our subjects, before it has been carried
into an enemy's port (avant qu'il ait ^t^ conduit dans
aucun port ennemi) ; it shall be restored to the proprietor,
who may claim the same within a year and a day, al-
though it has been more than twenty-four hours in the
possession of the enemy." Pothier is of opinion that
the above words, avant quHl ait 4t6 conduit dans aucun port
ennemiy are to be understood, not as restricting the right
of restitution to the particular case mentioned of a vessel
abandoned by the enemy before being carried into port,
which case is mentioned merely as an example of what
ordinarily happens, " parceque c'est le cas ordinaire
auquel un vaisseau ^chapp^ k 1' ennemi qui I'a pris, ne
{a) Em6rigron, des Assnranoes, torn. i. Em6rigon, torn. i. p. 499. Aznni, Droit
p. 497. Maritime de rEurope, Fartie ii. oh. 4,
(b) Pothier, de Fropii^t^, No. 100. f 11.
532 BIGHTS OF WAB AS BETWBEN ENEMIES.
Part rv. pouvant pas gu^res lui ^chapper lorsqu'il a ^t^ conduit
dans ses ports "(c). But Valin holds, that the terms of
the ordinance are to be literally construed, and that the
right of the original pi'oprietor is completely divested by
the carrying into an enemy's port. He is also of opinion
that this species of salvage is to be likened to the case of
shipwreck, and that the recaptors are entitled to one-
third of the value of the property saved (d). Azuni con-
tends that the rule of salvage in this case is not regulated
by the ordinance, but is discretionary, to be proportioned
to the nature and extent of the service performed, which
can never be equal to the rescue of property from the
hands of the enemy by military force, or to the recovery
of goods lost by shipwreck (e). Em^rigon is also opposed
to Valin on this question (/).
Spaniflh Uw. Spain formerly adopted the law of France as to recap-
tures, having borrowed its prize code from that country
ever since the accession of the house of Bourbon to the
Spanish throne. In the case of The San Jago (mentioned
in that of The Santa Cruz^ before cited {g)\ the Spanish
law was applied, upon the principle of reciprocity, as the
rule of British recapture of Spanish property. But by
the subsequent Spanish prize ordinance of the 20th of
June, 1801, art. 38, it was modified as to the property of
friendly nations ; it being provided that when the recap-
tured ship is not laden for enemy's account, it shall be
restored, if recaptured by public vessels, for one-eighth,
if by privateers for one-sixth salvage : provided that the
nation to which such property belongs has adopted, or
agrees to adopt, a similar conduct towards Spain. The
ancient rule is preserved as to recaptures of Spanish
property; it being restored without salvage, if recap-
tured by a king's ship before or after twenty-four hours'
possession ; and if recaptured by a privateer within that
{e) Pothier, de Fropti^te, No. 99. (/) Em^rigon, dee AasaranceSy torn. i.
(rf) Valin, SOT rOrd. in loco. P?" «M.-606. He ate. in Baia>art of
hi8 opinion tho GonaolAto del Mare, eap.
(e) Azuni, Droit Maritime, Partie ii. 287, and Targa, cap. 46, No. 10.
cb. 4, {§ 8, 9. ig) Ante, \ 368.
EIGHTS OP WAR AS BETWEEN ENEMIES. 623
time, upon payment of one-half for salvage ; if recaptured Chap. n.
after that time, it is condemned to the recaptors. The
Spanish law has the same provisions with the French
itt cases of captured property becoming derelict, or
reverting to the possession of the former owners by civil
salvage. g gyg
Portugal adopted the French and Spanish law of PortugQeBe
recaptures, in her ordinances of 1704 and 1796. But in
May, 1797, after The Santa Cruz was taken, and before
the judgment of the English High Court of Admiralty
was pronounced in that case, Portugal revoked her
former rule by which twenty-four hours' possession by
the enemy divested the property of the former owner,
and allowed restitution after that time, on salvage of
one-eighth, if the capture was by a pubKc ship, and
one-fifth if by a privateer. In The Santa Cruz and its
fellow cases. Sir W. Scott distinguished between re-
captures made before and since the ordinance of May,
1797 ; condemning the former where the property had
been twenty-four hours in the enemy's possession, and
restoring the latter upon payment of the salvage esta-
blished by the Portuguese ordinance. g
The ancient law of Holland regulated restitution on Dutch law.
the payment of salvage at different rates, according to
the length of time the property had been in the enemy's
possession (A). ^^^
The ancient law of Denmark condemned after twenty- Damshiaw.
four hours' possession by the enemy, and restored, if
the property had been a less time in the enemy's posses-
sion, upon paying a moiety of the value as salvage.
But the ordinance of the 28th March, 1810, restored
Danish or allied property without regard to the length
of time it might have been in the enemy's possession,
upon payment of one-third the value. « 079
By the Swedish ordinance of 1788, it is provided, that SwwUshiaw.
the rates of salvage on Swedish property shall be one-
half the value, without regard to the length of time it
may have been in the enemy's possession.
{h) Bynkershoeik, QocMt. Jnr. Fab. lib. i. cap. 5.
524
BIQUTS OF WAR AS BETWEEN ENEMIES.
Part IV.
§380.
What oon-
stitates a
*« setting
forth as a
vessel of
war," under
the Prize Act,
§881.
Becapture
by a non-
oommiflsioned
Teesel.
What constitutes a setting forth as a vessel of war has
been determined by the British Courts of Prize, in cases
arising under the clause in the Act of Parliament, which
may serve for the interpretation of our own law, as the
provisions are the same in both. Thus it has been
settled, that where a ship was originally armed for the
slave-trade, and after capture an additional number of
men were put on board, but there was no commission of
war, and no additional arming, it was not a setting forth
as a vessel of war under the Act (t). But a commission
of war is decisive if there be guns on board {k). And
where the vessel, after the capture, has been fitted out
as a privateer, it is conclusive against her, although
when recaptured, she is navigating as a mere merchant
ship; for where the former character of a captured
vessel had been obliterated by her conversion into a
ship of war, the legislature meant to look no further, but
considered the title of the former owner for ever extin-
guished (J). Where it appeared that the vessel had been
engaged in the military service of the enemy, under
the direction of his minister of the marine, it was tield
as a sufficient proof of a setting forth as a vessel of
war(w). So where the vessel is armed, and is employed
in the public military service of the enemy by those
who have competent authority so to employ it, although
it be not regularly commissioned (»). But the mere
employment in the enemy's military service is not suffi-
cient ; but if there be a fair semblance of authority in
the person directing the vessel to be so employed, and
nothing upon the face of the proceedings to invalidate
it, the Court will presume that he is duly authorized ;
and the commander of a single ship may be presumed
to be vested with this authority as commander of a
squadron (o).
It is no objection to an allowance of salvage on a re-
capture, that it was made by a non-commissioned vessel;
(i) The Soratio, 6 C. Bob. 320.
(k) The Ceylon, 1 DodB. Ad. 105.
(/) The Aetif.mM. Ad. IS6.
(m) The Santa Brigada, 3 G. Bob. 65.
(«) The Ceylon, 1 Dods. Ad. 106.
(o) The QeorgitmOi \ Bods. Ad. 897.
RIGHTS OP WAR AS BETWEEN ENEMIES. 525
it is the duty of every citizen to assist his fellow-citizens Chap. II.
in war, and to retake their property out of the enemy's
possession; and no commission is necessary to give a
person so employed a title to the reward which the law
allots to that meritorious act of duty (p). And if a con-
voying ship recaptures one of the convoy, which has
been previously captured by the enemy, the recaptors
are entitled to salvage (q). But a mere rescue of a ship
engaged in the same common enterprise gives no right
to salvage (r). g382.
To entitle a party to salvage, as upon a recapture, Actual rewue
there must have been an actual or constructive capture ; maitary
for military salvage will not be allowed in any case where recapture!'
the property has not been actually rescued from the
enemy («)• But it is not necessary that the enemy
should have actual possession; it is sufficient if the
property is completely under the dominion of the
enemy (t). If, however, a vessel be captured going in
distress into an enemy's port, and is thereby saved, it is
merely a case of civil and not of military/ salvage (w).
But to constitute a recapture, it is not necessary that the
recaptors should have a bodily and actual possession ; it
is sufficient if the prize be actually rescued from the
grasp of the hostile captor (x). Where a hostile ship is
captured, and afterwards recaptured by the enemy, and
again recaptured from the enemy, the original captors
are not entitled to restitution on paying salvage, but the
last c^iptors are entitled to the whole rights of prize ; for,
by the first recapture, the right of the original captors
is entirely divested (y). Where the original captors have
abandoned their prize, and it is subsequently captured
by other parties, the latter are solely entitled to the
property (a?). But if the abandonment be involuntary,
(p) The Helm, 3 G. Rob. 224. (z) The Edward and Mary, 3 lb. 306.
{q) The Wight, 6 lb. 315. (y) 4 0. Rob. 217, note a; The As-
(r) The Belle, Edw. Ad. 66. irea, 1 Wheaton, 126 ; Valin, sur I'Ord.
(*) The Franklin, 4 C. Bob. 147. torn. ii. pp. 267—269 ; Traite des Priaee,
{t) The Edward and Mary, 3 lb. 306 ; ch. 6, { 1. Pothier, de Propriete, No. 99.
ITte Fenaamento Felix, Edw. Ad. 116. («) The Lard NeUon, Edw. Ad. 79 ;
(ii) The Franklin, 4 0. Bob. 147. The JHUgentia, 1 Dods. Ad. 404.
626
BIGHTS OF WAR AS BETWEEN ENEMIES.
Part lY. and produced by the terror of superior force, and especi-
ally if produced by the act of the second captors, the
rights of the original captors are completely revived (a).
And where the enemy has captured a ship, and afterwards
deserted the captured vessel, and it is then recaptured,
this is not to be considered as a case of derelict ; for the
original owner never had the animus delinquendiy and
therefore it is to be restored on payment of salvage ; but
as it is not strictly a recapture within the prize act, the
rate of salvage is discretionaiy (b). But if the abandon-
ment by the enemy be produced by the terror of hostile
force, it is a recapture within the terms of the act (c).
Where the captors abandon their prize, and it is after-
wards brought into port by neutral salvors, it has been
held that the neutral Court of Admiralty has jurisdiction
to decree salvage, but cannot restore the property to the
original belligerent owners; for by the capture, the
captors acquired such a right of property as no neutral
nation can justly impugn or destroy, and, consequently,
the proceeds, (after deducting salvage,) belong to the
original captors; and neutral nations ought not to
inquire into the validity of a capture between bellige-
rents (rf). But if the captors make a donation of the
captured vessel to a neutral crew, the latter are entitled
to a remuneration as salvors ; but after deducting salvage
the remaining proceeds will be decreed to the original
owner (e). And it seems to be a general rule, liable to
but few exceptions, that the rights of capture are com-
pletely divested by a hostile recapture, escape, or volun-
tary discharge of the captured vessel (/). And the same
principle seems applicable to a hostile rescue, but if the
rescue be made by the neutral crew of a neutral ship, it
may be doubtful how far such an illegal act, which
involves the penalty of confiscation, would be held, in the
(a) The Mary, 2 Wheaton, 123. {e) The Adventure, 8 Cranch, 227.
(b) The John and Jane, 4 C. Rob. 216. (/) Hudson v. Oueetier, 4 Cranch, 293 ;
{e) Ths Ooffe, 6 lb. 273. S. C, 6 lb. 281 ; The DUigentia, 1 Doda.
(i) The Mary Fwd^ 8 DaUas, 188. Ad. 404.
RIGHTS OF WAR AS BETWEEN ENEMIES. 627
prize courts of the captor's country, to divest his original Chap. II.
right in case of a subsequent recapture.
An interesting illustration of the law respecting the rescue of a cap- Case of
tured neutral ship by part of her own crew occurred during the ^^*'^
American civil war. The Emily St, Pierre^ a British ship, was on a *
voyage from Calcutta with orders to make the coast of South Carolina,
and ascertain whether it was still under blockade. If so, she was to go
to New Brunswick; if not, she was to enter Charlestown harbour.
She had no contraband on board. While heading for Charlestown,
and about ten or twelve miles from shore, she was seized . by one
of the blockading cruisers, on the 18th March, 1862. Her crew were
taken out, except the master, cook, and steward, who were kept on
board to give evidence before a Prize Court. Two officers and
thirteen men were put on board, and ordered to take her to Philadel-
phia. On their way thither, the three prisoners rose against their
captors, disarmed, and secured them, and, with the assistance of three
or four of the prize crew, who volunteered to lend a hand rather than
remain confined, but who were all landsmen, managed to take her to
Liverpool. Mr. Adams demanded the restitution of this vessel, and
cited the cases of The Catherine Elizabeth (y) and The Despatch (A), as
evidence of Lord Sto well's condemnation of such a proceeding. Lord
Bussell, however, declined to seize the ship and give her up to the
United States, on the ground that Her Majesty's Government had no
jurisdiction or legal power to take or to acquire possession of her, or to
interfere with her owners in relation to their property in her(»).
**Act8 of forcible resistance," said his Lordship, "to the rights of
belligerents, whtCi lawfully exercised over neutral merchant ships on
the high seas, such, for instance, as rescue from capture, however
cognisable or punishable as offences against international law, in the
Prize Courts of the captor administering such law, are not cognisable
by the mtmicipal law of England, and cannot by that law be punished
either by confiscation of the ship, or by any other penalty ; and Her
Majesty's government cannot raise in an English court the question of
the validity of the capture of The Emily St. Pierre, or of the sub-
sequent rescue and recapture of that vessel, for such recapture is not
an offence against the municipal law of this country " (i ). The discus-
sion ended by its being discovered that in 1800 England had asked the
United States to do precisely the same thing, and that the American
Government had refused to comply on the very grounds put forward
by Lord Bussell {k). It may therefore be taken as a settled point,
that if a neutral vessel is captured by a belligerent cruiser, and before
condemnation she manages to escape and reach her own country, the
neutral government is not bound to surrender her to that of the
captor.
ig) 5 C. Rob. 232. May, 1862. U. S. Dipl. Cor. 1862, p. 87.
(A) 3 0. Rob. 278. m XT. S. Dipl. Cor. 1862, p, 118.
(i) Earl Ru88qU to Mr. Adama, 7tli
528
BIGHTS OF WAR AS BETWEEN ENEMIEi).
§383.
Salvajte on
BecoBd re-
oapture.
Partrv. As to recaptors, although their right to salvage is
extinguished by a subsequent hostile recapture and
regular sentence of condemnation, divesting the original
owners of their property, yet if the vessel be restored
upon such recapture, and resume her voyage, either in
consequence of a judicial acquittal, or a release by the
sovereign power, the recaptors are redintegrated in their
right of salvage (w). And recaptors and salvors have a
legal interest in the property, which cannot be divested
by other subjects, without an adjudication in a competent
court ; and it is not for the government's ships or officers,
or for other persons, upon the ground of superior autho-
rity, to dispossess them without cause (n).
In all cases of salvage where the rate is not ascertained
by positive law, it is in the discretion of the Court, as
well upon recaptures as in other cases (o). And where,
upon a recapture, the parties have entitled themselves to
a military salvage, under the Prize Act, the Court may
also award them, in addition, a civil salvage, if they have
subsequently rendered extraordinary services in rescuing
the vessel in distress from the perils of the seas(jp).
§384.
Rate of
•alvage.
§38ia.
Joint cap-
ture of prize.
All parties wlio have been instrumental in capturing property are
entitled to share in the proceeds as joint captors. In naval warfare
there is a distinction between the rights of privateers and those of
public ships with regard to joint capture. A public ship, when in
sight at the time the prize is taken, is considered as constructivelj
assisting, and therefore entitled to share in the capture, while a priva-
teer under similar circumstances is not regarded as a joint captor,
unless she directly contributes to the seizure (9). This is founded
upon the fact that privateers, being fitted out for private gain, are not
bound to put their commissions in use on every discovery of the enemy,
whereas public ships, being under a constant obligation to attack when
the enemy comes in sight, are presumed to be there animo capiendi (r).
As a rule, when ships are associated in the same enterprise and under
(m) Hie Charlotte Caroline, 1 Dods. Ad.
192.
(n) The BUndenhaU, 1 Dods. Ad. 414.
(0) Talbot y. Seeman, I Granch, 1 ; 3
C. Bob. 308. Bynkershoek, Quaest.
Jar. Pab. lib. i. cap. 5.
(p) The Louisa, I D:>dB. Ad. 317.
Jeeher y. Montgomery , 13 Howard, 616.
(q) Phillimore, yoL iii. { 383 ; The
Dordrecht, 2 C. Rob. 65; Talbot y.
Three Brigge, 1 Dallas, 103 ; The For-
tigheid, 3 G. Bob. 311. And see The
Mangrove Prize Money, 188 IT. S. Reports,
p. 720.
(r) Halleck, ch. xxx. § 1, The
Santa Brigada, 3 G. Rob. 52.
RIGHTS OF WAR AS BETWEEN ENEMIES.
529
tlie same saperior officer, all are entitled to share as joint captors, it Chap. II.
being then only necessary to prove what ships actually formed part of
the fleet at the time of capture («). If, however, a part of the fleet is
detached on a separate service, or if the detached vessels are out of the
scene of the common operations for the time, the prize then belongs to
the actual captors alone (/). During the Crimean War, France and
England agreed (1), that a joint capture made by the naval forces of
both countries should be adjudicated on in the country of the highest
naval officer concerned in the capture, and, (2), that in the case of
a capture made by the cruiser of one nation, in sight of a cruiser of
the other, such cruiser having thus contributed to the intimidation of
the enemy, the adjudication thereof should belong to the jurisdiction
of the actual captor (w). o 384b.
The rights of joint captors on land are not the same as those of ^^^P*'"*
naval captors. Joint captors are those who have assisted, or are taken
to have assisted, the actual captors by conveying encouragement to
them, or intimidation to the enemy. On land the union of the joint
captor with the actual captor under the command of the same officer,
alone constitutes the bond of association which the law recognizes as a
title to joint sharing. Community of enterprise does not constitute
association, and is equally insufficient as a ground for joint sharing, if
the bond of union, though originally weU constituted, has ceased to be
in force at the time of the capture. The distinctions between captures
on land and captures at sea tend to show that in considering joint
capture of booty, a wider application than is recognized in prize cases
must be allowed to the term '* co-operation," concerted action on a
vaster scale than is feasible at sea being indispensable to a campaign.
The rule of sight, too, which prevails at sea, is inapplicable on land.
The general rule for the distribution of booty, to be adhered to as far
as possible, in accordance with naval prize decisions, is the rule of
actual capture. The association entitling to joint sharing must be
military, and not political, and must be under the immediate command
of the same commander. The co-operation which is necessary as a
title to joint sharing, is a co-operation tending directly to produce the
capture in question (a?).
(*) The Gnillaume Tell, Edw. Ad. 6. As to the proceedings of joint captors
HaUeck, oh. xxx. § 11 ; Phillimore, "» <^e Admiralty Court, see the Naval
vol. iii. j 398. The Farsigheid, 3 C. Rob. I*"^® Ac*» 1^64, Appendix D.
311^ (ar) The Banda and Kirtcee Booty, L. R.
1 A. & E. 109, -where the law respect-
(0 PhiUimore, vol. iii. } 398. The ^^ ^^^^ ^| property by land and
Forsigheid, 3 C. Rob. 311 ; The Augusta, ^ ^ ^^^ discussed. See also Report
Marsden, Adm. Cases, 167. Ships of ^^ Commissioners to inquire into the
war are entitled to share in all captures distribution of Army Prize, 1864 ; and
made by their tenders: The Carl, 2 Alexander againet the Duhe of Wellington,
Spmks, 261. ^ reported in 2 State Trials, N. S.,
(«) Conyention of 2(Hh May, 1854. 763.
W. MM
630 RIGHTS OF WAR AS BETWEEN ENEMIES.
Part rv. The validity of maritime captures must be determined
§ 886. in a court of the captor's government, sitting either in
maritiSe^' his own country or in that of its ally. This rule of juris-
deil^^ed ' ^^^^^^^ applies, whether the captured property be carried
tiie courta of into a port of the captor's country, into that of an ally,
country. OT mto a ncutral port.
§ 386. Respecting the fir^t case, there can be no doubt. In
tion of pro- the secotid case, where the property is carried into the
Sie portals "^ port of an ally, there is nothing to prevent thegovem-
^' ment of the country, although it cannot itself condemn,
from permitting the exercise of that final act of hostilit}^,
the condemnation of the property of one belligerent to
the other ; there is a common interest between the two
governments, and both may be presumed to authorize
any measures conducing to give effect to their arms, and
to consider each other's ports as mutually subservient.
Such an adjudication is therefore suflScient, in regard to
property taken in the course of the operations of a
§ 887. common war.
^^^J*7 ^^ But where the property is carried into a neutral port,
a neutral it may appear, on principle, more doubtful whether the
validity of a capture can be determined even by a Court
of Prize established in the captor's country ; and the
reasoning of Sir W. Scott, in the case of The Henrick and
Mariay is certainly very cogent, as tending to show the
iiTegularity of the practice ; but he considered that the
English Court of Admiralty had gone too far in its own
practice of condemning captured vessels lying in neutral
ports, to recall it to the proper purity of the original
principle. In delivering the judgment of the C!ourt of
Appeals in the same case. Sir William Grant also held
that Great Britain was concluded by her own inveterate
practice, and that neutral merchants were suflSciently
warranted in purchasing under such a sentence of con-
demnation, by the constant adjudications of the British
tribunals. The same rule has been adopted by the
Supreme Court of the United States, as being justifiable
on principles of convenience to belligerents as well as
neutrals ; and though the prize was in fact within a
RIGHTS OF WAR AS BETWEEN ENEMIES. 631
neuti'al jurisdiction, it was still to be considered as under Chap. II.
the control of the captor, whose possession is considered
as that of his sovereign (y). o 3gg
This jurisdiction of the national courts of the captor, •'^?!if^°*^
to determine the validity of captures made in war under of the captor,
the authority of his government, is exclusive of the exclusive.
judicial authority of every other country, with two ex-
ceptions only : — 1. Where the capture is made within
the territorial limits of a neutral State. 2. Where it
is made by armed vessels fitted out within the neutral
territory (s).
In either of these cases, the judicial tribunals of the
neutral State have jurisdiction to determine the validity
of the captures thus made, and to vindicate its neutrality
by restoring the property of its own subjects, or of other
States in amity with it, to the original ovniers. These
exceptions to the exclusive jurisdiction of the national
courts of the captor have been extended by the municipal
regulations of some countries to the restitution of the
property of their own subjects, in all cases where the
same has been unlawfully captured, and afterwards
brought into their ports ; thus assuming to the neutral
tribunal the jurisdiction of the question of prize or no
prize, wherever the capture^ property is brought within
the neutral territory. Such a regulation is contained in
the marine ordinance of Louis XIV., of 1681, and its
justice is vindicated by Valin, upon the ground that this
is done by way of compensation for the privilege of
asylum granted to the captor and his prizes in the neutral
port. There can be no doubt that such a condition may
be expressly annexed by the neutral State to the privilege
of bringing belligerent prizes into its ports, which it may
grant or refuse at its pleasure, provided it be done im-
partially to all the belligerent powers ; but such a con-
(y) 4 0. Rob. 43, and 6 lb. 138, ton's Hist. Law of Nations, p. 321.
note (a). Bynkershoek, Qoaest. Jur. j%^ Folka, 1 Spinks, 447.
Pnb. lib. i. cap. 6. Daponcean's Transl. . . „. „ „ . ,„ . ^^« ^
Note, p. 38. Kent's bLnentaries on W ^^ ^*^-^^' ^ ^«^*^' ^98 ; The
American Iaw, vol. i. p. 103. Whea- Santimma Trinidad, 7 lb. 283.
M M 2
532 RIGHTS OF WAR AS BETWEEN ENEMIES.
Partly, dition is not implied in a mere general permission to
enter the neutral ports. The captor, who avails himself
of such a permission, does not thereby lose the military
possession of the captured property, which gives to the
Prize Courts of his own country exclusive jurisdiction to
determine the lawfulness of the capture. This j urisdiction
may be exercised either whilst the captured property is
lying in the neutral port, or the prize may be carried
thence infra prwsidia of the captor's country where the
tribunal is sitting. In either case, the claim of any
neutral proprietor, even a subject of the State into whose
ports the captured vessel or goods may have been carried,
must, in general, be asserted in the Prize Court of the
belligerent country, which alone has jurisdiction of the
question of prize or no prize (a).
CondemnA. This jurisdiction cannot be exercised by a delegated
^Sar^trSSaai authority in the neutral country, such as a consular tri-
neSSS"* *^* bunal sitting in the neutral port, and acting in pursuance
oountay. of instructions from the captor's State. Such a judicial
authority, in the matter of prize of war, cannot be con-
ceded by the neutral State to the agents of a belligerent
power within its own territory, where even the neutral
government itself has no right to exercise such a juris-
diction, except in cases where its own neutral jurisdiction
and sovereignty have been violated by the capture. A
sentence of condemnation, pronounced by a belligerent
consul in a neutral port, is, therefore, considered as in-
sufficient to transfer the property in vessels or goods
captured as prize of war, and carried into such port for
6 890 adjudication (A).
Responai-* The jurfsdiction of the court of the capturing nation
captor^s ^* ^^ conclusive upon the question of property in the cap-
^T^Q^ot t^^®^ thing. Its sentence forecloses all controversy re-
ii^iTd^™"' specting the validity of the capture, as between claimant
oruiseraand and captors, and those claiming under them, and ter-
minates all ordinary judicial inquiry upon the subject-
(a) Valin, Comment, rar TOrdon. de Trattato del Commeroio de* PopoliNen-
la Marine, liv. iii. tit. 9. Des Prises, trali in Tempo de Gnerra, p. 228.
art. 15, torn. 11. p. 274. Lampredi, {b) The Flad Ojfen, 1 0. Bob. 136.
RIGHTS OF WAR AS BETWEEN ENEMIES. 633
matter. But where the responsibiKty of the captors Chap. II.
ceases, that of the State begins. It is responsible to
other States for the acts of the captors under its commis-
sion, the moment these acts are confirmed by the defini-
tive sentence of the tribunals which it has appointed to
determine the validity of captures in war. « 091
Grotius states that a judicial sentence plainly against iinjuBt
right {in re minimi duhid\ to the prejudice of a foreigner, foreigToourt,
entitles his nation to obtain reparation by reprisals : — S^Saia!
'^ For the authority of the judge" (says he) ** is not of
the same force against strangers as against subjects.
Here is the difference : subjects are bound up and con-
cluded by the sentence of the judge, though it be unjust,
so that they cannot lawfully oppose its execution, nor by
force recover their own right, on account of the control-
ling efficacy of that authority under which they live.
But strangers have coercive power (that is, of reprisals,
of which the author is treating,) though it be not lawful
to use it so long as they can obtain their right in the
ordinary course of justice " {c).
So, also, Bynkershoek, in treating the same subject,
puts an unjust judgment upon the same footing with
naked violence, in authorizing reprisals on the part of
the State whose subjects have been thus injured by the
tribunals of another State. And Vattel, in enumerating
the different modes in which justice may be refused, so
as to authorize reprisals, mentions " a judgment mani-
festly unjust and partial ; " and though he states what is
undeniable, that the judgments of the ordinary tribunals
ought not to be called in question upon frivolous or
doubtful grounds, yet he is manifestly far from attribut-
ing to them that sanctity which would absolutely preclude
foreigners from seeking redress against them (d).
These principles are sanctioned by the authority of
numerous treaties between the different powers of Europe
regulating the subject of reprisals, and declaring that
(f) Grotius, de Jur. Bel. ao Pao. (<Q Bjnkerahoek, Qneest. Jar. Pub.
lib. iii. cap. 2, & 6, Ko. 1. l*^- *• <»P- 2*. Vattel, Droit dea Gena,
liv. u. ch. 18, $ 350.
534 BIGHTS OF WAR AS BETWEEN ENEMIES.
Fart IV. they shall not be granted unless in case of the denial of
justice. An unjust sentence must certainly be considered
a denial of justice, unless the mere privilege of being
heard before condemnation is all that is included in the
S 392 ^^^^ ^^ justice.
Difltinctioii Evcu supposing that unjust judgments of municipal
municipal tribunals do not form a ground of reprisals, there is
oouX of ^ evidently a wide distinction in this respect between the
pme. ordinary tribunals of the State, proceeding under the
municipal law as their rule of decision, and prize tribu-
nals, appointed by its authority, and professing to
administer the law of nations to foreigners as well as
subjects. The ordinary municipal tribunals acquire
jurisdiction over the person or property of a foreigner
by his consent, either expressed by his voluntarily bring-
ing the suit, or implied by the fact of his bringing his
person or property within the territory. But when
Courts of Prize exercise their jurisdiction over vessels
captured at sea, the property of foreigners is brought by
force within the territory of the State by which those
tribunals are constituted. By natural law, the tribunals
of the captor's country are no more the rightful exclusive
judges of captures in wai', made on the high seas from
under the neutral flag, than are the tribunals of the
neutral country. The equality of nations would, on
principle, seem to forbid the exercise of a jurisdiction
thus acquired by force and violence, and administered by
tribunals which cannot be impartial between the litiga-
ting parties, because created by the sovereign of the one
to judge the other. Such, however, is the actual consti-
tution of the tribunals, in which, by the positive inter-
national law, is vested the exclusive jurisdiction of prizes
taken in war. But the imperfection of the voluntary law
of nations, in its present state, cannot oppose an effectual
bar to the claim of a neutral government seeking indem-
nity for its subjects who have been unjustly deprived of
their property, under the erroneous administration of
that law. The institution of these tribunals, so far from
exempting, or being intended to exempt, the sovereign
RIGHTS OF WAR AS BETWEEN ENEMIES. 586
of the belligerent nation from responsibility for the acts Chap- ^^>
of his commissioned cruisers, is designed to ascertain and
fix that responsibility. Those cruisers are responsible
only to the sovereign whose commissions they bear.
So long as seizures are regularly made upon apparent
grounds of just suspicion, and followed by prompt
adjudication in the usual mode, and until the acts of the
captors are confirmed by the sovereign in the sentences
of the tribimals appointed by him to adjudicate in
matters of prize, the neutral has no ground of complaint,
and what he sufiEers is the inevitable result of the belli-
gerent right of capture. But the moment the deci3ion
of the tribunal of the last resort has been pronounced,
(supposing it not to be warranted by the facts of the
case, and by the law of nations applied to those facts,)
and justice has been thus finally denied, the capture and
tlie condemnation become the acts of the State, for which
the sovereign is responsible to the government of the
claimant. There is nothing more irregular in maintain-
ing that the sovereign is responsible towards foreign
States for the acts of his tribunals, than in maintaining
that he is responsible for his own acts, which, in the
intercourse of nations, are constantly made the ground
of complaint, of reprisals, and even of war. No greater
sanctity can be imputed to the proceedings of prize
tribunals, even by the most extravagant theory of the
conclusiveness of their sentences, than is justly attributed
to the acts of the sovereign himself. But those acts,
however binding upon his own subjects, if they are not
conformable to the public law of the world, cannot be
considered as binding upon the subjects of other States.
A wrong done to them forms an equally just subject
of complaint on the part of their government, whether
it proceeds from the direct agency of the sovereign
himself, or is inflicted by the instrumentality of his
tribunals. The tribunals of a State are but a part, and
only a subordinate part, of the government of that State.
But the right of redress against injurious acts of the
whole government, of the supreme authority, incon-
536 RIGHTS OF WAR AS BETWEEN ENVIES.
Partly, testably exists in foreign States, whose subjects have
suffered by those acts. Much more clearly then must it
exist, when those acts proceed from persons, authorities,
or tribunals, responsible to their own sovereign, but irre-
sponsible to a foreign government, otherwise than by its
action on their sovereign.
These principles, so reasonable in themselves, are also
supj)orted by the authority of the writers on public law,
n 2Q^ and by historical examples.
Opinion o^ '* The exclusive right of the State, to which the captors
belong, to adjudicate upon the captures made by them,"
says Rutherforth, " is founded upon another ; that is, its
right to inspect into the conduct of the captors, both
because they are members of it, and because it is respon-
sible to all other States for what they do in war ; since
what they do in war is done either under its general or
its special commission. The captors are therefore obliged,
on account of the jurisdiction which the State has over
their persons, to bring such ships or goods as they seize
in the main ocean into their own ports, and they cannot
acquire property in them until the State has determined
whether they were lawfully taken or not. The right
which their own State has to determine this matter is so
far an exclusive one, that no other State can claim to
judge of their conduct until it has been thoroughly
examined into by their own ; both because no other State
has jurisdiction over their persons, and likewise because
no other State is answerable for what they do. But the
State to which the captors belong, whilst it is thus
examining into the conduct of its own members, and
deciding whether the ships or goods which they have
seized are lawfully taken or not, is determining a ques-
tion between its own members and the foreigners who
claim the property ; and this controversy did not arise
within its own territory, but in the main ocean. The
right, therefore, which it exercises is not civil jurisdiction ;
and the civil law, which is peculiar to its own territory,
is not the law by which it ought to proceed. Neither the
place where the controversy arose, nor the parties who
EIGHTS OF WAR AS BETWEEN ENEMIES. 637
are concerned in it, are subject to this law. The only Chap. II.
law by which this controversy can be determined, is the
law of nature, applied to the collective bodies of civil
societies, that is, the law of nations ; unless, indeed, there
have been any particular treaties made between the tw^o
States, to which the captors and the other claimants
belong, mutually binding them to depart from such rights
as the law of nations would otherwise have supported.
Where such treaties have been made, they are a law to
the two States, as far as they extend, and to all the
members of them, in their intercourse with one another.
The State, therefore, to which the captors belong, in
determining what might or might not be lawfully taken,
is to judge by these particular treaties, and by the law of
nations, taken together. This right of the State, to which
the captors belong, to judge exclusively, is not a complete
jurisdiction. The captors, who are its own members, are
bound to submit to its sentence, though this sentence
should happen to be erroneous, because it has a complete
jurisdiction over their persons. But the other parties to
the controversy, as they are members of another State,
are only bound to submit to its sentence so far as this
sentence is agreeable to the law of nations, or to particular
treaties ; because it has no jurisdiction over them, either
in respect of their persons, or of the things that are the
subject of the controversy. If justice, therefore, is not
done to them, they may apply to their own State for a
remedy ; which may, consistently with the law of nations,
give them a remedy, either by solemn war or reprisals.
In order to determine when their right to apply to their
own State begins, we must inquire when the exclusive
right of the other State to judge in this controversy
ends. As this exclusive right is nothing else but the right
of the State, to which the captors belong, to examine
into the conduct of its own members before it becomes
answerable for what they have done, such exclusive
right cannot end until their conduct has been thoroughly
examined. Natural equity vsdll not allow that the
State should be answerable for their acts, until those
538
RIGHTS OF WAR AS BETWEEN ENEMIES.
Partly, acts are examined by all tlie ways which the State has
appointed for this purpose. Since, therefore, it is usual
in maritime countries to establish not only inferior courts
of marine, to judge what is and what is not lawful prize,
but likewise superior courts of review, to which the
parties may appeal, if they think themselves aggrieved
by the inferior courts ; the subjects of a neutral State can
have no right to apply to their own State for a remedy
against an erroneous sentence of an inferior court, till
they have appealed to the superior court, or to the several
superior courts, if thei'e are more comis of this sort than
one, and till the sentence has been confirmed in all of
them. For these courts are so many means appointed by
the State, to which the captors belong, to examine into
their conduct ; and, till their conduct has been examined
by all these means, the State's exclusive right of judging
continues. After the sentence of the inferior court has
been thus confirmed, the foreign claimants may apply to
their own State for a remedy, if they think themselves
aggrieved ; but the law of nations will not entitle them
to a remedy, unless they have been actually aggrieved.
When the matter is carried thus far, the two States be-
come the parties in the controversy. And since the law
of nature, whether it is applied to individuals or civil
societies, abhors the use of force till force becomes neces-
sary, the supreme rulers of the neutral State, before they
proceed to solemn war or to reprisals, ought to apply
to the supreme rulers of the other State, both to satisfy
themselves that they have been rightly informed, and
likewise to try whether the controversy cannot be ad-
^ justed by more gentle methods" (e).
Report on In the Celebrated report made to the British govem-
^^^^8. ment, in 1753, upon the case of the reprisals granted by
the King of Prussia, on account of captures made by the
cruisers of Great Britain of the property of his subjects,
the exclusive jurisdiction of the captor's country over
captures made in war, by its commissioned cruisers^ is
(e) Batherforth's Inat. toL ii. b. ii. oh. 9, f 19.
RIGHTS OF WAR AS BETWEEN ENEMIES.
539
asserted; and it is laid down that " the law of nations, Chap. II.
founded upon justice, equity, convenience, and the reason
of the thing, does not allow of reprisals, except in case
of violent injuries, directed or supported by the State,
and justice absolutely denied in re minime dubid, by all
the tribunals, and afterwards by the prince ; " plainly
showing that, in the opinion of the eminent persons by
whom that paper was drawn up, if justice be denied in
a clear case, by all the tribunals, and afterwards by the
prince, it fonns a lawful ground of reprisals against the
nation by whose commissioned cruisers and tribunals the
injury is committed. And that Vattel was of the same
opinion, is evident from the manner in which he quotes
this paper to support his own doctrine, that the sentences
of the tribunals ought not to be made the ground of
complaint by the State against whose subjects they are
pronounced, " excepting the case of a refusal of justice,
palpable and evident injustice, a manifest violation of
rules and forms," &c. (/).
In the case above referred to, the King of Prussia
(then neutral) had undertaken to set up within his own
dominions a commission to re-examine the sentences pro-
nounced against his subjects in the British prize courts ;
a conduct which is treated by the authors of the report
to the British government as an innovation, ^* which
was never attempted in any country of the world be-
fore. Prize or no prize must be determined by courts of
admiralty belonging to the power whose subjects made
the capture." But the report proceeds to state, that
^^ every foreign prince in amity has a right to demand
that justice should be done to his subjects in these courts,
according to the law of nations, or particular treaties,
where they are subsisting. If in re minimi dubidy these
courts proceed upon foundations directly opposite to
the law of nations, or subsisting treaties, the neutral State
has a right to complain of such determination."
The King of Prussia did complain of the determina-
tions of the British tribunals, and made reprisals by
(/) Vattel, Droit dea Gens, Uv. ii. ch. 7, § 84.
540 EIGHTS OF WAR AS BETWEEN ENEMIES.
Part IV. stopping the interest upon a loan due to British sub-
jects, and secured by hypothecation upon the revenues
• of Silesia, until he actually obtained from the British
government an indemnity for the Prussian vessels un-
justly captured and condemned. The proceedings of
the British tribunals, though they were asserted by the
British government to be the only legitimate mode of
determining the validity of captures made in war, were
not considered as excluding the demand of Prussia for
§ 395. redress upon the government itself {ff).
Sn'^Bder So, also, uudcT the treaty of 1794, between the United
treaty of 1794. gtatcs and Great Britain, a mixed commission was
appointed to determine the claim of American citizens,
arising from the capture of their property by British
cruisers, during the existing war with France, according
to justice, equity, and the law of nations. In the course
of the proceedings of this board, objections were made,
on the part of the British government, against the com-
missioners proceeding to hear and determine any case
where the sentence of condemnation had been affirmed
by the Lords of Appeal in Prize Causes, upon the ground
that full and entire credit was to be given to their final
sentence ; inasmuch as, according to the general law of
nations, it was to be presumed that justice had been
administered by this, the competent and supreme tribunal
in matters of prize. But this objection was overruled by
the board, upon the grounds and principles already stated,
and a full and satisfactory indemnity was awarded in
many cases where there had been a final sentence of
condemnation.
Conclusive- Many other instances might be mentioned of arrange-
deSaioMr^^ mcuts between States, by which mixed commissions have
been appointed to hear and determine the claims of the
subjects of neutral powers, arising out of captures in war,
not for the purpose of revising the sentences of the com-
petent courts of prize, as between the captors and
(y) Wheaton*8 Hist. Law of Nations, pp. 206 — 217, and Hall, Intematioaal Law
(5th ed.), p. 248, where the Prussian expositUm des motifs is charaoteEised as a
«» repertory of bad law."
RIGHTS OF WAR AS BETWEEN ENEMIES. 641
captured, but for the purpose of providing an adequate Ckap- II-
indemnity between State and State, in cases where satis-
factory compensation had not been received in the ordi-
nary course of justice. Although the theory of public
law treats prize tribunals, established by and sitting in
the belligerent country, exactly as if they were established
by and sitting in the neutral country, and as if they
always adjudicated conformably to the international law
common to both ; yet it is well known that, in practice,
such tribunals do take for their guide the prize ordinances
and instructions issued by the belligerent sovereign, with-
out stopping to inquire whether they are consistent with
the paramount rule. If, therefore, the final sentences of
these tribunals were to be considered as absolutely con-
clusive, so as to preclude all inquiry into their merits,
the obvious consequence would be to invest the belligerent
State with legislative power over the rights of neutrals,
and to prevent them from showing that the ordinances
and instructions, under which the sentences have been
pronounced, are repugnant to that law by which
foreigners alone are bound. „ gg«
These principles have received confirmation in the Danihh
negotiation between the American and Danish govern- under treaty
ments respecting the captures of American vessels and ^* ^^^^'
cargoes made by the cruisers of Denmark during the last
war between that power and Great Britain. In the course
of this negotiation, it was objected by the Danish minis-
ters that the validity of these captures had been finally
determined in the competent prize court of the belligerent
country, and could not be again drawn in question. On
the part of the American government it was admitted
that the jurisdiction of the tribunals of the capturing
nation was conclusive and complete upon the question of
prize or no prize, so as to transfer the property in the
things condemned from the original owner to the captors,
or those claiming under them ; that the final sentence of
those tribunals is conclusive as to the change of property
operated by it, and cannot be again incidentally drawn
in question in any other judicial forum ; and that it has
542
RIGHTS OF WAR AS BETWEEN ENEMIES.
Partly, the eflPect of closing for ever all private controversy be-
tween the captors and the captured. The demand which
the United States made upon the Danish government was
not for a judicial revision and reversal of the sentences
pronounced by its tribunals, but for the indenmity to
which the American citizens were entitled in consequence
of the denial of justice by the tribunals in the last resort,
and of the responsibility thus incun'ed by the Danish
government for the acts of its cruisers and tribunals.
The Danish government was, of course, free to adopt any
measures it might think proper, to satisfy itself of the
injustice of those sentences, one of the most natural of
which would be a re-examination and discussion of the
cases complained of, conducted by an impartial tribunal
under the sanction of the two governments, not for the
purpose of disturbing the question of title to the specific
property which had been irrevocably condemned, or of
reviving the controversy between the individual captors
and claimants which had been for ever terminated, but
for the purpose of determining between government and
government whether injustice had been done by the tri-
bunals of one power against the citizens of the other, and
of determining what indemnity ought to be granted to
the latter.
The accuracy of this distinction was acquiesced in by
the Danish ministers, and a treaty concluded, by which
a satisfactory indemnity was provided for the American
claimants (A).
§ 397a.
Municipal It is a question of great nicety how far a prize court is bound to
tered^™*^"*' ®^^orce a municipal law against foreigners when that municipal law ia
prize ooarts. contrary to the law of nations. In a case before Lord Stowell, it was
argued that the Orders in Council of 1807 were a violation of inter-
national law, and that he therefore was bound to disregard them. His
lordship was of opinion that as the Orders in Council were retaliatoiy,
they did not contravene the law of nations, but he added, '' I have no
hesitation in saying that they would cease to be just if they ceased to
be retaliatory; and they would cease to be retaliatory from the moment
the enemy retracts, in a sincere manner, those measures of his which
(A) Hartensy Nonyean Reoneil, torn. viit. p. 350.
RIGHTS OF WAR AS BETWEEN ENEMIES.
543
they were intended to retaliate " (i). Sir B. FLillimore is of opinion Chap. II.
*' that it has never been the doctrine of the British Prize Courts that,
because they sit under the authority of the Orown, the Crown has
authority to prescribe to them rules which violate international
law"W.
§398.
We have seen that a firm possession, or a sentence of Title to r«a
• /v» • /» 1 1 property, how
a competent court, is sufficient to confirm the captors transferred
title to personal property or moveables taken in war. A juT^
different nile is applied to real property, or immoveables. '**""*"'
The original owner of this species of property is entitled
to what is called the benefit of postliminy, and the title
acquired in war must be confirmed by a treaty of peace
before it can be considered as completely valid. This
rule cannot be frequently applied to the case of mere
private property, which by the general usage of modem
nations is exempt from confiscation. It only becomes
practically important in questions arising out of aliena-
tions of real property, belonging to the government,
made by the opposite belligerent, while in the military
occupation of the country. Such a title must be ex-
pressly confirmed by the treaty of peace, or by the
general operation of the cession of territory made by the
enemy in such treaty. Until such confirmation, it con-
tinues liable to be divested by the jus postlirninii. The
purchaser of any portion of the national domain takes it
at the peril of being evicted by the original sovereign
owner when he is restored to the possession of his
dominions (/). c 399
Grotius has devoted a whole chapter of his great work ??^^^*^
to prove, by the consenting testimony of all ages and enemies.
nations, that good faith ought to be observed towards an
(•) I^ J^o«, Edw. Ad. 312. Modeme de rEarope, §§ 256—258.
W Phillimore, toI. iii. § 436. The f *^°«' ^' *°- ^^- ^- ^' ^^
Recovery, 6 0. Rob. 348 ; The Snipe, \ ^82, a Wliere the case of conquest
Edw. Ad. 381 ; The Maria, 1 0. Rob. f complicated with that of civU revo-
860 ; The Ostiee, 9 Moo. P. C. 160. ^'^^^^'^^ *^^ * ^ We of internal govern.
ment reoognized bjthe nation itself and
(/) GrotiuB, de Jur. Bel. ac Pac. Ub. by foreign States, a modification of the
iU. cap. 6, § 4 ; cap. 9, § 13. Vattel, rule may be required in its practical
Droit dee Gens, Hy. iii. ch. 13, §{ 197— application. Fikfo ante, Pt. I. oh, 2,
200, 210, 212. Eluber, Droit dee Gens jj 28 et seq.
544
EIGHTS OP WAR AS BETWEEN ENEMIES.
Part IV.
§400.
Tmoe or
armiitice.
§401.
Power to
oonolade an
annistioe.
enem}\ And even Bynkershoek, who holds that every
other sort of fraud may be practised towards him, pro-
hibits perfidy, upon the ground that his character of
enemy ceases by the compact with him, so fftr as the
terms of that compact extend. *' I allow of any kind of
deceit," says he, ^^ perfidy alone excepted, not because
anything is unlawful against an enemy, but because
when our faith has been pledged to him, so far as the
promise extends, he ceases to be an enemy." Indeed,
without this mitigation, the horrors of war would be
indefinite in extent and interminable in duration. The
usage of civilized nations has therefore introduced
certain commercia helli^ by which the violence of war
may be allayed, so far as is consistent with its objects
and purposes, and something of a pacific intercourse
may be kept up, which may lead, in time, to an adjust-
ment of differences, and ultimately to peace (w).
There are various modes in which the extreme rigour
of the rights of war may be relaxed at the pleasure of
the respective belligerent parties. Among these is that
of a suspension of hostilities, by jneans of a truce or
armistice. This may be either general or special. If it
be general in its application to all hostilities in every
place, and is to endure for a very long or indefinite
period, it amounts in effect to a temporary peace, except
that it leaves undecided the controversy in which the
war originated. Such were the truces formerly con-
cluded between the Christian powers and the Turks.
Such, too, was the armistice concluded, in 1609, between
Spain and her revolted provinces in the Netherlands. A
partial truce is limited to certain places, such as the sus-
pension of hostilities, which may take place between two
contending armies, or between a besieged fortress and
the army by which it is invested (w).
The power to conclude a universal armistice or sus-
pension of hostilities is not necessarily implied in the
(m) Bynkeralioek, Queeat. Jnr. Pub.
lib. i. cap. 1. The Daijje, 3 0. Rob.
139.
(n) Vattd, Droit des Gens, liv. iii.
ch. 16, §§ 235, 236.
RIGHTS OF WAK AS BETWEEN ENEMIES.
545
ordinary official authority of the general or admiral Chap. II.
commanding in chief the military or naval forces of the
State. The conclusion of such a general truce requires
either the previous special authority of the supreme
power of the State, or a subsequent ratification by such
power (o),
A partial truce or limited suspension of hostilities may
be concluded between the military and naval officers of
the respective belligerent States, without any special
authority for that purpose, where, from the nature and
extent of their commands, such an authority is neces-
sarily implied as essential to the fulfilment of their
official duties ( jo). § 402.
A suspension of hostilities binds the contracting parties, ^ ^^j^^^ ^^
and all acting immediately under their direction, from
the time it is concluded ; but it must be duly promul-
gated in order to have a force of legal obligation with
regard to the other subjects of the belligerent States ; so
that if, before such notification, they have committed
any act of hostility, they are not personally responsible,
unless their ignorance be imputable to their own fault or
negligence. But as the supreme power of the State is
bound to fulfil its own engagements, or those made by
its authority, express or implied, the government of the
captor is bound, in the case of a suspension of hostilities
by sea, to restore all prizes made in contravention of
the armistice. To prevent the disputes and difficulties
arising from such questions, it is usual to stipulate in the
convention of armistice, as in treaties of peace, a pro-
spective period within which hostilities are to cease,
with a due regard to the situation and distance of
places (y). ^ ^ ^ §403.
Besides the general maxims applicable to the interpre- ??^^^ ^*^5
o ^-^ ^ interpreting
tation of all international compacts, there are some rules oonventiona
^ of truce.
(o) GrotiuB, de Jnr. Bel. ao Pao. lib. {p) Vide ante, Pi. III. ch. 2, §§ 254,
iii. cap. 22, { 8. Barbeyrac's Note. 266.
Vattel, Droit des Gens, Hv. iii. oh. 16, J^^ ^'f ?i ^^^!J\^,t f°/*°- ^^•
' iii. cap. 21, § 6. Vattel, Droit des Gons,
** 233-238. j.^ jjj ^^ jg^ J 239.
W. N N
5<6 RIGHTS OF WAR AS BETWEEN ENEMIES.
Part IV. pecuKarly applicable to conventions for the suspension
of hostilities. The fir^t of these peculiar rules, as laid
down by Vattel, is that each party may do within his
own territory, or within the limits prescribed by the
' armistice, whatever he could do in time of peace. Thus
either of the belligerent parties may levy and march
troops, collect provisions and other munitions of war,
receive reinforcements from his allies, or repair the
fortifications of a place not actually besieged.
The second rule is, that neither party can take advan-
tage of the truce to execute, without peril to himself,
what the continuance of hostilities might have disabled
him from doing. Such an act would be a fraudulent
violation of the armistice. For example : — in the case
of a truce between the commander of a fortified town
and the army besieging it, neither party is at liberty to
continue works, constructed either for attack or defence,
or to erect new fortifications for such purposes. Nor
can the garrison avail itself of the truce to introduce
provisions or succours into the town, through the
passages or in any other manner which the besieging
army would have been competent to obstruct and pre-
vent, had hostilities not been interrupted by the
armistice.
The third rule stated by Vattel is rather a corollary
from the preceding rules than a distinct principle capable
of any separate application. As the truce merely sus-
pends hostilities without terminating the war, all things
are to remain in their antecedent state in the places, the
possession of which was specially contested at the time
of the conclusion of the armistice (r).
It is obvious that the contracting parties may, by
express compact, derogate in any and every respect
„ 404 from these general conditions.
Recommence- At the expiration of the period stipulated in the truce,
SSuities on hostilities recommence as a matter of course, without any
of troce!™*^°^ new declaration of war. But if the truce has been con-
(r) Vattel. Droit des Gens, liv. iii. ch. 16, §{ 246—261,
RIGHTS OF WAR AS BETWEEN ENEMIES. 547
eluded for an indefinite, or for a very long period, Chap. II.
good faith and humanity concur in requiring previous
notice to be given to the enemy of an intention to
terminate what he may justly regard as equivalent to a
treaty of peace. Such was the duty inculcated by the
Fecial college upon the Romans, at the expiration of a
long truce which they had made with the people of Veii.
That people had recommenced hostilities before the
expiration of the time limited in the truce. Still it was
held necessary for the Romans to send heralds and
demand satisfaction before renewing the war (s). « ^^g
Capitulations for the surrender of troops, fortresses, Capitulations
and particular districts of country, fall naturally within render of
the scope of the general powers entrusted to military and f^^f
naval commanders. Stipulations between the governor
of a besieged place, and the general or admiral com-
manding the forces by which it is invested, if necessarily
connected with the surrender, do not require the subse-
quent sanction of their respective sovereigns. Such are
the usual stipulations for the security of the religion and
privileges of the inhabitants, that the garrison shall not
bear arms against the conquerors for a limited period,
and other like clauses properly incident to the particular
nature of the transaction. But if the commander of the
fortified town undertake to stipulate for the perpetual
cession of that place, or enter into other engagements
not fairly within the scope of his implied authority, his
promise amounts to a mere sponsion (t). § 408,
The celebrated convention made by the Roman consuls ^°J*cludiL*^*
with the Samnites, at the Caudine Forks, was of this I'orks.
nature. The conduct of the Roman senate in disavow-
ing this ignominious compact, is approved by Grotius
and Vattel, who hold that the Samnites were not entitled
to be placed in statu quo^ because they must have known
that the Roman consuls were wholly unauthorized to
make such a convention. This consideration seems suf-
(«) liy. Hist. lib. iv. cap. 30. As to see Wheaton's Hist. Law of Nations,
the laws of war obsenred by the Romans, PP^ 20—26.
(0 Vide anU, Pt. HI. oh. 2, i 266.
nn2
648
RIGHTS OF WAR AS BETWEEN ENEMIES.
Part lY. ficient to justify the Romans in acting on this occasion
according to their uniform uncompromising policy, by
delivering up to the Samnites the authors of the treaty,
and persevering in the war until this formidable enemy
p 407 ^^^ finally subjugated (u).
Conrention The convontion concluded at Closter-Seven. during the
Seven. sovcu ycars' war, between the Duke of Cumberlana,
commander of the British forces in Hanover, and Marahal
Richelieu, commanding the French army, for a suspen-
sion of arms in the north of Germany, is one of the most
remarkable treaties of this kind recorded in modem his-
tory. It does not appear, from the discussions which took
place between the two governments on this occasion, that
there was any disagreement between them as to the
true principles of international law applicable to such
transactions. The conduct, if not the language of both
parties, implies a mutual admission that the convention
was of a nature to require ratification, as exceeding the
ordinary powers of mere military commanders in respect
to mere military capitulations. The same remark may
be applied to the convention signed at El Arish, in
1800, for the evacuation of Egypt by the French army;
although the position of the two governments, as to the
convention of Closter-Seven, was reversed in that of
El Arish, the British government refusing in the first
instance to permit the execution of the latter treaty
upon the ground of the defect in Sir Sidney Smith's
powers, and, after the battle of Heliopolis, insisting
upon its being performed by the French, when circum-
stances had varied and rendered its execution no longer
consistent with their policy and interest. Good faith
may have characterized the conduct of the British
government in this instance, as was strenuously insisted
by ministers in the parliamentary discussions to which
the treaty gave rise, but there is at least no evidence of
perfidy on the part of General Kleber. His conduct
may rather be compared with that of the Duke of
{u) See the acoonnt given bj Liyy of this remarkable tranaaotion.
RIGHTS OF WAK AS BETWEEN ENEMIES. 549
Cumberland at Closter-Seven (and it certainly will not Chap. II.
suffer by the comparison), in concluding a convention
suited to existing circumstances, which it was plainly
his interest to carry into effect when it was signed, and
afterwards refusing to abide by it when those circum-
stances were materially changed. In these compacts,
time is material : indeed it may be said to be of the
very essence of the contract. If anything occurs to
render its immediate execution impracticable, it becomes
of no effect, or at least is subject to be varied by fresh
negotiation (x\
^ §407a.
The city of Manila and all the Philippine Islands surrendered to the Oamtulation
English in 1762. By art. 1 of the Capitulation it is stipulated, o'*^*'^^^-
" That all the e£Pects and possessions of the inhabitants of Manila and
its dependencies shall be secured to them, under the protection of His
Britannic Majesty, with the same liberty they have heretofore en-
joyed." Art. 4. That the inhabitants may carry on all sorts of com-
merce as British subjects. A Spanish man-of-war, The Trinidad,
sailed from Manila, 1st August, 1762, before the date of the capitula-
tion, but being damaged by storm put back to Manila to refit, and was
captured by H.M. ships Ar^o and Panther near the island of Oapult,
one of the Philippines, 30th October, 1762. The Trinidad and her
cargo were subsequently condemned in the Admiralty Court as lawful
prize to the Ar^o and Panther. On an appeal interposed in the name
of an inhabitant of Manila, the Lords declared that the capitulation
ought to be construed liberally in favour of the claimant, but that
there was no room for doubt. The agreement to preserve the city of
Manila from the plunderer and the inhabitants in their effects and
possessions, for a price to be paid, is manifestly ransoming what fell
under the power of the conqueror in consequence of the place having
been taken by storm, but can have no relation to any effects or
possessions in other parts of the world, not under the power of the
conqueror, nor subject to the fate of the place. Further, even if the
ship had not begun her voyage before the surrender, sailing a Spanish
man-of-war was not carrying on commerce as British subjects. And
the appeal was dismissed (y).
c 403^
Passports, safe-conducts, and Kcenses, are documents Passporta,'
granted in war to protect persons and property from the dnctsr^d
licenses.
(x) Flsssan, Histoire de la Diplomatie But see Hall, International Law, p. 553,
Frangaise, torn, vi pp. 97 — 107. An- for a somewhat different presentment of
nnal Begister, vol. i. pp. 209—213, 228 the facts to that contained in the text.
—234 ; Tol. xlii. p. 219, pp. 223—233. (y) The Santwima Trinidad, alias J?/
State Papersy vol. xliii. pp. 28 — 84. Poderoso, Marsden, Adm. Oases, 162,
5)50 BIGHTS OF WAK AS BETWEEN ENEMIES.
Part IV. general operation of hostilities. The competency of the
authority to issue them depends on the general principles
already noticed. This sovereign authority may be
vested in military and naval commanders, or in certain
civil officers, either expressly, or by inevitable implica-
tion from the nature and extent of their general trust.
Such documents are to be interpreted by the same rules
of liberality and good faith with other acts of the
§ 409. sovereign power (;?).
tiLX*51dth Thus a license granted by the belligerent State to its
the enemy, qwu subjccts, Or to the subjccts of its enemy, to carry
on a trade interdicted by war, operates as a dispensation
with the laws of war, so far as its terms can be fairly
construed to extend. The adverae belligerent party
may justly consider such documents of protection as per se
a ground of capture and confiscation ; but the maritime
tribunals of the State, under whose authority they are
issued, are bound to consider them as lawful relaxations
of the ordinary state of war. A license is an act pro-
ceeding from the sovereign authority of the State, which
alone is competent to decide on all the considerations of
political and commercial expediency, by which such an
exception from the ordinary consequences of war must
be controlled. Licenses, being high acts of sovereignty,
are necessarily stricti juris^ and must not be carried
further than the intention of the authority which grants
them may be supposed to extend. Not that they are to
be construed with pedantic accuracy, or that every
small deviation should be held to vitiate their fair effect.
An excess in the quantity of goods permitted might not
be considered as noxious to any extent, but a variation
in their quality or substance might be more significant,
because a liberty assumed of importing one species of
goods, under a license to import another, might lead to
very dangerous consequences. The limitations of time,
persons, and places, specified in the license, are also
(s) Orotins, de Jur. Bel. ac Pac. lib. iii. cap. 21, { 14. Vattel, I>nnt dee
Gens, liv. iii. ch. 17, {§ 266—277.
RIGHTS OF WAR AS BETWEEN ENEMIES. 551
material. The great principle in these cases is, that Chap. II.
subjects are not to trade with the enemy, nor the
enemy's subjects with the belligerent State, without the
special permission of the government; and a material
object of the control which the government exercises
over such a trade is, that it may judge of the fitness of
the persons, and under what restrictions of time and
place such an exemption from the ordinary laws of war
may be extended. Such are the general principles laid
down by Sir W. Scott for the interpretation of these
documents ; but Grotius lays down the general rule, that
safe-conducts, of which these licenses are a species, are
to be liberally construed ; laxa quam atricta interpretatio
admittenda est And during the last war, licenses were
eventually interpreted with great liberality in the British
Courts of Prize (a). n ^jq
It was made a question in some cases in those Courts, Authority
^ ... ^ to grant
how far these documents could protect against British Uoenses.
capture, on account of the nature and extent of the
authority of the persons by whom they were issued.
The leading case on this subject is that of The Uope^ an
American ship, laden with com and flour, captured
whilst proceeding from the United States to the ports of
the Peninsula occupied by the British troops, and
claimed as protected by an instrument granted by the
British consul at Boston, accompanied by a certified
copy of a letter from the admiral on the Halifax station.
In pronouncing judgment in this case, Sir W. Scott
observed that the instrument of protection, in order to
be effectual, must come from those who have a com-
petent authority to grant such a protection, but that the
papers in question came from persons who were vested
with no such authority. To exempt the property of
enemies from the effect of hostilities is a very high act
of sovereign authority ; if at any time delegated to
persons in a subordinate station, it must be exercised
(a) Ohittj's Law of Nations, ch. 7. Kent's Commentaries on American Law,
Tol. i. p. 163, note {b), 5th edit.
552 BIGHTS OF WAR AS BETWEEN ENEMIES.
Part IV. either by those who have a special commission granted
to them for the particular business, and who, in legal
language, are called mandatories ; or by persons in whom
such a power is vested in virtue of any situation to which
it may be considered incidental. It was quite clear that
no consul in any country, particularly in an enemy's
country, is vested with any such power in virtue of his
station. Ei rei non prceponitur^ and, therefore, his acts in
relation to it are not binding. Neither does the admiral,
on any station, possess such authority. He has, indeed,
power relative to the ships under his immediate com-
mand, and can restrain them from committing acts of
hostility ; but he cannot go beyond that ; he cannot grant
a safeguard of this kind beyond the limits of his own
station. The protections, therefore, which had been set
up did not result from any power incidental to the
situation of the persons by whom they had been granted;
and it was not pretended that any such power was
specially intrusted to them for the particular occasion.
If the instruments which had been relied upon by the
claimants were to be considered as the naked acts of
those persons, then they were, in every point of view,
totally invalid. But the question was, whether the
British government had taken any steps to ratify these
proceedings, and thus to convert them into valid acts of
state ; for persons not having full power may make what,
in law, are termed sponsiones^ or, in diplomatic language,
treaties siib spe ratzj to which a subsequent ratification
may give validity : ratihabitio mandato cequiparaiur. The
learned judge proceeded to show that the British govern-
ment had confirmed the acts of its oflScers, by the Order
in Council of the 26th October, 1813, and accordingly
decreed restitution of the property. In the case of The
Reward^ before the Lords of Appeal, the principle of this
judgment was substantially confirmed; but in that of
The Charles^ and other similar cases, where certificates or
passports of the same kind, signed by Admiral Sawyer,
and also by the Spanish minister in the United States,
had been used for voyages from thence to the Spanish
EIGHTS OF WAS AS BETWEEN ENEMIES. 553
West Indies, the Lords of Appeal held that these docu- Chap. II.
ments, not being included within the terras of the con-
firmatory Order in Council, did not afford protection.
In the cases of passports granted by the British minister
in the United States, permitting American vessels to sail
with provisions from thence to the island of St. Bartho-
lomew, but not confirmed by an Order in Council, the
Lords condemned in all the cases not expressly included
within the terms of the Order in Council, by which
certain descriptions of licenses granted by the minister
had been confirmed (b).
... §«0a.
A license may be vitiated by fraudulent conduct in obtaining it. yitaation of
The misrepresentation or suppression of material facts renders the licenses,
license a nullity, and exposes the property it is invoked to protect to
certain condemnation (c). A license must also be used in the manner
intended by the grantor. "It is a mistake to suppose that the right
of user may not be prejudiced by a construction of the grant that is
merely erroneous. It is absolutely essential that the will of the
grantor shall be observed ; so that that only shall be done which he
intended to permit ; whatever he did not mean to permit is absolutely
interdicted. Hence the party who uses the license, engages, not only
for fair intentions, but for an accurate interpretation and execution of
the grant" (</). In America it was determined that under the Act of
the 13th July, 1861, the President was the only functionary who could
grant a license to trade with the enemy. All other licenses were held
to be void, and therefore ships licensed by any one else were con-
demned ; and the persons acting under any but the President's licenses
were held to be trading with the enemy («).
The contract made for the ransom of enemy's pro- Ransom of
perty, taken at sea, is generally carried into effect by ^perty.
means of a safe-conduct granted by the captors, per-
mitting the captured vessel and cargo to proceed to a
designated port, within a limited time. Unless pro-
hibited by the law of the captor's own country, this
document furnishes a complete legal protection against
the cruisers of the same nation, or its allies, during the
period, and within the geographical limits, prescribed
{b) The Hope, 1 Dods. Ad. 226 ; Ibid. (d) Dner on Insurance, I. p. 598.
Appendix (D.). Stewart's Vice-Adm. Vandyek v. TFhUmore, 1 East, 475.
Rep. p. 367. W The Sea Lion, 5 Wallace, 630 ;
(e) Daer on Insurance, I. p. 59S. The Otvachita Cotton, 6 Wallace, 521 ;
The Cosmopolite, 4 C. Rob. 11 ; The Clio, M'Kee v. U, S,, 8 Wallace, 167 ; The
6 C. Rob. 69. Halleok, ch. xzyiii. { 6. Seform, 3 Wallace, 617.
554 RIGHTS OF WAR AS BETWEEN ENEMIES.
Part rv. by its terms. This protection results from the general
authority to capture, which is delegated by the belligerent
State to its commissioned cruisers, and which involves
the power to ransom captured property, when judged
advantageous. If the ransomed vessel is lost by the perils
of the sea, before her arrival, the obligation to pay the
sum stipulated for her ransom is not thereby extinguished.
The captor guarantees the captured vessel against being
interrupted in its course, or retaken, by other cruisers of
his nation, or its allies, but he does not insure against
losses by the perils of the seas. Even where it is ex-
pressly agreed that the loss of the vessel by these perils
shall discharge the captured from the payment of the
ransom, this clause is restrained to the case of a total
loss on the high seas, and is not extended to shipwreck
or stranding, which might afford the master a temptation
fraudulently to cast away his vessel, in order to save the
most valuable part of the cargo, and avoid the payment
of the ransom. Where the ransomed vessel, having ex-
ceeded the time or deviated from the course prescribed
by the ransom-bill, is re-taken, the debtors of the ransom
are discharged from their obligation, which is merged in
the prize, and the amount is deducted from the net pro-
ceeds thereof, and paid to the first captor, whilst the
residue is paid to the second captor. So if the captor,
after having ransomed a vessel belonging to the enemy,
is himself taken by the enemy, together with the ransom-
bill, of which he is the bearer, this ransom-bill becomes
a part of the capture made by the enemy; and the per-
sons of the hostile nation, who were debtors of the
ransom, are thereby discharged from their obligation.
The death of the hostage taken for the faithful perform-
ance of the contract on the part of the captured does not
discharge the contract ; for the captor trusts to him as a
collateral security only, and by losing it does not also
lose his original security, unless there is an express
agreement to that effect (/).
(/) Pothier, Traits de Fropri^t^, Noe. liv. ill. tit. 9 ; des Prises, art. 19. Traite
134<— 137. Valin, sor rOxdoxmanoe, des Prises, ch. ll, Kos. 1—3.
BIGHTS OF WAK AS BETWEEN ENEMIES. 655
Sir William Scott states, in the case of The Hoopy that Chap. II.
as to ransoms, which are contracts arising ex jure hellij
and tolerated as such, the enemy was not permitted to
sue in the British courts of justice in his oWn proper
person for the payment of the ransom, even before British
subjects were prohibited by the statute 22 Geo. III.
cap. 26, from ransoming enemy's property ; but the
payment was enforced by an action brought by the
imprisoned hostage in the courts of his own country for
the recovery of his freedom. But the effect of such a
contract, like that of every other which may be lawfully
entered into between belligerents, is to suspend the
character of enemy so far as respects the parties to the
ransom-bill; and consequently, the technical objection
of the want of dk persona standi injudicio cannot, on prin-
ciple, prevent a suit being brought by the captor directly
on the ransom-bill. And this appears to be the practice
in the maritime courts of the European continent {g).
§ 411a.
The Naval Prize Act, 1864, gives power to His Majesty in council British law
to make such orders as may seem expedient for prohibiting or allow- ®* rw^o™-
ing the ransom of British ships taken as prize by the enemy. If any
person ransoms or agrees to ransom any ship or goods in contravention
of such orders, he may on conviction be fined any sum not exceeding
500/. by the Admiralty Court (A). g 411b.
In 1874, a conference, attended by delegates from all the countries The BrusseU
of Europe, assembled at Brussels, on the invitation of the Emperor of J^^®'®^^®*
Hussia, for the purpose of discussing a project of international rules
on the laws and usages of war. A series of rules on the subjects con-
sidered in this chapter was agreed to, but no international compact
was entered into. ^^A careful consideration of the whole matter,*'
wrote Lord Derby, ** has convinced Her Majesty's government that it
is their duty £rmly to repudiate, on behalf of Great Britain and her
allies in any future war, any project for altering the principles of
international law upon which this country has hitherto acted, and
above aU to refuse to be a party to any agreement the effect of which
would be to facilitate aggressive wars, and to paralyse the patriotic
efEortB of an invaded people " {%), Nevertheless, though not abso-
{ff) The Koop, 1 0. Bob. 201. See (A) 27 & 28 Yiot. o. 25, s. 45. And
Lord Manflfield's judgment in the oaee see Maisonnaire v. Keating, 2 Gallison,
of jRicord v. Bettenham, Burrow's Bep. 337 ; Miller y. The Eeaolution, 2 Dallas,
p. 1734; Pothier, Propriet6, Nob. 136, 15; Cobbett, L. C, 119, 120.
137. (») Lord Derby to Lord A. Loftus,
658 EIGHTS OF WAR AS BETWEEN ENEMIES.
Fart IV. lutelj binding, the rules were of great value in exhibiting the prevail-
ing ideas in a definite form (k) ; and many of them have found a place
in the Manuals of War now issued by most civilized governments for
the instruction of their officers in the field (l),
Hagae Con- At the Hague Peace Conference of 1899, the representatives of all
1899.^^^ ^ ^® States there assembled, with the exception of China, signed the
following Convention concerning the laws and customs of land warfare.
It is based to a large extent on the Declaration of Brussels ; it allows
the adhesion of non-signatoiy powers and denunciation by any one of
the signatories on a year's notice to the Netherland government (m).
Sect. I.— ON BELLIGEEENTS.
Chap. I. — On the Qualificattona of Belligerents .
§ 411o. Article 1. The laws, rights, and duties of war apply not only to
armies, but also to militia and volunteer corps, fulfilling the following
conditions:— (1) To be commanded by one person responsible for his
subordinates ; (2) To have a fixed distinctive emblem recognizable at a
distance ; (3) To carry arms openly; and (4) To conduct their opera-
tions in accordance with the laws and customs of war. In countries
where militia or volunteer corps constitute the army, or form part of
it, they are included under the denomination " army."
Art. 2. The population of a territory which has not been occupied
who, on the enemy's approach, spontaneously take up arms to resist
the invading troops without having time to organize themselves in
accordance with Article 1, shall be regarded as belligerent, if they
respect the laws and customs of war.
Art. 3. The armed forces of the belligerent parties may consist of
combatants and non-combatants. In case of capture by the enemy
both have a right to be treated as prisoners of war.
CuAP. II. — On Prisoners of War,
§ 411d. Art. 4. Prisoners of war are in the power of the hostile government,
but not in that of the individuals or corps who captured them. They
must be humanely treated. All their personal belongings, except
arms, horses, and military papers, remain their property.
Art. 5. Prisoners of war may be interned in a town, fortress, camp,
or any other locality, and bound not to go beyond certain fixed limits ;
but they can only be confined as an indispensable measure of safety.
Art. 6. The State may utilize the labour of prisoners of war accord-
ing to their rank and aptitude. Their tasks shall not be excessive, and
20th January, 1875. Hertalet, Map of (/) Maine. Int. Law, Leot. X. p. 176 ;
Europe, vol. iii. p. 1976. ante, p. 28, note.
(k) The whole of the proceedings of , ^ ,» ,. . t> -.r- ,i
the Conference .lill be found in Pari. W Parliamentary Papers, Mucella-
Papers, MisceUaneous (No. 1), 1876. ^^^y ^o. 1 (1899) [0. 9634].
EIGHTS OF WAR AS BETWEEN ENEMIES.
657
shall have nothing to do with the military operations. Prisoners Chap. II.
may be authorized to work for the public service, for private persons,
or on their own account. Work done for the State shall be paid for
according to the tariffs in force for soldiers of the national army
employed on similar tasks. When the work is for other branches of
the public service or for private persons, the conditions shall be settled
in agreement with the military authorities. The wages of the prisoners
shall go towards improving their position, and the balance shall be
paid them at the time of their release, after deducting the cost of their
maintenance.
Art. 7. The government into whose hands prisoners of war have
fallen is bound to maintain them. Failing a special agreement between
the belligerents, prisoners of war shall be treated as regards food,
quarters, and clothing, on the same footing as the troops of the govern-
ment which has captured them.
Art. 8. Prisoners of war shall be subject to the laws, regulations,
and orders in force in the army of the State into whose hands they
have fallen. Any act of insubordination warrants the adoption, as
regards them, of such measures of severity as may be necessary.
Escaped prisoners, recaptured before they have succeeded in rejoining
their army, or before quitting the territory occupied by the army that
captured them, are liable to disciplinary punishment. Prisoners who,
after succeeding in escaping, are again taken prisoners, are not liable
to any punishment for the previous flight.
Art. 9, Every prisoner of war, if questioned, is bound to declare his
true name and rank, and if he disregards this rule he is liable to a
curtailment of the advantages accorded to the prisoners of war of his
class.
Art. 10. Prisoners of war may be set at liberty on parole if the laws
of their country authorize, and, in such a case, they are bound, on
their personal honour, scrupulously to fulfil, both as regards their own
government and the government by whom they were made prisoners,
the engagements they have contracted. In such cases, their own
government shall not require of nor accept from them any service
incompatible with the parole given.
Art. 1 1 . A prisoner of war cannot be forced to accept his liberty on
parole ; similarly the hostile government is not obliged to assent to the
prisoner's request to be set at liberty on parole.
Art. 12. Any prisoner of war, who is liberated on parole and
recaptured bearing arms against the government to whom he had
pledged his honour, or against the allies of that government, forfeits
his right to be treated as a prisoner of war, and can be brought before
the Courts.
Art. 13. Individuals who follow an army without directly belonging
to it, such as newspaper correspondents and reporters, sutlers, con-
tractors, who fall into the enemy's hands, and whom the latter tTn'nlr
fit to detain, have a right to be treated as prisoners of war, provided
568 RIGHTS OF WAR AS BETWEEN ENEMIES.
Part IV. ^^^y c&^ produce a certificate from tlie military authorities of the
army they were accompanying.
Art. 14. A Bureau for information relative to prisoners of war is
instituted, on the commencement of hostilities, in each of the belli-
gerent States, and, when necessary, in the neutral countries on whose
territory belligerents have been received. This Bureau is intended to
answer all inquiries about prisoners of war, and is furnished by the
various services concerned with all the necessary information to enable
it to keep an individual return for each prisoner of war. It is kept
informed of internments and changes, as well as of admissions into
hospitals and deaths. It is also the duty of the Information Bureau to
receive and collect all objects of personal use, valuables, letters, &c.,
found on the battlefields or left by prisoners who have died in hospital
or ambulance, and to transmit them to those interested.
Art. 15. BeKef societies for prisoners of war, which are regularly
constituted in accordance with the law of the country with the object
of serving as the intermediary for charity, shall receive from the
belligerents for themselves and their duly accredited agents every
facility, within the bounds of military requirements and administratiFe
regidations, for the effective accomplishment of their humane task.
Delegates of these societies may be admitted to the places of intern-
ment for the distribution of relief, as also to the halting places of
repatriated prisoners, if furnished with a personal permit by the
military authorities, and on giving an engagement in writing to comply
with all their regulations for order and police.
Art. 16. The Information Bureau shall have the privilege of free
postage. Letters, money orders, and valuables, as well as postal parcels
destined for the prisoners of war, or despatched by them, shall be free
of all postal duties, both in the countries of origin and destination, as
well as in those they pass through. Oifts and relief in kind for
prisoners of war shall be admitted free of all duties of entry and others,
as well as of payments for carriage by the government railways.
Art. 17. Officers taken prisoners may receive, if necessary, the full
pay allowed them in this position by their country's regulations, the
amount to be repaid by their government.
Art. 18. Prisoners of war shall enjoy every latitude in the exercise
of their religion, including attendance at their own church services,
provided only they comply with the regulations for order and police
issued by the military authorities.
Art. 19. The wills of prisoners of war are received or drawn up on
the same conditions as for soldiers of the national army. The same
rules shall be observed regarding death certificates, as well as for the
burial of prisoners of war, due regard being paid to their grade and
rank.
Art. 20. After the conclusion of peace the repatriation of prisoners
of war shall take place as speedily as possible.
RIGHTS OF WAR AS BETWEEN ENEMIES.
Chap. Hl.—On the Sick and Wounded.
569
Chap. II.
Art. 21. The obligations of belligerents with regard to the sick and o ^Hq^
wounded are governed by the Geneva Convention of the 22nd August,
1864, subject to any modifications which may be introduced into it.
Sect. H.-ON HOSTILITIES.
Chap. I. — On means of Injuring the Enemy, Sieges, and Bombardments,
Art. 22. The right of belligerents to adopt means of injuring the c 4jxf.
enemy is not unlimited.
Art. 23. Besides the prohibitions provided by special conventions, it
is especially prohibited: — (a) To employ poison or poisoned arms;
(b) To kill or wound treacherously individuals belonging to the hostile
nation or army ; (c) To kill or wound any enemy who, having laid down
arms, or having no longer means of defence, has surrendered at dis-
cretion ; (d) To declare that no quarter will bo given ; (e) To employ
arms, projectiles, or material of a nature to cause superfluous injury ;
(f) To make improper use of a flag of truce, the national flag, or
military ensigns, and the enemy's uniform, as well as the distinctive
badges of the Geneva Convention ; (g) To destroy or seize the enemy's
property, unless such destruction or seizure be imperatively demanded
by the necessities of war.
Art. 24. Euses of war and the employment of methods necessary to
obtain information about the enemy and the country are considered
allowable.
Art. 25. The attack or bombardment of towns, villages, habitations,
or buildings, which are not defended, is prohibited.
Art. 26. The commander of an attacking force, before commencing
a bombardment, except in the case of an assault, should do all he can
to warn the authorities.
Art. 27. In sieges and bombardments all necessary steps should be
taken to spare as far as possible edifices devoted to religion, art,
science, and charity, hospitals, and places where the sick and wounded
are collected, provided they are not used at the same time for military
purposes. The besieged should indicate these buildings or places by
some particular and visible signs, which should previously be notified
to the assailants.
Art. 28. The pillage of a town or place, even when taken by assault,
is prohibited.
Chap. II. — On Spies.
Art. 29. An individual can only be considered a spy if, acting clan- c 41I9
destinely or on false pretences, he obtains, or seeks to obtain, informa-
tion in the zone of operations of a belligerent, with the intention of
communicating it to the hostile party. Thus, soldiers not in disguise
who have penetrated into the zone of operations of a hostile army to
obtain information are not considered spies. Similarly the following
660
RIGHTS OF WAR AS BETWEEN ENEMIES.
Part IV. are not considered spies : soldiers or civilians, carrying out their mis-
sion openly, charged with the delivery of despatches destined either
for their own army or for that of the enemy. To this class belong
likewise individuals sent in balloons to deliver despatches, and gene-
rally to maintain communication between the various parts of an army
or a territory.
Art. 30. A spy taken in the act cannot be punished without previous
trial.
Art. 31. A spy who, after rejoining the army to which he belongs,
is subsequently captured by the enemy, is treated as a prisoner of
war, and incurs no responsibility for his previous acts of espionage.
Chap. III.— 0» Flags of Truce.
§ 411h. Art. 32. An individual is considered as bearing a flag of truce who
is authorized by one of the belligerents to enter into communicatioiL
with the other, and who carries a white flag. He has a right to
inviolability, as well as the trumpeter, bugler, or drummer who may
accompany him.
Art. 33. The chief to whom a flag of truce is sent is not obliged to
receive it in all circumstances. He can take all steps necessary to
prevent the envoy taking advantage of his mission to obtain informa-
tion. In case of abuse he has the right to detain the envoy tem-
porarily.
Art. 34. The envoy loses his rights of inviolability if it is proved
beyond doubt that he has taken advantage of his privileged position
to provoke or commit an act of treachery.
Chap. IV. — On Capitulations,
§ 4111. Art. 35. Capitulations agreed on between the contracting parties
must be in accordance with the rules of military honour. When once
settled they must be observed by both the parties.
Chap. V. — On Armistices.
§ 411k. Art. 36. An armistice suspends military operations by mutual agree-
ment between the belligerent parties. If its duration is not fixed, the
belligerent parties can resume operations at any time, provided
always the enemy is warned within the time agreed upon, in accord-
ance with the terms of the armistice.
Art. 37. An armistice may be general or local. The first suspends
all military operations of the belligerent States ; the second only those
between certain fractions of the belligerent armies, and in a fixed
radius.
Art. 38. An armistice must be notified officially, and in good time,
to the competent authorities and the troops. Hostilities are suspended
immediately after the notification, or on a fixed date.
RIGHTS OF WAR AS BETWEEN ENEMIES.
661
Art. 89. It is for the contracting parties to settle in the terms of the Chap. II.
armistice what communications may be held, on the theatre of war,
with the population and with each other.
Art. 40. Any serious violation of the armistice by one of the parties
gives the other party the right to denounce it, and even, in case of
urgency, to recommence hostilities at once.
Art. 41. A violation of the terms of the armistice by private
individuals, acting on their own initiative, only confers the right of
demanding the punishment of the offenders, and, if necessary,
indemnity for the losses sustained.
Sbct. m.— on melitaet authoritt over hostile
TERRITORY.
Art. 42. Territory is considered occupied when it is actually placed § 411 1.
under the authority of the hostile army. The occupation applies only
to the territory where such authority is established, and in a position
to assert itself.
Art. 43. The authority of the legitimate power having actually
passed into the hands of the occupant, the latter shall take all steps in
his power to re-establish and insure, as far as possible, public order
and safety, while respecting, unless absolutely prevented, the laws in
force in the country.
Art. 44. Any compulsion of the population of occupied territory to
take part in military operations against its own country is prohibited.
Art. 45. Any pressure on the population of occupied territory to
take the oath to the hostile power is prohibited.
Art. 46. Family honours and rights, individual lives and private
property, as well as religious convictions and liberty, must be respected.
Private property cannot be confiscated.
Art. 47. Pillage is formally prohibited.
Art. 48. If, in the territory occupied, the occupant collects the taxes,
dues, and tolls imposed for the benefit of the State, he shall do it as
far as possible in accordance with the rules in existence and the assess-
ment in force, and will in consequence be bound to defray the expenses
of the administration of the occupied territory on the same scale as
that by which the legitimate government was bound.
Art. 49. If, besides the taxes mentioned in the preceding article, the
occupant levies other money taxes in the occupied territory, this can
only be for military necessities, or the administration of such territory.
Art. 50. No general penalty, pecuniary or otherwise, can be inflicted
on the population on account of the acts of individuals, for which it
cannot be regarded as collectively responsible.
Art. 51. No tax shall be collected except under a written order and
on the responsibility of a commander-in-chief. This collection shall
only take place, as far as possible, in accordance with the rules in
existence and the assessment of taxes in force. For every payment a
receipt shall be given to the taxpayer.
w. o o
562 SIGHTS OF WAB A8 BBTWBEST EVEICIES.
Part IT. Alt. 52. Neither reqnuitioiiB ia kind nor services can be demanded
from oommimes or inhshitmnts exe^ for the neeessitiesof the army of
oocopation. Thej must be in proportion to the resources of the
eoontiyy and of such a nature as not to inTolre the population in the
obligation of taking part in militaiy operations against their oonntiy.
These requisitions and serriees shall onl j be demanded on the autho-
ritj of the commander in the localitj oceapied. The contributions in
kind shall, as iar as possiUe, be paid for in ready money ; if not, their
receipt shaU be acknowledged.
Art. 53. An army of occupation can only take possession of the
cash, funds, and bills payable on demand (n) belonging strictly to the
State, depots of arms, means of transport, stores and supplies, and,
generally, aU moyable property of the State which may be used for
nulitaiy operations. Bailway plant, land telegraphs, telephones,
steamers, and other ships, apart horn cases governed by maritime law,
as well as depots of arms, and, generally, all kinds of war material,
even though belonging to companies or to private persons, are likewise
material which may serve for military operations, but they must be
restored at the conclusion of peace, and indemnities paid for them.
Art. 54. The plant of railways coming from neutral States, whether
the property of those States, or of companies, or of private persons,
shall be sent back to them as soon as possible.
Art. 55. The occupjring State shall only be regarded as administrator
and usufructuary of the public buildings, real property, forests, and
agricultural works belonging to the hostile State, and situated in the
hostile country. It must protect the capital of these properties, and
administer it according to the rules of usufruct
Art. 56. The property of the conununes, that of religious, charitable,
and educational institutions, and those of arts and science, even when
State property, shall be treated as private property. All seizure of,
and destruction, or intentional damage done to such institutions, to
historical monuments, works of art or science, is prohibited, and should
be made the subject of proceedings.
S 411nu Sbot. IV.— on THE INTERNMENT OF BELMOERENTS AND
THE CARE OF THE WOUNDED IN NEUTRAL
COUNTRIES.
Art. 67. A neutral State which receives in its territory troops belong-
ing to the belligerent armies shall intern them, as far as possible, at a
distance ^m the theatre of war. It can keep them in camps, and
even confine them in fortresses, or localities assigned for this purpose.
It shall decide whether officers may be left at liberty on giving their
parole that they will not leave the neutral territory without authoriza-
tion.
(») Let valeurt exi^ibUt, stzangely mistraiislated "property liable to reqoiflition ''
in the Psrliamentazy Papen.
EIGHTS OF WAR AB BETWEEN ENEMIES. 663
Art. 58. Failing a special convention, the neutral State shall supply Chap. II.
the interned with the food, clothing, and relief required by humanity.
At the conclusion of peace the expenses caused by the internment
shall be made good.
Art. 59. A neutral State may. authorize the passage through its terri-
tory of wounded or sick belonging to the belligerent armies, on condi-
tion that the trains bringing them shall carry neither combatants nor
war material. In such a case, the neutral State is bound to adopt such
measures of safety and control as may be necessary for the purpose.
Wounded and sick brought under these conditions into neutral territory
by one of the belligerents, and belonging to the hostile party, must be
guarded by the neutral State, so as to insure their not taking part
again in the military operations. The same duty shall devolve on the
neutral State with regard to wounded or sick of the other army who
may be conmiitted to its care.
Art. 60. The Geneva Convention applies to sick and wounded
interned in neutral territoiy.
oo2
564
Part IV.
BIGHTS OF yfAS, AS TO MEDTBAXS.
CHAPTER m.
§412.
Defmition of
neutrality.
EIGHTS OF WAB AS TO NEUTRALS.
It deserves to be remarked, that there are no words in
the Greek or Latin language which precisely answer to
the English expressions, neutral and neutrality. The terms
neutralise neutralitaSy which are used by some modem
writers, are barbarisms, not to be met with in any
classical author. The Roman civilians and historians
make use of the words amici^ medii^ pacaU, sociiy which
are very inadequate to express what we understand by
neutrals^ and they have no substantive whatever corre-
sponding to neutrality. The cause of this deficiency is
obvious. According to the laws of war, observed even
by the most civilized nations of antiquity, the right of
one nation to remain at peace, whilst other neighbour-
ing nations were engaged in war, was not admitted to
exist. He who was not an ally was an enemy ; and as
no intermediate relation was known, so no word had
been invented to express such relation. The modem
public jurists, who wrote in the Latin language, were
consequently driven to the necessity of inventing terms
to express those international relations which were un-
known to the Pagan nations of antiquity, and which had
grown out of a milder dispensation, struggling against
the inveterate customs of the dark ages which preceded
the revival of letters. Grotius terms neutrals medii^
*^ middle men "(a). Bynkershoek, in treating of the
subject of neutrality, says: — "iVim hostes appello, qui
neutrarum partium sunt, nee ex f oedere his illisve quic-
(a) Grotixis, de Jnr. Bel. ao Pao. lib. iii. cap. 9.
RIGHTS OF WAR AS TO NEUTRALS. 665
quam debent; si quid debeant, Foederati sunt, non Chap^m*
simpliciter Amici " (b).
There are two species of neutrality recognized by Different '
international law. These are — 1st, Natural, or perfect ^eutoUty.
neutrality; and 2nd, Imperfect, qualified, or conven-
tional neutrality. § 4^4
1st. Natural, or perfect neutrality, is that which every ^®™°J..
sovereign State has a right, independent of positive
compact, to observe in respect to the wars in which other
States may be engaged.
The right of every independent State to remain at
peace, whilst other States are engaged in war, is an
incontestable attribute of sovereignty. It is, however,
obviously impossible, that neutral nations should be
wholly unaffected by the existence of war between those
communities with whom they continue to maintain their
accustomed relations of friendship and commerce. The
rights of neutrality are connected with correspondent
duties. Among these duties is that of impartiality
between the contending parties. The neutral is the
common friend of both parties, and consequently is not
at liberty to favour one party to the detriment of the
other (c). Bynkershoek states it to be "the duty of
neutrals to be every way careful not to interfere in the
war, and to do equal and exact justice to both parties.
Bella 86 non interponant^^^ that is to say, "as to what
relates to the war, let them not prefer one party to the
other, and this is the only proper conduct for neutrals.
A neutral has nothing to do with the justice or injustice
of the war; it is not for him to sit as judge between his
friends, who are at war with each other, and to grant
or refuse more or less to the one or the other, as he
thinks that their cause is more or less just or unjust. If
(6) « I call nmtrals {non hotUt) thoee non hostee. We ahall hereafter see that
who take part with neither of the hel- thia definition is merel7 applicahle to
ligerent powers, and who are not honnd that species of neutrality which is not
to either hy any alliance. If they are modified hy special compact.
BO hound, they are no longer nsutrala {e) Bynkershoek, Qunst. Jur. Pub.
hut a/ft«ff.*' Bynkershoek, Qusst. Jur. lib. i. cap. 9. Vattel, Droit des Gens,
Pub. lib. i. cap. 9. De Statu belli inter liv. iii. oh. 7, (MO^— 11<^«
566
BIGHTS OF WAB AS TO NEUTRAUS.
Part IV.
§416.
Lnpeifeot
neatrftlity.
§416.
Neutrality
of the Swiss
Confedera-
tion.
I am a neutral, I ought not to be useful to the one, in
order that I may hurt the other " (d).
These, Bynkershoek adds, are " the duties applicable
to the condition of those powers who are not bound by
any alliance, but are in a state of perfect neutrality.
These I merely callyrii^n^fe, in order to distinguish them
from confederates and allies " {e\
2nd. Imperfect, qualified, or conventional neutrality,
is that which is modified by special compact.
The public law of Europe affords several examples of
this species of neutrality.
1. Thus the political independence of the confederated
Cantons of Switzerland, which had so long existed in
fact, was first formally recognized by the Germanic
Empire, of which they originally constituted an integral
portion, at the peace of Westphalia, in 1648. The Swiss
Cantons had observed a prudent neutrality during the
thirty years' war, and from this period to the war of the
French Revolution, their neutrality had been, with some
slight exceptions, respected by the bordering States.
But this neutrality was qualified by the special compact
existing between the Confederation, or the separate
Cantons, and foreign States, forming treaties of alliance
or capitulations for the enlistment of Swiss troops in
the service of those States. The policy of respecting
the neutrality of Switzerland was mutually felt by the
two great monarchies of France and Austria, during
their long contest for supremacy under the houses of
Bourbon and Hapsburg. Such is the peculiar geo-
graphical position of Switzerland, between Germany,
France, and Italy, among the stupendous mountain
chains from which flow the great rivers, the Danube,
the Rhine, the Rhone, and the Po, that if the passage
through the Swiss territories were open to the Austrian
armies, they might communicate freely from the valley
of the Danube to the valley of the Po, and thus menace
the frontier of France from Basle to Nice. To guard
(<Q Bynkerahoeky Qusst. Jur. Pub.
lib. i. cap. 9.
(#) Bynkerahoek, Qimet. Jnr. Fob.
lib. i. cap. 9.
BIGHTS OF WAB AS TO NEUTRALS.
667
against this impending danger, France must be fortified ^^P- ™'
along the whole of this frontier; whilst, on the other
hand, if the passes of the Swiss Alps are shut against
her enemy, she may concentrate all her forces upon the
Rhine ; since all history shows that the attempts of the
Imperialists to penetrate into the southern provinces of
France by the Var have ever failed, owing to the
remoteness and difficulty of the scene of operations.
The advantages to be derived by France from the per-
manent neutrality of Switzerland are therefore manifest.
Nor is this neutrality less essential to the security of
Austria. Let Switzerland once become a lawful battle
ground for the bordering States, and the French armies
would be sure to anticipate its occupation by the
Austrians. The two great Austrian armies operating,
whether for offence or defence, the one in Swabia, the
other in Italy, being separated by the massive rampart of
the Alps, would have no means of communicating with
each other; whilst the French forces, advancing from
the Lake of Constance on the one side, and the great
chain of the Alps on the other, might attack either the
flank of the Austrian army in Swabia or the rear of its
army in Italy (/). ^ ^^^
During the wars of the French Revolution the neutra- Switeeriand
lity of Switzerland was alternately violated by both the ofrS^oh"
great contending parties, and her once peaceful valleys "^^^i^^®^-
became the bloody scene of hostilities between the
French, Austrian, and Russian armies. The expulsion
of the allied forces, and the subsequent withdrawal of the
French army of occupation, were followed by violent
internal dissensions, which were finally composed by the
mediation of Bonaparte as first consul of the French
Republic, in 1803. A treaty of alliance was simul-
taneously concluded between the Republic and the
Helvetic Confederation. According to the stipulations
of this treaty, the neutrality of Switzerland was recog-
(/) Thiers, Histoiie da Gonsnlat et neutrality-, always important, has be-
de I'Empire, torn. i. lir. 3, p. 182. Since oome a matter of deepest interest to
1871 the preaeKTatdan inviolate of Swiss Germany looking to Eranoe.
668 HIGHT8 OF WAR AS TO NEUTRAUS.
PartlY. nizod by France, whilst the Confederation stipulated not
to grant a passage through its territories to the armies of
France, and to oppose such passage by force of arms in
case of its being attempted. The Confederation also
engaged to permit the enlisting of eight thousand Swiss
troops for the service of France, in addition to the sixteen
tliousand troops to be furnished according to the capitu-
lation signed on the same day with the treaty. It was,
at the same time, expressly declared that its alliance,
being merely defensive, should not, in any respect, be
construed to prejudice the neutrality of Switzerland (y).
Ptopoii of When the allied armies advanced to invade the French
Switzerland territory, in 1813, the Austrian corps under Prince
Schwartzenberg passed through the territory of Switzer-
land, and crossed the Rhine at three different places, at
Basle, Lauffenberg, and Schaffhausen, without opposition
on the part of the federal troops. The perpetual neu-
trality of Switzerland was, nevertheless, recognized by
the final act of the Congress of Vienna, March 20th,
1815 (A) ; but on the return of Napoleon from the Island
of Elba, the allied powers invited the Confederation to
accede to the general coalition against France. In the
official note delivered by their ministers to the Diet at
Zurich, on the 6th of May, 1815, it was stated, that
although the allied powers expected that Switzerland
would not hesitate to unite with them in accomplishing
the common object of alliance, which was to prevent the
re-establishment of the usurped revolutionary authority
in France, yet they were far from proposing to Switzer-
land the development of a military force disproportioned
to her resources and to the usages of her people. They
respected the military system of a nation, which, un-
influenced by the spirit of ambition, armed for the single
purpose of defending its independence and its tranquility.
The allied powers well knew the importance attached by
Switzerland to the maintenance of the principle of her
is) Sohodli HiBtoire dee Trait^s de (A) Wheaton's Hist. Law of Nationa,
Paix, torn. iL oh. 33, p. 839. p. 493.
RIGHTS OF WAR AS TO NEUTRALS.
669
neutrality ; and it was not with the purpose of violating Chap. III.
this principle, but with the view of accelerating the
epoch when it might become applicable in an advan-
tageous and permanent manner, that they proposed to
the Confederation to assume an attitude and to adopt
energetic measures, proportioned to the extraordinary
circumstances of the moment without at the same time
forming a rule for the future (i). „ .-g
In the answer of the Diet to this note, dated the Reply of the
12th May, 1815, it was declared, that the relations which ^^
Switzerland maintained with the allied powers, and with
them only, could leave no doubt as to her views and
intentions. She would persist in them with that con-
stancy and fidelity which had at all times distinguished
the Swiss character. Twenty-two small republics,
united together for their security and the maintenance
of their independence, must seek for their national
strength in the principle of their Confederation. This
resulted inevitably from the nature of things, the
geographical position, the constitution, and the character
of the Swiss people. A consequence of this principle
was the neutrality of Switzerland, recognized as the basis
of its future relations with all other States. It followed
from the same principle, that the most efficacious partici-
pation of Switzerland ia the great struggle which was
about to take place, must necessarily consist in the
defence of her frontiers. In adopting this course, she
did not separate herself from the common cause of the
allied powers, which thus became her own national
cause. The defence of a frontier fifty leagues in length,
serving as a point d^appui for the movements of two
armies, was in itself a co-operation not only real, but
also of the highest importance. More than thirty
thousand men had already been levied for this purpose.
Determined to maintain this development of her forces,
Switzerland had a right to expect from the favourable
disposition of the allied powers, that, so long as she did
(0 MartenB, Noavean Reoadl, torn. ii. p. 166.
670 BIGHTS OP WAR AS TO NEUTRALS,
Part IV. not claim their assistance, their armies would respect the
integrity of her territory. Assurances to this effect on
their part were absolutely necessary in order to tranquil-
lize the Swiss people, and engage them to support with
fortitude the burden of an armament so considerable {k).
On the 20th of May, 1815, a convention was concluded
at Zurich, to regulate the accession of Switzerland to the
general alliance between Austria, Great Britain, Prussia,
and Russia ; by which the allied powers stipulated, that,
in case of urgency, where the common interest rendered
necessary a temporary passage across any part of the
Swiss territory, recourse should be had to the authority
of the Diet for that purpose. The left wing of the allied
army accordingly passed the Rhine between Basle and
Rheinf elden, and entered France through the territory of
Switzerland (I).
Declaration On the re-cstablishment of the general peace, a decla-
to Swiss" ration was signed at Paris, on the 20th November, 1815,
neutrauty. y^^ ^j^^ ^^^^ allied powcrs and France, by which these
five powers formally recognized the perpetual neutrality
of Switzerland, and guaranteed the integrity and inviola-
bility of her territory vnthin its new limits, as established
by the final act of the Congress of Vienna, and by the
Treaty of Paris of the above date. They also declared
that the neutrality and inviolability of Switzerland, and
her independence of all foreign influence, were conform-
able to the true interests of the policy of all Europe, and
that no inference unfavourable to the rights of Switzer-
land, in respect to her neutrality, ought to be drawn
from the circumstances which had led to the passage of
a part of the allied forces across the Helvetic territory.
This passage, freely granted by the cantons in the con-
vention of the 20th May, was the necessary result of the
entire adherence of Switzerland to the principles mani-
fested by the allied powers in the treaty of alliance of
the 25th March (m).
{k) Martens, torn. il. p. 170. (^ Martens, torn. iv. p. 186.
(0 iwd.
EIGHTS OP WAR AS TO NEUTRALS. 571
At the second Peace of Paris, 1815, the allied powers agreed that Chap. III.
the neutrality of Switzerland should be extended to a portion of g 420a
Savoy, at that time a part of the kingdom of Sardinia (n). In 1860, Neutrality of
Savoy was transferred by Sardinia to France. By the second article part of Savoy,
of the Treaty of Transfer it was provided *^ that his Majesty the King
of Sardinia cannot transfer the neutralized parts of Savoy, except on
the conditions upon which he himself possesses them, and that it will
appertain to his Majesty the Emperor of the French to come to an
understanding on this subject, both with the powers represented at the
Congress of Vienna, and with the Swiss Confederation, and to give
them the guaranties required by the stipulations referred to in this
article " (o). No such understanding has, however, yet been arrived
at(p). At the outbreak of the Franco-German war, the Swiss
Government declared that Switzerland would maintain and defend
during that war her neutrality and the integrity of her territory by all
the means in her power; and that if violence was offered to that
neutrality she would energetically repulse every aggression. With
reference to the neutralized parts of Savoy, the Swiss Government
reminded the powers that Switzerland had a right to occupy that
territory, and that the right would be exercised in accordance with the
treaties respecting it, should circumstances require its exercise for the
defence of Swiss neutrality (y). The French Minister, the Due de
Grammont, replied that ^*he had not rejected nor even contested the
right so claimed by Switzerland, but had confined himseK to declaring
that, under the eventualities referred to, it would have to be made the
subject of special arrangement between the two governments " (r).
The question did not arise, as the war did not extend to that part of
France.
2. The geographical position of Belgium, forming a Neuirautyof
natural barrier between France on the one side, and ®^'^"^-
Germany and Holland on the other, would seem to
render the independence and neutrality of the first-
mentioned country as essential to the preservation of
peace between the latter powers, as is that of Switzer-
land to its maintenance between FrancQ and Austria.
Belgium covers the most vulnerable point of the northern
frontier of France against invasion from Prussia, whilst
it protects the entrance of Germany against the armies
of France, on a frontier less strongly fortified than that
of the Rhine from Basle to Mayence. But so long as
(n) Art iii. Hertalet, Hap of En- (q) Note of Swiss Qoyemment, 18th
rope, Tol. i. p. 346. July, 1870.
(o) Dnd. vol. ii. p. 1430. (r) AxohiTes DiplomatiqaeB, 1871-2,
Ip) OalTO, vol. ii. } 1046. Pt. I. p. 262.
672 BIGHTS OF WAR AS TO NEUTRALS.
Part IV. the Low Countries belonged to the house of Austria,
either of the Spanish or the German branch, these pro-
vinces had been, for successive ages, the battle-ground
on which the great contending powers of Europe
struggled for the supremacy. The security of the inde-
pendence of Holland against the encroachments of
France was provided for by the barrier-treaties con-
cluded at Utrecht, in 1713, and at Antwerp, in 1715,
between Austria, Great Britain, and Holland, by which
the fortified towns on the southern frontier of the
Austrian Netherlands were to be permanently garrisoned
with Dutch troops. The kingdom of the Netherlands
was created by the Congress of Vienna, in 1815, for the
purpose of forming a barrier for Germany against
France ; and on the dissolution of that kingdom into its
original component parts, the perpetual neutrality of
Belgium was guaranteed by the five great European
powers, and made an essential condition of the recogni-
tion of her independence, in the treaties for the separa-
tion of Belgium from Holland (s).
§421a.
Belgian In 1870, treaties were entered into by England with France and
1870*^*^ ^ Prussia for the maintenance of the neutrality of Belgium during the
war, each of the belligerents binding themselves to co-operate with
England in case this neutrality was violated by the other. These
treaties were to last during the war, and for twelve months after the
ratification of any treaty of peace {t).
Neutrality 3. Wo havo already seen that by the final act of the
ofOraoow. CongTCSs of Vienna, 1815, art. 6, the city of Cracow,
with its territory, is declared to be a perpetually free,
independent, and neutral State, under the joint protec-
tion of Austria, Prussia, and Russia (w). The neutraHty,
thus created by special compact, and guaranteed by the
three protecting powers, is made dependent upon the
reciprocal obligation of the city of Cracow not to afford
an asylum, or protection, to fugitives from justice, or
(«) Wheaton*8 Hirt. Law of Nations, pp. 1886—1891.
p. 562. M Vid0 iupra, Pt I. oh. 2, i 34,
{t) Hertdet, Hap of Europe, toI. iii. note (A).
EIGHTS OP WAR AS TO NEUTRALS. 873
military deserters belonging to the territories of those CSiap. III.
powers. How far the neutrality of the free and inde-
pendent State thus created has been actually respected by
the protecting powers, or how far the successive temporary
occupations of its territory by their military forces, and
how far their repeated forcible interference in its internal
affairs, may have been justified by the non-fulfilment of
the above obligation on the part of Cracow, or by other
circimistances authorizing such interference according to
the general principles of international law, are questions
which have given rise to diplomatic discussions between
the great European powers, contracting parties to the
treaties of Vienna, but which are foreign to the present
object (n;).
§42Sa.
The Duchy of Luxemburg formed part of the German Conf ederation, Keatrality of
and on the dissolution of that Confederacy in 1867, the King of L^eJabupg.
Holland happened to be the Grand Duke. Either France or Prussia
would have viewed with jealousy and concern the possession of the
fortress of the city of Luxemburg by the other. It was provided
by the treaty of London, 11th May, 1867, that the Grand Duchy
was to be perpetually neutralized, under the guaranty of Austria,
Great Britain, Prussia, and Eussia. The Grand Duke was to see to
the demolition of the fortress, which was not to be rebuilt, nor was
the city to be occupied by any armed forces. In the war of 1870 —
1871, Count Bismarck complained of the non-observance by Luxem-
burg of the obligations of a neutral ; in respect of which complaint it
was maintained by Count Beust, the Austrian minister, that the
question of whether anything had been done by a neutralized State to
disentitle it to the protection and benefit of its neutrality, was one for
the consideration of all the signatory powers, and did not rest upon
the decision of one of the belligerent powers (y). o 422b.
By the second article of the treaty of 14th November, 1863, by the Neutrality of
second article of the Protocol of 26th January, 1864, and by the p^^^^
second article of the treaty with Greece of the 29th March, 1 864, the
Courts of Great Britain, France, and Bussia, in their character of
guaranteeing powers of Greece, declare, with the assent of the Courts
of Austria and Prussia, that the islands of Corfu and Paxo, as well
as their dependencies, shall, after their union with the Hellenic king-
dom, enjoy the advantages of perpetual neutrality (z).
(x) Wheaton's Hist. Law of Nations, (y) Calvo, ill. § 2313, p. 450 ; Woolfley,
pp. 441 — 145. For the annexation of { 163.
Graoow to the Empire of Austria, vide (z) Holland, European Concert, pp.
ntpra^ p. 62, note (»). 49—54. Galyo, iii. p. 452.
fi''* BIGHTS OP WAE AS TO NEUTRALS.
Partly. The permanent neutraUty of Switzerland, Belgium,
§ 423. and Cracow [Luxemburg, Oopfu, and Paxo], has thns been
OTgwSSSeed solemnly recognized as part of the public law of Europe.
oeatiaHtj. B^t ^j^^ Conventional neutrality thus created differs
essentially from that natural or perfect neutrality which
every State has a right to observe, independent of
special compact, in respect to the wars in which other
States may be engaged. The consequences of the latter
species of neutrality only arise in case of hostilities. It
does not exist in time of peace, during which the State
is at liberty to contract any eventual engagements it
thinks fit as to political relations with other States. A
permanent neutral State, on the other hand, by accept-
ing this condition of its political existence, is bound to
avoid in time of peace every engagement which might
prevent its observing the duties of neutrality in time of
war. As an independent State, it may lawfully exercise,
in its intercourse with other States, all the attributes of
external sovereignty. It may form treaties of amity,
and even of alliance with other States ; provided it does
not thereby incur obligations, which, though perfectly
lawful in time of peace, would prevent its fulfilling the
duties of neutrality in time of war. Under this dis-
tinction, treaties of offensive alliance, applicable to a
specific case of war between any two or more powers, or
guaranteeing their possessions, are of course interdicted
to the permanently neutral State. But this interdiction
does not extend to defensive alliances formed with other
neutral States for the maintenance of the neutrality of
the contracting parties against any power by which it
might he threatened with violation (a).
The question remains, whether this restriction on the
sovereign power of the permanently neutral State is
confined to political alliances and guaranties, or whether
it extends to treaties of commerce and navigation with
other States. Here it again becomes necessary to dis-
tinguish between the two cases of natural and perfect
(a) Arendt, Essai 8ut la Nentaralit^ de U Belgiqne, pp. 87—95.
RIGHTS OF WAB AS TO NEUTBAM, ^'^^
or qualified and conventional neutrality. In the case of ^^P- ^^'
ordinary neutrality, the neutral State is at liberty to
regulate its commercial relations with other States accord-
ing to its own view of its national interests, provided
this liberty be not exercised so as to affect that impar-
tiality which the neutral is bound to observe towards
the respective belligerent powers. Vattel states that the
impartiality which a neutral nation is bound to observe
relates solely to the war. ** In whatever does not relate
to the war, a neutral and impartial nation will not refuse
to one of the belligerent parties, on account of its present
quarrel, what it grants to the other. This does not de-
prive the neutral of the liberty of making the advantage
of the State the rule of its conduct in its negotiations,
its friendly connections, and its commerce. When this
reason induces it to give preferences in things which are
at the free disposal of the possessor, the neutral nation
only makes use of its right, and is not chargeable with
partiality. But to refuse any of these things to one of
the belligerent parties, merely because he is at war with
the other, and in order to favour the latter, would be
departing from the line of strict neutrality " (b).
These general principles must be modified in their
application to a permanently neutral State. The liberty
of regulating its commercial relations with other foreign
States, according to its own views of its national inte-
rests, which is an essential attribute of national indepen-
dence, does not authorize the permanently neutral State
to contract obligations in time of peace inconsistent with
its peculiar duties in time of war((?). „ -g-
Neutrality may also be modified by antecedent en- Nentrauty
gagements, by which the neutral is bound to one of the ^limited ^
parties to the war. Thus the neutral may be bound by SSe^mT*^
treaty, previous to the war, to furnish one of the belli- ^^7^*
gerent parties with a limited succour in money, troops,
ships, or munitions of war, or to open his ports to the
armed vessels of his ally, with their prizes. The f ulfil-
{b) Vattd, Droit d^e Gens, Hy. iu. (^) g^ alao anU, f § 116g, 422a.
ob. 7» § 104.
676
BIGHTS OF WAR AS TO NEUTRALS.
Partly, ment of such an obligation does not necessarily forfeit
his neutral character, nor render him the enemy of the
other belligerent nation, because it does not render him
the general associate of its enemy (rf).
How far a neutrality, thus limited, may be tolerated
by the opposite belligerent, must often depend more
upon considerations of policy than of strict right. Thus,
where Denmark, in consequence of a previous treaty of
defensive alliance, furnished limited succours in ships
and troops to the Empress Catharine II. of Russia, in
the war of 1788 against Sweden, the abstract right of
the Danish court to remain neutral, except so far as
regarded the stipulated succours, was scarcely contested
by Sweden and the allied mediating powers. But it is
evident, from the history of these transactions, that if
the war had continued, the neutrality of Denmark would
not have been tolerated by these powers, unless she had
withheld from her ally the succours stipulated by the
treaty of 1773, or Russia had consented to dispense with
its fulfilment (e).
§424a.
Right to make *' There remains," says Sir B. Phillimore, *'Uhe grave question
Buch treatiea. -^jje^her a State has any right to stipulate, in time of peace, that,
when the time of war arrives, it will do the act of a belligerent and
yet claim the immunity of a neutral." The learned author concludes
that a State has no right to enter into such a stipulation, and then to
claim neutrality while fulfilling it ; and this seems to be the better
§ 424b. opinion (/).
Loans to It has happened, not unfrequently, that neutral subjects who
by n^uSa' Bympathize with a belligerent have raised loans for the purpose of
assisting him in the war. In 1823, the Law Officers of the Crown
gave an opinion to the effect that such subscriptions for the use of one
of two belligerents, entered into by individual subjects of a neutral,
are inconsistent with that neutrality, and contrary to the law of
nations. Such subscriptions would not give the other belligerent the
right to consider this as an act of hostility, although, if carried to anj
{d) Bynkersboek, Qasest. Jur. Pab. (e) Atit»ia1 Register, toI. xxx. pp*
Kb. i. cap. ix. Vattel, Droit des Gens. igi, 182. State Papers, p. 292. Eggers,
Ut. iii. ch. 6, §§ 101--105. As to the j^^ yonBemstorf, 2 Abtheil, pp. 118
general pnnoiples to be appued to snob
treaties, and when the easits foederis
-196.
arises, vide tupra, Pt. III. cb. 2, §§ 279, (/) Phillimore, vol. iii. § 146. Calvo,
280. vol. m. p. 462.
RIGHTS OP WAR AS TO NEUTRALS. 577
considerable extent, they might afford a just ground of complaint. Chap. III.
If a loan is purely commercial, and real interest be charged for the
money, it is then no infringement of neutrality (y). In 1873, Mr.
Gladstone expressed a strong disapproval in the House of Commons of
a gratuitous loan then being raised in England for the Spanish
Pretender, Don Carlos (A). It seems also to be considered inconsistent
with neutrality in America to allow loans to be raised by a belligerent
in a neutral State (t).
Another case of qualified neutrality arises out of QuJified *
treaty stipulations antecedent to the commencement of SrirfngoJ^tof
hostilities, by which the neutral may be bound to admit J^^^^V
the vessels of war of one of the belligerent parties, with ^*j^^ ^^^
their prizes, into his ports, whilst those of the other may armed veeaeis
1 •! Ill 1 !• 1 1 T- • and prizes of
be entirely excluded, or only admitted under Imiitations one beiii-
and restrictions. Thus, by the treaty of amity and f^^euteai
commerce of 1778, between the United States and SJ^'oT^e*
France, the latter secured to herself two special privi- exciudS.
leges in the American ports: — 1. Admission for her
privateers, with their prizes, to the exclusion of her
enemies. 2. Admission for her public ships of war, in
case of urgent necessity, to refresh, victual, repair, &c.,
but not exclusively of other nations at war with her.
Under these stipulations, the United States, not being
expressly bound to exclude the public ships of the
enemies of France, granted an asylum to British vessels
and those of other powers at war with her. Great
Britain and Holland still complained of the exclusive
privileges allowed to France in respect to her privateers
and prizes, whilst France herself was not satisfied with
the interpretation of the treaty by which the public
ships of her enemies were admitted into the American
ports. To the former, it was answered by the American
government, that they enjoyed a perfect equality, quali-
fied only by the exclusive admission of the privateers
and prizes of France, which was the effect of a treaty
iff) See PhiUimore, vol. iii. Appen- (i) Field, International Code (2nd
dix, p. 928. See De Wutz v. Hendricks, ^ j g^g ^^^^^ ^ ^
Moore, Com. Pleas, 686. tt \a a
(A) The Times, 25th April, 1873. Howard, 38.
W. pp
678
HIOHT8 OF WAB AS TO NEDISALS.
Partly.
§426.
Hostilities
within the
territory of
the neutral
State.
made long before, for valuable coasiderations, not with
a view to circumstances such as had occurred in the war
of the French Revolution, nor against any nation in
particular, but against all nations in general, and which
might, therefore, be observed without giving just offence
to any (y).
On the other hand, the minister of France asserted
the right of arming and equipping vessels for war, and of
enlisting men, within the neutral territory of the United
States, Examining this question under the law of
nations and the general usage of mankind, the American
government produced proofs, from the most enlightened
and approved writers on the subject, that a neutral
nation must, in respect to the war, observe an exact
impartiality towards the belligerent parties; that favours
to the one, to the prejudice of the other, would import
a fraudulent neutrality, of which no nation would be the
dupe ; that no succour ought to be given to either, unless
stipulated by treaty, in men, arms, or anything else,
directly serving for war ; that the right of raising troops
being one of the rights of sovereignty, and consequently
appertaining exclusively to the nation itself, no foreign
power can levy men within the territory without its
consent ; that, finally, the Treaty of 1778, making it
unlawful for the enemies of France to arm in the United
States, could not be construed affirmatively into a per-
mission to the French to arm in those ports, the treaty
being express as to the prohibition, but silent as to the
permission (k).
The rights of war can be exercised only within the
territory of the belligerent powers, upon the high seas,
or in a territory belonging to no one. Hence it follows,
that hostilities cannot lawfully be exercised within the
territorial jurisdiction of the neutral State, which is the
common friend of both parties (/).
{/) Mr. Jefferson's Letter to Mr.
Hammond and Mr. Van Berokel, Sept. 9,
1793 — ^Waite's State Papers, vol. i. pp.
169, 172.
(k) Mr. Jefferson's Letter to Mr. O.
Morris, Aug. 6, 1793— Waite's State
Papers, toL i. p. 140.
(/) Bynkershoek, Qiuest. Jur. Pab.
lib. i. cap. 8. Martens, dea Prises et
Bepiises, ch. 2, § 18.
RIGHTS OP WAR AS TO NEUTRALS. 579
This exemption extends to the passage of an army or Chap. III.
fleet through the limits of the territorial jurisdiction, § 427.
which can hardly be considered an innocent passage, ^im^lhthe
such as one nation has a right to demand from another ; ^^^
and, even if it were such an innocent passage, is
one of those imperfect rights, the exercise of which
depends upon the consent of the proprietor, and which
cannot be compelled against his will. It may be
granted or withheld, at the discretion of the neutral
State ; but its being granted is no ground of complaint
on the part of the other belligerent power, provided the
same privilege is granted to him, unless there be suffi-
cient reasons for withholding it (m).
The extent of the maritime territorial jurisdiction
of every State bordering on the sea has already been
described (n). g 428,
Not only are all captures made by the belligerent ^*^^
cruisers within the limits of this jurisdiction absolutely maritime
illegal and void, but captures made by armed vessels jurisdiction,
stationed in a bay or river, or in the mouth of a river, stetioJed
or in the harbour of a neutral State, for the purpose of h^vering'o^
exercising the rights of war from this station, are also *^® ^***®-
invalid. Thus, where a British privateer stationed itself
within the river Mississippi, in the neutral territory of
the United States, for the purpose of exercising the
rights of war from the river, by standing off and on,
obtaining information at the Balize, and overhauling
vessels in the course down the river, and made the
capture in question within three English miles of the
alluvial islands formed at its mouth, restitution of the
captured vessel was decreed by Sir W. Scott. So, also,
where a belligerent ship, lying within neutral territory,
made a capture with her boats out of the neutral terri-
tory, the capture was held to be invalid ; for though the
hostile force employed was applied to the captured
(m) Vide ante, Pt. II. ch. iv. § 193. ^^' li^- "• cap- 2, § 13. Sir W. Soott,
Vattel, I>roit dea Gens, Uy. iii. ch. 7, ^^'^'J^^' ^ „ ^ ,,
tx ,,n ,0, .>. .. ^ T ^t W r«fo <m^^ Pt. II. ch. 4, §1 177—
{§ 119—131. Grotins, de Jur. Bel. ao jg^^ "
pp2
580 RIGHTS OF WAR AS TO NEUTRAU.
Part IV. vessel lying out of the territory, yet no such use of a
neutral territory for the purposes of war is to be per-
mitted. This prohibition is not to be extended to remote
uses, such as procuring provisions and refreshments,
which the law of nations universally tolerates ; but no
proximate acts of war are in any manner to be allowed to
originate on neutral ground (o).
§428a.
Gaaeof 7:i# In 1863, during the ciyil war, the United States merchant-ship
Chetapea #. Chesapeake^ while on a voyage from New York to Portland, was seized
npon by a number of her passengers, who killed and wounded some
of the crew, and put the rest on shore. Thej ran the vessel to several
small ports in Nova Scotia, representing her as the Confederate war-
steamer Retributiony and finally abandoned her off Sambro, a port of
Nova Scotia. The Chesapeake was there found and captured by a
United States ship-of-war, and taken to Halifax. There were then
on board two British subjects who had been employed by the passen-
gers as engineers ; and Wade, one of the ringleaders, was discovered
on board a small schooner lying near where The Chesapeake had been
abandoned. The three men were made prisoners, and conveyed to
Halifax. In the discussion resulting from this case, the United States
disclaimed any intention of exercising jurisdiction in the waters of
Nova Scotia, and explained that their naval authorities had acted
'* under the influence of a patriotic and commendable zeal to bring to
punishment outlaws who had offended against the peace and dignity
of both countries "(/?). It was admitted that these acts were, in
strictness of law, " a violation of the law of nations, and of the
friendly relations existing between the two countries." This was
deemed a satisfactory explanation by Her Majesty's Government.
England was entitled to look upon this capture as, primd fade, a
belligerent act. The civil war was flagrant at the time, and Tht
Chesapeake had been originally seized by persons representing them-
selves as acting on behalf of the Confederates. As a matter of fact,
. they failed to produce any valid belligerent commission ; but this did
not give the United States any right to capture the ship in British
waters. Beyond seizing the vessel, the passengers had committed no
piratical acts. They were thus entitled to prove themselves belli-
gerents if they could, and their failure to do this laid them open to the
charge of piracy. The United States demanded the extradition of the
persons captured with the vessel, but the British government insisted
on their being first released and set upon British soil, and they
managed to escape before they could be re-arrested. The ship itself
was restored to the owners. Some of the parties concerned afterwards
(o) The Anna, 6 C. Rob. 873 ; The (jp) Mr. Seward to Load Lyons, 9th
Tu:e9 Oebmedersy July, 1800, 3 ibid. 162. Jan. 1864.
RIGHTS OF WAE AS TO NEUTRALS.
581
appeared in Canada, and were apprehended, but the Conrt decided Chap. Ill,
that they could not be extradited (q). o 428b.
In 1864, a most flagrant violation of neutral juriediction was perpe- Capttire of
trated by a United States ship-of-war. The Florida, the well-known ^^^l<>rida.
Confederate cruiser, entered the port of Bahia, in Brazil, to obtain pro-
visions and coals, and to effect some necessary repairs ; and while there
The Wachusett, a Federal man-of-war, also entered the port. The
Brazilian authorities took all necessary measures to prevent a conflict,
and assigned a berth in the harbour to each ship. During the night,
and while a large part of The Florida^ s crew were on shore, The Wa-
chusett steamed across the harbour, fastened a cable to The Florida^
towed her out to sea, and escaped from the pursuit of the local forces.
The Brazilian government demanded an explanation and reparation.
Mr. Seward, in a somewhat haughty reply, admitted *' that the Presi-
dent would disavow and regret the proceedings at Bahia," but he
persisted in maintaining that The Florida was a pirate, and '' that the
harbouring and supplying piratical ships and their crews in Brazilian
ports were wrongs and injuries for which Brazil justly owes reparation
to the United States." The captured crew of The Florida were, how-
ever, set at liberty, and the vessel herself sank in Hampton Beads by
'* an unforeseen accident which cast no responsibility upon the United
States "(r). The absurdity of calling The Florida a pirate at that
period of the war is manifest ; but had she been the most atrocious of
pirates, her capture under such circumstances would have been wholly
unjustifiable.
§42».
Although the immunity of the neutral territory from \«wd8
o ... . chased into
the exercise of any act of hostility is generally admitted, the neutral
yet an exception to it has been attempted to be raised in i^thwe
the case of a hostile vessel met on the high seas and ^^ "^
pursued ; which it is said may, in the pursuit, be chased
within the limits of a neutral territory. The only text
writer of authority who has maintained this anomalous
principle is Bynkershoek («). He admits that he had
never seen, it mentioned in the writings of the public
jurists, or among any of the European nations, the Dutch
only excepted; thus leaving the inference open, that
even if reasonable in itself, such a practice never rested
(q) See Pari. Papers, 1876, K. Ame- This opinion of Bynkershoek, in whidh
rica(No.lO). Wheaton, by Dana, note Casaregis seems to concur, is reprobated
(.^i. by several other public jurists. Azuni,
, ^ JDiritto Maritimo, Pt. I. 0. 4, art. 1.
(r) Pari. Papers, 1873, N. America y^^ r^^^ ^. Prigee, ch. 4, § 3,
(No. 2). pp. 176—178. No. 4, art. 1. D'Habieu, Sobre las
(*) QufiBst. Jut. Pub. Hb. i. cap. 8. Prisas, Pt. I. oh. 4, § 15.
582
BIQHTS OF WAB AS TO NEOTKAI^S.
Partly.
§430.
Olaim on the
groiiDd of
yiolation of
nentral terri-
tory miist be
sanotioned by
the neutral
State.
§430a.
Capture in
neutral
waters.
upon authority, nor was sanctioned by general usage.
The extreme caution too, with which he guards this
license to belligerents, can hardly be reconciled with the
practical exercise of it ; for how is an enemy to be pur-
sued in a hostile manner within the jurisdiction of a
friendly power, without imminent danger of injuring the
subjects and property of the latter ? Dum fervet opus — ^in
the heat and animation excited against the flying foe,
there is too much reason to presume that little regard
will be paid to the consequences that may ensue to the
neutral. There is, then, no exception to the rule, that
every voluntary entrance into neutral territory, with
hostile purposes, is absolutely unlawful. " When the fact
is established," says Sir W. Scott, ** it overrules every
other consideration. The capture is done away; the
property must be restored, notwithstanding that it may
actually belong to the enemy "(^).
Though it is the duty of the captor's country to make
restitution of the property thus captured within the terri-
torial jurisdiction of the neutral State, yet it is a technical
rule of the Prize Courts to restore to the individual
claimant, in such a case, only on the application of the
neutral government whose territory has been thus violated.
This rule is founded upon the principle, that the neutral
State alone has been injured by the capture, and that the
hostile claimant has no right to appear for the purpose of
suggesting the invalidity of the capture {u).
This can hardly be called a technical rule, and Mr. Wheaton himself
admits it to be founded upon principle. The Supreme Court of
the United States has recently determined that neither an enemy, nor
a neutral acting the part of an enemy, can demand restitution on the sole
ground of capture in neutral waters. This fact alone will not prevent
condemnation if done without intent to violate neutral jurisdiction (x).
Lord Stowell also said long ago, '' It is a known principle of this Court
that the privilege of territory will not itself enure to the protection of
property, unless the State from which that protection is due steps
forward to assert the right " (y).
(t) The Vrotv Anna Catharitia, 6 C.
Rob. 16.
(m) Case of The Etruteo, 3 C. Rob.
note ; The Anne^ 3 Wheaton, 447.
(x) The Adela, 6 Wallace, 266.
(y) The J*uris8ima Ooneepeion, 6 C.
Rob. 45. See, also, The Sir WtlHam
Feel, 5 Wallace, 585.
BIGHTS OP WAB AS TO NEUTBALS. 583
Where a capture of enemy's property is made within Chap. HI.
neutral territory, or by armaments unlawfully fitted out § 481.
within the same, it is the right as well as the duty of the ^^r^utoi
neutral State, where the property thus taken comes into p^^t
its possession, to restore it to the original owners. This ^^®^
restitution is generally made through the agency of the juriadiotion,
courts of admiralty and mantime jurisdiction. Traces in violation
of the exercise of such a jurisdiction are found at a very te^ty^^"
early period in the writings of Sir Leoline Jenkins, wi&*^e
who was Judge of the English High Court of Admiralty qII^^
in the reigns of Charles II. and James II. In a letter to
the king in council, dated October 11, 1675, relating to
a French privateer seized at Harwich with her prize,
(a Hamburg vessel bound to London,) Sir Leoline states
several questions arising in the case, among which was
*^ Whether this Hamburgher, being taken within one of
your Majesty's chambers, and being bound for one of your
ports, ought not to be set free by your Majesty's authority,
notwithstanding he were, if taken upon the high seas out
of those chambers, a lawful prize. I do humbly conceive
he ought to be set free, upon a full and clear proof that
he was within one of the king's chambers at the time of
the seizure, which he, in his first memorial, sets forth to
have been eight leagues at sea, over against Harwich.
King James (of blessed memory) his direction, by pro-
clamation, March 2nd, 1604, being that all officers and
subjects, by sea and land, shall rescue and succour all
merchants and others, as shall fall within the danger of
such as shall await the coasts, in so near places to the
hinderance of trade' outward and homeward ; and all
foreign ships, when they are within the king's chambers,
being understood to be within the places intended in
those directions, must be in safety and indemnity, or
else when they are surprised must be restored to it, other-
wise they have not the protection worthy of your Majesty,
and of the ancient reputation of those places. But this
being a point not lately settled by any determination,
(that I know of, in case where the king's chambers pre-
cisely, and under that name, came in question,) is of that
584
RIGHTS OF WAB AS TO NEUTRALS.
Part IV.
Extent of
the neutral
jurisdiction
along the
coasts and
within the
bays and
riyeni.
importance as to deserve your Majesty's declaration and
assertion of that right of the crown by an act of State in
Council, your Majesty's coasts being now so much infested
with foreign men-of-war, that there will be frequent use
of such a decision " (^r).
Whatever doubts there may be as to the extent of the
territorial jurisdiction thus asserted, as entitled to the
neutral immunity, there can be none as to the sense
entertained by this eminent civilian respecting the right
and the duty of the neutral sovereign to make restitution
where his territory is violated.
When the maritime war commenced in Europe, in
1793, the American government, which had determined to
remain neutral, found it necessary to define the extent of
the line of territorial protection claimed by the United
States on their coasts, for the purpose of giving effect to
their neutral rights and duties. It was stated on this
occasion, that governments and writers on public law
had been much divided in opinion as to the distance from
the sea-coast within which a neutral nation might reason-
ably claim a right to prohibit the exercise of hostilities.
The character of the coast of the United States, remark-
able in considerable parts of it for admitting no vessel of
size to pass near the shore, it was thought would entitle
them in reason to as broad a margin of protected navi-
gation as any nation whatever. The government, how-
ever, did not propose, at that time, and without amicable
communications with the foreign powers interested in that
navigation, to fix on the distance to which they might
ultimately insist on the right of pit)tection. Presideot
Washington gave instructions to the executive officers to
consider it 6is restrained, for the present, to the distance
of one sea league, or three geographical miles, from the
sea-shores. This distance, it was supposed, could admit
of no opposition, being recognized by treaties between
the United States and some of the powers with whom
they were connected in commercial intercourse, and not
(c) Idle and Works d Sir L. Jenkins, vol. ii. p. 727.
RIGHTS OF WAR AS TO NEUTRALS. 685
being more extensive than was claimed by any of them Chap, m.
on their own coasts. As to the bays and rivers, they had
always been considered as portions of the territory, both
under the laws of the former colonial government and of
the present union, and their immunity from belligerent
operations was sanctioned by the general law and usage
of nations. The 2Dth article of the treaty of 1794,
between Great Britain and the United States, stipulated
that *^ neither of the said parties shall permit the ships or
goods belonging to the citizens or subjects of the other
to be taken within cannon-shot of the coast, nor in any of
the bays, ports, or rivers, of their territories, by ships of
war, or others, having commissions from any prince,
republic, or State whatever. But in case it should so
happen, the party whose territorial rights shall thus have
been violated, shall use his utmost endeavours to obtain
from the offending party full and ample satisfaction for
the vessel or vessels so taken, whether the same be vessels
of war or merchant vessels." Previously to this treaty
with Great Britain, the United States were bound by
treaties with three of the belligerent nations, (France,
Prussia, and Holland,) to protect and defend, " by all the
means in their power," the vessels and effects of those
nations in their ports or waters, or on the seas near their
shores, and to recover and restore the same to the right
owner when taken from them. But they were not bound
to make compensation if all the means in their power were
used, and failed in their effect. Though they had, when
the war commenced, no similar treaty with Great Britain,
it was the President's opinion that they should apply to
that nation the same rule which, under this article, was
to govern the others above mentioned ; and even extend
it to captures made on the high seas, and brought into
the American ports, if made by vessels which had been
armed within them. In the constitutional arrangement
of the different authorities of the American Federal Union,
doubts were at first entertained whether it belonged to
the executive government, or the judiciary department,
to perform the duty of inquiring into captures made within
586
aiQHTS OF WAB AS TO MEUTBAI^.
Part IV.
§433.
Limitations
of the neutral
jurisdiction
to restore
in cases of
illegal
capture.
§434.
Right of
asylum in
neutral ports
dependent on
the consent
of the neutral
State.
the neutral territory, or by armed vessels originally
equipped or the force of which had been augmented
within the same, and of making restitution to the injured
party. But it has been long since settled that this duty
appropriately belongs to the federal tribunals acting as
courts of admiralty and maritime jurisdiction (a).
It has been judicially determined that this peculiar
jurisdiction to inquire into the validity of captures made
in violation of the neutral immunity will be exercised
only for the purpose of restoring the specific property,
when voluntarily brought within the territory, and does
not extend to the infliction of vindictive damages, as in
ordinary cases of maritime injuries. And it seems to be
doubtful whether this jurisdiction will be exercised where
the property has been once carried infra prcesidia of the
captor's country, and there regularly condemned in a
competent Court of Prize. However this may be in
cases where the property has come into the hands of a
bond fide purchaser, without notice of the unlawfulness of
the capture, it has been determined that the neutral
court of admiralty will restore it to the original owner,
where it is found in the hands of the captor himself,
claiming under the sentence of condemnation. But the
illegal equipment will not affect the validity of a capture,
made after the cruise to which the outfit had been
applied is actually terminated (A).
An opinion is expressed by some text writers, that
belligerent cruisers not only are entitled to seek an
asylum and hospitality in neutral ports, but have a right
to bring in and sell their prizes within those ports. But
there seems to be nothing in the established principles of
public law which can prevent the neutral state from
withholding the exercise of this privilege impartially
(a) Mr. Jefferson's Letter to M. Qenet,
Not. 8, 1793— Waite's State Papers,
vol. vi. p. 196. Opinion of the At-
torney-General on tiie capture of the
British ship Orange, May 14, 1793—
Ibid. vol. i. p. 75. Mr. Jefferson's
Letter to Mr. Hammond, Sept. 5, 1793
—Ibid. vol. i. p. 166. Whoaton's Be-
ports, Tol. iv. p. 66, note (a).
{b) The Amistad de Bties^ 6 Wheaton,
385 ; Za Nereyda, 8 iUd. 108 ; The
Fanny, 9 ibid. 658 ; The ArroganU Bar-
ceUmes, 7 ibid. 519 ; The Santissima Trmi-
dad, ibid. 283.
BIGHTS OP WAR AS TO NEUTRALS.
687
from all the belligerent powers ; or even from granting Chap. III.
it to one of them, and refusing it to others, where stipu-
lated by treaties existing previous to the war. The
usage of nations, as testified in their marine ordinances,
suflBciently shows that this is a rightful exercise of the
sovereign authority which every State possesses, to regu-
late the police of its own sea-ports, and to preserve the
public peace within its own territory. But the absence
of a positive prohibition implies a permission to enter
the neutral ports for these purposes (c).
§434a.
The reception or exclusion of belligerent cruisers and their prizes m Reception of
neutral ports is a matter entirely at the discretion of the neutral ^Uifirenait
* , , , , cruisers in
government. When there are no prohibitions, or conditions of entry, neutral ports.
belligerent ships of war are entitled to expect all the ordinary hospi-
talities of a friendly port. If the neutral government chooses to make
regulations for the admission of ships into its ports, foreign ships
must obey them. A neutral is, however, not required by the law of
nations to make any such rules, or to place any restrictions upon the
liberty which it accords of purchasing provisions, coal, and other
supplies (not being arms or munitions of war). It is not a rule of
international law that the supplies purchased should be limited to any
particular quantity. So long as the neutral supplies both parties
equally, neither have any right to complain {d), « ^±h
Tkere is what constitutes a real exception to the rule that neutrals Kepairs in*
may not assist belligerent ships of war in carrying on their warlike neutral ports,
operations. Although such ships of war may not purchase arms or
anmiunition, or recruit men, in the neutral port, yet they may be
repaired and provisioned in it. This is in reality assisting the
belligerent ; for the cruiser in fact refits herself for war by repairing
her engines, quite as much as by repairing her gun-carriages. But
she is allowed to do the one and not the other («). The reason for
permitting her to be refitted seems to be, that unless this were allowed
she might be unable to leave the neutral port. It would be inhuman
to compel her to go to sea without provisions, or in an unseaworthy
state ; yet the neutral, in permitting her to enter his harbour, does not
bargain that she shall remain there always, or at all events till the end
of the war.
{c) Bynkerahoek, Queest. Jur. Pub. London Gazette of the following day.
lib. i. cap. 15. Yattel, Uv. iu. oh. 7, {d) British counter-case at Geneva.
{ 132. Yalin, Oomm. sur rOrdonn. de Pari. Papers, K. America, 1872 (No. 4),
la Marine, torn. ii. p. 272. p. 13. Ortolan, Diplomatie de la Mer,
Positiye prohibitions are now the rule. torn. ii. p. 283.
See, for the latest instance, the British (e) Montague Bernard, Neutrality of
Proclamation of Feb. 10th, 1904, in the England, p. 400.
*^ RIGHTS OF WAR AS TO NEUTRALS.
Part lY. On the outbreak of a maritiine war, neutral States generally make
§ 434c. ^™® TuleB on this subject. During the American civil war, England
English roles, prohibited all ships of war and prirateers of either party from using
any port or waters subject to British jurisdiction, as a station or place
of resort for any warlike purpose, or for obtaining any facilities of
warlike equipment ; and no vessel of war or privateer of one bellige-
rent was to be permitted to leave any British port, from which any
vessel of the other belligerent (whether a ship of war or a merchant
vessel) should have previously departed, until twenty-four hours after
the departure of the latter. Any ship of war or privateer of either
belligerent entering British waters was to be required to depart
within twenty-four hours, except in case of stress of weather, or of
requiring repairs, or necessaries for the crew. As soon as she was
repaired, or had obtained her necessary stores, she was to be required
to depart forthwith. Nothing but provisions requisite for the subsist-
ence of the crew, and so much coal as would carry the ship to the
nearest port of her own country, or to some nearer destination, was
to be supplied to ships of war or privateers; the coal only to be
supplied once in three months to the same ship, unless this was
relaxed by special permission (/). Similar rules were put in force
during the Franco-German war, 1870-1 (y), in the Spanish- American
war of 1898, and in the Busso- Japanese war of 1904. The rule in this
latter case limited the supply of coal to ''so much only as may be
sufficient to carry such vessel to the nearest port of her own country,
or to some nearer named neutral destination " (A). And the 1904
regulations mark a further advance over their predecessors in that
Ihey make it clear that the Foreign Enlistment Act extends to all the
dominions of His Majesty, including the adjacent territorial waters,
and that the rule compelling them to leave British waters within
twenty-four hours is now specifically applied to those vessels which are
at present in port, instead of only to those which may come into port
c 434j ^^^ ^^0 issue of the proclamation (t ).
Prizes During the American civil war a captor, who brought his prizes into
Bri^* ^^ British waters, was to be requested to depart and remove such prizes
immediately. A vessel bond fide converted into a ship of war was,
however, not to be deemed a prize. In' case of stress of weather, or
other extreme and imavoidable necessity, the necessary time for
removing the prize was to be allowed. If the prize was not removed
by the prescribed time, or if the capture was made in violation of
British jurisdiction, the prize was to be detained until Her Majesty's
pleasure should be made known. Cargoes were to be subject to the
same rules as prizes {h\ A subsequent order provided that no ship of
(/) Earl Russell to the Admiralty, (i) See, for the whole proolamatum
&o. London Gazette, Beo. 16th, 1863. Appendix C.
[g) Lord Granyille to Admiralty, &c.
London Gazette, 19th July, 1870. (*) Oironlar to Goyeraors of Colonies,
{fi) London Gazette, Feb. 11th, 1904. 2nd Jane, 1864.
RIGHTS OF WAR AS TO NEUTRALS. 589
war of either belligerent should be -allowed to remain in a Britisli port Chap. III.
for the purpose of being dismantled or sold (/).
During the Franco-German war of 1870-1, armed ships of either
party were interdicted from carrying prizes made by them into the
ports, harbours, roadsteads, or waters of the United Kingdom, or any
of Her Majesty's colonies or possessions abroad. A similar rule was
made in 1898 and 1904 (m). g 434e.
While the American civil war was prevailing France prohibited all Rule j of other
ships of war or privateers of either party from remaining in her ports
with prizes for more than twenty-four hours, except in case of
imminent perils of the sea. No prize goods were permitted to
be sold in French territory (n). Prussia remained content with
ordering her subjects not to engage in the equipment of priva-
teers, and to obey the general rules of international law(o). The
Belgian rule commanded all privateers to depart immediately, unless
prevented by absolute necessity. The Dutch regulation was the
same. Neither country made any provision as regards ships of
war ( p). In the subsequent wars between Brazil and Paraguay, and
Spain and Chile, Holland prohibited ships of war or privateers, with
prizes, from entering or refitting in her harbours, unless overtaken by
evident necessity. Ships of war without prizes might, however,
remain an unlimited time in Dutch harbours, and provide themselves
with an unlimited supply of coal, the government reserving to them-
selves the right of limiting their stay to twenty-four hours, should this
be deemed advisable. When ships of both parties were in any harbour
at the same time, one was not to be allowed to depart until twenty-
four hours after the other {q), Japan adopted what is practically the
British twenty-four hour rule as far back as 1870 (r). There is thus
no uniform practice established, but the rule that when two hostile
ships of war meet in a neutral port, the local authorities are to detain
{F) London Gazette, 9th Sept. 1864. denied to jT^ Triomphante when she
(m) Lord Qranville to Admiralty, &o. arriyed at Hong Kong ; bat she was
London Gazette, 19th July, 1870. allowed, as were other ships in like cir-
Hertslet, Gommeroial Treaties, zzi. onmstanoes, to take on board suffioient
p. 834. Lord Lansdowne to Admiralty. ooal to carry her to the nearest French
London Gazette, Feb. 10th, 1904. The port, Saigon. Times, 29th Dec. 1884 ;
hostilities between France and China in Annnal Kegister, 1885, p. 331. And see
1884-6 were conducted without any an article in the Bevue de Droit Inter-
formal declaration of war. Complaints national for 1903, p. 488, by M. Sakuy6
were made in Parliament that, although Takahashi, ** Hostility entre La France
the French operations were chiefly in- et La Chine."
jurious to British merchants, the French (n) Bep. Neutrality Laws Comm.
warships were suffered to use Hong 1868, p. 69.
Kong as, practically, their base of ope- (o) Ibid. p. 70.
rations. Early in 1885, however. Great (p) Ibid. p. 70.
Britain decided to regfard the French {q) Ibid. p. 63.
notification of the blockade of Formosa (r) M. Sakny6 Takahashi in the
as equivalent to a declaration of war. Bevue de Droit International, 1901,
Permisflion to refit was, consequently, p. 264.
590
BIGHTS OP WAR AS TO NEUTRALS.
§434f.
Prizes fitted
out as ships
of war.
The Tittca-
locaa.
Part lY. one till twenty-four hours after the departure of the other, is voiy
general in practice. It is a very reasonable rule, and with the almost
universal use of steam on ships of war, the limit of twenty-four hours
gives ample time for the yessel that starts first to get out of reach of
the other if desirous of doing so.
Prizes are frequently armed and fitted out as yessels of war. After
condemnation there is no doubt that the captors may so dispose of the
prize ; but if this is done before condemnation, although it infringes
the owner's rights, it does not seem a settled point what yiew of the
matter neutrals should take, as to admitting the ship into their ports.
The neutral may inquire into the antecedents of the ship, and if she
proves to be an uncondemned prize may detain her, if orders have been
given that prizes are not to enter the neutral ports («), but it is uncertain
whether the omission of this inquiry is a violation of neutrality, and
will give any ground of complaint to the other belligerent. In 1863,
the United States merchant-ship Conrad was captured by The Alabama.
Her name was changed to The Tuscaloosa, and an officer and ten men,
with two rifle twelve-pounder guns, were put on board, but her cargo
of wool was not unshipped. She was then taken to the Cape of Good
Hope, and the captain of The Alabama requested that she should be
admitted into Simon's Bay as a tender of his vessel — in other words,
as a ship of war. The Attorney-General of the colony gave it as his
opinion that she had been sufficiently set forth as a vessel of war to
justify the local authorities in admitting her as such, and that her real
character could only be determined in the courts of the captor's
country. She was, therefore, allowed to enter the port and obtain
provisions. On the 26th December, 1863, The Tuscaloosa again put
into Simon's Bay, and was this time seized by the local authorities.
This, however, was considered unjustifiable by the Home Gt)vemment.
Whatever the character of the ship might have been during her first
visit, she was treated as a ship of war, and was, therefore, entitled to
expect the same treatment again, unless she received due warning that
a different course would be pursued. Accordingly, orders were
sent out to release and deliver her up to some Confederate officer,
but as a matter of fact she never was delivered up to that govern-
ment (/).
§436.
Neutral
impartiality,
in what it
oonsists.
Vattel states that the impartiality, which a neutral
nation ought to observe between the belligerent parties,
consists of two points.
1 . To give no assistance where there is no previous
stipulation to give it ; nor voluntarily to furnish troops,
(«) Opinion of Law Offioers of the
Crown. British Appendix to oaae at
Geneva, vol. H. p. 323.
[t) Pari. Papers, 1873, K. America
(No. 2), pp. 201—204.
RIGHTS OP WAE AS TO NEUTRALS.
691
arms, ammunition^ or anything of direct use in war. Chap. III.
*^I do not say to give assistance equally ; but to give no
assistance: for it would be absurd that a State should
assist at the same time two enemies. And besides, it
would be impossible to do it with equality : the same
things, the like number of troops, the like quantity of
arms, of munitions, &c., furnished under different
circumstances, are no longer equivalent succours."
2. "In whatever does not relate to the war, the
neutral must not refuse to one of the parties, merely
because he is at war with the other, what she grants to
that other " («). ^ ^^
These principles were appealed to by the American Arming and
government, when its neutrality was attempted to be ^2^k|^d
violated on the commencement of the European war, in ^^S^fhT^^
1793, by arming and equipping vessels, and enlisting ton^^^ithw
men within the ports of the United States, by the respec- ^^ ^'T*'
tive belligerent powers, to cruise against each other. It
was stated that if the neutral power might not, con-
sistently with its neutrality, furnish men to either party
for their aid in war, as little could either enrol them in
the neutral territory. The authority both of Wolfius
and Vattel was appealed to in order to show, that the
levying of troops is an exclusive prerogative of sove-
reignty, which no foreign power can lawfully exercise
within the territory of another State, without its express
permission. The testimony of these and other writers
on the law and usage of nations was sufficient to show,
that the United States, in prohibiting all the belligerent
powers from equipping, arming, and manning vessels of
war in their ports, had exercised a right and a duty with
justice and moderation. By their treaties with several
of the belligerent powers, treaties forming part of the
law of the land, they had established a state of peace
with them. But without appealing to treaties, they
were at peace with them all by the law of nature ; for,
by the natural law, man is at peace with man, till some
(tf) I>roit des Qens, liv. iii. oh. 7, § 104.
692
RIGHTS OF WAR AS TO NEUTRALS.
Part IV.
§487.
Prohibition
enforced by
American
municipal
atatntefl.
§438.
British
Foreign
Enlitttment
Act.
aggression is committed, which by the same law autho-
rizes one to destroy another, as his enemy. For the
citizens of the United States, then, to commit murders
and depredations on the members of other nations, or to
combine to do it, appeared to the American government
as much against the laws of the land as to murder or
rob, or combine to murder or rob, their own citizens;
and as much to require punishment, if done within their
limits, where they had a territorial jurisdiction, or, on
the high seas, where they had a personal jurisdiction,
that is to say, one which reached their own citizens
only ; this being an appropriate part of each nation, on
an element where each has a common jurisdiction (a:).
The same principles were afterwards incorporated in
a law of Congress passed in 1794, and reyised and
re-enacted in 1818, by which it is declared to be a
misdemeanor for any person, within the jurisdiction
of the United States, to augment the force of any
armed vessel, belonging to one foreign power at war
with another power, with whom they are at peace;
or to prepare any military expedition against the terri-
tories of any foreign nation with whom they are at
peace ; or to hire or enlist troops or seamen for foreign
military or naval service ; or to be concerned in fitting
out any vessel, to cruise or commit hostilities in foreign
service, against a nation at peace with them : and the
vessel, in this latter case, is made subject to forfeiture.
The President is also authorized to employ force to
compel any foreign vessel to depart, which by the law
of nations or treaties ought not to remain within the
United States, and to employ generally the public -force
in enforcing the duties of neutrality prescribed by the
law(y).
The example of America was soon followed by Great
Britain, in the Act of Parliament 59 Geo. III. c. 69,
entitled, ^^ An Act to prevent the Enlisting or Engage-
{x) Mr. Jefferson's Letter to M. Genet,
June 17, 1793. American State Papers,
Tol. i. p. LV).
(i/) Kent's Gomm. on American Law,
vol. i. p. 123, 5th ed.
RIGHTS OP WAR AS TO NEUTRALS.
693
ment of His Majesty's Subjects to serve in foreign ^^P- ^^^-
Service, and the Fitting out or Equipping in His
Majesty^s Dominions Vessels for warlike purposes, with-
out His Majesty's Licence." The previous statutes,
9 and 29 Geo. II., enacted for the purpose of preventing
the formation of Jacobite armies in France and Spain,
annexed capital punishment as for a felony to the
offence of entering the service of a foreign State. The
69 Geo. III. c. 69, commonly called the Foreign Enlist-
ment Act, provided a less severe punishment, and also
supplied a defect in the former law, by introducing after
the words " king, prince, state, or potentate," the words
" colony or district assuming the powers of a govern-
ment," in order to reach the case of those who entered
the service of unacknowledged as well as of acknow-
ledged States. The Act also provided for preventing
and punishing the offence of fitting out armed vessels,
or supplying them with warlike stores, upon which the
former law had been entirely silent. « ^^
In the debates which took place in Parliament upon Debates on
the enactment of the last-mentioned Act in 1819, and on isio.
the motion for its repeal in 1823, it was not denied by
Sir J. Mackintosh and other members who opposed the
bill, that the sovereign power of every State might
interfere to prevent its subjects from engaging in the
wars of other States, by which its own peace might be
endangered, or its political and commercial interests
affected. It was, however, insisted that the principles
of neutrality only required the British legislature to
maintain the laws in being, but could not command it to
change any law, and least of all to alter the existing
laws for the evident advantage of one of the belligerent
parties. Those who assisted insurgent States, however
meritorious the cause in which they were engaged, were
in a much worse situation than those who assisted recog-
nized governments, as they could not lawfully be re-
claimed as prisoners of war, and might, as engaged in
what was called rebellion, be treated as rebels. The
proposed new law would go to alter the relative risks,
W. Q Q
594 RiaHTS OP WAR AS TO NEUTRALS.
Partly, and operate as a law of favour to one of the belli-
gerent parties. To this argument it was replied by
Mr. Canning, that when peace was concluded between
Great Britain and Spain, in 1814, an article was intro-
duced into the treaty by which the former power stipu-
lated not to furnish any succours to what were then
denominated the revolted colonies of Spain. In process
of time, as those colonies became more powerful, a ques-
tion arose of a very difficult nature, to be decided on a
due consideration of their dejure relation to Spain on the
one hand, and their de facto independence on the other.
The law of nations afforded no precise rule as to the
course which, under circumstances so peculiar as the
transition of colonies from their allegiance to the parent
State, ought to be pursued by foreign powers. It was
difficult to know how far the statute law or the common
law was applicable to colonies so situated. It became
necessary, therefore, in the Act of 1819, to treat the
colonies as actually independent of Spain ; and to pro-
hibit mutually, and with respect to both, the aid which
had been hitherto prohibited with respect to one only.
It was in order, to give full and impartial effect to the
provisions of the treaty with Spain, which prohibited
the exportation of arms and ammunition to the colonies,
but did not prohibit their exportation to Spain, that the
Act of Parliament declared that the prohibition should
be mutual. When, however, from the tide of events
flowing from the proceedings of the Congress of Verona,
war became probable between France and Spain, it
became necessary to review these relations. It was
obvious that if war actually broke out, the British
government must either extend to France the prohi-
bition which already existed with respect to Spain, or
remove from Spain the prohibition to which she was
then subject, provided they meant to place the two
countries on an equal footing. So far as the exportation
of arms and ammunition was concerned, it was in the
power of the crown to remove any inequality between
the belligerent parties, simply by an order in council.
RIGHTS OP WAS AS TO NEUTRALS. 695
Such an order was consequently issued, and the prohi- Chap. in.
bition of exporting arms and ammunition to Spain was
removed. By this measure the British government
offered a guaranty of their bond fide neutrality. The
mere appearance of neutrality might have been pre-
served by the extension of the prohibition to France,
instead of the removal of the prohibition from Spain;
but it would have been a prohibition of words only, and
not at all in fact; for the immediate vicinity of the
Belgic ports to France would have rendered the prohi-
bition of direct exportation to France totally nugatory.
The repeal of the Act of 1819 would have, not the same,
but a correspondent effect to that which would have been
produced by an Order in Council prohibiting the expor-
tation of arms and ammunition to France. It would be
a repeal in words only as respects France, but in fact
respecting Spain ; and would occasion an inequality of
operation in favour of Spain, inconsistent with an im-
partial neutrality. The example of the American
government was referred to, as vindicating the justice
and policy of preventing the subjects of a neutral
country froni enlisting in the service of any belligerent
power, and of prohibiting the equipment in its ports of
armaments in aid of such power. Such was the conduct
of that government under the presidency of Washington,
and the secretaryship of Jefferson : and such was more
recently the conduct of the American legislature in
revising their neutrality statutes in 1818, when the
congress extended the provisions of the Act of 1794 to
the case of such unacknowledged States as the South
American colonies of Spain, which had not been provided
for in the original law {z).
§439a.
The duties of neutral States as regards their supplying belligerents Keutrality
with ships and munitions of war have been brought into such promi- l*^^'
nence, and haye been so thoroughly discussed in recent times, that
it becomes necessary to enter more fully into the subject than
Mr. Wheaton has done.
(ff) Annnal Register, vol. Ld. p. 71. Canning's Speeches, vol. iy. p. 150 ;
Tol. Y. p. 84.
qq2
696
Part IV.
The United
States.
§439b.
Amerioan
oases.
U. S, V.
Guinet {Les
Jumeaux),
EIGHTS OP WAB AS TO KEUtRAM.
America has the credit of being the first conntry that by positiTe
legislation sought to restrain its subjects within the strict limits of
neutrality. It has been abeady shown (a) that, in 1793, France
demanded from the United States certain exclusire privileges under
the treaties of 1778, with respect to her prirateers and ships of war,
which the latter deemed inconsistent with the law of nations, and not
warranted by the terms of the treaties. America was determined to
remain neutral, and on the 22nd April, 1793, a Proclamation of Neu-
trality was issued, warning American citizens carefully to ayoid all
acts and proceedings which might tend to contrarene the neutral dis-
position of their country. Any citizen who committed a breach of the
law of nations would not be protected by his government (6). In spite
of this a French agent, M. Guinet, landed at Charleston in April,
commenced organizing a system of privateering, and endeavoured in
various ways to stir up the inhabitants of the States to assist France (c).
A French Prize Oourt was established at Charleston, and an English
vessel, The Orangey was seized in the Delaware river. The British
Minister in America, Mr. Hammond, remonstrated against these viola-
tions of neutrality, and on the 5th of June received an answer from
Mr. Jefferson, admitting the justice of his remonstrance, and stating
that measures would be taken to prevent such occurrences happening
again {d), A collection of rules, declaring the original equipping and
arming of vessels in the United States, by either belligerent for warlike
purposes, to be unlawful, was drawn up, and issued to the collectors of
customs. Yiolations of neutrality, however, continued. In October a
French Yice-Consul at Boston, M. Duplaine, obtained the rescue by
force of a vessel detained by the Marshal. The United States with-
drew his exequatur, but the grand jury of Philadelphia refused to find
a true bill against him (a). It was therefore deemed necessary to
legislate on the subject, and accordingly the Act of the 5th of June,
1794, was passed (/). This Act was substantially the same as the one
afterwards passed in 1818, and the latter, notwithstanding all that has
since happened, still remains the law of America (y). The latter Act
is set out in full in the Appendix. It will, however, be necessary to
notice some of the leading American decisions on both the Acts, and
on the general subject.
A prosecution for being concerned in fitting out and arming a priva-
teer, was set on foot soon after the passing of the Act of 1794. Les
Jumeaux was originally a British ship employed on the coast of Guinea.
She entered Philadelphia in 1794 with a cargo of sugar and coffee, and
at that time was owned entirely by French subjects. Originally she
(a) See ante, § 425.
[h) American State Papers, vol. i.
p. 140.
(c) Bep. Neutrality Gommiseion, 1868,
p. 18.
(rf) Jefferson's Works, vol. iii. p. 671.
{e) Bep. Neutrality Comm. 1868,
p. 23.
(/) United States Statutes at Large^
Third Cong. Sess. I. oh. 50.
(^) United States Revised Statutes,
tit. Neutrality. See Appendix C.
RIGHTS OP WAR AS TO NEUTRALS. 697
had ten portholee on each side, but only four altogether were open Chap. III.
when she entered Philadelphia. While there her owners caused her
to be repaired, re-opened her twenty ports, and fitted her up as a ship
of war. Orders were given by the United States' authorities that she
should be dismantled of her extra armaments and reduced to the con-
dition she was in when she first came. She thus quitted Philadelphia
in her original condition, but lower down the river took on board some
guns and a number of men. A pilot boat also attempted to convey
some more war material to her, but was stopped by the local authori-
ties. A militia force was then sent in pursuit of Lea Jumeaux^ but she
avoided detention, partly by artifice and partly by threatening an
armed resistance. One Guinet, who had been chiefly concerned in
fitting her out, was then indicted for a breach of section 8 of the Act.
The Judge ruled that the third section was meant to include all cases
of vessels armed in American ports by one of the belligerent powers,
to cruise against another belligerent power at peace with the United
States. Converting a ship from her original destination with intent
to commit hostilities ; or, in other words, converting a merchant ship
into a vessel of war, must be deemed an original outfit ; for the Act
would, otherwise, become nugatory and inoperative. It is the conver-
sion from the peaceable luse to the warlike purpose that constitutes
the offence. Guinet was found guilty (A). § 439o.
The claim of France to set up Courts of Prize in the United States French Prize
was discussed in The Betsy (t), a vessel captured by a French privateer ^merioi^
and sent into Baltimore for adjudication. The Supreme Court held xh^ BeUy,
that no foreign power could rightfully erect any Court of Judicature Talbot v.
within the United States unless by force of a treaty, and that no •^'*''*^*
foreign consul could adjudicate upon a prize. In 1795, one Ballard, a
Virginian, obtained the assignment of a power to command a certain
ship, given by the French Admiral in the United States, and authenti-
cated by the French consul at Charleston. This ship, Vami de la
LiherUy was American owned, and was armed and equipped in the
United States. Ballard renounced his Virginian citizenship, but was
not naturalized elsewhere. He took command of Uami de la Liberti^
and sailing under the French flag, captured a Dutch brig The Mag-
dalena, and brought her to Charleston for adjudication. The Court
held that he was still an American citizen, and that the authority under
which he sailed was invalid ; that the capture of a vessel of a country
at peace with the United States, made by a vessel fltted out in one of
their ports, and commanded by one of their citizens, was illegal, and
that if the captured vessel was brought within American jurisdiction,
the District Courts, upon a libel for tortious seizure, might inquire into
the facts, and decree restitution. Accordingly the ship was restored
with damages (k). On the other hand, where a prize was made by a Tht Alfred.
vessel which had left the United States with equipments partially
(A) U. S, V. Guinet, 2 Ballafl, 828. (h) Talbot ▼. Janam, The MagdaUna,
(i) 1 CurtiB, 74. S. C, 3 DaUas, 6. I Curtis, 128. S. C, 3 Dallas, 133.
598
BIGHTS OF WAB AS TO NEUTRALS.
Part IV.
Captures
made without
Tiolation of
neutrality.
§ 439e.
What
amounts to a
Tiolation of
neutrality.
adapted for war, but wliicli were such as were frequently carried by
merchantmen, and where her full equipment had been completed in
French territory, the Court declined to restore the prize. It was held
to be no violation of neutrality to sell such a ship to a foreigner (I).
The Court also refused to restore a prize captured by a French priva-
teer, which had been simply repaired in an American port, and had
not augmented her force there (m). But where a French privateer
secretly increased her crew at New Orleans by taking on board several
Americans, and then captured The Alerta, a Spanish brig, and sent
her to New Orleans as a port of necessity, the Court restored the prize
to her owner (n).
Whenever it was proved that a capture was made jure belli on the
high seas, by a duly commissioned vessel of war which had in no way
violated American neutrality, the Courts refused to interpose. " It is
no part of the duty of a neutral nation,'* said Chief Justice Story, "to
interpose upon the mere footing of the law of nations, to settle all the
rights and wrongs which may grow out of a capture between belli-
gerents The captors are amenable to their own government
exclusively for any excess or irregularity in their proceedings " (o).
This also was held to extend to the acts of privateers done under their
war powers (/?). Nor would the title by which a foreign sovereign
owned a ship of war be inquired into {q). But it was firmly settled
that if captures were made in violation of Americcm neutrality, the
property might be restored (even if there had been no Foreign Enlist-
ment Act) if brought within the territory of the Union (r). Even after
a regular condemnation in a Prize Court of the captor's country, the
Court restored the prize, because she was still owned and controlled by
the original wrong-doer («).
In order that a violation of neutrality should be committed, two
elements were deemed necessary. In the first place the ship must
have been whoUy or in part equipped or manned, or she must have
augmented her force within the jurisdiction of the United States. In
the second place she must have been so equipped or manned with the
intent that she should cruise against the commerce of a State at peace
with the United States. Unless both the fact and the intent existed
together, there was no offence against the law. The simple fact of an
armed vessel having been equipped in, and sent from the United
States to a belligerent did not, of itself, necessarily constitute a breach
(/) Moodie ▼. Th^ Alfred, 1 Curtis, 284. (p) The Invmeible, 1 Wheaton, 238.
S. C, 3 Dallas, 307.
(m) Moodie v. The Phcsbe Ann, 1 Cur-
tis, 237. 8. C, 3 Dallas, 319.
(n) The Alerta ^ Cargo v. Bias, 3 Cur-
tis, 379.
(o) La Amietad de Mnes, 6 Wheaton,
385.
(q) The Exchange, 7 Cranch, 116. See
ante, § 96 et eeq,
(r) The Grand Para, 7 Wheaton, 471 ;
5 Curtis, 302 ; La Ooncepeion, 6 Wheaton,
235 ; The Bella Oommes, 6 Wheaton, 162 ;
The Estrella, 4 Wheaton, 298.
(<) The Arrogante Barcelonet, 7 Whea-
ton, 496 ; The Ner0yda^ 8 Wheaton, 108.
EIGHTS OF WAE AS TO NEUTEALS. 699
of the Act, or of the law of nations (t). Thus, if a ship of war was Chap. III.
built and fitted out in America, and was then bondjide sold, purely as
a commercial speculation to a belligerent, there would be no intent
that she should cruise against friendly commerce, and thus no breach
of neutrality would be committed. Ships of war and arms are articles
of commerce, and neutrals are entitled to continue their ordinary com-
merce with belligerents, subject to the risk of their goods being
captured if they are contraband. No State prohibits its subjects from
trading in contraband. It only leaves such goods to their fate, if
either belligerent captures them on the way to the other. In 1 828,
The Bolivar J a vessel of 70 tons, sailed from Baltimore for St. Thomas, ^- S- v.
under the command of one Quincey, and with Armstrong, her owner, ^'"*^'
on board. At St. Thomas, Armstrong fitted her out as a privateer to
omise under the Buenos Ayres flag against Brazil. Quincey continued
to command her and made some prizes. He then returned to America,
and was prosecuted for being concerned in fitting out The Bolivar,
The Court held it to be not necessary, in order to convict Quincey, that
the jury should find that The Bolivar was armed, or in a condition to
commit hostilities during the voyage from Baltimore to St. Thomas.
But if the jury believed that the owner and equipper went to
St. Thomas in search of funds, and without a present intention of
employing her as a privateer, or even if they wished so to employ her,
but the fulfilment of their wish depended on their being able to pro-
cure funds at St. Thomas for her equipment, the defendant Quincey
was not guilty. ''The offence," said the Court, " consists principally
in the intention with which the preparations were made. These
preparations, according to the very terms of the Act, must be made
within the limits of the United States, and it is equally necessary that
the intention with respect to the employment of the vessel should be
formed before she leaves the United States. And this must be a fixed
intention, not conditional or contingent, depending on some future
arrangements. . . . The law does not prohibit armed vessels belonging
to citizens of the United States from sailing out of our ports ; it only
requires the owner to give security that such vessels should not be
employed by them to commit hostilities against foreign powers at peace
with the United States (u). § 439f.
The American Act declares that "if any person shall, within the J^jf?^*^®'.
limits of the United States, fit out and arm, or attempt to fit out and arming are
arm, or procure to be fitted out and armed," any vessel to cruise necessary to
against the commerce of a friendly State, he shall be guilty of a mis- ^he otfence.
demeanour. In 1866, The Meteor^ a vessel alleged to be for the
Chilian service in the war between Chili and Spain, was libelled in the
District Court. She had been originally built for the Federal govern-
ment, but the civil war having ended, she was sold instead to Chili.
(0 The Stmtiuma Tn»iidad, 7 Whea- M ^' ^- ▼• <^»««y» « I^eters, 445 ;
Ij^jj 283 1^ CurtdB, 189. Rep. Neut. Comm.
* ' p. 29.
600
BIOHTS OF WAR AS TO MEUTBAL8.
Part IV.
§4398:.
TbePreiu-
dent'spower^.
§439h.
EnliBting.
§439i.
Observance of
American
neutrality*
Towards
Spain.
She was built to carry eleven or twelve guns, but these bad not been
mounted, and sbe was when libelled an unarmed ship of war. The
counsel for the claimant contended that as she had not been fitted out
and armed in the United States, she must be released. But the Court
declined to adopt this interpretation of the statute, and judgment was
given against the ship. This decision was not reviewed by the Supreme
Court, and it has since been much questioned (x).
The ninth section of the Act gives the President power to employ the
land or naval forces of the Union to compel any foreign ship to depart
This has been held to be a power intended to be exercised only when,
by the ordinary process or exercise of civil authority, the purposes of
the law cannot be effected. It was not to be resorted to in cases where
the seizure could be made by the ordinary civil means (y).
With respect to enlisting, it has been held to be no crime under the
Act to leave America with intent to enlist in foreign service, or to
transport persons out of the coimtry with their own consent, with an
intention of such enlistment. To constitute an offence within the Act,
such persons must be hired or retained in America to go abroad with
an intention so to enlist (2).
Such was the law of the United States up to the Treaty of Washing-
ton, 1871. The next point is, to trace the manner in which it has
been observed by American citizens. In 1806, a certain Miranda
fitted out an expedition in New York, and sailed against Caracas. He
was met by two Spanish men-of-war, and was defeated, and took
refuge at Gh^enada ; ten of his followers were condemned to deaUi as
pirates. Mr. Dana says, ** There seems no doubt that this (expedition)
might and ought to have been prevented by us" (a). In 1817, Don
Luis de Onis, Spanish minister to the United States, began a series of
complaints respecting the fitting out of American privateers to cruise
against Spanish commerce. He referred to numerous instances of
privateers issuing from Baltimore and New Orleans, or as he describes
it, *' whole squadrons of pirates having been fitted out from thence, in
violation of the solemn treaty between the two nations, and bringing
back to them the fruits of their piracies, without being checked in
these courses "(6). On the 16th of January, he complains of a
Spanish schooner being captured off Balize at a little more than musket-
shot from the land, by The Jupiter, a privateer fitted out in America.
On the 10th of February, he refers to five more such privateers having
taken Spanish prizes, and on several other occasions he addressed
similar remonstrances to the American government (c). In their
(x) Hep. of Keutrality Comm. p. 87.
And see Pari. Papers, 1873 (No. 2),
p. 39.
(y) Soyt V. GeUton, 8 Wheaton, 246 ;
S. C.y 4 Curtis, 228.
(z) V. S. y. Kazimki, 2 Sprague, 7 ;
8 Law Bep. 254. See on this subject,
Wharton's Criminal Law, pp. 906—910.
Opinions of Attorneys-General (U. S.),
vol. vii. p. 367.
(a) Wheaton, by Dana, p. 668. Bep.
of Neutrality Comm. p. 26.
{b) Reasons of Sir A. Gockbnni as to
Geneva Award. Pari. Papers, 1873
(No. 2), p. 64.
{e) Ibid. p. 66, See, also, Appendix
RIGHTS OF WAR AS TO NEUTRALS. 601
replies to these commmiicatioDs, the United States express their readi- Chap. III.
ness to make inquiries into the matter, and refer the Spanish minister ~
to the law courts. The correspondence closes with the following state-
ment by Don Luis, written on the 16th of November, 1818 : — ** What-
ever may be the forecast, wisdom, and justice conspicuous in the laws
of the United States, it is universally notorious that a system of pillage
and aggression has been organised in several parts of the Union against
the vessels and property of the Spanish nation ; and it is equally so
that all the legal suits hitherto instituted by His Catholic Majesty's
consuls, in the courts of their respective districts, for its prevention, or
the recovery of the property, when brought into this country, have
been and still are completely unavailing " (d). This letter was accom-
panied by a list of thirty privateers belonging to New Orleans, Charles-
ton, Philadelphia, Baltimore, and New York, with a formidable list of
prices made by them. The proceedings in the law courts failed in most
cases from the impossibility of procuring evidence. Cruising against
Spanish commerce was so profitable that few people would come
forward and testify to the violations of the law. Nevertheless it was
enforced in the courts whenever evidence could be got, and numerous
prizes taken by these privateers were restored to their owners (e). In
the meantime Spanish conmierce had suffered immensely. The dispute
was finally adjiusted by certain American claims on account of prizes
made by French privateers, and condemned by French consuls in
Spain, and other matters, being set off against the demands of Spain
for reparation, in a treaty dated 22nd February, 1819 (/). § 439j.
In 1849, Lopez, a Spanish adventurer, planned an attack on Cuba, The expedi-
with the object of annexing it to the United States. The President Lopez,
issued a proclamation calling upon every officer of the government to
use every effort in his power to arrest any person concerned in this ex-
pedition. Nevertheless, Lopez left New Orleans on the 7th of May,
1850, in a steamer, accompanied by two other vessels, with about 500
men on board. He landed at Cardenas in Cuba, but was driven off by
the Spanish troops, and escaped back to the United States. He was
then arrested and brought to trial, but as the judge refused to allow
delay to procure evidence, he was discharged amid the cheers of a large
crowd ; he was again prosecuted at New Orleans, in July, 1850, and a
true bill was found against him, but the government failed to make out
their case. On the 3rd of August, 1851, he again started from New
Orleans, with an expedition of 400 men ; this time he was overpowered
by the Spaniards, and executed at Havana (y). o 439]^^
In 1869, Cuba again became the destination of hostile expeditions, Other Cuban
expeditions.
to Biitiah Case at Geneva, vol. ill. pp. bum, 6 Peters, 352.
99—106. (/) TJ. S. Statutes at Large, vol. viii.
{d) British Appendix, vol. ill. p. 131. p. 258.
{e) Wheaton, by Dana, p. 558. The (^) Pari. Papers, 1873 (No. 2), pp. 62,
Santa Maria, 7 Wheaton, 490 ; The 63. Bep. of Neutrality Comm. 1868,
Monte Allegre, ibid. 520 ; U, S. v. 22^- p. 34.
602
SIGHTS OF WAS AB TO NEUTKAIiS.
Partly.
§4391.
American
neatrality as
regards
England.
organised in tlie Union. Mr. Fish, the American foreign Becretaiy,
admitted ** with regret that an unlawful expedition did succeed in
escaping from the United States, and landing on the shores of Cuba."
In the following year, a notorious vessel, The Hornet, was permitted to
leave New York for Cuba ; she was seized several times before getting
there by both British and American authorities, but finally managed to
effect her purpose of landing an expedition in the island (A). In 1896,
however, shortly before the war which finally severed Cuba from
Spain, the United States authorities were prompt to seize a steamer
which had been armed and fitted out in American waters for the
purpose of a hostile expedition to Cuba (t).
England has on several occasions received annoyance from, the forma-
tion of hostile Irish organisations in America. The first society for
this purpose appeared in 1848, and was styled the "Irish Bepublican
Union," but nothing definite was effected by it. This was succeeded in
1855 by another, named " The Massachusetts Irish Emigrant Aid
Society," whose chief function appears to have been the establishment
of secret societies in various parts of the States. But both the head
society emd its secret branches remained in obscurity and inaignificanoe
until 1863, when they came forth at Chicago as '^ The Fenian Brother-
hood." At the second congress of the Brotherhood, in 1865, the presi-
dent of the society declared that they were ''virtually at war" with
England (k) ; and, to give a greater air of reality to this announce-
ment, bonds were issued, '^ redeemable six months after the acknow-
ledgment of the independence of the Irish nation," the bonds being
payable *^ on presentation at the treasury of the Irish Bepublic" It
is believed that some of these bonds were taken up. About this time
the Canadian government called out a few companies of militia to
resist the threatened invasion of Canada by the Fenians, and if the
language of the Brotherhood deserved any attention, precautions were
highly necessary. Colonel Eoberts, one of the ringleaders, promised
" to have the green fiag supported by the greatest army of Irishmen
upon which the sun ever shone " (/). General Sweeney talked of the
large amount of arms and war material they had purchased, and threw
out mysterious hints respecting a certain territory they were about to
conquer *^ from which we can not only emancipate Ireland, but also
annihilate England " (m). These and other threats were announced
at public meetings, and though the project was absiurd on the face of
it, it was nevertheless a hostile organization against k State at peace
with the Union. Matters became more serious towards the middle of
the year. About 800 or 900 armed men actually crossed into Canada,
and drove back a small number of volunteers. They retreated before
(h) British Counter- case at Geneva,
p. 46.
(i) The Three Friends, 166 U. S. Re-
ports, 1. And see Wiborg v. United
States, 163 U. S. Beports, 632.
(k) The Irish Amerioaa, 11th Feb.
1865.
(0 New York World, 27th Jan. 1866.
(m) New York World, 20th Feb. 1866.
RIGHTS OF WAK AS TO NEUTRALS. 603
another Canadian detachment, and on recrossing the frontier were Chap. lH.
arrested and disarmed by the United States forces. About sixty-five '
were made prisoners in Canada, and placed in the common gaol. The
most remarkable event in connection with this raid was that, on the
23rd July, the House of Hepresentatives resolved to '' request the
President of the United States to urge upon the Canadian authorities,
and also the British government, the release of the Fenian prisoners
recently captured in Canada," and further, that the prosecutions
against those taken in America should be abandoned. In pursuance
of this, the prosecutions were dropped in America, and some of the
ringleaders released after a day's detention on bonds of $5,000. In
October the government decided to return some of the arms taken from
the Fenians, and the remainder were returned the following year (n).
In November, 1868, the Fenian leader, O'Neill, marched in review
through Philadelphia with three regiments in Fenian uniform,
numbering, as reported, 3,000 men. In 1870 two expeditions crossed
into Canada, but being repulsed, fied across the frontier, and were
again discmned by the Union troops. Some of the leaders were
fined and imprisoned, but were released two or three months
after (o).
These violations of neutrality have been referred to (and others
might be adduced) simply to show that America has not always pre-
vented the formation of schemes in her territory hostile to States with
whom she was at peace ; and it is this that renders the tone adopted
towards England by her representatives at the Geneva arbitration less
justifiable. In the truly touching language of Mr. Fish, " Laws will
be broken at times ; and happy is that form of government that can
control the tendency of evil minds, and restrain, by its peaceful
agencies, the violence of evil passions "(/»). But it ill becomes a
nation, whose laws have been frequently and flagrantly broken, to
cast unworthy reproaches upon another State whose laws have also
been violated, but in a much less degree, and whose good faith in
endeavouring to preserve its neutrality was above suspicion. o 43901,
The history of the law of England on the subject must next be con- English nea-
sidered. In 1721, on the occasion of a complaint being made by the *™^^^^s-
Swedish minister that certain ships of war had been built in England,
and sold to the Czar, the judges were ordered to attend the House of
Lords and deliver their opinions on the question, whether the King of
England had power to prohibit the building of ships of war, or of
great force, for foreigners, and they answered that the king had no
power to prohibit the same {q). The origin of the Foreign Enlistment
Act of 1819 is given in the text(r). Up to the American civil
{n) BritiBh Coimter-case, p. 43. AffiaizB, p. 138.
(0) Pari. Papers, N. America, 1873 {q) Fortesoue'a Reports, p. 388. ParL
(No. 2), p. 66. Papers, N. America, No. 4 (1872), p.
{p) Mr. Fish to Mr. Bobarts, 13th 146.
Oct. 1869. Papers relating to Caban (r) See ante, § 438.
604
RIGHTS OF WAE AS TO NEUTBAI^.
Part IV.
§439a.
TheTeioein
•ffftir.
§4390.
Violations of
BritiBh neu-
trality during
American
Civil War.
Cau868 of
complaint.
war, it had been occasionally invoked to preyent the enlistment and
despatch of soldiers from the coimtiy as well as the equipment of
ships, but the cases when it was put into force at all are very few («).
In 1827, four vessels, under Count Saldanha, sailed from Plymou^,
ostensibly for Brazil, but in reality to operate against Don Miguel in
Terceira. H.M.S. Walpole and some gunboats were sent in pursuit,
and intercepted them off Port Praya. Count Saldanha remonstrated
against being interfered with, but the captain of The Walpole cour-
teously, though firmly, insisted upon conducting the expedition away,
leaving it to the count to go where he pleased so long as he did not
stop at Terceira. Another expedition that had sailed from Iiondon
was afterwards stopped by The Walpole {t). In 1835, the Foreign
Enlistment Act was suspended, and British subjects were allowed to
enlist in a Spanish Legion, under Sir De Lacy Evans, for the purpose
of assisting the Queen of Spain. But this was done in pursuance of
the Quadruple Alliance treaty, by which England agreed to assist the
Queen of Spain (u). In 1846, three vessels preparing in British ports
to sail against Equador were seized and condemned. In 1867, a
vessel alleged to be fitting out for the Portuguese rebels was seized, but
released.
A different class of cases arose with the American civil war, and
these are the only ones of any material importance, at the present
time. In these the ground of complaint was the fitting out of armed
vessels for the Confederates in British ports. The depredations on
American commerce caused by Confederate cruisers, some of which
had been fitted out in violation of British neutrality, caused great
irritation in the Union. A very prolonged discussion was entered into,
with the view of making England pay for the damage done by those
vessels, and the matter was finally referred to arbitration by the treaty
of Washington, 1871 (or). The causes of complaint put forward by
the United States government are thus sxunmarised by Lord Chief
Justice Cockbum (y).
'^ 1. That by reason of want of due diligence on the part of the
British government, vessels were allowed to be fitted out and equipped,
in ports of the United Kingdom, in order to their being employed in
making war against the United States, and having been so equipped,
were allowed to quit such ports for that purpose.
''2. That vessels, fitted out and equipped for the before-mentioned
purpose, in contravention of the Foreign Enlistment Act, and being
therefore liable to seizure under the Act, having gone forth from
British ports, but having afterwards returned to them, were not seized
as they ought to have been, but, having been allowed hospitali^ in
(•) They are oolleoted in a memo-
randum, by Lord Tenterden, to the
Neutrality Laws Commisaion Beport,
1868, pp. 38, 39, the Bubstanoe of -whioh
is given above.
(t) See FhiUimore, iii. { 166.
(u) See ante, \ 76.
[x) See Appendix E., p. 783.
(y) Pari. Papers, 1873, N. America
(No. 2), p. 7.
EIGHTS OF WAR AS TO NEUTRALS. 606
sucli ports, were sofEered to go fortli again to resume their warfare Chap. III.
against the commerce of the United States.
" 3. That undue favour was shown in British ports to ships of war
of the Confederate States, in respect of the time these ships were
permitted to remain in such ports, or of the amount of coal with
which they were permitted to be supplied.
*' 4. That vessels of the Confederate States were allowed to make
British ports the base of naval operations against the ships and com-
merce of the United States."
§*39p.
.lues of thi
In order to assist the arbitrators in coming to a decision, three Rules of the
general rules were introduced into the treaty, and, with these rules S?^^^**^
before them, the arbitrators were directed to determine as to each
vessel '' whether Great Britain has, by any act or omission, failed to
fulfil any of the duties set forth in such rules, or recognized by the
principles of intemationsd law not inconsistent with such rules." The
rules were as follows : —
** A neutral government is bound —
** 1st. To use due diligence to prevent the fitting out, arming, or
equipping within its jurisdiction, of any vessel which it has reasonable
ground to believe is intended to cruise or to carry on war against a
power with which it is at peace ; and also to use like diligence to pre-
vent the departure from its jurisdiction of any vessel intended to cruise
or carry on war as above, such vessel having be^n specially adapted in
whole or in part within such jurisdiction, to warlike use.
** 2nd. Not to permit or sufEer either belligerent to make use of its
ports or waters as the base of naval operations against the other, or
for the purpose of the renewal or augmentation of military supplies or
arms, or the recruitment of men.
*' 3rd. To exercise due diligence in its own ports and waters, and,
as to all persons within its jurisdiction, to prevent any violation of the
foregoing obligations and duties " (z). c aqq^
These rules are the weak point in the whole matter. It is stated in The rules as
the treaty " that Her Majesty's government cannot assent to the fore- "^^^^?*®'^"
going rules as a statement of the principles of international law which
were in force at the time when the claims mentioned in Article I. arose,
but that Her Majesty's government, in order to evince its desire of
strengthening the friendly relations between the two countries, and of
making satisfactory provision for the future, agrees that, in deciding
the questions between the two countries arising out of those claims,
the arbitrators should assume that Her Majesty's government had
undertaken to act upon the principles set forth in these rules. And
the High Contracting Parties agree to observe these rules as between
themselves in future, and to bring them to the knowledge of other
maritime powers, and to invite them to accede to them."
What does this amount to ? Simply that England agreed that her
(a) Treaty of WashingtoD, 1871, art. vi. See Appendix B.
•W RIGHTS OP WAE AS TO NEUTRALS,
Ptet IT. liabilities slioold be judged of by roles which she admits were not in
force at the time the acts she is charged with were done. It is useless
to Take up a past quarrel^ bat it is much to be regretted that the noble
spectacle of two great nations referring their disputes to a peaoefal
tnbunaL should be marred by the tribunal being bound to act in a
manner contraij to all the known principles of justice. To consent to
be judged bj ex post facto rules is a sacrifice which few care to make,
and which, when made» is not likely to call forth imitation. Another
fault of the treaty lay in its containing no definition of '^due dili-
gence>'' and thus the arbitrators were thrown upon general principles
to ascribe a meaning to the term.
» 439^ ^^ chief cases heard by the arbitrators were as follows : —
Tft# JfVinaM. Xht Aiitbama^ known at first as No. 290, was built at Liverpool, and
was launched on the loth May, 1862. She was beyond doubt intended
as a Te«sol of war. On the 23rd June, Mr. Adams, American minister
in England, wrote to Lord Eussell that she was about to depart, and
enter the service of the Confederates. On the 30th of June, the Law
Otlioers of the Crown advised, '* that if sufficient evidence can be
obtained to justify proceedings under the Foreign Enlistment Act,
such proi^eedings should be taken as early as possible." Up to the
15th of July, the Commissioners of Customs were of opinion that there
was not sufficient evidence produced to justify the seizure of the vessel.
On the other hand, Mr. Collier (afterwards Lord Monkswell) advised
on the 1 6th, that the vessel should be seized, and on the 23rd he gave
another opinion to the same effect. Further evidence was then pro-
duced, and the opinion of the law officers was again asked, but owing
to the illness of the Queen's Advocate, to whom the evidence was first
sent, their opinion advising the detention of the vessel was not made
known till the 31st July, and on the 29th The Alabama sailed unarmed
from Liverixxd. On the following day a tug left Liverpool with thirty
or forty men on board, and these she transferred to The Alabama off
Moelfra Bay. Two British vessels, The Bahama and The Agrippina^
afterwards cleared from Liverpool and London with the armaments
for The Alabama, and they joined her at the Azores, where she was
fuUy equipped as a vessel of war. It must be added that the British
authorities had no knowledge at the time of the connection between
these vessels and The Alabama (a).
Upon these facts the arbitrators unanimously decided that Great
Britain " failed to use due diligence," and that " after the escape of the
vessel, the measures taken for its pursuit and arrest were so imperfect
as to lead to no result, and therefore cannot be considered sufficient to
release Great Britain from the responsibility already incurred.'* And
a further ground for the decision was, that the ship *' was on several
(a) See Argmnent of the United (No. 12), pp. 69 — 70, from which all
StateB. Pari. Papers, N. America, 1872 the facts hat the last have heen taken.
RIGHTS OF WAR AS TO NEQTRALl
oocasions freely admitted into the ports of colonies I
instead of being proceeded against as it ought to ha'^
The facts relating to The Florida are not very dis
built at Liyerpool as a ship of war under the name
she left Liyerpool unarmed. The authorities though i
the Italian government, and she cleared for Palerm
ballast. Bepresentations as to her real destination '
government by the American consul at Liverpool, an
but as these were unaccompanied by what was
evidence for her seizure, she was allowed to go &ee
were not aware of her real destination, and on her £
most of them insisted on being discharged. After
cussion, she was seized at the Bahamas, and procee
in the Vice-Admiralty Court for her condemnation,
ever, discharged, the judge being of opinion that, \ I
been fitted out in British territory, yet, as she had f
tions of war in the colony, and as there was no evid(
been transferred to a belligerent, he could not conde i
he was mistaken. Fitted out, equipped, or arme<
dominions, in contravention of the statute, a vessel
forfeited by the effect of the statute, and becomes
demned by proceedings in rem, taken before any
within whose jurisdiction she may be (c). The F i
ought therefore to have been condemned at the Bah
released, she proceeded to Green Cay, a desert island
of Nassau. In the meantime, her armaments ha I
Liverpool, but they were conveyed by train to Hai
they were shipped, and at the time it was unknown i
these armaments were intended for The Florida. It ^ \
were simply contraband of war ; however, they were t
The Prince Alfred at Hartlepool, and transferred tc
Oreen Cay. At Nassau she had enlisted some men f 1 1
not having a full complement, she went to Cardenai
endeavoured to enlist others there. This was prevent
ritieSy and she then sailed for the port of Mobile, whi
to enter by eluding the blockading cruisers. She rem
upwards of four months, and then issued as a Con I
war; she was afterwards admitted into several Bri
treated as a belligerent cruiser. With regard to
tribunal, by a majority of four to one, decided thii
failed in her duties in not preventing the ship leavii
allowing her to enlist men at Nassau, and to be arme(i
and in afterwards receiving her in British ports {d).
These two vessels, The Alabama and The Florida, w(!
{h) Pari. Papers, K. America, 1878 (No. 2), p. 140.
(Ko. 2), p. 8. (<i) Pari. Papers, ]
{e) Pari. Papers, K. America, 1878 (No. 2), p. 8.
608
RIGHTS OF WAR AS TO NEUTRALS.
Part IV.
§4»
Indirect
olaimB of the
United States.
§439v.
Boyal Com-
miasion of
1868 on nea-
trftlitj laws.
§439w.
Foreign
EnliHtment
Act, 1870.
vesselB of war built in Great Britain for, and actually employed in,
"the service of the Confederates during the whole civil war. Fonr
others were intended to be built and equipped, but were arrested
while in the course of construction. Four mercheuit vessels, though
not adapted for warlike purposes, were converted into vessels of war
by having guns put on board, but out of the jurisdiction of the British
government — two of them in Confederate ports — and this by reason of
the impossibility of getting ships of war built owing to the active
vigilance of the authorities {e). It is impossible, from want of space,
to go into the details relating to the other ships; it was only as
regards these two. The Alabama and The Florida, and their tenders,
and partially as regards The Shenandoah^ that the tribunal condenmed
England to pay the United States a sum of $15,500,000 in gold, as
indemnity for the ravages committed on American commerce. Nume-
rous other claims were put in by the United States, such as damages
for the cost of pursuing the Southern cruisers, for the prospective
earnings of the ships destroyed, and for the double loss incurred by
the owners of the ships and also by their insurers, but these were
rejected by the tribunal.
What are known as the indirect claims were dismissed by the arbi-
trators at the outset of the proceedings. They were for: (1) The
enhanced rates of insurance in the United States, occasioned by the
cruisers in question. (2) The transfer of the maritime commerce of
the United States to England. This was a very sore point, but on no
possible groimd could England have been called upon to pay damages
under such a head. (3) The prolongation of the civil war {/).
In 1868, a Hoyal Commission was appointed to inquire into the
working of the Foreign Enlistment Act of 1819. This commission
suggested several alterations in the law. They added in their report,
'* In making the foregoing recommendations, we have not felt our-
selves bound to consider whether we were exceeding what coold
actually be required by international law, but we are of opinion that
if those recommendations should be adopted, the municipal law of this
realm available for the enforcement of neutrality wOl derive increased
efficiency, and will, so far as we can see, have been brought into fall
conformity with your Majesty's international obligations " (y). In
accordance with this report, a new Foreign Enlistment Act was passed
in 1870(A).
Yery material changes were thus introduced, and the hands of the
executive greatly strengthened. It is now an offence to build or cause
to be built, or to equip or despatch, or to cause or allow to be de-
spatched, any ship, with intent or knowledge, or having reasonable
(e) Pari. Papers, N. America, 1873
(No. 2), p. 106.
(/) Argument of the United States.
Pari. Papers, N. America (No. 12),
1872, p. 165.
(^) Report of Neutrality Laws Com-
mission, 1868, p. 7.
{h) 33 & 34 Viot. o. 90. See Appen-
dix C.
RIGHTS OF WAR AS TO NEUTRALS. 609
cause to believe that tlie same will be employed in the service of any Chap. III.
foreign State at war with any friendly State (i). Thus, all question "
as to intent is now done away with. If the Secretary of State, or the
chief executive authority in any place, is satisfied that there is
reasonable and probable cause for believing a ship in Her Majesty's
dominions is being built or equipped contrary to the Act, and is about
to be taken beyond such dominions, they may seize and search the
ship, and detain it until condemned or released by a court of law.
The owner may apply to the Court of Admiralty for its release, but it
is then incumbent on him to prove that the Act has not been contra-
vened—a reversal of ordinary procedure which assumes a man inno-
cent until he has been proved guilty (k). These are certainly great
changes, but whether they are as great improvements is not so certain.
The Act goes far beyond what international law requires. It creates
a new crime — ^that of building — and makes British subjects liable to
penalties for acts which are lavrful by the law of nations, and by aU
other municipal laws. It places the shipbuilding trade of this
country at a disadvantage, as compared with that of the rest of the
world (0. §439x.
The Act has been put in force several times since it was passed. Cases under
During the Franco-German war, a French vessel of war captured a j^^^^M^
Prussian ship in the English Channel, and manned her with a prize
crew. The prize was driven into the Downs by stress of weather, and
while there, the French consul at Dover engaged a steam-tug to tow
the prize to Dunkirk Eoads. The tug did so, and on her return was
proceeded against for a violation of the Act. The Privy Council
(reversing the decision of the Admiralty Court) held, that towing the
prize into French waters was despatching a ship within the meaning
of section 8, and accordingly condemned the tug to the Crown (m). In The Inter-
another case during the same war, an English company contracted with *^^^*^^*'*'
the French government to lay down some telegraph lines on the
French coast. They were to complete the communication between
Dunkirk and Yerdun. The company shipped the wires on to a
specially constructed vessel, but when she was about to start the
Secretary of State seized her. The ship was, however, released by the
Admiralty Court, it being proved that the undertaking was of a
purely commercial character, and that though France might partially
use the lines for military purposes, this would not divest the trans-
action of its primary commercial character (n). It is an ofPence The Salvador,
against the Act to supply a vessel to insurgents. Thus, a British
vessel employed as a transport or store-ship in the service of the
Cuban insurgents, who, though not recognized as belligerents, had
formed themselves into a body of people acting together, and under-
(t) Section 8. (^n) The Gauntlet^ L. R. 4 P. C. 184.
(k) Section 23. , . „, ^ » _
. W Report of Neutrality Laws Oomm. W ^^ ^^^^^rnational, L. R. 3 A. & E.
pp. 9 and 10. 321.
W. R R
610
RIGHTS OF WAR AS TO NEUTRALS^
The Justiiia,
Part IV. taking and conducting hostilities, was condemned by the Priv/Council,
under the Act of 1819 (o).
In 1886, one Seuidoyal was indicted under the 8th and 1 1th sections
of the Act. It appeared that Sandoval was a foreigner, but that
while residing in England, he purchased at Sheffield two Krupp guns,
and at Birmingham a quantity of ammunition, and that he then
caused the guns and ammunition to be shipped on board a trading
ship for Antwerp, where they arrived, and where at the same time
arrived The Justitia, which had been purchased also in England by
another person in the name of that other's valet. The Justitia was
then loaded at Antwerp with the guns and ammunition. She took on
board a number of generals and Sandoval, who asserted himself to be
the commander, and sailed with <* machinery for mines," and papers
for Trinidad. Not being permitted to enter port at Trinidad, she
sailed towards Grenada, and then the valet executed a transfer of the
ship to one of the generals, whereupon the British flag was hauled
down, and the Venezuelan flag hoisted, the guns were mounted, the
boats swung out-board, and boats full of armed men taken in tow.
The Justitia — re-named The Liherata — proceeded along the Venezuelan
coast, had an engagement with a Venezuelan war-vessel, fired at some
forts and a custom-house, and finally went to St. Domingo, where she
was seized by the authorities. The object appeared to be to assist
certain persons who were engaged in a rebellion against the Vene-
zuelan Government. The indictment under sect. 8 was clearly not
sustainable; but the jury found that Sandoval, when he purchased
the arms and ammunition in England, knew and expressly intended
that they shotild form part of a naval expedition which was being
prepared to proceed against a foreign friendly State, and that the
purpose intended at the time of the respective purchases was to assist
in a hostile expedition against a foreign friendly State. Upon these
findings, a verdict of guilty was directed against Sandoval, and judg-
ment accordingly. An application for a new trial failed, and the
prisoner was afterwards sentenced to fine and imprisonment {p).
In the case of the Queen t\ Jameson, arising out of the notorious
Baid, the Court held, on sect. 1 1 of the Foreign Enlistment Act, that
if there be an unlawful preparation of an expedition by some person
within Her Majesty's dominions, any British subject who assists in
such preparation will be guilty of an offence even though he renders
the assistance from a pleice outside Her Majesty's dominions {q). It
will be remembered that Dr. Jameson, Sir John Willoughby, and
others of the officers proceeded against were sentenced to varying terms
of imprisonment for their invasion of the Transvaal territory.
The Jameson
Baid.
(o) The Salvador, L. R. 3 P. 0. 218.
And see Burton y. PinJeerton^ L. B. 2 Ex.
340.
(p) Reg. V. Sandoval, 66 L. T. 626;
16 Cox, 0. 0. 206 ; 3 T. L. B. 411, 436,
498.
(q) Reg, ▼. Jammn, (1896) 2 Q. B.
426.
RIGHTS OF WAR AS TO NEUTRALS. 611
There can be no doubt that the Act of 1870 is in excess of what Chap. III.
international law requires as the duty of a neutral. Thus, the o 439Y,
question arises whether a belligerent can claim, as of right, the Ezuorcing
putting in force of such a municipal law in his behalf, and make the m^i<np«lJaw
omission to do so a ground of grievance. Lord Chief Justice Cock- oeas of inter-
bum answers this as follows: — '*When a government makes its "**^**^*^ ^^'
municipal law more stringent than the obligations of international
law would require, it does so, not for the benefit of foreign States, but
for its own protection, lest the acts of its subjects in overstepping the
confines, oftentimes doubtful, of strict right, in transactions of which
a few circumstances, more or less, may alter the character, should
compromise its relations with other nations. . . . Now it is quite
dear that the obligations of the neutral State spring out of, and are
determined by, the principles and rules of international law, inde-
pendently of the municipal law of the neutral. They would exist
exactly the same, though the neutral State had no municipal law to
enable it to enforce the duties of neutrality on its subjects. It would
obviously afford no answer on the part of a neutral government to a
complaint of a belligerent of an infraction of neutrality that its
municipal law was insufficient to enable it to ensure the observance of
neutrality by its subjects; the reason being that international law,
not the mimicipal law of the particular country, gives the only
measure of international rights and obligations. While, therefore, on
the one hand, the municipal law, if not co-extensive with the inter-
national law, wOl afford no excuse to the neutral, so neither on the
other, if in excess of what international obligations exact, will it afford
any right to the belligerent which international law would fail to give
him " (r). Both belligerents must of course be treated equally in this
respect. Partiality towards one will give the othet a ground of
complaint. g 439^^
The question arises, has there been any change effected in the Sale of ships
general principles of international law respecting the duties of ^^^^^^
neutrals ? England and America, by agreeing to act in future on the belligerents.
three rules of the Treaty of Washington, have added to their duties as
neutrals. But owing to a difference of opinion between these two
countries as to the interpretation of these rules, foreign States have
not been invited to accede to them («). Therefore, as regards other
States, the general principles of international law remain the same.
At the Hague Peace Conference of 1899 the delegates formulated,
amongst other pious aspirations, the wish ''that the questions of the
rights and duties of neutrals may be inserted in the programme of a
conference in the near future."
A neutral government is bound not to assist a belligerent in any way.
On the other hand, the subjects of the neutral are entitled to continue
(r) Reasons for dissenting from Ge- («) Papers presented to Parliament,
nera Award. ParL Papers, N. America, 17ih July, 1874 (No. 1012). Hansard,
1878 (No. 2), p. 29. vol. ooxyiii. p. 1839.
rr2
612
RIGHTS or WAR AS TO NEUTRALS.
Partly.
§439aa.
Distinction
between
oommeroial
and hostile
operations.
their ordinary trade, and when that trade consists in exporting arms,
" or ships of war, there arises a conflict between the rights of a belli-
gerent and the rights of neutral subjects. A government may not in
any case sell munitions of war to a belligerent, but its subjects may,
provided they sell indiflferently to both parties in the war, and pro-
vided the transaction is a purely commercial one, and not done with
the intent of assisting in the war, animo adjuvadi^ but simply for
purposes of gain. The right which war gives to a belligerent is that
of seizing such goods as contraband, when on their way from the
neutral State to his adversary. This is undoubtedly an encroachment
on the neutral's right of trade in favour of belligerents, but it is firmlj
settled, and could hardly be avoided in the nature of things. Now
ships intended for war, whether armed or not, are clearly contraband^
and the difficulty of distinguishing between the hondjide sale of a ship
of war, and the organizing of a hostile expedition in her territory, has
induced England to prohibit altogether the sale of such ships by her
subjects to belligerents. But this is not prohibited by intemationsd
law when done bond fide. ''There is nothing in our laws,'' said Mr.
Justice Story, in 1822, ''or in the law of nations, that forbids our
citizens from sending armed vessels, as well as munitions of war to
foreign ports for sale. It is a commercial adventure which no nation
is bound to prohibit, and which only exposes the person engaged in it
to the penalty of confiscation " (J), Thus England has bound herseliE
to observe a rule not required by international law, and as she is still
the greatest shipbuilding country in the world, this is a sacrifice of
her rights in favour of States at war, which ought to remove all doubts
as to her sincerity in wishing to fulfil her neutral obligations.
In 1883, during the tension produced between France and China by
affairs in Tonquin, the German (Government refused to allow three
war vessels built at Stettin for the Chinese Government to sail (u).
In February, 1904, on the outbreak of hostilities between Eussia
and Japan, Germany, contrary to her previous practice, issued a
proclamation of neutrality.
It is impossible to lay down any hard and fast line separating com-
mercial transactions in munitions of war, and the organizing of hostile
expeditions. International law is necessarily incapable of being
defined and laid down with the precision attainable by municipal law.
The question is one of intent, and it is the duty of a neutral govern-
ment to exercise due diligence in ascertaining what the real character
of the transaction may be. The elements of a hostile expedition are
thus described by Professor Beiimrd. " If at the time of its departure
there be the means of doing any act of war, — ^if those means, or any
of them, have been procured and put together in the neutral port, —
and if there be the intention to use them (which may always be taken
for granted when they are in the hands of the belligerents), the neutral
(t) The SantMma Trinidad, 7 Whea-
ton, 340.
(w) Annual UegiaUsr, 1883, p.
RIGHTS OF WAR AS TO NEUTRALS. 613
port may be justly said to serve as a base or point of departure for Chap. III.
a hostile expedition " (a?). The most recent decision as to what
constitutes an expedition is provided by the Supreme Court of the
United States. In November, 1898, in a port of the United States, a JTiborff v.
body of men went on board a tug loaded with arms, and were taken by ^'"'"^ ^^^^*'
it thirty or forty miles and out to sea ; they met a steamer outside the
three-mile limit by prior arrangement, boarded her with the arms,
opened the boxes and distributed the arms among themselves ; they
drilled to some extent, were apparently officered, and then, as
preconcerted, disembarked to effect an armed landing on the coast of
Cuba, then belonging to Spain, with which country the United States
were at peace. It was held that this constituted a military expedition
or enterprise within the provisions of the Neutrality Act (y). o 439bb
A government is not responsible for every possible hostile act that Due diligeDce
may take place in its territory. So long as it takes all reasonable "®c««""7-
precautions to prevent hostile acts, and exercises due diligence in
enforcing these precautions, a belligerent has no just ground of com-
plaint, even if its neutrality is violated. The difficulty is to ascertain
what constitutes "due diligence.*' "The maximum of precaution,"
sajs M. Tetens, "in this case, is to maintain and enforce the observ-
ance of neutrality in vessels and cargoes, with the same diligence and
exactness as are exercised in inquiries and other proceedings relative
to taxes, or imposts and customs. He who does as much to prevent a
wrong meditated against another, as he does for his own protection,
satisfies every just and reasonable expectation on the part of that
other" (z). It is advisable during war for a neutral to make special
regulations for his subjects, but this cannot be demanded by a belli-
gerent as a matter of right. All he can demand is, that the neutral,
by whatever means he thinks proper, should, bond fide^ do his best to
prevent violations of his neutrality.
The unlawfulness of belligerent captures, made within immanity of
the territorial jurisdiction of a neutral State, is incon- territory, how
testably established on principle, usage, and authority. ton^toT
Does this immunity of the neutral territory from the J^^. ^®
exercise of acts of hostility within its limits, extend to
the vessels of the nation on the high seas, and without
the jurisdiction of any other State?
We have already seen, that both the public and
private vessels of every independent nation on the high
seas, and without the territorial limits of any other
{x) Montagae Bernard, Neutrality of (s) See Reddle's Beeearohes in Hari-
Great Britain, p. 399. time and International Law, vol. ii.
(y) WHwrg t. XInxted States, 163 XJ. S. gos
BeportB, 632. ^'
614
RIGHTS OF WAK AS TO NEUTBALS.
Partly. State, are subject to the municipal jurisdiction of the
State to which they belong (a). This jurisdiction is
exclusive, only so far as respects offences against the
municipal laws of the State to which the vessel belongs.
It excludes the exercise of the jurisdiction of every
other State under its municipal laws, but it does not
exclude the exercise of the jurisdiction of other nations,
as to crimes under international law; such as piracy,
and other offences, which all nations have an equal
right to judge and to punish. Does it, then, exclude
the exercise of the belligerent right of capturing enemy^s
property ?
This right of capture is confessedly such a right as
may be exercised within the territory of the belligerent
State, within the enemy^s territory, or in a place
belonging to no one ; in short, in any place except the
territory of a neutral State. Is the vessel of a neutral
nation on the high seas such a place ?
A distinction has been here taken between the public
and the private vessels of a nation. In respect to its
public vessels, it is universally admitted, that neither the
right of visitation and search, of capture, nor any other
belligerent right, can be exercised on board such a vessel
on the high seas. A public vessel, belonging to an
independent sovereign, is exempt from every species of
visitation and search, even within the territorial juris-
diction of another State ; d fortiori^ must it be exempt
from the exercise of belligerent rights on the ocean,
which belongs exclusively to no one nation (i).
In respect to private vessels, it has been said the case
is different. They form no part of the neutral territory,
and, when within the territory of another State, are not
exempt from the local jurisdiction. That portion of the
ocean which is temporarily occupied by them forms no
part of the neutral territory ; nor does the vessel itself,
which is a moveable thing, the property of private
§441.
DiBtinotion
between
public and
private
vessels.
(a) Vide ante, Pt. II. ch. 2, §§ 106,
107.
(A) Vide ante, Pt. II. ch. 2, {$ 105—
107.
RIGHTS OF WAR AS TO NEUTRALS. 615
individuals, form any part of the territory of that power Chap- n^-
to whose subjects it belongs. The jurisdiction which
that power may lawfully exercise over the vessel on the
high seas, is a jurisdiction over the persons and property
of its citizens; it is not a territorial jurisdiction. Being
upon the ocean, it is a place where no particular nation
has jurisdiction; and where, consequently, all nations
may equally exercise their international rights (c). o ^^
Whatever may be the true original abstract principle "^^age of
of natural law on this subject, it is undeniable that the snbjectiiig
constant usage and practice of belligerent nations, from ^S^in
the earliest times, have subjected enemy's goods in to^ptiSr
neutral vessels to capture and condemnation as prize of
war. This constant and universal usage has only been
interrupted by treaty stipulations, forming a temporary
conventional law between the parties to such stipula-
tions (rf). ^ ^ . _ §443.
The regulations and prsictice of certain maritime Neutral
nations at different periods, have not only considered with enemy's
the ffoods of an enemy, laden in the ships of a friend, toconfisoation
liable to capture, but have doomed to confiscation the Sn^ df^
neutral vessel on board of which these goods were laden. ^^^ ^taiea.
This practice has been sought to be justified, upon a
supposed analogy with that provision of the Roman
law, which involved the vehicle of prohibited com-
modities in the confiscation pronounced against the
prohibited goods themselves (e).
Thus, by the marine ordinance of Louis XIV., of
1681, all vessels laden with enemy^s goods are declared
lawful prize of war. The contrary rule had been adopted
by the preceding prize ordinances of France, and was
(e) Rutheiforth's Inst. toI. ii. b. ii. tins, de Jar. Bel. ao Pac. lib. iii. cap. 6,
ob. 9, { 19. Azuni, Diiitto Maritimo, {§ 6, 26 ; cap. 1, § 5, Note 6. BynJcer-
Pt. II. ch. 3, art. 2. Letter of Ameri- sboek, Qoiest. Jur. Pub. lib. i. cap. 14.
can Enyoys at Paris to M. de Talley- Vattel, Droit dee Oens, lir. iii. oh. 7,
rand, January, 1798. Waiters Amerl- { 115. Heineooius, de Nay. ob yect.
can State Papers, yol. iv. p. 34. cap. 2, § 9. Locoenins, de Jure. Marit.
{0) Consolato del Mare, cap. 273. lib. ii. cap. 4, § 12. Azuni, Diiitto
Wheaton*B Hist. Law of Nations, pp. Marit. Pt. II. ch. 3, art. 1, 2.
60,115—119,200—206. Alberions Gen- (e) Barbeyrac, Note to Grotios, lib.
tilis, Hisp. Adyoo. lib. i. cap. 27. Gro- iii. cap. 6, § 6, Note I.
61ft JtlGHTS OP WAR AS TO NEUTEALS.
Partly, again revived by the riglement of 1744, by which it was
declared, that " in case there should be found on board
of neutral vessels, of whatever nation, goods or effects
belonging to his Majesty's enemies, the goods or effects
shall be good prize, and the vessel shall be restored,"
Valin, in his commentary upon the ordinance, admits
that the more rigid rule, which continued to prevail in
the French prize tribunals from 1681 to 1744, was
peculiar to the jurisprudence of France and Spain ; but
that the usage of other nations was only to confiscate the
8 444 ^^^^^ ^* *^® enemy (/).
Goods of a Although by the general usage of nations, indepen-
bo^the dently of treaty stipulations, the goods of an enemy,
enemy, iiS)ie f ouud on board the ships of a friend, are liable to capture
^Thfwi^i''^ and condemnation, yet the converse rule, which subjects
codes of aome to Confiscation the goods of a friend, on board the vessels
nations. • •• i
of an enemy, is manifestly contrary to reason and justice.
It may, indeed, afford, as Grotius has stated, a presump-
tion that the goods are enemy's property ; but it is such
a presumption as will readily yield to contrary proof,
and not of that class of presumptions which the civilians
ceiW presumptiones juris et dejure^ and which are conclusive
upon the party.
But however unreasonable and unjust this maxim may
be, it has been incorporated into the prize codes of certain
nations, and enforced by them at different periods.
Thus, by the French ordinances of 1538, 1543, and
1584, the goods of a friend, laden on board the ships of
an enemy, are declared good and lawful prize. The
contrary was provided by the subsequent declaration of
1650 ; but by the marine ordinance of Louis XIV., of
1681, the former rule was again established. Valin and
Pothier are able to find no better argument in support
of this rule, than that those who lade their goods on
board an enemy's vessels thereby favour the commerce
of the enemy, and by this act are considered in law as
(/) Valin, Gomm. liv. iii. tit. 0. Bes Prises, art. 7. Wheaton's Hist. Law of
Nations, pp. Ill — 114.
BIGHTS OF WAR AS TO NEUTRALS.
617
submitting themselves to abide the fate of the vessel ; Chap- IP-
and Valin asks, ^^ How can it be that the goods of friends
and allies, found in an enemy's ship, should not be liable
to confiscation, whilst even those of subjects are liable
to it ? " To which Pothier himself furnishes the proper
answer : that, in respect to goods, the property of the
king's subjects, in lading them on board an enemy's
vessels they contravene the law which interdicts to them
all commercial intercourse with the enemy, and deserve
to lose their goods for this violation of the law (ff).
The fallacy of the argument by which this rule is
attempted to be supported, consists in assuming, what
requires to be proved, that, by the act of lading his
goods on board an enemy's vessel, the neutral submits
himself to abide the fate of the vessel ; for it cannot be
pretended that the goods are subjected to capture and
confiscation ex re^ since their character of neutral pro-
perty exempts them from this liability. Nor can it be
shown that they are thus liable ex delicto^ unless it be
first proved that the act of lading them on board is an
ofEence against the law of nations. It is therefore with
reason that Bynkershoek concludes that this rule, where
merely established by the prize ordinances of a belli*
gerent power, cannot be defended on sound principles.
Where, indeed, it is made by special compact the equi-
valent for the converse maxim, that free ships make free
goods^ this relaxation of belligerent pretensions may be
fairly coupled with a correspondent concession by the
tieutral, that enemy ships should make enemy goods. These
two maxims have been, in fact, commonly thus coupled
in the various treaties on the subject, with a view to
simplify the judicial inquiries into the proprietary
interest of the ship and cargo, by resolving them into
the mere question of the national character of the ship. « ^^
The two maxims are not, however, inseparable. The The two '
primitive law, independently of international compact, ^^^^i^free
is) Valin, Oomm. liv. iii. tit. 9. Dee Pria^, art. 7. Pothier, Traits de Pro-
pri^t^, No. 96.
618
RIGlilti OF WAR AS TO NEUTRALS.
Partly.
floods and
enemy ehips,
enemy goode^
not neoes-
Barily con«
uected.
rests on the simple principle, that war gives a right to
capture the goods of an enemy, but gives no right to
capture the goods of a friend. The right to capture an
enemy's property has no limit but of the plctce where the
goods are found, which, if neutral, will protect them
from capture. We have already seen that a neutral
vessel on the high seas is not such a place. The exemp-
tion of neutral property from capture has no other
exceptions than those arising from the carrying of con-
traband, breach of blockade, and other an^dogous cases,
where the conduct of the neutral gives to the belligerent
a right to treat his property as enemy's property. The
neutral flag constitutes no protection to an enemy's
property, and the belligerent flag communicates no
hostile character to neutral property. States have
changed this simple and natural principle of the law of
nations, by mutual compact, in whole or in part, accord-
ing as they believed it to be for their interest ; but the
one maxim, that free ships make free goods ^ does not
necessarily imply the converse proposition, that enemy
skips make enemy goods. The stipulation, that neutral
bottoms shall make neutral goods, is a concession made
by the belligerent to the neutral, and gives to the neutral
flag a capacity not given to it by the primitive law of
nations. On the other hand, the stipulation subjecting
neutral property, found in the vessel of an enemy, to
confiscation as prize of war, is a concession made by the
neutral to the belligerent, and takes from the neutral a
privilege he possessed under the pre-existing law of
nations ; but neither reason nor usage renders the two
concessions so indissoluble, that the one cannot exist
without the other.
It was upon these grounds that the Supreme Court of
the United States determined that the Treaty of 1795,
between them and Spain, which stipulated that free ships
should make free goods, did not necessarily imply the
converse proposition, that enemy ships should make
enemy goods, the treaty being silent as to the latter;
and, that, consequently, the goods of a Spanish subject,
BIGHTS OF WAK AS TO NEUTRALS. 619
found on board the vessel of an enemy of the United Chap. III.
States, were not liable to confiscation as prize of war.
And although it was alleged, that the prize law of Spain
would subject the property of American citizens to con-
demnation, when found on board the vessels of her
enemy, the court refused to condemn Spanish property
found on board a vessel of their enemy, upon the prin-
ciple of reciprocity ; because the American government
had not manifested its will to retaliate upon Spain ; and
until this will was manifested by some legislative act,
the court was bound by the general law of nations
constituting a part of the law of the land (A).
The conventional law, in respect to the rule now in Conventional
question, has fluctuated at difEerent periods, according to ,Ai5J/w
the fluctuating policy and interests of the different ^^^'*
maritime States of Europe. It has been much more
flexible than the consuetudinary law; but there is a
great preponderance of modern treaties in favour of the
maxim, free ships free goodSy sometimes, but not always,
connected with the correlative maxim, enemy ships enemy
goods ; so that it may be said that, for two centuries past,
there has been a constant tendency to establish, by com-
pact, the principle, that the neutrality of the ship should
exempt the cargo, even if enemy ^s property, from capture
and confiscation as prize of war. The capitulation
granted by the Ottoman Porte to Henry IV. of France,
in 1604, has commonly been supposed to form the
earliest example of a relaxation of the primitive rule of
the maritime law of nations, as recognized by the Conso-
lato del Mare, by which the goods of an enemy, found
on board the ships of a friend, were liable to capture and
confiscation as prize of war. But a more careful exami-
nation of this instrument will show, that it was not a
reciprocal compact between France and Turkey, intended
to establish the more liberal maxim of free ships free
goods ; but was a gratuitous concession, on the part of
the Sultan, of a special privilege, by which the goods of
(A) The Kereide, 9 Cranoh, 388.
620 BIGHTS OF WAK AS TO NEUTRALS*
Part IV. French subjects laden on board the vessels of his enemies,
and the goods of his enemies laden on board Frencli
vessels, were both exempted from capture by Turkish
cruisers. The capitulation expressly declares, art. 10 :—
" Parce que des sujets de la France naviguent sur vais-
seaux appartenans k nos ennemis, et les chargent de
leurs marchandises, et i^tant rencontres, ils sont faits le
plus souvent esclaves, et leurs marchandises prises ; pour
cctte cause, nous commandons et voulons qu'k I'avenir,
ils ne puissent etre pris sous ce prdtexte, ni leurs faculte8
confisqu(^es, k moins qu'ils ne soient trouvds sur vais-
seaux en course," etc. Art. 12: — "Que les marchan-
dises qui seront charg^es sur vaisseaux fran^ais appar-
tenantes aux ennemis de notre Porte, ne puissent ^tre
prises sous couleur qu'ils sont de nos dits ennemis,
8 447 pwisq'i© ainsi est notre vouloir " (t ).
Treaties of It bccamc, at an early period, an object of interest
Ui^iabjeot. with Holland, a great commercial and navigating
country, whose permanent policy was essentially pacific,
to obtain a relaxation of the severe rules which had
been previously observed in maritime warfare. The
States-General of the United Provinces having com-
plained of the provisions in the French ordinance of
Henry II., 1638, a treaty of commerce was concluded
between France and the Republic, in 1646, by which
the operation of the ordinance, so far as respected the
capture and confiscation of neutral vessels for carrying
enemy's property, was suspended; but it was found
(i) Flassao, Histoire de U Diplomatie of Axnni aaid other compileri, into the
Enm^aiae, torn. ii. p. 226. H. Flattan erroneoas oondxiflion, that the abofB
oheerres :^** C'est k tort qa*on a doiin^ capitulation was intended to change ftfl
k ces Capitulationa le nom de traiie, le- primitive law, as obeerred among the
quel suppose deux parties oontractantes, maritime States of the Meditemnefln
Btipnlans sur leurs int^rdts ; id on ne from the earliest times, and to snhstitDte
trouve que des concessions de privileges, a more liberal rule for that of the Gen-
et des exemptions de pure liberality solato del Mare, of which the Tnrb
faites par la Porte k la France." In must neoessarily be supposed to hsve
the first English edition of this work, been ignorant, and which the IVeoch
and also in another more reoenUy pab« king did not stipulate to relax in thdr
lished, under the title of " History of faTOur, where the goods of his enemies
the Law of Nations/' the author has should be found on boaidTDridshTSMeU.
been misled, by following the authority {NbU by WhetUon.)
RIGHTS OF WAR AS TO NEUTRALST.
621
impossible to obtain any relaxation as to the liability to ^^P* ^^'
capture of enemy's property in neutral vessels. The
Dutch negotiator in Paris, in his correspondence with
the grand pensionary De Witt, states that he had
obtained the " repeal of the pretended French law, que
robe d^ennemi confisque celle d^ami; so that if, for the
future, there should be found in a free Dutch vessel
effects belonging to the enemies of France, these effects
alone will be confiscable, and the ship with the other
goods will be restored ; for it is impossible to obtain the
twenty-fourth article of my Instructions, where it is
said that the freedom of the ship ought to free the
cargo, even if belonging to an enemy." This latter
concession the United Provinces obtained from Spain by
the Treaty of 1650; from France by the treaty of
alliance of 1662; and by the commercial treaty signed
at the same time with the peace at Nimiguen in 1678,
confirmed by the treaty of Ryswick in 1697. The
same stipulation was continued in the treaty of the
Pyr^n^es between France and Spain, in 1659. The
rule of fi^ee ships free goods was coupled, in these treaties,
with its correlative maxim, enemy ships enemy goods. The
same concession was obtained by Holland from England,
in 1668 and 1674, as the price of an alliance between
the two countries against the ambitious designs of Louis
XIV. These treaties gave rise, in the war which com-
menced in 1766 between France and Great Britain, to a
very remarkable controversy between the British and
Dutch Governments, in which it was contended, on the
one side, that Great Britain had violated the rights of
neutral commerce, and on the other, that the States-
General had not fulfilled the guaranty which constituted
the equivalent for the concession made to the neutral
flag, in derogation of the pre-existing law of nations {k).
{k) Dnmont, Ck>rpB Diplomatique, torn. British and Dutch govenmients, by the
vi. pt. i. p. 342. Fhissaxi, Histoire de elder Lord liverpool, (then Mr. Jen-
la Diplomatie Fran9aiM, torn. iii. p. 451. kinson,) entitled, << A Discourse on the
A pamphlet was published on the occa- Conduct of (>reat Britain in respect to
sion of this oontrorersj between the Kentral Nations during th& present
623
RiaRTS OF WAR AS TO KEITTRALS.
Part ly.
§448.
Portnguese
treaty.
§448.
Union of the
two maxims
in treaties.
§450.
Armed
neutrality of
1780.
A treaty of commerce and navigation was concluded
between the Republic of England and the King of
Portugal in 1654, by which the principle oi free skips
free goods^ coupled with the correlative maxim of enemy
ships enemy goods j was adopted between the contracting
parties. This stipulation continued to form the con-
ventional law between the two nations, also closely
connected by political alliance, until the revision of this
treaty in 1810, when the stipulation in question was
omitted, and has never since been renewed.
The principle that the character of the vessel should
determine that of the cargo, was adopted by the treaties
of Utrecht of 1713, subsequently confirmed by those of
1721 and 1739, between Great Britain and Spain, by the
treaty of Aix-la-Chapelle, in 1748, and of Paris in 1763,
between Great Britain, France, and Spain (;).
Such was the state of the consuetudinary and con-
ventional law prevailing among the principal maritime
powers of Europe, when the declaration of independence
by the British North American colonies, now constituting
the United States, gave rise to a maritime war between
France and Great Britain. With a view to conciliate
those powers which remained neutral in this war, the
cabinet of Versailles issued, on the 26th of July, 1778,
an ordinance or instruction to the French cruisers, pro-
hibiting the capture of neutral vessels, even when bound
to or from enemy ports, unless laden in whole or in
part with contraband articles destined for the enemy's
use ; reserving the right to revoke this concession,
unless the enemy should adopt a reciprocal measure
within six months. The British government, far from
adopting any such measure, issued in March, 1780, an
order in council suspending the special stipulations
respecting neutral commerce and navigation contained
in the treaty of alliance of 1674, between Great Britain
War/' whioh contains a Terjr foil and
instmotive disoossioiL of the question of
neatral navigationy both as resting on
the primitiTe law of nations and on
treaties. London, 8to. 1757. Sod cd.
1794; Sided. 1801.
(/) Wheaton's Hist Law of KationsT
Sp. 120*126.
RIGHTS OF WAR AS TO NEUTRALS. 623
and the United Provinces upon the alleged ground that Chap, m.
the Stiates-General had refused to fulfil the reciprocal
conditions of the treaty. Immediately after this order
in council, the Empress Catharine II. of Russia com-
municated to the different belligerent and neutral
powers the famous declaration of neutrality, the prin-
ciples of which were acceded to by France, Spain, and
the United States of America, as belligerent ; and by
Denmark, Sweden, Prussia, Holland, the Emperor of
Germany, Portugal, and Naples, as neutral powers.
By this declaration, which afterwards became the basis
of the armed neutrality of the Baltic powers, the rule
that free ships make free goods was adopted, without
the previously associated maxim that enemy ships
should make enemy goods. The Court of London
answered this declaration by appealing to the *' prin-
ciples generally acknowledged as the law of nations,
being the only law between powers where no treaties
subsist" ; and to the " tenor of its different engagements
with other powers, where those engagements had altered
the primitive law by mutual stipulations, according to
the will and convenience of the contracting parties."
Circumstances rendered it convenient for the British
government to dissemble its resentment towards Russia,
and the other northern powers, and the war was termi-
nated without any formal adjustment of this dispute
between Great Britain, and the other members of the
armed neutrality (m).
By the treaties of peace concluded at Versailles in Treaties
1783, between Great Britain, France, and Spain, the maxims not
treaties of Utrecht were once more revived and con- '®°®^
firmed. This confirmation was again reiterated in the
commercial treaty of 1786, between France and Great
Britain, by which the two kindred maxims were once
more associated. In the negotiations at Lisle in 1797,
(m) Flasaan, Diplomatie Franc^aise, pp. 345—356 ; toI. zxit. p. 300. Whea-
tom. yii. pp. 183, 273. Annnal Be- ton's Hist. Law of Nations^ pp< 294—
gister, Tol. zxiii. p. 205, State Papers, 305.
624
RIGHTS OP WAR AS TO NEUTRALS.
Part IV;
Fractioe
durinff the
Frendb
Berolation.
§463.
Armed
neatrality of
1800.
it was proposed by the British plenipotentiary, Lord
Malmesbury, to .renew all the former treaties between
the two countries confirmatory of those of Utrecht.
This proposition was objected to by the French minis-
ters, for several reasons foreign to the present subject ;
to which Lord Malmesbury replied that these treaties
were become the law of nations, and that infinite con-
fusion would result from their not being renewed. It is
probable, however, that his lordship meant to refer to
the territorial arrangements rather than to the com-
mercial stipulations contained in these treaties. Be this
as it may, the fact is, that they were not renewed,
either by the treaty of Amiens in 1802, or by that of
Paris in 1814.
During the protracted wars of the French Revolution
all the belligerent powers began by discarding in practice,
not only the principles of the armed neutrality, but even
the generally received maxims of international law, by
which the rights of neutral commerce in time of war
had been previously regulated. "Russia," says Von
Martens, " made common cause with Great Britain and
with Prussia, to induce Denmark and Sweden to re-
nounce all intercourse with France, and especially to
prohibit their carrying goods to that country. The
incompatibility of this pretension with the principles
established by Russia in 1780, was veiled by the pretext,
that in a war like that against revolutionary France, the
rights of neutrality did not come in question." France,
on her part, revived the severity of her ancient prize
code, by decreeing, not only the capture and condem-
nation of the goods of her enemies found on board
neutral vessels, but even of the vessels themselves laden
with goods of British growth, produce, and manufactm-e.
But in the further progress of the war, the principles
which had formed the basis of the armed neutrality of
the northern powers in 1780, were revived by a new
maritime confederacy between Russia, Denmark, and
Sweden, formed in 1800, to which Prussia acceded.
This league was soon dissolved by the naval power of
RIGHTS OF WAR AS TO NEUTRALS. 625
Great Britain and the death of the Emperor Paul ; and Chap. III.
the principle now in question was expressly relinquished
by Russia in the convention signed at St. Petersburg in
1801, between that power and the British Government,
and subsequently acceded to by Denmark and Sweden,
In 1807, in consequence of the stipulations contained in
the treaty of Tilsit between Russia and France, a decla-
ration was issued by the Russian Court, in which the
principles of the armed neutrality were proclaimed
anew, and the convention of 1801 was annulled by the
Emperor Alexander. In 1812, a treaty of alliance
against France was signed by Great Britain and Russia ;
but no convention respecting the freedom of neutral
commerce and navigation has been since concluded
between these two powers (w). o ^j^
The maritime law of nations, by which the intercourse th® JntOT-
, 1T11 T J national law
of the European States is regulated, has been adopted of Europe
by the new communities which have sprung up in the America, Ind
western hemisphere, and was considered by the United ^^^^ ^^
States as obligatory upon them during the war of their
revolution. During that war the American Courts of
Prize acted upon the generally received principles of
European public law, that enemy's property in neutral
vessels was liable to, whilst neutral property in an enemy's
vessel was exempt from capture and confiscation ; until
Congress issued an ordinance recognizing the maxims of
the armed neutrality of 1780, upon condition that they
should be reciprocally acknowledged by the other belli-
gerent powers. In the instructions given by Congress,
in 1784, to their ministers appointed to treat with the
different European Courts, the same principles were
proposed as the basis of negotiation by which the inde-
pendence of the United States was to be recognized.
During the wars of the French Revolution, the United
States, being neutral, admitted that the immunity of
their flag did not extend to cover enemy's property, as a
principle founded in the customary law and established
(«) Wheaton'a Hi«t. Law of Nations, pp. 397—401.
W. S S
626 RIGHTS OF WAK AS TO XEUTRAU3.
Ptet IT. usage of nations, though they sought every opportunity
of sabsritating for it the opposite maxim of free ships
fr^t y»/-#y by conTenrional arrangements with such
nations as were disposed to adopt that amendment of
the law. In the course of the correspondence which
t«>3k place between the minister of the French Republic
and the Goremment of the United States, the latter
affirmed that it could not be doubted that, by the
general law of nations, the goods of a friend found in
the vessel of an enemy are free, and the goods of an
enemy found in the vessel of a friend are lawful prize.
It was true, that several nations, desirous of avoiding the
inconvenience of having their vessels stopped at sea,
overhauled, carried into port, and detained, under pre-
tence of having enemy's goods on board, had, in many
instances, introduced, by special treaties, the principle
that enemy ships should make enemy goods, and friendly
ships friendly goods ; a principle much less embarrassing
to commerce, and equal to all parties in point of gain
and loss ; but this was altogether the efiFect of particular
treaty, controlling in special cases the general principle
of the law of nations, and therefore taking effect between
such nations only as have so agreed to control it. Eng-
land had generally determined to adhere to the rigorous
principle, having in no instance, so far as was recollected,
agreed to the modification of letting the property of the
goods follow that of the vessel, except in the single one
of her treaties with France. The United States had
adopted this modification in their treaties with France,
with the United Netherlands, and with Prussia; and,
therefore, as to those powers, American vessels covered
the goods of their enemies, and the United States lost
their goods when in the vessels of the enemies of those
powers. With Great Britain, Spain, Portugal, and
Austria, the United States had then no treaties; and
therefore had nothing to oppose them in acting accord-
ing to the general law of nations, that enemy goods are
lawful prize though found in the ships of a friend. Nor
was it perceived that France could, on the whole, suffer;
RIGHTS OF WAE AS TO NEUTRALS, 627
for though she lost her goods in American vessels, when Chap. HI.
found therein by England, Spain, Portugal, or Austria;
yet she gained American goods when found in the
vessels of England, Spain, Portugal, Austria, the United
Netherlands, or Prussia: and as the Americans had
more goods afloat in the vessels of those six nations,
than France had afloat in their vessels, France was the
gainer, and they the losers, by the principle of the
treaty between the two countries. Indeed, the United
States were the losers in every direction of that prin-
ciple ; for when it worked in their favour, it was to save
the goods of their friends ; when it worked against them,
it was to lose their own, and they would continue to lose
whilst it was only partially established. When they
should have established it with all nations, they would
be in a condition neither to gain nor lose, but would be
less exposed to vexatious searches at sea. To this condi-
tion the United States were endeavouring to advance ;
but as it depended on the will of other nations, they
could only obtain it when others should be ready to
concur (o). «4g5
By the treaty of 1794 between the United States and Conflict in
i^t-fc-..-! . -iTi 1 proviaiona of
(jrreat Britain, article 17, it was stipulated that vessels, treaties with
captured on suspicion of having on board enemy's pro- wfthFra^e.
perty or contraband of war, should be carried to the
nearest port for adjudication, and that part of the cargo
only which consisted of enemy's property, or contraband
for the enemy's use, should be made prize, and the vessel
be at liberty to proceed with the remainder of her cargo.
In the treaty of 1778, between France and the United
States, the rule oijree ships free goods had been stipulated ;
and, as we have already seen, France complained that
her goods were taken out of American vessels without
resistance by the United States, who, it was alleged, had
abandoned by their treaty with Great Britain their ante-
(o) Mr. Jefferson's Letter to M. Oenet, Person's Letter to Mr. R. R. Livingston,
July 24, 1793. Waite's State Papers, American Minister at Paris, Sept. 9,
- . ,„, « , ^ ., %. . 1801. Jefferson's Memoirs, Tol. ui. p.
Yol. 1. p. 134. See also President Jef- ^gg
ss2
628
RIGHTS OF WAS AS TO NEUTRALS.
Pirt IV. cedent engagements to France, recognizing the princif
of the armed neutrality.
To these complaints, it was answered by the American
government, that when the treaty of 1778 was concluded,
the armed neutrality had not been formed, and conse-
quently the state of things on which that treaty operated
was regulated by the pre-existing law of nations, inde-
pendently of the principles of the armed neutrality. By
that law, free ships did not make free goods, nor enemy
ships enemy goods. The stipulation, therefore, in the
treaty of 1778 formed an exception to a general rule,
which retained its obligation in all cases where not
changed by compact. Had the treaty of 1794 between
the United States and Great Britain not been formed, or
had it entirely omitted any stipulation on the subject,
the belligerent right would still have existed. The
treaty did not concede a new right, but only mitigated
the practical exercise of a right already acknowledged to
exist. The desire of establishing universally the prin-
ciple, that neutral ships should make neutral goods, was
felt by no nation more strongly than by the United
States. It was an object which they kept in view, and
would pm'sue by such means as their judgment might
dictate. But the wish to establish a principle was essen-
tially di£Perent from an assumption that it is already
established. However solicitous America might be to
pursue all proper means tending to obtain the concession
of this principle by any or all of the maritime powers of
Europe, she had never conceived the idea of obtaining
that consent by force. The United States woidd only
arm to defend their own rights : neither their policy nor
their interests permitted them to arm in order to compel
a surrender of the rights of others (/?).
§466.
DisousBion The principle of free ships free goods had been stipulated
American and by the treaty of 1785, art. 12, between the United States
PruBsian
govenunentfl.
(p) Letter of the American Envoysat ^^^ ^^; de Talle^nd. Jan 17,
_^ .' , ^ 1798. Waite's State Papers, vol. it.
Pan**, Messrs. Marshall, Pinkuey, and pp 38—47.
RIGHTS OF WAR AS TO NEUTRALS. 629
and Prussia, without the correlative maxim of enemy ships chap. III.
enemy goods. By the 12th article of this treaty it was
provided, that ^4f one of the contracting parties should
be engaged in war with any other power, the free inter-
course and commerce of the subjects or citizens of the
party remaining neuter with the belligerent powers shall
not be interrupted. On the contrary, in that case, as in
full peace, the vessels of the neutral party may navigate
freely to and from the ports and on the coasts of the
belligerent parties, free vessels making free goods, inso-
much that all things shall be adjudged free which shall
be on board any vessel belonging to the neutral party,
although such things belong to an enemy of the other ;
and the same freedom shall be extended to persons
who shall be on board a free vessel, although they should
be enemies to the other party, unless they be soldiers in
actual service of such enemy."
The above treaty having expired, by its own limita- American*
tion, in 1796, a negotiation was commenced by the ^irthe^iSe
American and Prussian governments for its renewal. In ^^^^^f*
the instructions given by the former to its plenipo-
tentiary, Mr. J. Q. Adams, it was stated that the prin-
ciple oifree ships free goods ^ recognized in the 12th article,
was a principle which the United States had adopted in
all their treaties (except that with Great Britain), and
which they sincerely desired might become universal;
but they had found by experience, that treaties formed
for this object were of little or no avail; because the
principle was not imiversally admitted among maritime
nations. It had not been observed in respect to the
United States, when it would operate to their benefit;
and might be insisted on only when it would prove
injurious to their interests. The American plenipoten-
tiary was therefore directed to propose to the Prussian
cabinet the abandonment of this article in the new treaty
which he was empowered to negotiate {q).
(q) Mr. Secretary Pickering to Mr. John Quincy Adams, Minister of the U. S. at
Berlin, July 15, 1797.
630
BIGHTS OF WAB AS TO NEUTRALS.
Part IV. It was further stated, in an additional explanatory
instruction given by the American government to its
plenipotentiary, that in the former instruction, the
earnest wishes of the United States were meant to be
expressed, that the principle oifree ships free goods should
become universal. This principle was peculiarly in-
teresting to them, because their naval concerns were
mercantile and not warlike; and it would readily be
perceived, that the abandonment of that principle was
suggested by the measures of the belligerent powers,
during the war then existing, in which the United
States had found that neither the obligations of the
pretended modem law of nations, nor the solemn stipula-
tions of treaties, secured its observation; on the contrary,
it had been made the sport of events. Under such cir-
cumstances, it appeared to the President desirable to
avoid renewing an obligation which would probably be
enforced when their interest might require its dissolution,
and be contemned when they might derive some advan-
tage from its observance. It was possible, that in the then
pending negotiations of peace, the principle of free ships
free goods might be adopted by all the great maritime
powers; in which case the United States would be among
the first of the other powers to accede to it, and to observe
it as a universal rule. The result of the negotiations
would probably be known to the American plenipo-
tentiary, before the renewal of the Prussian Treaty;
and he was directed to conform his stipulations on this
point to the result of those negotiations. But if the
negotiations for peace should be broken up, and the
war continued, and more especially if the United States
should be forced to become a party to it, then it would
be extremely impolitic to confine the exertions of their
armed vessels within narrower limits than the law of
nations prescribes. If, for instance, France should pro-
ceed, from her predatory attacks on American commerce,
to open war, the mischievous consequences of any other
limitations would be apparent. All her commerce would
be sheltered imder neutral flags; whilst the American
BIGHTS OF WAR AS TO NEUTRALS. 631
commerce would remain exposed to the havoc of her Chap. HI.
numerous cruisers (r). « .-^
In acknowledging the receipt of these instructions, the Objection of
American plenipotentiary questioned the expediency of Adimitothe
the proposed alteration in the stipulation contained in °™^^*^-
the 12th article of the Treaty of 1785. He stated that
the principle of making free ships protect enemy's pro-
perty had always been cherished by the maritime powers
not having large navies, though stipulations to that effect
had been, in all wars, more or less violated. In the then
present war, indeed, they had been less respected than
usual; because Great Britain had held a more uncon-
trolled command of the sea, and had been less disposed
than ever to concede the principle ; and because France
had disclaimed most of the received and established
ideas upon the law of nations, and considered herself as
liberated from all the obligations towards other States
which interfered with her present objects, or the interests
of the moment. Even during that war, however, several
decrees of the French Convention, passed at times when
the force of solemn national engagements was felt, had
recognized the promise contained in the Treaty of 1778,
between the United States and France ; and, at times,
this promise had been, in a great degree, observed.
France was still attached to the principles of the armed
neutrality, and yet more attached to the idea of com-
pelling Great Britain to assent to them. Indeed, every
naval State was interested in the maintenance of liberal
maxims in maritime affairs, against the domineering policy
of the latter power. Every instance, therefore, in which
those principles which favour the rights of neutrality
should be abandoned by neutral powers, was to be re-
gretted, as furnishing argument, or at least example, to
support the British doctrines. There was certainly a
great inconvenience, when two maritime States were at
war, for a neutral nation to be bound by one principle to
one of the parties, and by its opposite to the other ; and, in
(r) Hr. Secretazy Piokering to Mr. John Qvinoy Adams, July 17, 1797.
633
RIGHTS OF WAB AS TO NEUTRALS.
PtftlY. such cases, it was never to be expected that an engagement
favourable to the rights of neutrality would be scrupu-
lously observed by either of the warring States. It
appeared to the American plenipotentiary that the stipu-
lation ought to be made contingent, and that the con-
tracting parties should agree, that in all cases when one
of the parties should be at war, and the other neutral, the
neutral bottom should cover enemy's property, provided
the enemy of the warring power admitted the same principle^
and practised upon it in their Courts of Admiralty ; but
if not, that the rigorous rule of the ordinary law of
« 459 nations should be observed (a).
Mr. Adams In a subscQuent communication of the American
reooDsiden . . * , . - , ,
the subject, plenipotentiary to his government, he states that he
should be guided by its instructions relative to this
matter, although he wm still of opinion that the proposed
alteration in the previous treaty would be inexpedient.
Sweden and Prussia were both strongly attached to the
principle of making the ship protect the cargo. They
had more than once contended, that such is the rule even
by the ordinary law of nations. A Danish writer of
some reputation, in a treatise upon the commerce of
neutrals in times of war, had laid it down as a rule, and
argued formally, that, by the law of nature, free ships
make free goods (/). Lampredi, a recent Florentine
author, upon the same topic, had discussed the question
at length ; and contended that by the natural law, in this
case, there is a collision of two rights equally valid ; that
the belligerent has a right to detain, but that the neutral
has an equal right to refuse to be detained. This reduced
the matter to a mere question of force, in which the belli-
gerent, being armed, naturally enjoys the best advan-
tage (u). He confessed that the reasoning of Lampredi
had, in his mind, great weight, and that this writer
{») Mr. J. Q. Adams to Mr. Secretary Nations, pp. 219—229.
Pickering, October 31, 1797 ; May 17, («) Lampredi, Del. Commeroio dd
1798. Popoli neutrali in Tempo de Ouem.
(0 Hubner, De la Salue des Bdti- Wheaton*8 Hist. Law of Nations, pp.
mensneutres. Wheaton's Hist. Law of 314,319.
RIGHTS OP WAR AS TO NEUTRALS. 633
appeared to have stated the question in its true light. Chap. HI.
Under these circumstances, he intended to propose a
conditional article, putting the principle upon a footing
of reciprocity, and agreeing that the principle, with
regard to bottom and cargo, should depend upon the
principle guiding the Admiralty Courts of the enemy.
This would at once discover the American inclination
and attachment to the liberal rule, and yet not make
them the victims of their adherence to it, while violated
by their adversaries. Acting under the^ instructions of
his government, he should not accede to the renewal of
the article, under its form in the previous treaty (x). « ^gQ
The American negotiator, following the letter of his ^^»i
instructions, proposed, in the first instance, to the Prus- Pniaaia.
sian plenipotentiaries, to substitute, instead of this article,
the ordinary rule of the law of nations, which subjects
to seizure enemy's property on board of neutral vessels.
This proposition was supported, upon the ground that
although the principle, which communicates to the cargo
the character of the vessel, would be conformable to the
interests of the United States, of Prussia, and of all the
powers preserving neutrality in maritime wars, if it could
be universally acknowledged and respected by the belli-
gerent powers ; yet it was well known that the powers
most frequently engaged in naval wars did not recognize,
or, if they recognized, did not respect, the principle.
The United States had experienced, during the then
present war, the fact, that even the most formal treaty
did not secure to them the advantage of this principle ;
but, on the contrary, only contributed to accumulate the
losses of their citizens, by encouraging them to load
their vessels with merchandise declared free, which they
had, notwithstanding, seen taken and confiscated, as if no
engagement had promised them complete security. At
the then present moment, neither of the powers at war
admitted the freedom of enemy's property on board
neutral vessels. If, in the course of events, either of the
{x) Mr. J. Q. Adams to Kr. Secretary Pickering, May 25, 1798.
634 EIGHTS OF WAR AS TO NEUTRALS.
Ptrt IV. contracting parties should be involved in war with one
or the other of those powers, she would be obliged to
behold her enemy possess the advantage of a free con-
veyance for his goods, without possessing the advantage
herself, or else to violate her own engagement, by
treating the neutral party as the enemy should treat
§461. ^^^(y)'
Answer of The Piiissian plenipotentiaries, in their answer to these
arguments, stated that it could not be denied that the
ancient principle of the freedom of navigation had been
little respected in the two last wars, and especially in
that which still subsisted ; but it was not the less true
that it had served, until the present time, as the basis of
the commerce of all neutral nations ; that it had been,
and was still maintained, in consequence. If it should
be suddenly abandoned and subverted in the midst of
the then present war, the following consequences would
result : —
1 . An inevitable confusion in all the commercial spe-
culations of neutral nations, and the rejection of all the
claims prosecuted by them in the Admiralty Courts of
France and Great Britain, for illegal captures.
2. A collision with the northern powers, which sus-
tained the ancient principle, at that very moment, by
armed convoys.
3. Nothing would be gained in establishing, at the
present moment, the principle that neutral property an
board enemy vessels should be free from capture. The belli-
gerent powers would be no more disposed to admit this
principle than the other, and it would furnish an addi-
tional reason to authorize their tribunals to condemn
prizes made in contravention of the ancient rule,
4. Even supposing that the great maritime powers of
Europe should be willing to recognize the principle pro-
posed to be substituted by the United States, it would
only increase the existing embarrassments incident to
(y) Mr. J. Q. AdamB to MM. Finkenstein, AlyenalebeD, and Hangwits, Jul/ 11,
1798.
EIGHTS OF WAR AS TO NEUTRALS. 635
judicial proceedings respecting maritime captures ; as, Cliap. m.
instead of determining the national character of the cargo
by that of the vessel, it would become necessary to fur-
nish separate proofs applicable to each.
All these difficulties combined induced the Prussian Proponai '
minister to insist on inserting the 12th article of the p^m^^
Treaty of 1785 in the new treaty, qualified with the
following additional stipulation.
" That experience having unfortunately proved, in the
course of the present war, that the ancient principle of
free neutral navigation has not been sufficiently respected
by the belligerent powers, the two contracting parties
propose, after the restoration of a general peace, to agree,
either separately between themselves, or jointly with the
other powers alike interested, to concert with the great
maritime powers of Europe such an arrangement as may
serve to establish, by fixed and permanent rules, the free-
dom and safety of neutral navigation in future wars "(;?}. « ^g
The American negotiator, in his reply to this commu- Reply of
nication, stated, that the alteration in the former treaty,
proposed by his government, was founded on the suppo-
sition, that, by the ordinary law of nations, enemy's
property on board of neutral vessels is subject to capture,
whilst neutral property on board of enemy's vessels is
free. That this rule could not be changed but by the
consent of all maritime powers, or by special treaties,
the stipulations of which could only extend to the con-
tracting parties. That the opposite principle, the esta-
blishment of which was one of the main objects of the
armed neutrality during the war of American Independ-
ence, had not been universally recognized even at that
period; and had not been observed, during the then
present war, by any one of the powers who acceded to
that system. That Prussia herself, whilst she remained
a party to the war against France, did not admit the
principle; and that, at the then present moment, the
(«) MM. Finkenstem, AlyensLeben, and Hangwitz, to Mr. J. Q. Adams, 25th
September, 1798.
686 BIGHTS OF WAR AS TO NEUTRALS.
Part lY. ancient principle of the law of nations subsisted in its
whole force between all the powers, except in those cases
where the contrary rule was stipulated by a positive
treaty.
In proposing, therefore, to recognize the freedom of
neutral property on board of enemy's vessels, and to re-
cognize, as subject to capture, enemy's property on board
of neutral vessels, nothing more was intended than to
confirm by the treaty those principles which already
existed independently of all treaty ; it was not intended
to make, but to avoid a change, in the actual order of
things.
Far from wishing to dictate, in this respect, to the
belligerent powers, it had not been supposed that an
agreement between Prussia and the United States could,
in any manner, serve as a rule to other powers not
parties to the treaty, in respect to maritime captures;
and as the effect of such a convention, even between the
contracting parties, would not be retroactive, but would
respect the future only, it had been still less supposed
that the just claims of the subjects of neutral powers,
whether in England or in France, on account of illegal
captures, could be in any manner affected by it.
Nor had it been apprehended that such a convention
would produce any collision with the northern powers,
since they could not be bound by a treaty to which they
were not parties ; and this supposed contradiction would
still less concern Russia, because, far from having main-
tained the principle that the neutral flag covers enemy's
property, she had engaged, by her convention with
Great Britain of the 25th of March, 1793, to employ all
her efforts against it during the then present war.
Sweden and Denmark, by their convention of the
27th March, 1794, engaged reciprocally towards each
other, and towards all Europe, not to claim, except in
those cases expressly provided for by treaty, any advan-
tage not founded upon the miiversal law of nations,
'* recognized and respected unto the j^resent time by all
the powers and by all the sovereigns of Europe." It
RIGHTS OF WAR AS TO NEUTRALS. 637
was not conceived possible to include, under this de- Chap. HI.
scription, the principle that the cargo must abide the
doom of the flag under which it is transported ; and it
might be added, that experience had constantly demon-
strated the insufficiency of armed convoys to protect this
principle, since they were seen regularly following, with-
out resistance, the merchant vessel under their convoy
into the ports of the belligerent powers, to be there
adjudged according to the principles established by their
tribunals; principles which were entirely contrary to
that by which the ship neutralizes the cargo.
According to the usage adopted by the tribunals of all
maritime States, the proofs as to the national character
of the cargo ought to be distinct from those which
concern that of the vessel. Even in those treaties
which adopt the principle that the flag covers the
property, it is usual to stipulate for papers applicable
to the cargo, in order to show that it is not contraband.
The charter-party and the bills of lading had been
referred to by the Prussian ministers, as being required
by the Prussian tribunals, and which it was proposed to
designate as essential documents in the new treaty. It
would seem, then, that the adoption of the principle in
question would not require a single additional paper,
and, consequently, would not increase the difficulty of
prosecuting claims against captors; at the utmost, it
could only be regarded as a very small inconvenience,
in comparison with the losses occasioned by the recog-
nition of a principle already abandoned by almost all
the maritime powers, and which had been efficaciously
sustained by none of them ; of a principle which would
operate injuriously to either of the contracting parties
that might be engaged in war, whilst its enemy would
not respect it, and that party which remained neutral
would hold out to its subjects the illusory promise of a
free trade, only to see it intercepted and destroyed.
But as the views of the Prussian government appeared
in some respects to differ from those of the American,
in regard to the true principle of the law of nations,
638
RIGHTS OF WAR AS TO NEUTRALS.
PtftlY. and it appeai*ed to the Prussian ministers that several
inconveniences might result from the substitution of the
opposite principle to that contained in the former treaty,
the American negotiator proposed, as an alternative,
to omit entirely the stipulations of the 12th article in
the new treaty ; the effect of which would be to leave
the question in its then present situation, without en-
gaging either of the contracting parties in any special
stipulation respecting it. And as the establishment of a
permanent and stable system, with the hope of seeing it
maintained and respected in future wars, was an im-
portant object to commerce in general, and especially to
that of the contracting parties, he was willing to consent
to an eventual stipulation similar to that proposed by the
Prussian ministers; but which, veithout implying, on
either part, the admission of a contested principle,
should postpone the decision of it until after the general
peace, either by an ulterior agreement between the
contracting parties, or in concert with other powers
interested in the question. The United States would
always be disposed to adopt the most liberal principles
that might be desired, in favour of the freedom of
neutral commerce in time of war, whenever there should
be a reasonable expectation of seeing them adopted and
recognized in a manner that might secure their practical
execution (a).
464. .
Farther reply The Prussian ministers replied to this counter-propo-
sition, by admitting that the rule by which neutral
property, found on board enemy^s vessels, was free from
capture, had been formerly followed by the greater part
of European powers, and was established in several
treaties of the fourteenth and fifteenth centuries; but
they asserted that it had been abandoned by mari-
time and commercial nations, ever since the incon-
veniences resulting from it had become manifest. In
the two treaties concluded as early as 1646, by the
(a) Mr. J. Q. Adams to MM. Fmkenstem, Alvenaleben, and Hangwite, October
29, 1798.
of Prussia.
BIGHTS OP WAR AS TO KEUTEALS. 639
United Provinces, with France and with England, the Chap. ni.
rules of free ships free goods, and of enemy ships enemy
goods, were stipulated; and these principles, once laid
down, had been repeated in almost all the treaties since
concluded between 'the different commercial nations of
Europe. The convention of 1793, between Russia and
England, to which the American negotiator had referred,
was exclusively directed against France, and merely
formed an exception to the rule; and if, during the
commencement of the revolutionary war, the allied
powers deemed it necessary to deviate from the recog-
nized principle, this momentary deviation could only be
attributed to peculiar circumstances, and it was not the
less certain that Prussia had never followed any other
than one and the same permanent system, relative to
neutral commerce and navigation. This system was
founded upon the maxim announced in the 12th article
of her former ti*eaty with the United States, which best
accorded with the general convenience of commercial
nations, by simplifying the proofs of national character,
and exempting neutral navigation from vexatious search
and interruption.
The Prussian ministers also declared their conviction
that, during the then present war, when the commerce
and navigation of neutral nations had been subjected to
so many arbitrary measures, the principle proposed by
the American negotiator would not be more respected
than the former rule; several recent examples having
demonstrated that even neutral vessels, exclusively
laden with neutral property, had been subjected to
capture and confiscation, under the most frivolous pre-,
texts. But it would be useless to prolong the dis-
cussion, as both the parties to the negotiation were
agreed that, instead of hazarding a new stipulation,
eventual and uncertain in its effects, it would be better
to leave it in suspense until the epoch of a general
peace, and then to seek for the means of securing the
freedom of neutral commerce upon a solid basis during
future wars.
640 BIGHTS OP WAB AS TO NEUTRALS.
Part IV. The Pinissian ministers, therefore, propose to suppress
§466. provisionally the 12th article of the former treaty, and
p!^8ai of to substitute in its place the following stipulation : —
PnuiBiA. a Experience having demonstrated that the principle
adopted in the 12th article of the treaty of 1785,
according to which free ships make free goods, has not
been sufficiently respected during the last two wars,
and especially in that which still subsists ; and the
contradictory dispositions of the principal belligerent
powers not allowing the question in controversy to be
determined in a satisfactory manner at the present
moment, the two high contracting parties propose, after
the return of a general peace, to agree, either separately
between themselves, or conjointly with other powers
alike interested, to concert with the great maritime
powers of Europe such arrangements and such per-
manent principles, as may serve to consolidate the
liberty of neutral navigation and commerce in future
§466. wars"(i).
Sug^e^'tion of In liis reply to this note, the American negotiator
declared that he would not hesitate to subscribe to the
stipulation proposed by the Prussian ministers, if the
following words could be omitted : " And the contra-
dictory dispositions of the principal belligerent powers
not allowing the question in controversy to be deter-
mined in a satisfactory manner at the present moment."
It was possible that the belligerent powers might find
in these expressions a kind of sanction to their dispo-
sitions, which would not accord with the intentions of
the contracting parties ; and, besides, the American
negotiator would desire to omit entirely an allusion to
a point, of w^hich it was the wish of the two govern-
ments to defer the consideration, rather than to announce
it formally as a contested question.
In order to justify the opinion of his government on
the subject of the principle in question, he deemed it his
duty to observe, that this opinion was not founded on
(b) MM. Finkcnstein, Alvenalebeii, and Haugwitz, to Mr. J. Q. Adams, >9t]i
October, 1798.
Mr. Adams.
RIGHTS OF WAR AS TO NEUTRALS. 641
the treaties of the fourteenth and fifteenth centuries. Chap. HI.
He considered the principle of the law of nations as
absolutely distinct from the engagements stipulated by
particular treaties. These treaties could not establish a
fixed principle on this point ; because such stipulations
bound only the parties by whom they were made, and
the persons on whom they operated; and because,
too, in the seventeenth and eighteenth centuries, as well
as in the fourteenth and fifteenth, different treaties had
adopted different rules for each particular case, accord-
ing to the convenience and agreement of the contracting
parties. ^ ^ ^ . §467.
Rejecting, therefore, all positive engagements stipu- Hiaargu-'
lated in treaties, it might well be doubted whether a ™^ '
single example could be found, antecedent to the
American war, of a maritime belligerent power which
had adopted the principle, that enemy's property is pro-
tected by a neutral flag. For, without speaking of
England, whose system in this respect is known, France,
by the Ordinance of 1774, renewing the provisions of that
of 1681, declared enemy's property, on board neutral
vessels, subject to seizure and confiscation. It excepted
from this rule the ships of Denmark and the United
Provinces, conformably to the treaties then existing
between these powers and France. This ordinance
continued to have its effect in the French tribunals
until the epoch of the Ordinance of the 26th July, 1778.
By the first article of this last ordinance the freedom of
enemy's property, on board of neutral ships, is yielded
to neutrals as a favour, but not as a principle of the law
of nations, since the power is reserved to withdraw it at
the expiration of six months, if a reciprocal stipulation
should not be conceded by the enemy. Spain, by the
Ordinance of the 1st of July, 1779, and the 13th
March, 1780, ordered, in like manner, the seizure and
confiscation of enemy's property, found on neutral
vessels.
It would only be added that a celebrated public jurist,
a Prussian subject, who, in the first part of the 18th
' W. T T
642 EIGHTS OP WAR AS TO NEUTRALS.
Partly, century, wrote a highly esteemed work upon the law of
nations, Vattel, says expressly (Book 3, sect, 115), that
*^ when effects belonging to an enemy are found on
board a neutral vessel, they may be seized by the laws
of war.^' He cited no example where the opposite prin-
0 40g ciple had been practised or insisted on.
Position taken When, howcver, the system of armed neutrality was
sutea. announced, the United States, although a belligerent
power, hastened to adopt its principles ; and during the
period succeeding this epoch, in which they were
engaged in war, they scrupulously conformed to them.
But on the first occasion when, as a neutral power, they
might have enjoyed the advantaiges attached to this
system, they saw themselves deprived of these advan-
tages, not only by the powers who had never acceded to
those principles, but « also even by the founders of the
system. The intentions of the combined powers, it was
true, were exclusively directed against France ; but the
operation of their measures did not less extend to all
neutrals, and especially to the United States. However
peculiar might have been the circumstances of the war,
the rights of neutrality could not be thereby affected.
The United States had regretted the abandonment of
principles favourable to the rights of neutrality, but they
had perceived their inability to prevent it; and were
persuaded that equity could not require of them to be
the victims, at the same time, both of the rule and of the
exception ; to be bound, as a belligerent party, by laws
of the advantage of which, as a neutral power, they were
wholly deprived.
It was the wish, however, of the United States govern-
ment to prove, that it had no desire to depart from the
principles adopted by the treaty of 1785, except upon
occasions when an adherence to those principles would
be an act of injustice to the nation whose interests were
confided to it. The American negotiator therefore
agreed to adopt the proposed new stipulation, except-
ing the words above cited, and adding the following
clause : —
^*And if, during this interval, one of the high con-
RIGHTS OF WAB AS TO NEUTRALS. 6i3
tracting parties shall be engaged in a war, to which the Chap. III.
other is neutral, the belligerent power will respect all
the property of enemies laden on board the vessel of the
neutral party, provided that the other belligerent power
shall acknowledge the same principle with regard to
every neutral vessel, and that the decisions of his mari-
time tribunals shall conform to it."
If this proposition should not be acceptable to the
Prussian cabinet, then the American negotiator proposed
to adopt nearly the formula of the treaty of 1766 between
Prussia and Great Britain, and to stipulate that "as to
the search of merchant vessels, in time of war, the vessels
of war and the private armed vessels of the belligerent
power will conduct themselves as favourably as the
objects of the then existing war will permit; observing,
as much as possible, the principles and rules of the law
of nations as generally recognized " (c). o ^gg
The treaty was finally concluded on the 11th July, Conoiusionof
1799, with the article on this subject proposed by the
Prussian plenipotentiaries, and modified on the sugges-
tion of the American negotiator in the following
terms : —
"Art. 12. Experience having proved that the prin-
ciple adopted in the twelfth article of the treaty of 1785,
according to which free ships make free goods^ has not
been sufficiently respected during the last two wars, and
especially in that which still continues, the two contract-
ing parties propose, after the return of a general peace,
to agree, either separately between themselves, or jointly
with other powers alike interested, to concert with the
great maritime powers of Europe such arrangements and
such permanent principles, as may serve to consolidate
the liberty and the safety of the neutral navigation and
commerce in future wars. And if, in the interval, either
of the contracting parties should be engaged in war, to
which the other should remain neutral, the ships of war
(c) Mr. J. Q. Adams to MM. Finkenstein, AlvenslebeD) and Haugwitz, 21th
December, 1799.
T T 2
6^4
BIGHTS OF WAR AS TO NEUTRALS.
Part IV.
§470.
Treatjof 1828
between the
United States
andPnufiia.
§471.
Rule in
American
Prize Courts.
§472.
Treaties
between the
United States
and the South
American
republics.
and privateers of the belligerent power shall conduct
themselves towards the merchant vessels of the neutral
power as favourably as the course of the war then exist-
ing may permit ; observing the principles and rules of
the law of nations generally acknowledged ^* (rf).
On the expiration of the treaty of 1799, the twelfth
article of the original treaty of 1785 was again revived,
by the present subsisting treaty between the United
States and Prussia of 1828, with the addition of the
following clause : —
" The parties being still desirous, in conformity with
their intention declared in the twelfth article of the said
treaty of 1799, to establish between themselves, or in
concert with other maritime powers, further provisions
to insure just protection and freedom to neutral naviga-
tion and commerce, and which may at the same time
advance the cause of civilization and humanity, engage
again to treat on this subject at some future £md con-
venient period."
During the war which commenced between the United
States and Great Britain in 1812, the Prize Courts of the
former uniformly enforced the generally acknowledged
rule of international law, that enemy's goods in neutral
vessels are liable to capture and confiscation, except as
to such powers with whom the American government
had stipulated by subsisting treaties the contrary rule,
that free ships should make free goods.
In their earliest negotiations with the newly established
republics of South America, the United States proposed
the establishment of the principle of free ships free ffoods,
as between all the powers of the North and South
American continents. It was declared that the rule of
public law — that the property of an enemy is liable to
capture in the vessels of a friend — has no foundation in
natural right, and, though it be the established usage of
nations, rests entirely on the abuse of force. No neutral
nation, it was said, was bound to submit to the usage;
{(f) American State Papers, fol. edit. vol. ii. pp. 261—269.
EIGHTS OF WAE AS TO NEUTRALS. 645
and though the neutral may have yielded at one time to Chap. III.
the practice, it did not follow that the right to vindicate
by force the security of the neutral flag at another was
thereby permanently sacrificed. But the neutral claim
to cover enemy's property was conceded to be subject to
this qualification ; that a belligerent may justly refuse to
neutrals the benefit of this principle, unless admitted also
by their enemy for the protection of the same neutral
flag. It is accordingly stipulated, in the treaty between
the United States, and the Republic of Columbia, that the
rule of free ships free goods should be understood " as
applying to those powers only who recognize this prin-
ciple ; but if either of the two contracting parties shall
be at war with a third, and the other neutral, the flag of
the neutrcJ shall cover the property of enemies whose
governments acknowledge the same principle, and not
of others." The same restriction of the rule had been
previously incorporated into the treaty of 1819, between
the United States and Spain, and has been subsequently
inserted in their different treaties with the other South
American Republics {e). « ^yg
It has been decided in the Prize Courts, both of the Covering
United States and of Great Britain, that the privilege of goods in ren-
the neutral flag of protecting enemy's property, whether faiuepa^ra^
stipulated by treaty or established by municipal ordi-
nances, however comprehensive may be the terms in
which it may be expressed, cannot be interpreted to
extend to the fraudulent use of that flag to cover enemy's
property in the ship^ as well as the cargo (/). Thus
during the war of the Revolution, the United States,
recognizing the principles of the armed neutrality of
1780, exempted by an ordinance of Congress all neutral
vessels from capture, except such as were employed in
carrying contraband goods, or soldiers, to the enemy ; it
{$) Mr. Seoretarj Adama's Letter to board nentral ships, and on neatral
Mr. Anderson, American minister to gfoods found on board an enemy ship,
the Republic of Columbia, 27th of May, see Wheaton's Rep. vol. ii. Appendix,
1823. For the practice of the Prize Note I. pp. 54—66.
Court, as to the allowance or refusal of (/) The Citade de Lishoa, 6 0. Rob.
freight on enemies' goods taken on 358.
646 RIGHTS OP WAK AS TO NEUTRALS.
Part IV. was held by the continental Court of Appeals in prize
causes, that this exemption did not extend to a vessel
which had forfeited her privilege by grossly unneutral
conduct in taking a decided part with the enemy, by
combining with his subjects to wrest out of the hands of
the United States, and of France, their ally, the advan-
tages they had acquired over Great Britain by the rights
of war in the conquest of Dominica. By the capitula-
tion of that island, all commercial intercourse with Great
Britain had been prohibited. In the case in question,
the vessel had been purchased in London, by neutrals,
who supplied her with false and colourable papers, and
assumed on themselves the ownership of the cargo for a
voyage from London to Dominica. Had she been em-
ployed in a fair commerce, such as was consistent with
the rights of neutrality, her cargo, though the property
of an enemy, could not be seized as prize of war;
because Congress had said, by their ordinance, that the
rights of neutrality should extend protection to such
eflfects and goods of an enemy. But if the neutrality
were violated, Congress had not said that such a violated
neutrality shall give such protection. Nor could they
have said so, without confounding all the distinctions of
right and wrong ; and Congress did not mean, in their
ordinance, to ascertain in what cases the rights of
neutrality should be forfeited, to the exclusion of all
other cases ; for the instances not mentioned were as
flagrant as the cases particularised (g).
By the treaty of 1654, between England and Portugal,
it was stipulated (art. 23), " That all goods and mer-
chandise of the said Republic or King, or of their people
or subjects, found on board the ships of the enemies of
either, shall be made prize, together with the ships, and
confiscated. But all the goods and merchandise of the
enemies of either on board the ships of either, or of
5 474. th^ir people or subjects, shall remain free and untouched."
Rule of Under this stipulation, thus coupling the two opposite
iff) The Eritem^ 2 DaUas, 34.
RIGHTS OP WAR AS TO NEUTRALS. 647
maxims of free ships free goods^ and enemy ships enemy Chap. III.
goods^ it was determined by the British prize courts, that enemy gw)d8
the former provision of this article, which subjects to when^&e*
condemnation the goods of either nation found on board ^^^
the ships of the enemy of the other contracting party, ^^^^^^ ^"•
could not be fairly applied to the case of property shipped
before the contemplation of war. Sir W. Scott (Lord
Stowell) observed, in delivering his judgment in this
case, that it did not follow, that because Spanish property
put on board a Portuguese ship would be protected in the
event of the interruption of war, therefore Portuguese
property on board a Spanish ship should become in-
stantly confiscable on the breaking out of hostilities
with Spain ; that, in one case, the conduct of the parties
would not have been different, if the event of hostilities
had been known. The cargo was entitled to the protec-
tion of the ship, generally, by this stipulation of the
treaty, even if shipped in open war ; and a fortiori^ if
shipped under circumstances still more favourable to the
neutrality of the transaction. In the other case, there
might be reason to suppose, that the treaty referred only
to goods shipped on board an enemy's vessel, in an
avowed hostile character ; and that the neutral merchant
would have acted differently, if he had been apprised of
the character of the vessel at the time when the goods
were put on board (A). a ^yj^
The same principle has been frequently incorporated The two
• •'. • 'ii'ii* in&ziiDS in
mto treaties between various nations, by wnicn the pnn- kter treaties,
ciple of free ships free goods is associated with that of
enemy ships enemy goods. The treaties of Utrecht ex-
pressly recognize it, and it has been also incorporated
into the different treaties between the United States and
the South American Republics, with this qualification,
*Uhat it shall always be understood, that the neutral
property found on board such enemy's vessels shall be
held and considered as enemy's property, and as such
shall be liable to detention and confiscation, except such
(A) The Mariana, 5 0. Bob. 28.
648
BIGHTS OF WAB AS TO NEUTBALS.
PartlY. property as was put on board such vessel before the
declaration of war, or even afterwards, if it were done
without the knowledge of it ; but the contracting parties
agree that two months having elapsed after the declara-
tion, their citizens shall not plead ignorance thereof" (j).
S476a. ^,. . . . . , _^ n
The neclan* ^^18 controversy has now been brought to a close as regards all
tion of Pari*, maritime countries but the United States and Spain. The Declaration
of Paris, 1856, to which all the powers with the above exceptions have
now acceded, provides as follows : —
Art. 2. The neutral flag covers enemy's goods, with the exception of
contraband of war.
Art. 8. Neutral goods, with the exception of contraband of war, aie
not liable to capture under enemy's flag {k).
This Declaration is a great step in favour of neutrals, and curtails
the rights of belligerents. But it does not entirely free neutral com-
merce from the effects of war. The belligerent right of search may
still be exercised, both for the purpose of ascertaining the true
character of a ship sailing under a neutral flag, and to discover whether
she carries any contraband. It has been already said that neither
Spain nor the United States are a party to this Declaration, and are
therefore not bound by it. Nevertheless during the American ciyil
war, these two rules were observed by North and South alike, and on
the breaking out of the Spanish- American war of 1898 both parties
expressed their intention of observing the second and third articles of
the Declaration of Paris.
§ 476.
Contntband The general freedom of neutral commerce with the
^^' respective belligerent powers is subject to certain excep-
tions. Among these is the trade with the enemy in
certain articles called contraband of war. The almost
unanimous authority of elementary writers, of prize
ordinances, and of treaties, agrees to enumerate among
these all warlike instruments, or materials by their own
nature fit to be used in war. Beyond these, there is
some difficulty in reconciling the conflicting authorities
derived from the opinions of public jurists, the fluctu-
ating usage among nations, and the text of various con-
(t) Treaty of 1828, between the United months is established for the same pnr-
States and Columbia^ art. 13. By the poee; and by that of 1842, with EqoA-
Treaty of 1831 between the United ^ ^ the tenn of «* months.
States and Mexico; by that of 1834,
with Chili, art. 18, the tenn of four {k) See Appendix F.
RIGHTS OP WAR AS TO NEUTRALS. 649
yentioDs designed to give that usage the fixed form of Chap. III.
positive law. 047^
Grrotius, in considering this subject, makes a distinc- ciasMfication
tion between those things which are useful only for the contraband
purposes of war, those which are not so, and those which ^ '^ ^'
are susceptible of indiscriminate use in war and in peace.
The fir%t he agrees with all other text writers in prohibit-
ing neutrals from carrying to the enemy, as well as in
permitting the second to be so carried ; the third class,
such as money, provisions, ships, and naval stores, he
sometimes prohibits, and at others permits, according to
the existing circumstances of the war (/). « ^-g
Vattel makes somewhat of a similar distinction, though Position of
he includes timber and naval stores among those articles
which are particularly useful for the purposes of war,
and are always liable to capture as contraband; and
considers provisions as such only under certain circum-
stances, " when there are hopes of reducing the enemy
by famine " {m\ « ^^^
Bynkershoek strenuously contends against admitting OfBynker-
into the list of contraband articles those things which ^ '
are of promiscuous use in peace and in war. He con-
siders the limitation assigned by Grrotius to the right of
intercepting them, confining it to the case of necessity,
and under the obligation of restitution or indemnifica-
tion, as insufficient to justify the exercise of the right
itself. He concludes that the materials out of which
contraband articles may be formed are not themselves
contraband; because if all the materials may be pro-
hibited, out of which something may be fabricated that
is fit for war, the catalogue of contraband goods will be
almost interminable, since there is hardly any kind of
material out of which something, at least, fit for war
may not be fabricated. The interdiction of so many
articles would amount to a total interdiction of com-
merce, and might as well be so expressed. He qualifies
{I) Grotius, de Jar. Bel. ao Fac. lib. (m) Vattel, Droit des G^ns, liy. iii.
iii. oap. 1, § y. 1, 2, 3. oh. 7, { 112.
660 RIGHTS OP WAR AS TO NEUTRALS.
Part IV. this general position by stating, that it may sometimes
happen that materials for building ships are prohibited,
** if the enemy is in great need of them, and cannot
well carry on the war without them." On this ground,
he justifies the edict of the States-Greneral of 1657
against the Portuguese, and that of 1652 against the
English, as exceptions to the general rule that materials
for ship-building are not contraband. He also states
that ^* provisions are often excepted" from the general
freedom of neutral commerce ^^when the enemies are
besieged by our friends, or are otherwise pressed by
famine " (w).
Valin and Pothier both concur in declaring that pro-
visions {munitions de louche) are not contraband by the
prize law of France, or the common law of nations,
unless in the single case where they are destined to a
8 480 besieged or blockaded place {o).
Naval stores, Valin, in his commentary upon the marine ordinance
contraband, of Louis XIV., by which Only munitions of war were
declared to be contraband, says : — " In the war of 1700,
pitch and tar were comprehended in the list of contra-
band, because the enemy treated them as such, except
when found on board Swedish ships, these articles being
of the growth and produce of their country. In the
treaty of commerce concluded with the King of Den-
mark, by France, the 23rd of August, 1742, pitch and
tar were also declared contraband, together with resin,
sail-cloth, hemp and cordage, masts, and ship-timber.
Thus, as to this matter there is no fault to be found with
the conduct of the English, except where it contravenes
particular treaties ; for in law these things are now con-
traband, and have been so since the beginning of the
present century, which was not the ca«e formerly, as it
appears by ancient treaties, and particularly that of
St. Germain, concluded with England in 1677; the
fourth article of which expressly provides that the trade
(n) Bynteshoek, Qiuest. Jnr. Pub. j.^ ^ ^^ ^ j^ p^^^ ^^ ^^
^\o) vSim? Comment, but rOrdon. ^^*^^'' ^« P^pri^t^ No. IW.
RIGHTS OP WAR AS TO NEUTRALS. 651
in all these articles shall remain free, as well as in every- Chap. III.
thing necessary to human nourishment, with the excep-
tion of places besieged or blockaded " (p). o ^g^
In the famous case of the Swedish convoy, determined Judgment of
in the English Court of Admiralty, in 1799, Sir W. Scott aa to naval
(Lord Stowell) states, ^^That tar, pitch, and hemp, going *
to the enemy's use, are liable to be seized as contraband
in their own nature, cannot, I conceive, be doubted
under the modern law of nations; though formerly,
when the hostilities of Europe were less naval than they
have since become, they were of a disputable nature^ and
perhaps continued so at the time of making that treaty,"
(that is, the treaty of 1661, between Great Britain and
Sweden, which was still in force when he was pronounc-
ing this judgment) '^ or at least at the time of making
that treaty which is the basis of it, I mean the treaty in
which Whitlock was employed in 1656; for I conceive
that.Valin expresses the truth of this matter when he
says: ^ De droit ces choses,' (speaking of naval stores,)
^sont de contrebande aujourd'hui, et depuis le com-
mencement de ce siticle, ce qui n'^toit pas autrefois
n^anmoins;' — and Vattel, the best recent writer upon
these matters, explicitly admits amongst positive contra-
band, ' les bois, et tout ce qui sert k la construction et k
I'armement de vaisseaux de guerre.' Upon this prin-
ciple was founded the modern explanatory article of the
Danish treaty, entered into in 1780, on the part of
Great Britain by a noble lord (Mansfield) then Secretary
of State, whose attention had been peculiarly turned to
subjects of this nature. I am, therefore, of opinion,
that, although it might be shown that the nature of these
commodities had been subject to some controversy in
the time of Whitlock, when the fundamental treaty wm
constructed, and therefore a discreet silence concerning
them was observed in the composition of that treaty,
and of the latter treaty derived from it, yet that the ex-
position which the later judgment and practice of Europe
{p) Valin, Oomm. rar TOrdon. liv. ill. tit. 9. Des Prues, art. 11.
6o2
RIGHTS OF WAR AS TO NEUTRALS.
Partly.
Crifacfsm on
this deciflion.
§483.
Views of Sir
L. Jenkizifl.
had given upon this subject would, in some degree,
affect and supply what the treaties had been content to
leave on that indefinite and disputable footing, on which
the notions then more generally prevailing in Europe
had placed it " (q).
It seems difficult to read the treaties of 1656 and 1661,
between Great Britain and Sweden, as fairly admitting
the interpretation placed upon them in the above-cited
judgment. These treaties, together with those subse-
quently concluded between the same powers in 1664 and
1665, all enumerate coined money, provisions, and muni-
tions of war as contraband between the contracting
parties; and the discreet silence referred to by Lord
Stowell is sufficiently supplied by the treaties of 1664 and
1665, which expressly declared, that, "where one of the
parties shall find itself at war, commerce and navigation
shall be free for the subjects of that power which shall
not have taken any part in it with the enemies of the
other; and that they shall, consequently, be at liberty
to carry to them directly all the articles which are not
specially excepted by the 11th article of the treaty con-
cluded at London in 1661, nor by virtue of this same
article expressly declared prohibited or contraband, or
which are not enemy's property." The following article
is still more explicit: "And to the end that it may be
known to all those who shall read these presents, what
are the goods especially excepted and prohibited, or
regarded as contraband, it has appeared fit to enumerate
them here according to the aforesaid 11th article of the
Treaty of London. These goods specially designated
are the following," &c. Here follows the enumeration,
as in the 11th article, which makes no mention of naval
stores (r).
This view seems to be confirmed by the opinion given
in 1674, by Sir Leoline Jenkins, to King Charles XL, in
the case of a cargo of naval stores, the produce of
(q) The Maria, 1 C. Rob. 372.
(r) Sohlegel, Examen de la Sentenoe
par le tribnnal d'Amirant^
Anglaise, le 11 Juin, 1799, dans I'affaire
da oonvoi SuMois, p. 125.
RIGHTS OP WAR AS TO NEUTRALS,
653
Sweden, belonging to an English subject, taken on Chap, in.
board a Swedish vessel, and carried into Ostend by a
Spanish privateer. " There is not any pretence to make
the pitch and tar belonging to your Majesty's subjects
to be contraband ; these commodities not being enume-
rated in the 24th article of the treaty made between
your Majesty and the crown of Spain, in the year 1667,
are consequently declared not to be contraband in the
article next following. The single objection that seems
to lie against the petitioner in this case is, that this tar
and pitch is found laden, not in an English, but a
Swedish bottom, as by the proofs and documents on
board it doth appear ; and, consequently, that the benefit
of those articles in the Spanish Treaty cannot be claimed
here, since they are in favour of our trade in those com-
modities that shall be found laden in our own, not in
foreign bottoms ; but it is not probable that Sweden hath
suffered or allowed, in any treaty of theirs with Spain,
that their own native commodities, pitch and tar, should
be reputed contraband. These goods, therefore, if they
be not made unfree by being found in an unfree bottom,
cannot be judged by any other law than by the general
law of nations ; and then I am humbly of opinion, that
nothing ought to be judged contraband by that law in
this case, except it be in the case of besieged places, or
of a general notification made by Spain to all the world,
that they will condemn all the pitch and tar they meet
with. So that, upon the whole, your Majesty's gracious
intercession for, and protection to, the petitioner in his
claim, will be founded, not upon the equity and the true
meaning of your Majesty's treaty with Spain, but upon
the general law and practice of all nations " («). a ^g^
By the treaty of navigation and commerce of Utrecht, An^o-Frtnoh
between Grreat Britain and France, renewed and con- naval stores,
firmed by the Treaty of Aix-la-Chapelle, in 1748, by the
Treaty of Paris, in 1763, by that of Versailles, in 1783,
and by the commercial treaty between France and Great
(«) Life and Coirespondenoe of Sir L. JenkuiB, toL ii. p. 751.
654 BIGHTS OF WAR AS TO NEUTRALS.
Partly. Britain, of 1786, the list of contraband is strictly confined
to munitions of war ; and naval stores, provisions, and
all other goods which have not been worked into the
form of any instrument or furniture for warlike use, by
5 486 ^^^^ ^^ ^y ®^^' ^^® expressly excluded from this list.
Ripriandand The subjcct of the Contraband character of naval
powers, stores Continued a vexed question between Great Britain
and the Baltic powers, throughout the whole of the
eighteenth century. Various relaxations of the extreme
belligerent pretensions on this subject had been conceded
in favour of the commerce, in articles the peculiar growth
and productions of these States, either by permitting
them to be freely carried to the enemy's ports, or by
mitigating the original penalty of confiscation, on their
seizure, to the milder right of preventing the goods being
carried to the enemy, and appljdng them to the use of
the belligerent, on making a pecuniary compensation to
the neutral owner. This controversy was at last ter-
minated by the convention between Great Britain and
Russia, concluded in 1801, to which Denmark and
Sweden subsequently acceded. By the 3rd article of
this treaty it is declared, ^* That, in order to avoid all
ambiguity in what ought to be considered as contraband
of war, his Imperial Majesty of all the Russias and his
Britannic Majesty declare, conformably to the 11th
article of the treaty of commerce, concluded between
the two crowns on the 10th (21st) February, 1797, that
they acknowledge as such only the following articles,
namely, cannons, mortars, fire-arms, pistols, bombs,
grenades, balls, bullets, firelocks, flints, matches, powder,
saltpetre, sulphur, helmets, pikes, swords, sword-belts,
saddles, and bridles; excepting, however, the quantity
of the said articles which may be necessary for the de-
fence of the ship and of those who compose the crew ;
and all other articles whatever, not enumerated here,
shall not be considered warlike and naval ammimition,
nor be subject to confiscation, and of course shall pass
freely, without being subject to the smallest difficulty,
unless they be considered as enemy's property in the
RIGHTS OP WAR AS TO NEUTRALS. 655
above settled sense. It is also agreed, that what is Chap. III.
stipulated in the present article shall not be to the pre-
judice of the particular stipulations of one or the other
crown with other powers, by which objects of a similar
kind should be reserved, provided, or permitted." « -gg
The object of this convention is declared, in its pre- Treaty of
amble, to be the settlement of the differences between
the contracting parties, which had grown out of the
armed neutrality, by "an invariable determination of
their principles upon the rights of neutrality, in their
application to their respective monarchies " ; which
object was accomplished by the northern powers yield-
ing the rule of free ships free goods^ whilst Great Britain
conceded the points asserted by them as to contraband,
blockades, and the coasting and colonial trade.
The 8th article of the treaty also declared, that " the
principles and measures adopted by the present act shall
be alike applicable to all the maritime wars in which one
of the two powers may be engaged, whilst the other
remains neutral. These stipulations shall consequently
be regarded as permanent, and shall serve for a constant
rule to the contracting powers in matters of commerce
and navigation." « -g-
The list of contraband contained in the convention An^o-
between Grreat Britain and Russia, to which Sweden trwityofisos.
acceded, differed, in some respects, from that contained
in the 11th article of the treaty of 1661, between Great
Britain and Sweden. In order to prevent a recurrence
of the disputes which had arisen relative to that article,
a convention was concluded at London between these
two powers on the 25th of July, 1803, by which the list
of contraband contained in the convention between
Great Britain and Eussia was augmented, with the
addition of the articles of coined money, horses, and the
necessary equipments of cavalry, ships of war, and all
manufactured articles serving immediately for their
equipment, all which articles were subjected to confis-
cation. It was further stipulated that all naval stores,
the produce of either country, should be subject to the
656 RIGHTS OF WAE AS TO NEUTRALS.
Partly, right of pre-emption by the belh'gerent party, upon con-
dition of paying an indemnity of ten per centum upon
the invoice price or current value, with demurrage and
expenses. If bound to a neutral port, and detained upon
suspicion of being bound to an enemy's port, the vessels
detained were to receive an indemnity, unless the belli-
gerent government chose to exercise the right of pre-
emption ; in which case the owners were to be entitled
to receive the price which the goods would have sold for
s 4fifi ^* their destined port, with demurrage and expenses {t).
Proviaions The doctrinc of the British Prize Courts as to provi-
■topw^^hen sious and naval stores becoming contraband, indepen-
i^de^^raUy dently of special treaty stipulations, is laid down very
of treaty. fully by Sir W. Scott in the case of The Jonge Margaretha,
He there states that the catalogue of contraband had
varied very much, and sometimes in such a manner as to
make it difficult to assign the reason of the variations,
owing to particular circumstances, the history of which
had not accompanied the history of the decisions. " In
1673, when many unwarrantable rules were laid down by
public authority respecting contraband, it was expressly
asserted, by a person of great knowledge and experience
in the English admiralty, that, by its practice, com, wine^
and oil were liable to be deemed contraband. In much
later times, many sorts of provisions — such as butter,
salted fish, and rice — have been condemned as contra-
band. The modern established rule was, that generally
they are not contraband, but may become so under cir-
cumstances arising out of the peculiar situation of the
war, or the condition of the parties engaged in it.
Among the causes which tend to prevent provisions from
being treated as contraband, one is, that they are of the
growth of the country which exports them. Another
circumstance, to which some indulgence by the practice
of nations is shown, is when the articles are in their
native and unmanufactured state. Thus iron is treated
with indulgence, though anchors and other instruments
[t) Martens, ReoueU, tome tu. pp. 160 — 281.
RIGHTS OF WAR AS TO NEUTR
fabricated out of it are directly contn
more favourably considered than cordaj
not considered so noxious a commodit
final preparations of it for human use.
important distinction is, whether the art
for the ordinary uses of life or for mi
nature and quality of the port to which
going is a test of the matter of fact to vi
tion is to be applied. If the port is a ge:
port, it shall be understood that the arl
for civil use, although occasionally a
ships of war may be constructed in th£
contrary, if the great predominant char?
that of a port of naval equipment, it i
that the articles were going for milita
merchant ships resort to the same place
is possible that the articles might have
civil consumption; for, it being imposs
the final application of an article ancipi
an injurious rule which deduces both wj
from the immediate destination ; and th
a hostile use, founded on its destinatic
port, is very much inflamed, if, at the
articles were going, a considerable armi
riously preparing, to which a supply (
would be eminently useful " {u).
The distinction, under which articles
use are considered as contraband, whe
port of naval equipment, appears to 1j
quently abandoned by Sir W. Scott. Ii
Charlotte^ he states that "the characte
immaterial; since naval stores, if they
sidered as contraband, are so without
nature of the port, and equally, whei
mercantile port only, or to a port of na
equipment. The consequence of the
nearly the same in either case. If sent
(u) The Jonge MargantKaj 1 C. Rob. 1
W.
658 RIGHTS OP WAR AS TO NEUTRALS.
Partly, port, they may then be applied to immediate use in the
equipment of privateers, or they may be conveyed from
the mercantile to the naval port, and there become sub-
servient to every purpose to which they could have
been applied if going directly to a port of naval equip-
§490. ™®^*"W-
ProTisLODB' The doctrine of the English Courts of Admiralty, as
trabimd^^OT to provisious bccomiug contraband under certain circum-
o^!!^D<M0 stances of war, was adopted by the British government
of war. in th^ instructions given to their cruisers on the 8th June,
1793, directing them to stop all vessels laden wholly or
in part with com, flour, or meal, bound to any port in
France, and to send them into a British port, to be pur-
chased by government, or to be released, on condition
that the master should give security to dispose of his
cargo in the ports of some country in amity with his
Britannic Majesty. This order was justified, upon the
ground that, by the modem law of nations, all provi-
sions are to be considered contraband, and, as such,
liable to confiscation, wherever the depriving an enemy
of these supplies is one of the means intended to be
employed for reducing him to terms. The actual situa-
tion of France (it wfiU3 said) was notoriously such, as to
lead to the employing this mode of distressing her by
the joint operations of the difFerent powers engaged in
the war ; and the reasoning which the text-writers apply
to all cases of this sort, was more applicable to the
present case, in which the distress resulted from the
unusual mode of war adopted by the enemy himself, in
having armed almost the whole labouring class of the
French nation, for the purpose of commencing and sup-
porting hostilities against almost all European govern-
ments ; but this reasoning was most of all applicable to
a trade, which was in a great measure carried on by the
then actual rulers of France, and was no longer to be
regarded as a mercantile speculation of individuals, but
as an immediate operation of the very persons who had
{x) The CharUdUf 6 0. Bob. 306.
RIGHTS OF WAR AS TO NEUTRALS. 669
declared war, and were then carrying it on against Great Chap, in.
Britain (y). ^ ^ "§4917"
This reasoning was resisted by the neutral powers, Doctrine of
Sweden, Denmark, and especially the United States, powers.
The American government insisted, that when two
nations go to war, other nations, who choose to remain
at peace, retain their natural right to pursue their agri-
culture, manufactures, and other ordinary vocations ; to
carry the produce of their industry for exchange to all
countries, belligerent or neutral, as usual ; to go and
come freely, without injury or molestation ; in short,
that the war among others should be, for neutral nations,
as if it did not exist. The only restriction to this general
freedom of commerce, which has been submitted to by
nations at peace, was that of not furnishing to either
party implements merely of war, nor any thing what-
ever to a place blockaded by its enemy. These imple-
ments of war had been so often enumerated in treaties
under the name of contraband, as to leave little question
about them at that day. It was sufficient to say that
corn, flour, and meal, were not of the class of contra-
band, and "consequently remained articles of free com-
merce. The state of war then existing between Great
Britain and France furnished no legitimate right to
either of these belligerent powers to interrupt the agri-
culture of the United States, or the peaceable exchange
of their produce with all nations. If any nation what-
ever had the right to shut against their produce all the
ports of the earth except her own, and those of her
friends, she might shut these also, and thus prevent
altogether the export of that produce (0). „ .^
In the treaty subsequently concluded between Great An^o-
Britain and the United States, on the 19th November, tr^tySuai.
1794, it was stipulated (article 18), that under the
denomination contraband should be comprised all arms
and implements serving for the purposes of war, " and
(y) Hr. Hammond's Letter to Mr. (z) Mr. Jefferson's Letter to Mr. T.
Jefferson, 12th September, 1793. Waite's Pmkney, 7th September, 1793. Waite's
State Papers, toI. i. p. 898. State Papers, yoI. i. p. 393.
utj2
660 EIGHTS OF WAR AS TO NEUTRALS.
Part IV. also timber for ship-building, tar or rosin, copper in
sheets, sails, hemp, and cordage, and generally what-
ever may serve directly to the equipment of vessels,
unwrought iron and fir planks only excepted/' The
article then goes on to provide, that "whereas the diffi-
culty, of agreeing on the precise cases^ in which alone provisions
and other articleSy not generally contraband^ mag be regarded
as suchj renders it expedient to provide against the incon-
veniences and misunderstandings which might thence
arise; it is further agreed, that whenever any such
articles, so becoming contraband according to the exist-
ing law of nations, shall for that reason be seized, the
same shall not be confiscated ; but the owners thereof
shall be speedily and completely indemnified ; and the
captors, or, in their default, the government under whose
authority they act, shall pay to the masters or owners of
such vessels the full value of all such articles, with a
reasonable mercantile profit thereon, together with the
freight, and also the demurrage incident to such deten-
§ 493. tion."
^on^orfl^rof ^^^ instructions of June, 1793, had been revoked
April, 1796. previous to the signature of this treaty ; but, before its
ratification, the British government issued, in April,
1795, an Order in Council, instructing its cruisers to
stop and detain all vessels, laden wholly or in part with
corn, flour, meal, and other articles of provisions, and
bound to any port in France, and to send them to such
ports as might be most convenient, in order that such
§ 494. corn, &c., might be purchased on behalf of government.
SSf order°' '^^^^ ^^^^ ordcT was Subsequently revoked, and the
questioned, qucstiou of its legality became the subject of discussion
before the mixed commission, constituted under the
treaty to decide upon the claims of American citizens,
by reason of irregular or illegal captures and condemna-
tions of their vessels and other property, under the
authority of the British government. The Order in
Council was justified upon two grounds : —
1. That it was made when there was a prospect of
reducing the enemy to terms by famine, and that, in
RIGHTS OF WAR AS TO NEUTRALS. 661
such a stale of things, provisions bound to the ports of Chap. in.
the enemy became so far contraband, as to justify Great
Britain in seizing them upon the terms of paying the
invoice price, with a reasonable mercantile profit thereon,
together with freight and demurrage.
2. That the order was justified by necessity ; the
British nation being at that time threatened with a
scarcity of the articles directed to be seized.
The first of these positions was rested not only upon
the general law of nations, but upon the above-quoted
article of the treaty between Great Britain and America. « -g.
The evidence adduced of this supposed law of nations Opinion of
was principally the following passage of Vattel : ^^ Com- it.* ^^^^
modities particularly useful in war, and the carrying of
which to an enemy is prohibited, are called contraband
goods. Such are arms, ammunition, timber for ship-
building, every kind of naval stores, horses, and even
provisions, in certain junctures, when we have hopes of
reducing the enemy by famine " (a).
In answer to this authority, it was stated that it might
be sufficient to say that it was, at best, equivocal and
indefinite, as it did not designate what the junctures are
in which it might be held, that ^^ there are hopes of
reducing the enemy 'by famine " ; that it was entirely
consistent with it to affirm, that these hopes must be
built upon an obvious and palpable chance of effecting
the enemy's reduction by this obnoxious mode of war-
fare, and that no such chance is by the law of nations
admitted to exist, except in certain defined cases ; such
as the actual siege, blockade, or investment of particular
places. This answer would be rendered still more satis-
factory, by comparing the above-quoted passage with
the more precise opinions of other respectable writers on
international law, by which might be discovered that
which Vattel does not profess to explain — the combina-
tion of circumstances to which his principle is applicable,
or is intended to be applied.
{a) Droit des GenSt liy. iii, ch. vii. {112,
662 RIGHTO OF WAR AS TO NEUTRALS.
Part IV. But there was no necessity for relying wholly on this
answer, since Vattel would himself furnish a pretty
accurate commentary on the vague text which he had
given. The only instance put by this writer, which
came within the range of his general principle, was that
which he, as well as Grotius, had taken from Plutarch.
" Demetrius," as Grotius expressed it, " held Attica by
the sword. He had taken the town of Rhamnus, design-
ing a famine in Athens^ and had almost accomplished his
design, when a vessel laden with provisions attempted
to relieve the city." Vattel speaks of this as of a case
in which provisions were contraband (section 17), and
although he did not make use of this example for the
declared purpose of rendering more specific the passage
above cited, yet, as he mentions none other to which it
can relate, it is strong evidence to show that he did not
mean to carry the doctrine of special contraband farther
than that example would warrant.
It was also to be observed that, in section 113, he
states expressly that all contraband goods (including, of
course, those becoming so by reason of the junctures of
which he had been speaking at the end of section 112)
are to be confiscated. But nobody pretended that Great
Britain could rightfully have confiscated the cargoes taken
under the order of 1795 ; and yet if the seizures made
under that order fell within the opinion expressed by
Vattel, the confiscation of the cargoes seized would have
been justifiable. It had long been settled that all con-
traband goods are subject to forfeiture by the law of
nations, whether they are so in their own nature, or
become so by existing circumstances ; and even in early
times, when this rule was not so well established, we
find that those nations who sought an exemption from
forfeiture, never claimed it upon grounds peculiar to any
description of contraband, but upon general reasons,
embracing all cases of contraband whatsoever. As it was
admitted, then, that the cargoes in question were not
subject to forfeiture as contraband, it was manifest that
the juncture which gave birth to the Order in Council
EIGHTS OF WAR AS TO NEITTRALS, 663
could not have been such a one as Vattel had in view ; Chap. III.
or, in other words, that the cargoes were not become
contraband at all within the true meaning of his prin-
ciple, or within any principle known to the general law
of nations. o ^gg
The authority of Grrotiuswas also adduced as counten- Opinion of
. . Grotins.
ancing this position.
Grotius divides commodities into three classes, the
first of which he declares to be plainly contraband ; the
second plainly not so ; and as to the third, he says : —
^^ In tertio illo genere usiis ancipitis, distinguendus erit
belli status. Nam si tueri me non possum nisi quse mit-
tunter intercipiam, necessitas, ut alibi exposuimus, jus
dabit, sed sub onere restitutionis, nisi causa alia accedat."
This " causa alia " is afterwards explained by an example,
^^ut si oppidum obsessum tenebam, si portus clausos, et
jam deditio aut pax expectabatur."
This opinion of Grotius, as to the third class of goods,
did not appear to proceed at all upon the notion of con-
traband, but simply upon that of a pure necessity on the
part of the capturing belligerent. He does not consider
the right of seizure as a means of effecting the reduction
of the enemy, but as the indispensable means of our own
defence. He does not state the seizure upon any sup-
posed illegal conduct in the neutral, in attempting to
carry articles of the third class (among which provisions
are included), not bound to a port besieged or blockaded^ to
be lawful, when made with the mere view of annoying or
reducing the enemy, but solely when made with a view
to our own preservation or defence, under the pressure of
that imperious and unequivocal necessity, which breaks
down the distinctions of property, and upon certain con-
ditions, revives the original right of using things as if
they were in common.
This necessity he explains at large in his second book,
(cap. ii. sect. 6,) and, in the above-recited passage, he
refers expressly to that explanation. In sections 7, 8,
and 9, he lays down the conditions annexed to this right
of necessity: as, 1. It shall not be exercised until all
664
BIQHTS OP WAB AS TO NEUTRALS.
PartlY. other possible means have been used ; 2. Nor if the right
owner is under a like necessity ; and, 3. Restitution shall
be made as soon as practicable.
In his third book, (cap. xvii. sect. 1,) recapitulating
what he had before said on this subject, Grotius further
explains this doctrine of necessity, and most explicitly
confirms the construction placed upon the above-cited
texts. And Rutherforth, in commenting on Grotius,
(lib. iii. cap. 1, sect. 5,) also explains what he there says
of the right of seizing provisions upon the ground of
necessity; and supposes his meaning to be that the
seizure would not be justifiable in that view, " unless the
exigency of affairs is such, that we cannot possibly do
« 497 without them " (A).
Opinion of Bynkershoek also confines the right of seizing goods,
^ ^ ' not generally contraband of war, (and provisions among
the rest,) to the above-mentioned cases (c).
It appeared, then, that so far as the authority of text
writers could influence the question, the Order in CouncU
of 1795 could not be rested upon any just notion of
contraband : nor could it, in that view, be justified
by the reason of the thing or the approved usage of
49g nations.
General ' If the mere hope, however apparently well founded,
^ ^^ ' of annoying or reducing an enemy, by intercepting the
commerce of neutrals in articles of provision (which, in
themselves, are no more contraband than ordinary mer-
chandise), to ports not besieged or blockaded, would
authorize that interruption, it would follow that a belli-
gerent might at any time prevent, without a siege or
blockade, all trade whatsoever with its enemy; since
there is at all times reason to believe that a nation, having
little or no shipping of its own, might be so materially
distressed by preventing all other nations from trading
with it, that such prevention might be a powerful instru-
ment in bringing it to terms. The principle is so wide
in its nature, that it is, in this respect, incapable of any
{b) Rutherforth's Inst. yoI. ii. b. ii. {c) Bynkershoek, Qiuest. Jur. Pab.
ch. 9y i 19. lib. i. oap. 9,
RIGHTS OF WAR AS TO NEUTRALS. 665
boundary. There is no solid distinction, in this view of Chap. III.
the principle, between provisions and a thousand other
articles. Men must be clothed as well as fed ; and even
the privation of the conveniences of life is severely felt
by those to whom habit has rendered them necessary,
A nation, in proportion as it can be debarred its accus-
tomed commercial intercourse with other States, must be
enfeebled and impoverished ; and if it is allowable to a
belligerent to violate the freedom of neutral commerce,
in respect to any one article not contraband in se^ upon
the expectation of annoying the enemy, or bringing him
to terms by a seizure of that article, and preventing it
reaching his ports, why not, upon the same expectation
of annoyance, cut o£E as far as possible by captures all
communication with the enemy, and thus strike at once
effectually at his power and resources ?
As to the 18th article of the Treaty of 1794, between Angio-
the United States and Great Britain, it manifestly ^^^I^Ti 794.
intended to leave the question where it found it ; the two
contracting parties, not being able to agree upon a de-
finition of the cases in which provisions and other articles,
not generally contraband, might be regarded as such
(the American government insisting on confining it to
articles destined to a place actually besieged, blockaded,
or invested, whilst the British government maintained
that it ought to be extended to all cases where there is
an expectation of reducing the enemy by famine), con-
curred in stipulating, that '^ whenever any such articles,
so becoming contraband, according to the existing latv of
nations^ shall for that reaspn be seized, the same shall not
be confiscated," but the owners should be completely
indemnified in the manner provided for in the article.
When the law of nations existing at the time the case
arises pronounces the articles contraband, they may for
that reason be seized ; when otherwise, they may not be
seized. Each party was thus left as free as the other to
decide whether the law of nations, in the given case,
pronounced them contraband or not, and neither was
obliged to be governed by the opinion of the other. If
666
KIGHTS OF WAR Afi TO NEUTBAUS.
Partly, one party, on a false pretext of being authorized by the
law of nations, made a seizure, the other was at full
liberty to contest it, to appeal to that law, and, if be
6 500 thought fit, to resort to reprisals and war.
Jufltification As to the secoud ground upon which the Order in
aitTof^^^' Council was justified, necessity ^ Great Britain being, as
® alleged at the time of issuing it, threatened with a scarcity
of those articles directed to be seized, it was answered
that it would not be denied that extreme necessity might
justify such a measure. It was only important to ascertain
whether that necessity then existed, and upon what terms
the right it communicated might be carried into exercise.
Grotius, and the other text writers on the subject, con-
curred in stating that the necessity must be real and
pressing ; and that even then it does not confer a right
of appropriating the goods of others, until all other prac-
ticable means of relief have been tried and found inade-
quate. It was not to be doubted that there were other
practicable means of averting the calamity apprehended
by Great Britain. The offer of an advantageous market
in the different ports of the kingdom, was an obvious
expedient for drawing into them the produce of other
nations. Merchants do not require to be forced into a
profitable commerce ; they will send their cargoes where
interest invites ; and if this inducement is held out to
them in time, it will always produce the effect intended.
But so long as Great Britain offered less for the necessaries
of life than could have been obtained from her enemy,
was it not to be expected that neutral vessels should seek
the ports of that enemy, and pass by her own ? Could it
be said that, under the mere apprehension (not under the
actual experience) of scarcity, she was authorized to have
recourse to the forcible means of seizing provisions belong-
ing to neutrals, without attempting those means of supply
which were consistent with the rights of others, and
which were not incompatible with the exigency ? After
this order has been issued and carried into execution, the
British government did what it should have done before;
it offered a bounty upon the importation of the articles
EIGHTS OF WAE AS TO NEUTB
of which it was in want. The consei
neutrals came with these articles, unl
market was found to be overstocked. T
ment, had it been made at an earlier pe
rendered wholly useless the order of 17i
Upon these grounds, a full inde
allowed by the commissioners, under th
of the Treaty of 1794, to the owners o
cargoes seized under the Orders in Coi
the loss of a market as for the other
their detention (d ).
The question as to what is, and what is not,
as yet be answered with precision. No complett
are to be alwajs deemed contraband has been d
seem likely that it ever will be, although in 1896
International prepared a set of rules with the obj
formity in international practice {e). That which
certain circumstances may not be so under otheri
when an article is of doubtful use, is whether
would probably be applied, to military purpose
America, the court before which the goods are 1
into all the circumstances of the case, such as tl
ship, the purposes to which the goods seem intenc
character of the war, and so on, and will cond
upon the evidence (/). If, however, there are a:
on the subject, or if the State before whose c
brought, has issued any definite list of contra
decision wiU of course be regulated accordingly
capture," says Halleck, ''can only be determined
national law, as interpreted and applied hy the tribt
State, to the operations of whose cruisers the
exposed " (A).
The following goods have been held to be cont
cumstances by the EngUsh Prize Court, and are ei
the Admiralty Manual of Prize Law : arms of all ]
for manufacturing arms, ammunition, and mater:
including lead, sulphate of potash, muriate of
potash, and nitrate of soda; gunpowder and ite
and brimstone; also guncotton; military equipme:
{d) Proceedings of the Board of Com- (/) Wheatoo
missioners under the Beventh article of Galvo, vol. ii. {
the Treaty of 1794. MS. Opinion of p. 359. Pari. J
Mr. W. Finkney, case of The Neptune. (^) As is no
(e) See the Annoaire de Tlnstitat, see examples ox
1896. (h) Halleck,
668
RIGHTS OF WAR AS TO KEUTRALS.
Part IV.
Goods oondi-
tionally con-
trabaod in
England.
militaiy stores (t). Naval stores, such as masts (k), spars, rudders, and
ship timber {I), hemp (m), cordage, sailcloth (n), pitch and tar (o), and
copper fit for sheathing vessels (/>). Marine engines, and the com-
ponent parts thereof, including screw-propellors, paddle-wheels, cylin-
ders, cranks, shafts, boilers, tubes for boilers, boiler plates, and
fire-bars ; marine cement, and the materials used in the manufacture
of it, as blue lias and portland cement ; iron in any of the following
forms : anchors, rivet-iron, angle-iron, round bars of from three-
quarters to five-eighths of an inch in diameter, rivets, strips of iron,
sheet plate-iron exceeding one-quarter of an inch, and low-moor and
bowling plates (q).
The following articles have been held to be contraband when the
circumstances showed that they were probably intended to be applied
to warlike purposes. Provisions and liquors fit for the consumption
of army or navy(r), money, telegraphic materials — such as wire,
porous cups, platina, sulphuric acid, and zinc(«); materials for the
construction of a railway — as iron bars, sleepers (/) ; coal, hay, horses,
rosin (m), tallow (^r), and timber (y).
The Proclamation of the President of the United States (13th June,
1865), removing the restrictions on trade with the Southern States,
only declared the following articles to be contraband : — arms, ammu-
nition, all articles from which ammunition is made, and gray uniforms
and cloth (z). The Declaration of Paris, while permitting the seizure
of contraband, in no way defines it. The instructions to French naval
officers during the war with Germany in 1870-71, enumerate as
contraband: cannon, small- arms, swords and bayonets, projectiles,
powder, saltpetre, sulphur, military accoutrements, and everything
made for use in war (a). Mr. Field, in his International Code, says,
** Private property of any person whomsoever, and public property of
a neutral nation are contraband of war, when consisting of articles
manufactured for and primarily used for military purposes in time of
war ; and actually destined for the use of the hostile nation in war,
but not otherwise " (3). On the outbreak of the war between Spain
and the United States in 1898, the former country declared the
following articles to be contraband of war: — cannon, quickfiring guns,
shells, rifles of all patterns, cutting and thrusting weapons and arms
(t) Holland, Admiralty Manual of
Prize Law, 1888.
{k) The Charlotte, 6 C. Rob. 305 ; The
Staadt Embden, 1 C. Rob. 27.
(/) The Twende Brodre, 4 C. Rob. 33.
(m) The Apollo, 4 ibid. 161 ; The Evert,
4 ibid. 364 ; The Geielhehaft Michael, 4
ibid. 94.
(ft) The Neptunue, 3 G. Rob. 108.
(o) The Jonge Tobiaty 1 0. Rob. 329 ;
The Twee Jvffrowen, 4 ibid. 242.
(;;) The Charlotte, 5 C. Rob. 276.
(7) Holland, I.e. Field, Intematioiial
Code (2nd ed.), p. 650.
(r) The Haabet, 2 G. Rob. 182; lU
Jonge Margaretha, 1 ibid. 191; The
Rafiger, 6 ibid. 125.
(«) Pari. Papers, N. America, 1863
(No. 14), p. 5.
{t) Field, Inter. Gode (2nd ed.), p. 550.
(w) The Noetra Sigtiora ie Begtma, 5
G. Rob. 98.
{x) The Ifeptunue, 3 G. Rob. 108.
Ig) The Turende Brodre, 4 G. Rob. 37.
(e) HertsleVB Treaties, vol. zii. p. 946.
(a) See Barbonz, Jniisp. dn Conaeil
des PrifleB, 1870-71, Appendix, Art. 8.
(b) Field, International Code, § 869.
RIGHTS OP WAR AS TO NEUTRALS.
669
of precision, buUetei, bombs, grenades, fulminates, capsules, fusees,
powder, sulphur, dynamite, explosives of all kind, as well as uniforms,
straps, pack-saddles, equipment for artillery and cavalry, marine
engines, and in general all appliances used in war.
The subject of contraband was discussed before the Supreme Court
of America, in a case arising out of the shipment of contraband goods
from England to Matamoras during the civil war. Matamoras is
situated on the Mexican side of the Bio Grande, and was consequently
a neutral port. The court said: ''The classification of goods as
contraband or not contraband has much perplexed text writers and
jurists. A strictly accurate and satisfactory classification is perhaps
impracticable; but that which is best supported by American and
English decisions may be said to divide all merchandise into three
classes. (1) Articles manufactured and primarily or ordinarily used
for military purposes in time of war. (2) Articles which may be and
are used for purposes of war or peace according to circumstances.
(3) Articles exclusively used for peaceful purposes. Merchandise of
the first class, destined to a belligerent country or places occupied by
the army or navy of a belligerent, is always contraband ; merchandise
of the second class is contraband only when actually destined to the
military or naval use of a belligerent ; while merchandise of the third
class is not contraband at all, though liable to seizure and condem-
nation for violation of blockade or siege " (c).
A point arose in this case, upon which the courts of England and
America have arrived at different conclusions. Matamoras, as has
been said, was a Mexican and neutral port. At the time the ship was
captured, the United States had declared all the confederate ports
blockaded, and a squadron cruised off the mouth of the Bio Grande to
intercept the trade with Galveston, a place on the opposite side of the
river to Matamoras, and in Confederate territory. The question then
arose whether the whole river was blockaded, or whether the blockade
only applied to the Confederate side of it. The Supreme Court held
that a blockade is not to be extended by construction, and that as the
United States authorities had not expressly declared the whole river
blocked (whether they had power to do so or not was another
question), the Mexican side must be considered open to the commerce
of neutrals. But with regard to the contraband on board the ship,
the judgment proceeded as follows: — ''Contraband merchandise is
subject to a different rule in respect to ulterior destination than that
which applies to merchandise not contraband. The latter is liable to
capture only when a violation of blockade is intended; the former
when destined to the hostile country, or to the actual military or naval
use of the enemy, whether blockaded or not. The trade of neutrals
with beUigerents in articles not contraband is absolutely free, unless
interrupted by blockade ; the conveyance by neutrals to belligerents
(c) The Peterhof, 6 Wallace, 58.
During' the Spanish -American War of
189S, a firm of Liverpool merchants
applying to the United States Qovem-
Chap. III.
§601b.
ClaHsification
of contraband
goods.
The Peterhoff,
§ 501c.
Ulterior
destination of
the goods.
ment for a definition of contraband, were
referred to this dictum of Chief Justice
Chase. See Times, Feb. 17th, 1004,
670
BIGHTS OF WAR AS TO NEtTTRALS.
Part IV.
§ sold.
Senning,
Ths Bundet'
rath.
of contraband articles is always tuilawful, and such artidce may
always be seized during transit at sea. Hence, while articles, not
<X)ntraband, might be sent to Matamoras and beyond to the rebel
region, where the communications were not interrupted by blockade,
articles of a contraband character destined, in fact, to a State in
rebellion, or for the use of the rebel military forces, were liable to
capture though primarily destined to Matamoras " (d).
On the other hand, the Court of Common Fleas, in a case arising in
England out of the same voyage of the ship, came to the conclusion
that goods contraband belonging to a neutral, are not liable to seizure
unless in the actual prosecution of a voyage to an enemy's port. Nor
is the rule afPected by the fact that the shipper knows they are
intended ultimately to reach an enemy's port (e). This decision was
based on the language used by Lord Stowell in The Imina (/), that
goods going to a neutral port cannot come under the description of
contraband. Early in the South African War (December, 1899, and
January, 1900), the German mail steamer, Bundesrath, and other
vessels belonging to the German East African line, were seized by
Eoglish men-of-war and detained, pending search, on suspicion of
carrying contraband of war, and of containing among their passengers
men who were on their way to join the Boer armies. The German
government demanded the immediate release of the vessels, and
claimed through Count Hatzfeld that there was no justification for
taking procee(Ung8 before a prize court because "according to the
recognized principles of international law no question of contraband
of war arises in trade between neutral ports.'' The destination of
these vessels was Lorenzo Marques, a port belonging to Portugal, and
consequently neutral, but it was notorious that reinforcements both of
(d) The Peterhoff 6 Wallace, 59. As
far back aa 1864, in the case of The Froto
Jfoicina, the French prize court had con-
demned, during the Crimean War, part of
the cargo of a Hanoyerian ship captured
off Cape Bocca, on a Toyage from Lisbon
to Hamburg, and containing saltpetre,
which was described in the manifest
and bills of lading simply as goods. The
ultimate destination of the saltpetre was
adjudged to be Bussia, and the court
laid down the principle that ''La oontre-
bande de gpueire est saisissable sans
pavilion neutre quand elle appartient k
I'ennemi ou quand elle est dirig<6e vers
les territoires, les armies ou les flottes de
I'ennend " : Calvo, Droit International,
4th ed., vol. v. { 2767. See also the
case of The Bodtcyeh, decided by the
Italian prize courts during the war
between Italy and Abyssinia, Archives
Diplomatiques, Jan. 1897, p. 81. The
judgment is set out in Ruye y. Royal
Exchange Auuranee Ctmpang, 2 Ocnn.
Cas. 207 ; and in the Law Beports (1897),
2 Q. B. 135. And see on the whole sub-
ject an article by Mr. E. L. de Hart, in
the L. Q. B. vol. xrii. p. 193.
{e) Mobbe t. E^ning, 17 C. B. N. S.
791. But Mr. Justice Willes, a few
years later, in deliyering the judgment
of the Court of Common Fleas in Segnumr
V. The London and Provineiai Marine
Insurance Company ^ 41 Law Journal,
N. S. C. F. 192, another case arising
out of the same voyage of The FiOerhof,
held that the criterion of contraband was
** the intention that the goods should in
the course of the same traneaction go on
to the Confederate States,*' and that the
profits should be obtained on deliveij
there. It seems difficult to reconcile
this with Hobbi v. Kenning.
(/) 3 Bob. 167.
BIGHTS OP WAR AS TO NEUTRALS. 671
men and material were constantlj passing tlirough it to the South Cliap. III.
African Bepublics, whicli possessed no sea-board of their own. In
fact it presented a very close analogy to the position of Matamoras.
Lord Salisbuiy upheld the proceedings of the naval officers, and refused
to admit that the destination of the vessel was conclusive as to the
destination of the goods on board, a principle, he said, ''which cannot
apply to contraband of war on board of a neutral vessel if such con-
traband was at the time of seizure consigned or intended to be delivered
to an agent of the enemy at a neutral port or, in fact, destined for the
enemy's country." The vessels were accordingly searched in circum-
stances of considerable difficulty owing to the way in which the cargo
was stowed, but nothing was found of an absolutely contraband
nature; and though there was reason to believe that among the
passengers on board were a number of trained artilleiymen, German
and Flemish, the evidence as to their destination was not sufficient to
justify further action. The vessels were accordingly released without
waiting for the decision of a prize court, and a liberal sum of money
was paid by the British government as compensation to the steamship
company. The incident gave rise to some heated language in the
Beichstag, and Count von Billow made a long speech on the 19th of
January, in which he took credit for a complete diplomatic victory ;
but it is remarkable that he made no allusion to the original German
contention that a neutral vessel was entitled to convey without
hindrance contraband of war to an enemy so long as the port at which
it was intended to land was a neutral port. It remains to be seen
whether in the future the British government will follow the American
precedent which materially increases the rights of belligerents, but at
the same time adds another to the restrictions on neutral commerce
during war, and there is the further question of the view which the
prize courts and admiralty judges may take in the face of the conflict-
ing dedsions quoted above (y). § 601e.
Some writers, overlooking the fact that a neutral has rights as well Contraband
as a belligerent, have laid down the doctrine that the exportation of i,ieach^ of
contraband is a breach of neutrality. This opinion has generally been neutrality,
adopted only by those whose views of international law are derived
purely from speculation. The practice of nations in no way bears out
such an assertion. In every war neutrals have traded in contraband,
but with the risk of having the goods condemned if captured by the
enemy (A). Few rules of international law are so certain as that a
neutral government cannot be made responsible as for a breach of
neutrality, because its subjects carry on a contraband trade, though
Bismarck chose to protest more than once during the Franco-Prussian
war against the supplies of arms and ammunition procured in England
by the government of the French Eepublic. The trade must, how-
ever, be confined to subjects. If carried on by the government itself,
(ff) Pari. Papers, Afrioa, 1900 (No. 1).
(A) See Letters of Historious, Contraband. Pari. Papers, N. America, 1873
(No. 2), p. 19 ; Turkey, 1878 (No. 1), p. 46.
672
EIGHTS OP WAR AS TO NEUTRALS.
Part IV.
§ 601f.
Ships as
contraband.
Coals and
machine! y.
§ 601h.
Food.
Blockade of
Formosa.
it then will amount to a violation of neutral duties (t). America has
' always maintained the right of exporting arms to belligerents in the
way of trade (J ) ; and during the civil war the Federal government
purchased warlike stores from England to the value of over
2,000,000/. (k).
A ship, theoretically considered, may or may not be contraband. If
on its way to a belligerent port for the purpose of being sold to the
belligerent, it will be contraband if it is adapted, or readily adaptable,
for warlike use ; equally so, doubtless, if it be adapted for the trans-
portation of troops, or even perhaps of military material. As most
ships may in some way be applied to such purposes, they are pretty
sure to be condemned as contraband. Thus, where the captain had
orders to sell if he could find a good purchaser, but^jy^^grise to seek
freight, the ship was condemned (l).
The immense importance of coals and machinery in ^he naval
operations of the present day has given rise to endless discissions as
to whether they are contraband or not. Writers of the school of
M. Hautefeuille refuse to consider such commodities as contiiband(m),
and the French government acted on this opinion during the war with
Germany (n), while Count Bismarck remonstrated with Grea^ Britain
for permitting the export of coal to France (o). Lord Chie. Justice
Oockburn says, *'Coal, too, though in its nature ancipitia fW, yet
when intended to contribute to the motive power of a vessel, must, I
think, as well as machinery, be placed in the same category 58 masts
and sails, which have always been placed among articles ol contra-
band " (p). But it is classed, as we have already seen, in -the British
Admiralty Manual among articles which are only contraband condi-
tionally upon destination.
On the 20th February, 1885, the French government gave potice,
through the usual diplomatic channels, that it intended to treS^t rice
bound for the open Chinese ports as contraband of war, on the ground
that the stoppage of large supplies which were being forwarded fo tte
northern ports of China would materially afEect the governmeV ^^
Pekin. The British government, the Queen's ambassador at PdtoA
having refused to recognize this right, explained that it would i^^
forcibly resist the seizure of rice, but that it protested against ri^
being treated generally as contraband irrespective of its final destina-
tion, and that the legality of any seizure must be determined in th
first instance by the French prize courts, subject to ulterior diplomatic
(i) Ortolan, Diplomatie de la Mer,
vol. ii. cap. vi. Bluntschli, Le Droit
International Codifi6, § 765, p. 385.
U) Kent, by Abdy, p. 361. Web-
ster's Works, vol. vi. p. 452. President's
Messageto Congress, IstSess. 34th Cong.
{k) British Counter- case at Greneva.
Pari. Papers, N. America (No. 4), 1872,
p. 56.
(/) See American Law Review, vol. v.
p. 371. The Brutus, 5 C. Rob. 331, n.
(m) Hautefeuille, Droits et Devoirs
des Nations Neutres, vol. ii. p. 143.
(w) Archives Diplomatiques, 1871—72,
Pt. I. p. 269.
(o) 2 Halleck (Baker), 238, n.
Ip) Pari. Papers, N. America, 1873
(No. 2), p. 16. Jurist, 1859, vol.
Pt. II. p. 203. See, further, Wharton,
Dig. § 369
i
73
■•i
1
RIGHTS OF WAR AS TO NEUTRALS. 673
action. The oonclusion of peace, however, shortly afterwards pre- Chap. III.
vented the question being further raised (y). The American minister
at Berlin, in a despatch to Mr. Bayard, drew attention to the Anglo-
French discussion, and pointed out that the real principle involved
went to the extent that everything, the want of which might increase
the distress of the civil population of the belligerent country, might
be declared contraband of war. The damage to neutral trade might
amoimt to destruction, and the advantages intended to be secured to
neutrals by the declaration of 1856 would be practically nullified (r).
In the Eusso- Japanese War of 1904 the latter power has expressed its
intention of treating not only rice, but all kinds of grain, fish, fish-
products, beans and bean-cake as contraband of war. The conse-
quences remain to be seen.
§602.
Of the same nature with the carrying of contraband Transporta-
goods is the transportation of military persons or de- ta^persona
spatches in the service of the enemy. S^atohw in
A neutral vessel, which is used as a transport for the ^^y^®™^'*
enemy's forces, is subject to confiscation, if captured by
the opposite belligerent. Nor will the fact of her having
been impressed by violence into the enemy's service,
exempt her. The master cannot be permitted to aver
that he was an involuntary agent. Were an act of force
exercised by one belligerent power on a neutral ship or
person to be considered a justification for an act, con-
trary to the known duties of the neutral character, there
would be an end of any prohibition under the law of
nations to carry contraband, or to engage in any other
hostile act. If any loss is sustained in such a service,
the neutral yielding to such demands must seek redress
from the government which has imposed the restraint
upon him (s). As to the number of military persons
necessary to subject the vessel to confiscation, it is diffi-
cult to define ; since fewer persons of high quality and
character may be of much more importance than a much
greater number of persons of lower condition. To carry
a veteran general, under some circumstances, might be a
much more noxious act than the conveyance of a whole
regiment. The consequences of such assistance are
{q) Cobbett, L. C. p. 226, note {k). In Annnal Register, 1886, p. 231.
the same war the French refased to allow (r) Wharton, Dig. § 370, p. 433.
neutral mails to be landed at Formosa : («) The Carolina, 4 C. Rob. 266.
W. X X
674 RIGHTS OP WAR AS TO NEUTRALS.
Part IV. greater^ and therefore the belligerent has a stronger
right to prevent and punish it ; nor is it material, in the
judgment of the Prize Court, whether the msister be
ignorant of the character of the service on which he is
engaged. It is deemed sufficient if there has been an
injury arising to the belligerent from the employment in
which the vessel is found. If imposition is practised, it
operates as force ; and if redress is to be sought against
any person, it must be against those who have, by means
either of compulsion or deceit, exposed the property to
danger; otherwise such opportunities of conveyance
would be constantly used, and it would be almost im-
possible, in the greater number of cases, to prove the
privity of the immediate offender (t).
Fraudulently The fraudulently carrying the despatches of the enemy
^S^Si^d will fl'lso subject the neutral vessel, in which they are
despatches, transported, to capture and confiscation. The conse-
quences of such a service are indefinite, infinitely beyond
the effect of any contraband that can be conveyed.
** The carrying of two or three cargoes of military
stores," says Sir W. Scott, " is necessarily an assistance
of a limited nature ; but in the transmission of despatches
may be conveyed the entire plan of a campaign, that
may defeat all the plans of the other belligerent in that
quarter of the world. It is true, as it has been said,
that one ball might take off a Charles the Xllth, and
might produce the most disastrous effects in a campaign ;
but that is a consequence so remote and accidental, that,
in the contemplation of human events, it is a sort of
evanescent quantity of which no account is taken ; and
the practice has been, accordingly, that it is in consider-
able quantities only that the offence of contraband is
contemplated (w). The case of despatches is very diffe-
rent ; it is impossible to limit a letter to so small a size
as not to be capable of producing the most important
consequences. It is a service, therefore, which, in what-
(0 2^ Oroeembo, 6 0. Rob. 430. ihree-foarthB of the cargo ooDsisted of
(u) The French roles of 1870 directed contraband. Barbouz, Jurisp. dnConseil
the ship to be confiscated if more than desPrise;*, 1870—71. Appendix, Art. 6.
BIGHTS OP WAR AS TO NEUTRALS.
676
ever degree it exists, can only be considered in one Chap. HI.
character — as an act of the most hostile nature. The
o£Pence of fraudulently carrying despatches in the service
of the enemy being, then, greater than that of carrying
contraband under any circumstances, it becomes abso-
lutely necessary, as well as just, to resort to some other
penalty than that inflicted in cases of contraband. The
confiscation of the noxious article which constitutes the
penalty in contraband, where the vessel and cargo do not
belong to the same person, would be ridiculous when
applied to despatches. There would be no freight depen-
dent on their transportation, and therefore this penalty
could not, in the nature of things, be applied. The
vehicle in which they are carried must, therefore, be
confiscated " (x). „ ^^
But carrying the despatches of an ambassador or other Diptomatio
public minister of the enemy, resident in a neutral country, arexoeption.
is an exception to the reasoning on which the above
general rule is founded. " They are despatches from
persons who are, in a peculiar manner, the favourite
object of the protection of the law of nations, residing
in the neutral country for the purpose of preserving the
relations of amity between that State and their own
government. On this ground a very material distinction
arises with respect to the right of furnishing the convey-
ance. The neutral country has a right to preserve its
relations with the enemy, and you are not at liberty to
conclude that any communication between them can par-
take, in any degree, of the nature of hostility against
you. The limits assigned to the operations of war
against ambassadors, by writers on public law, are, that
the belligerent may exercise his right of war against
them, wherever the character of hostility exists : he may
stop the ambassador of his enemy on his passage ; but
when he has arrived in the neutral country, and taken
on himself the functions of his office, and has been ad-
mitted in his representative character, he becomes a sort
of middle man^ entitled to peculiar privileges, as set apart
(x) The Aiahnta, 6 0. Rob. 440.
xx2
676 EIGHTS OF WAR AS TO NEUTRALS.
Part IV. for the preservation of the relations of amity and peace,
in maintaining which all nations are, in some degree,
interested. If it be argued that he retains his national
character unmixed, and that even his residence is con-
sidered as a residence in his own country, it is answered
that this is a fiction of law, invented for his further pro-
tection only, and as such a fiction, it is not to be extended
beyond the reasoning on which it depends. It was
intended as a privilege, and cannot be urged to his dis-
advantage. Could it be said that he would, on that
principle, be subject to any of the rights of war in the
neutral territory ? Certainly not : he is there for the
purpose of carrying on the relations of peace and amity,
for the interests of his own country primarily, but at the
same time for the furtherance and protection of the
interests which the neutral country also has in the con-
tinuance of those relations. It is to be considered also,
with regard to this question, what may be due to the
convenience of the neutral State ; for its interests may
require that the intercourse of correspondence with the
enemy's country should not be altogether interdicted.
It might be thought to amount almost to a declaration,
that an ambassador from the enemy shall not reside in
the neutral State, if he is declared to be debarred from
the only means of communicating with his own. For to
what useful purpose can he reside there without the
opportunity of such a communication ? It is too much
to say that all the business of the two States shall be
transacted by the minister of the neutral State resident
in the enemy's country. The practice of nations has
allowed to neutral States the privilege of receiving
ministers from the belligerent powers, and of an imme-
„ -^ diate negotiation with them " {y).
The oasfl of This subject was very exhaustively discussed in the celebrated case of
The Trent, y^^ TrenL The facts of this case have been stated in a previous part
of this work (2). It will be remembered that The Trent was a regular
mail-steamer plying on her usual course from Havanna to Nassau.
Messrs. Slidell and Mason, the Confederate diplomatic agents, took
their places on board at Havanna as ordinary passengers, and while
the ship was on the high seas, she was stopped by a Federal ship-of-
(y) Sir W. Soott, in The Caroline, 6 C. Rob. 461. (2) See anUy \ 109 b.
RIGHTS OF WAE AS TO NEUTRALS, 677
"war, Slidell and Mason, with their secretaries, were taken out, and the Chap. III.
vessel was then allowed to continue her voyage.
This case raised and has left unanswered the following question,
which is thus stated by Professor Bernard: "Does a neutral ship
forfeit that character, and expose itself to condemnation, by convey-
ing, as passengers from one neutral port to another, persons going as
diplomatic agents of the enemy to a neutral country ? The American
government maintains the affirmative of this question — if not in all
cases, at least in a case where the agent has not yet acquired an official
character — and the community he is commissioned to represent has not
been recognized as independent. It insists on the affirmative even
where the ship is a regular packet, carrying mails, goods, and pas-
sengers, and making her regular voyage from and to her accustomed
ports, the persons themselves taking their berths as ordinary pas-
sengers, and coming on board in the usual way. The British govern-
ment maintains the negative, and other European governments appear
to be of the same opinion, which is, I think, the sounder and more
reasonable " (a). « ^^^
Prof. Bernard also says on this subject, " The following propositions. The carriage
though condensed, will be intelligible to lawyers. I state them with °^ l^ostile
diffidence ; but they are, I believe, not far from the truth.
" 1. A neutral ship, conveying persons in the enemy's employment, Oeneral mleB.
whether military or civil, is not liable to condemnation as prize, unless,
on a consideration of all the circumstances, the court comes to the con-
clusion that she is serving the enemy as a transport, and so as to assist
substantially, though perhaps not directly, his military operations.
'^ 2. If it be proved that the ship, though owned by a neutral, was
actually hired for such a purpose by the enemy, it is immaterial whether
the persons conveyed are many or few, important or insignificant, and
whether the purpose of the hiring was or was not known by the master
or owner. I understand by hiring any contract which gives the actual
control and disposal of the ship to the enemy.
" 3. If, on the other hand, such a hiring by the enemy be not shown, it
then becomes necessary to prove that the service performed was in its
nature such as is rendered by a transport. The number of the persons
conveyed, the nature of their employment, their importance, their
immediate or ultimate destination, may then become material elements
of proof ; and there should be evidence of intention, or of knowledge
from which intention may be reasonably inferred, on the part of the
owner, or his agent, the master.
"4. It is incorrect, therefore, to speak of the conveyance of such
persons as if it were the same thing as the conveyance of ' contraband
of war,' or as if the same rules were applicable to it. It is a different
thing, and the rules applicable to it are difiPerent.
" 5. The fact that ^e voyage is to end at a neutral port is not con-
clusive against condemnation, but is a strong argument against it, and
(0) Moimtagae Benia]:d, Neutrality of Ghreat Britain during the American Civil
War, p. 223.
band.
678 BIGHTS OF WAB AS TO NEUTRALS.
Part IV. would indeed be practically condtLsiTe in most oases, especially if
coupled with proof that the ship was pursuing her ordinary employ-
ment.
'^ 6. It is not lawful, on the high seas, to take persons, whatever
their character, as prisoners out of a neutral ship which has not
been judicially proved to have forfeited the benefit of her neutral
character " (ft).
§605.
^naity for In general, where the ship and cargo do not belong to
of oontra- the samo person, the contraband articles only are confis-
cated, and the carrier-master is refused his freight, to
which he is entitled upon innocent articles which are
condemned as enemy's property. But where the ship
and the innocent articles of the cargo belong to the owner
of the contraband, they are all involved in the same
penalty. And even where the ship and the cargo do not
belong to the same person, the carriage of contraband,
under the fraudulent circumstances of false papers and
false destination, will work a confiscation of the ship as
well as the cargo. The same efPect has likewise been
held to be produced by the carriage of contraband
articles in a ship, the owner of which is bound by the
express obligation of the treaties subsisting between his
own country and the capturing country, to refrain from
carrying such articles to the enemy. In such a case, it
is said that the ship throws off her neutral character, and
is liable to be treated at once as an enemy's vessel, and
as a violator of the solemn compacts of the country to
s 606. which she belongs (c).
Theahip The general rule as to contraband articles, as laid
til delicto. down by Sir W. Scott, is that the articles must be taken
in delicto^ in the actual prosecution of the voyage to an
enemy's port. " Under the present understanding of the
law of nations, you cannot generally take the proceeds
in the return voyage. From the moment of quitting
(b) Neutrality of Great Britain, p. 224. Ibid. 295. CarringUm y. MerehaM
/ N /m T,. , r 1 t n T> V At ^*^' ^'^ ^ Peters, 618 ; TU Bermuda.
(c) The R^ng^ Jacob I 0. ^b. 91 ; 3 ^^^ ^^^ '^ ^ ^^^ ^J^^
The Sarah Chnetina, Rid. 237 ; The .i^j^^^, ^^ ^y^^ |^ ^^ ^ ^, ^
Mereunue, Ibid. 288; The Franklin, 3 nuwter in caaes of contnbaad, see
Ibid. 217; The JEdward, ilbid. 69; The Wheaton'a Bep. vol ii., Appendix,
Itanger, 6 Ibid. 126 ; The NeutrtdiUt, 3 Kote I. pp. 37, 38.
BIGHTS OF WAE AS TO NEUTRALS. 679
port on a hostile destination, indeed, the ofPence is com- Chap. m.
plete, and it is not necessary to wait till the goods are
actually endeavouring to enter the enemy's port; but
beyond that, if the goods are not taken in delicto^ and in
the actual prosecution of such a voyage, the penalty
is not now generally held to attach '^ (d). But the same
learned judge applied a different rule in other cases of
contraband, carried from Europe to the East Indies, with
false papera and false destination, intended to conceal
the real object of the expedition, where the return cargo,
the proceeds of the outward cargo taken on the return
voyage, was held liable to condemnation {e). o ^^^
Although the general policy of the American govern- -^®'*^
ment, in its diplomatic negotiations, has aimed to limit Ommmen.
the catalogue of contraband by confining it strictly to
munitions of war, excluding all articles of promiscuous
use, a remarkable case occurred during the late war be-
tween Great Britain and the United States, in which the
Supreme Court of the latter appears to have been dis-
posed to adopt all the principles of Sir W. Scott, as to
provisions becoming contraband under certain circum-
stances. But as that was not the case of a cargo of
neutral property, supposed to be liable to capture and
confiscation as contraband of war, but of a cargo of
enemyh property going for the supply of the enemy's
naval and military forces, and clearly liable to condem-
nation, the question was, whether the neutral master was
entitled to his freight as in other cases of the transporta-
tion of innocent articles of enemy's property; and it was
not essential to the determination of the case to consider
under what circumstances articles ancipitis usHa might
become contraband. Upon the actual question before
{d) The Iminay 3 Ct Bob. 168. sdziire. To sabjeot the propertj to
(e) The Eosalie and Betty, 2 0. Bob. «»^fi«»*i«^ ^^^* *^« <>«««» ^<> 1<>^««
..1 «« ,^ « -«../,«« -.«n. oontinuee, would be to extend it indefl-
843 ; The Ifancy, 8 Bnd. 122. The ^^^^ ^^^ ^^ to the return Toyage,
soondneBS of these last dedsionB may ^^^^ ^ ^^tuie cargoes of theyessd,
be well qnestioxied ; for in order to sos- ^hioh would thus never be purified from
tain the penalty, there must be, on the oontagpion oommnnioated by the con*
principle, a deUctwn at the moment of trabaod articles.
680 BIGHTS OF WAE AS TO NEUTBALS.
Part IV. the Court, it seems there would have been no difference
of opinion among the American judges in the case of an
ordinary war; all of them concurring in the principle,
that a neutral, carrying supplies for the enemy's naval
or military forces, does, under the mildest interpreta-
tion of international law, expose himself to the loss of
freight. But the case was that of a Swedish vessel,
captured by an American cruiser, in the act of carrying
a cargo of British property, consisting of barley and
oats, for the supply of the allied armies in the Spanish
peninsula, the United States being at war with Great
Britain, but at peace with Sweden and the other powers
allied against France. Under these circumstances a ma-
jority of the judges were of the opinion that the voyage
was illegal, and that the neutral carrier was not en-
titled to his freight on the cargo condemned as enemy's
property.
It was stated in the judgment of the Court, that it had
been solemnly adjudged in the British Prize Courts, that
being engaged in the transport service of the enemy, or
in the conveyance of military persons in his employment,
or the carrying of despatches, are acts of hostility which
subject the property to confiscation. In these cases,
the fact that the voyage was to a neutral port was not
thought to change the character of the transaction. The
principle of these determinations was asserted to be, that
the party must be deemed to place himself in the service
of the enemy State, and to assist in warding off the
pressure of the war, or in favouring its offensive pro-
jects. Now these cases could not be distinguished, in
principle, from that before the Court. Here was a cargo
of provisions exported from the enemy's country, with
the avowed purpose of supplying the army of the enemy.
Without this destination, they would not have been per-
mitted to be exported at all. It was vain to contend that
the direct effect of the voyage was not to aid the British
hostilities against the United States. It might enable
the enemy indirectly to operate with more vigour and
promptitude against them, and increase his disposable
RIGHTS OF WAE AS TO NEUTRALS. 681
force. But it was not the effect of the particular trans- Chap. m.
action which the law regards : it was the general tendency
of such transactions to assist the military operations of
the enemy, and to tempt deviations from strict neu-
trality. The destination to a neutral port could not
vary the application of this rule. It was only doing that
indirectly which was directly prohibited. Would it be
contended that a neutral might lawfully transport pro-
visions for the British fleet and army, while it lay at
Bordeaux preparing for an expedition to the United
States ? WoiJd it be contended that he might lawfully
supply a British fleet stationed on the American coast ?
An attempt had been made to distinguish this case
from the ordinary cases of employment in the transport
service of the enemy, upon the ground that the war
of Great Britain against France was a war distinct
from that against the United States ; and that Swedish
subjects had a perfect right to assist the British arms in
respect to the former though not to the latter. But the
Court held, that whatever might be the right of the
Swedish sovereign, acting under his own authority, if a
Swedish vessel be engaged in the actual service of Great
Britain, or in carrying stores for the exclusive use of the
British armies, she must, to all intents and purposes, be
deemed a British transport. It was perfectly immaterial
in what particular enterprise those armies might, at the
time, be engaged ; for the same important benefits were
conferred upon the enemy of the United States, who
thereby acquired a greater disposable force to bring into
action against them. In The Friendship (/), Sir W. Scott,
speaking on this subject, declared that ^^it signifies
nothing, whether the men so conveyed are to be put into
action on an immediate expedition or not. The mere
shifting of drafts in detachments, and the conveyance of
stores from one place to another, is an ordinary employ-
ment of a transport vessel, and it is a distinction totally
unimportant whether this or that case may be connected
(/) 6 C. Rob. 420.
682 RIGHTS OF WAR AS TO NEUTRALS,
Part IV. with the immediate active service of the enemy. In
removing forces from distant settlements, there may be
no intention of immediate action ; but still the general
importance of having troops conveyed to places where it
is convenient that they should be collected, either for
present or future use, is what constitutes the object and
employment of transport vessels." It was obvious that
the learned judge did not deem it material to what
places the stores might be destined; and it must be
equally immaterial what is the immediate occupation of
the enemy's force. That force was always hostile to
America, be it where it might. To-day it might act
against France, to-morrow against the former country ;
and the better its commissary department was supplied,
the more life and activity was communicated to all its
motions. It was not therefore material whether there
was another distinct war, in which the enemy of the
United States was engaged or not. It was suflScient that
his armies were everywhere their enemies ; and every
assistance offered to them must, directly or indirectly,
operate to their injury.
The Court was, therefore, of opinion that the voyage
in which the vessel was engaged was illicit, and incon-
sistent vrith the duties of neutrality, and that it was a
very lenient administration of justice to confine the
s 5A0 penalty to a mere denial of freight {g).
Role of the It had been contended in argument in the above case,
that the exportation of grain from Ireland being generally
prohibited, a neutral could not lawfully engage in that
trade during war, upon the principle of what has been
called the " Rule of the War of 1756," in its application
to the colonial and coasting trade of an enemy not
generally open in time of peace. The Court deemed it
unnecessary to consider the principles on which that rule
is rested by the British Prize Courts, not regarding them
as applicable to the case in judgment. But the legality
of the rule itself has always been contested by the
is) The Oommercen, 1 Wheaton, 882.
war of 1756.
RIGHTS OF WAR AS TO NEUTRALS. 688
American goyemment, and it appears in its origin to Chap. ni.
have been founded upon very different principles from
those which have more recently been urged in its defence.
During the war of 1756, the French government, finding
the trade with their colonies almost entirely cut off by
the maritime superiority of Great Britain, relaxed their
monopoly of that trdde, and allowed the Dutch, then
neutral, to carry on the commerce between the mother
country and her colonies under special licenses or passes,
granted for this particular purpose, excluding at the same
time all other neutrals from the same trade. Many
Dutch vessels so employed were captured by the British
cruisers, and, together with their cargoes, were con-
demned by the Prize Courts, upon the principle, that by
such employment they were in effect incorporated into
the French navigation, having adopted the commerce
and character of the enemy, and identified themselves
with his interests and purposes. They were, in the
judgment of these courts, to be considered like transports
in the enemy^s service, and hence liable to capture and
condemnation, upon the same principle with property
condemned for carrying military persons or despatches.
In these cases the property was considered pro hdc vice^
as enemy's property, as so completely identified with
his interests as to acquire a hostile character. So, where
a neutral is engaged in a trade, which is exclusively
confined to the subjects of any country, in peace and in
war, and is interdicted to all others, and cannot at any
time be avowedly carried on in the name of a foreigner,
such a trade is considered so entirely national, that it
must follow the hostile situation of the country (A).
There is all the difference between this principle and
the more modern doctrine which interdicts to neutrals,
during war, all trade not open to them in time of peace,
that there is between the granting by the enemy of
special licenses to the subjects of the opposite belligerent,
(A) The Ftineesaa, 2 0. Rob. 62 ; The Anna Catherina, 4 Ibid. US; The Bendshorg^
n)id. 121 ; The Vrow Anna Catherina, 6 Ibid. 161. Wbeaton's Rep. vol. ii. Appendix,
p. 29.
684
BIGHTS OF WAR AS TO NEUTEALS.
Part IV. protecting their property from capture in a particular
trade which the policy of the enemy induces him to
tolerate, and a general exemption of such trade from
capture. The former is clearly cause of confiscation,
whilst the latter has never been deemed to have such an
efiPect. The Rule of the War of 1756 was originally
founded upon the former principle : it was suffered to lie
dormant during the war of the American Revolution;
and when revived at the commencement of the war
against France in 1793, was applied, with various relaxa-
tions and modifications, to the prohibition of all neutral
traffic with the colonies and upon the coasts of the enemy.
The principle of the rule was frequently vindicated by
Sir W. Scott, in his masterly judgments in the High
Court of Admiralty and in the writings of other British
public jurists of great learning and ability. But the
conclusiveness of their reasonings was ably contested by
different American statesmen, and failed to procure the
acquiescence of neutral powers in this prohibition of their
trade with the enemy's colonies. The question continued
a fruitful source of contention between Great Britain
and those powers, until they became her allies or enemies
at the close of the war ; but its practical importance will
probably be hereafter much diminished by the revolution
which has since taken place in the colonial system of
Europe («).
{50Sa.
ContinuouB The outbreak of war has always necessarily curtailed the usual
operations of trade, and, as a natural consequence, merchants have
continually endeavoured to avoid the operation of the laws of war, and
to carry on trade, rendering their goods liable to capture, with as little
risk as possible. One of the chief artifices has been to send goods
destined for a belligerent, to some conveniently situated neutral port
first, with the intention of afterwards forwarding them to their ultimate
destination. To sustain the rights of belligerents when this is done,
Prize Courts have adopted what is called the principle of ^* continuous
voyages." This has been explained, as follows, by Lord Stowell. He
says, '' It is an inherent and settled principle in cases in which the
{%) Wheaton's Eep. vol. i. Appendix, Kote iii. See Madison's "Examination
of the Britiah doctrine which subjects to captore a neutral trade not open in time of
peace."
voyages.
RIGHTS OP WAB AS TO NEUTRALS. 686
same question can have come under discussion, that the mere touching Chap. III.
at any port without importing the cargo into the common stock of the
country^ will not alter the nature of the voyage, which continues the
same in all respects, and must be considered as a voyage to the country
to which the vessel is actually going for the purpose of delivering the
cargo at the ultimate port " {k). But in Lord StoweU's time, and down
to the American civil war, this doctrine had only been applied to cases
covered by the rule of 1756, or where an underhand trade was
attempted to be carried on by subjects of one belligerent with the
enemy (/). During the civil war the Supreme Court, availing itself of
Lord Stowell's language, applied the principle of continuous voyages
to blockade running and the conveyance of contraband, and thus
created an important innovation in the law of prize. In the case of The The Bermtda,
Bermuda^ wliich was captured on a voyage from England to Nassau,
the Court said, '' Neutral trade is entitled to protection in our courts.
Neutrals in their own country may sell to belligerents whatever belli-
gerents t^oose to buy. The principal exceptions to this rule are, that
neutrals must not sell to one belligerent what they refuse to sell to
the other, and must not furnish soldiers or sailors to either ; nor pre-
pare, nor suffer to be prepared within their territory, armed ships or
military or naval expeditions against either. So, too, except goods
contraband of war, or conveyed with intent to violate a blockade,
neutrals may transport to belligerents whatever belligerents may agree
to take. And so, again, neutrals may convey in neutral ships from
one neutral port to another, any goods, whether contraband of war or
not, if intended for actual delivery at the port of destination, and to
become part of the common stock of the country or of the port. . . .
But if it is intended to affirm (as was argued by counsel) that a neutral
ship may take on a contraband cargo ostensibly for a neutral port, but
destined in reality for a belligerent port, either by the same ship or
by another, without becoming liable, from the commencement to the
end of the voyage, to seizure, in order to the confiscation of the cargo,
we do not agree to it It makes no difference whether ^e
destination to the rebel port was ulterior or direct; nor could the
question of destination be affected by transhipment at Nassau, if
transhipment was intended, for that could not break the continuity of
transportation of the cargo.
''The interposition of a neutral port, between neutral departure and
belligerent destination, has always been a favourite resort of contraband
carriers and blockade runners. But it never avails them when the ulti*
mate destination is ascertained. A transportation from one point to
another remains continuous so long as intent remains unchanged, no
matter what stoppages or transhipments intervene " (m). Thus a vessel
(it) The Maria, 5 G. Bob. 368. And (0 Montague Bernaid, Neutrality of
see The Jfatchless, 1 Hagg. Ad. 106; Great Britain, p. 311. The Ebenezer, 6
The Jonge Fieier, 4 C. Bob. 83 ; The 0. Bob. 260 ; The Thomyris, Edw. 17.
William, 5 0. Bob. 386. H 2%e Bermuda, 3 "Wallace, 66L
686 RIGHTS OP WAR AS TO NEUTRALS.
Part lY. BaDing from a neutral port, or a cargo sent from such a port, with
intent to violate a blockade, was held liable to condemnation from the
very outset of the voyage, no matter to what intermedjiate ports the
ship might go, provided the ulterior intent was ascertained (n). The
7%e Spring' case of The Springbok is perhaps the strongest illustration of these
' principles. She was on a voyage from London to Nassau, with a mixed
cargo, consisting partly of contraband goods. While on the high seas
and before arriving at Nassau, bhe was captured by a United States
cruiser and taken to New York. The District Court condemned both
ship and cargo as prize (o), but the Supreme Court reversed the decree
as regards the ship, there being no sufficient proof that the destination
of the cargo to a blockaded port was known to her owners ( /»). Strong
efforts were made to induce the British government to intervene on
behalf of the shippers, and considerable correspondence ensued, but
finally, after a careful perusal of the " elaborate and able judgment "
of the judge in the District Court, Earl BusseU declined to interfere,
holding that the evidence '' goes far to establish that the cargo of The
Springbok, containing a considerable portion of contraband, was never
really and bond fide destined for Nassau, but was either destined
merely to call there, or to be inmiediately transhipped after its arrival
there without breaking bulk and without any previous incorporation
into the common stock of that colony, and then to proceed to its real
destination, being a blockaded port " (9).
J 508b.
erence In these cases, when the ultimate destination was some Confederate
between seaport, there was no doubt that the ship and goods could be captured
land and sea. on their way from the interposed neutral port to the blockaded port.
The innovation consisted in making the liability extend to the journey
from the point of departure to the interposed port. A distinction,
however, was made when the goods were finally to reach the belligerent
by land. Thus the traffic between neutral States and Matamoras in
Mexico {except in contraband) was held not to be any violation of the
blockade, even if there were an attempt to supply Texas through Mata-
moras. In this case the goods could only reach the Confederates by
land, and a blockade by sea cannot give a belligerent any right to
capture goods conveyed over land. The result was, that while the
blockade lasted, neutral goods destined to reach the Confederates en-
tirely by sea, whether in the same ship or another, were liable to seizure
during the whole voyage, whereas if the last part of the journey was
to be performed from a neutral place over land, the goods were not
liable at all. If contraband, the goods were held liable, whatever
(11) The dreastianf 2 Wallace, 135 ; de Droit International, 1875, p. 241.
The Stephen Mart, 3 Wallace, 659; The Oalvo, ii. { 1120. Quarterly Law Be-
Springbok, 6 Wallace, 1. view, Nov. 1877.
(0) The Springbok, Blatchfoid, Prize (^j e^tI Rnasell to Lord Lyona, Feb.
Cases, 349. 20th, 1864. Pari. Papers, Misc. (No. 1),
(p) Ibid., 6 Wallace, 1. See Revue (1900) Cd. 34.
BIGHTS OP WAB AS TO NEUTRALS. 687
means of transport were adopted (r). Though it must be borne in Chap. III.
mind that these new rules are at present only the law of the United
States, and it remains to be seen how far they will be adopted by other
countries in future maritime wars, the action of Lord Salisbury with
regard to the seizure of The Bundesrath and The Eerzog (<), is an
indication that so far as contraband is concerned the British govern-
ment is inclined to accept the principles foUowed by the Courts of the
United States. An examination of the recently printed correspondence
oyer the cases of The Springbok and The Peterhoff shows that the
government of that day distinctly refused to make any diplomatic pro-
test or enter any objection against the decision of the United States
Prize Court (0-
c 509
Another exception to the general freedom of neutral Breach of'
commerce in time of war, is to be found in the trade to
ports or places besieged or blockaded by one of the bel-
ligerent powers.
The more ancient text writers all require that the siege
or blockade should actually exist, and be carried on by
an adequate force, and not merely declared by proclama-
tion, in order to render commercial intercourse with the
port or place unlawful on the part of neutrals. Thus
Grotius forbids the carrying any thing to besieged or
blockaded places, " e/ it might impede the execution of
the belligerent's lawful designs, and if the carriers might
have known of the siege or blockade, as in the case of a
town actually invested, or a port closely blockaded, and
when a surrender or peace is already expected to take
place " (tt). And Bynkershoek, in commenting upon this
passage, holds it to be " unlawful to carry any thing,
whether contraband or not, to a place thus circumstanced ;
since those who are within may be compelled to surren-
der, not merely by the direct application of force, but
also by the want of provisions and other necessaries. If,
therefore, it should be lawful to carry to them what they
(r) The FeUrhoffy 5 Wallaoe, 36. And of the American dootzine ci contmnous
see Ths Frau Margaretha and The Zeldm YOjage, see Hall*8 International Law,
Bmt, 6 0. Bob. 92 and 93. 6th ed. p. 668. And see also a paper
/ \ a * t «Aij T^y Sir Travers Twiss, Quarterly Law
^ ' ' ' Renew, Nov. 1877.
(0 Pari. Papers, Misc. (No. 1), (1900) («) Qrotins, de Jur. Bel. ac Pac.
Od. 34. For a strongly adverse criticism Ub. iii. cap. 1, } 6, note 3.
688 EIGHTS OF WAR AS TO NEUTRALS,
Part IV. are in need of, the belligerent might thereby be compelled
to raise the siege or blockade, which would be doing him
an injury, and therefore unjust. And because it cannot
be known what articles the besieged may want, the law
forbids, in general terms, carrying any thing to them;
otherwise disputes and altercations would arise to which
8 610 tl^cre would be no end " (y).
Opinion of Bynkershock appears to have mistaken the true sense
onUookade. of the abovo-citcd passage from Grotius, in supposing
that the latter meant to require, as a necessary ingredient
in a strict blockade, that there should be an expectation
of peace or of a surrender, when, in fact, he merely men-
tions that as an example, by way of putting the strongest
possible case. But that he concurred with Grotius in
requiring a strict and actual siege or blockade, such as
where a town is actually invested with troops, or a port
closely blockaded by ships of war {oppidum ohsesmm^
partus clausos), is evident from his subsequent remarks in
the same chapter, upon the decrees of the States-General
against those who should carry any thing to the Spanish
camp, the same not being then actually besieged. He
holds the decrees to be perfectly justifiable, so far as
they prohibited the carrying of contraband of war to
the enemy's camp ; ^' but, as to other things, whether
they were or were not lawfully prohibited, depends
entirely upon the circumstance of the place being be-
sieged or not." So also, in commenting upon the decree
of the States-General of the 26th June, 1630, declaring
tlie ports of Flanders in a state of blockade, he states
that this decree was for some time not carried into exe-
cution by the actual presence of a suflBcient naval force,
during which period certain neutral vessels trading to
those ports were captured by the Dutch cruisers ; and
that part of their cargoes only which consisted of contra-
band articles was condemned, whilst the residue was re-
leased with the vessels. ^* It has been asked," says he, " by
what law the contraband goods were condemned under
(r) Bynkenhoeky Quiefit. Jar. Pub. lib. i. cap. 11.
EIGHTS OF WAE AS TO NEUTRALS.
those circumstances, and there are those ^
legality of their condemnation. It is evid(
that whilst those coasts were guarded in a
manner, the law of blockade, by which all i
going to or coming from a blockaded port
fully captured, might also have been relaxec
the general law of war, by which contrs
when carried to an enemy's port, even thou{
aded, are liable to confiscation " (x).
The law of blockade like that of contraband is a oomp
the conflicting rights of belligerents and neutrals, viz.,
former to injure his foe so as to compel him to give v
and the right of the latter to carry on his usual trad(
It is often said that the violation of a blockade and th<
of contraband are unlawful, but this requires some e
by this expression it is intended to imply that such a
to international law, in the sense of being criminal or
disobedience to a positive rule, the term unlawful ii
used. Neutral subjects are under no positive duty imp
of nations, to abstain from blockade running, or from c
band. The acts which amount to this in time of wa
lawful in time of peace, but the existence of war gives to
certain rights which they may enforce against the neutr
in these two transactions. Thus the exportation of a c
any State during peace is indisputably lawful, and it is
sense not unlawful when the State to which the arms i
at war, but in this case the sender is exposed to the rii
his goods if the other belligerent can capture them on
it is with blockade. Its violation only exposes the blo<
the chance of losing his ship and cargo, if he is unsuccc
violation of neutrality for a State not to prevent iU
engaging in such traffic ; its duty as a neutral consists
do so at their own risk, and abandoning them to the pri
belligerent who may capture them (y). Proclamation
usually inform subjects that if they engage in blockade
carriage of contraband they " will rightfully incur, and
to, hostile capture, and to the penalties denounced
nations in that behalf," and that persons so miscoi
selves will act at their peril and will in no wise obtain
from their sovereign (z). Thus these two transcustioi
(x) Wheaton's Hist, of Law of Na- (s) Prodiainatioii of
tions, pp. 138 — 143. Appendix C. See Bi
(y) Pari. Papers, N. America, 1873 Laws Commisaion, 1
(No. 2), p. 109. see there other proolaii
w.
690
RIGHTS OP WAR AS TO NEUTRALS.
§ 610b.
Sieges And
blookades.
Part IV. lawful in the sense that the belligerent may inflict the punishment of
conflsoation if he can catch the perpetrators in the act. When the act
is completed no penalty can be imposed ; the responsibility for it ceases
on completion (a). In the foregoing remarks it is assumed that the
neutral States have not enacted any municipal law expressly prohibit-
ing blockade running, &c., and that they are not bound by any treaty
stipulations on the subjects. The matter is here discussed only from
the point of view of international law unrestricted by any special
arrangement (5).
There is an important distinction between sieges and blockades. The
former are as a rule undertaken with the object of capturing the place
besieged, while the usual object of the latter is to cripple the resources
of the enemy by intercepting his commerce with neutral States (c).
A city may be, and often is, both besieged and blockaded at the same
time (</). It is thus evident that neutral States suffer to a great extent
from a blockade, and such an undertaking has been described as '* ^
plus grave atteinte qui puisse Sire porUe par la guerre au droit det
neutres " («).
A blockade being thus an infringement of neutral rights, its operation
is not to be extended further than the actual circumstances of the case
render it necessary. Thus when the United States declared all the
Southern ports blockaded, and a squadron cruised o£E the mouth of the
Bio Ghrande to intercept the trade with Texas, the Supreme Court de-
cided that this blockade was not to be held to apply to the western side
of the Bio Qrande, which was in Mexican and neutral territory (/).
A blockade must also be absolute, that is, it must interdict all com-
merce whatever with the blockaded port. It is not legitimate if it
allows to either belligerent a freedom of commerce denied to the sub-
l%0FraHcUka, jects of neutral States. During the Crimean war various orders were
issued by the English, French, and Eussian governments, the effect of
which was to permit trade to be carried on by their respective subjects
in the Baltic ports, while those ports were blockaded by the English
and French fleets, but which excluded neutrals from such trade. During
this blockade a Danish (and neutral) ship was captured by an English
cruiser near the entrance of the Gulf of Biga. The Privy Council held
that as the blockade was relaxed in favour of belligerents to the exclu-
sion of neutrals, it was not a legal blockade, and therefore the vessel
was improperly seized for attempting to enter the port of Biga, and
must be restored (y).
§510e
Extent of
blookades.
(a) The Helm, L. B. 1 A. & E. 1 ;
JEx parte Chavaue, 11 Jnr. N. S. 400 ;
Naplor V. Tatflor, 9 B. & 0. 718.
(b) See on IMs subject Pari. Papers,
N. America, 1873 (No. 2), p. 14. Letters
of HistoricoB : Contraband.
{e) Dner on Insurance, vol. i. loot. 7,
{82.
{d) Calyo, ii. § 1139.
(e) Cauchy, torn. ii. p. 196. See also
Fiore, torn. ii. p. 446.
(/) The Feterhof, 6 Wallace, 35 ; 2V
Frau Ilsabe, 4 C. Bob. 63 ; Tks XfriM,
Edw. 190.
{g) Th0FrafU!%tha(NwrtheoUY,Dou9Uu)y
10 Moo. P. 0. 36.
BIGHTS OP WAR AS TO NEUTRALS,
691
^* To constitute a violation of blockade," says Sir Chap. III.
W. Scott, "three things must be proved: 1st. The §511.
existence of an actual blockade ; 2ndly. The know- ™i^^^'
ledge of the party supposed to have offended ; and ^^^^J^
3rdly. Some act of violation, either by going in or Tioiation of
coming out with a cargo laden after the commencement
of blockade " (h). « gj2.
1. The definition of a lawful maritime blockade, re- Actual ore-
quiring the actual presence of a maritime force stationed blockading
at the entrance of the port, sufficiently near to prevent ^'^'
communication as given by the text writers, is con-
firmed by the authority of numerous modem treaties,
and especially by the Convention of 1801, between
Great Britain and Russia, intended as a final adjustment
of the disputed points of maritime law, which had given
rise to the armed neutrality of 1780 and of 1801 (i). § 5^3^
The only exception to the general rule, which requires ?^!^'^^
the actual presence of an adequate force to constitute
a lawful blockade, arises out of the circumstance of the
occasional temporary absence of the blockading squadron,
produced by accident, as in the case of a storm, which
does not suspend the legal operation of the blockade.
The law considers an attempt to take advantage of
such an accidental removal a fraudulent attempt to
break the blockade (Ar).
J I 51Sa. .
dency of
" Blockades, in order to be binding, must be effective, that is to say, Wookades.
maintained by a force sufficient really to prevent access to the coast of
the enemy " (/). This merely puts into a formula what was already a
principle of the law of nations, but it leaves the often disputed question
of what is a '^ sufficient force " in the same state as before. This is, in
reality, more a question of fact than of law, and it seems almost impos-
sible to lay down any precise rule defining in all cases what is a sufficient
force (m). ** In the eye of the law," said Lord Chief Justice Oockbum,
{h) Th$ Betsey^ 1 C. Bob. 92. or sufficiently near, an evident danger
(i) The 3Td art. sect. 4, of this eon- in entering."
vention, declares :—<< That in order to {k) The Columbia, 1 C. Bob. 164.
determine what charaoterkes a blockaded (2) Hertslet, Hap of Europe, vol. ii.
port, that domination is given only where p. 1283.
there is, by the disposition of the power (m) Calvo, ii. } 1148. Bltmtsohli,
which attacks it with ships stationary, § 829.
yy2
89* RIGHTS OF WAR AS TO NEUTRALS.
Fart 17. " a blockade is effeotive if the enemy's sliips are in sncli numbers and
" positions as to render running the blockade a matter of danger, although
some vessels may succeed in getting through " ; and in a case re-
cently decided by the Supreme Court of the United States it was
declared to be sufficient if the danger was real and apparent, and that
the question of effectiveness was not controlled by the number of the
blockading forces, and that one modem cruiser is enough as a matter
of law, if it is sufficient in fact for the purpose and renders it dangerous
for other craft to enter the port(n). A blockade is not necessarily
confined to maritime operations. It may be made effectual by batteries
ashore as well as by ships afloat. In the case of an inland port, the
most effective blockade would be maintained by batteries commanding
the river or inlet by which it may be approached, supported by a
naval force sufficient to warn off innocent and capture offending
vessels attempting to enter (o). The blockade of the Confederate
ports by the United States was one of the most extraordinary in
history. It extended over a coast line of more than 3,000 miles,
and though, at the outset, the Federal fleet was not equal to such
a gigantic task, foreign governments recognized the blockade. As
the war progressed the development of the naval resources of the
Northern States enabled them to intercept most of the trade with the
South, and this was one of the chief causes of their ultimate success (^).
The Supreme Court held that this extensive blockade, being once
established, and duly notified, was to be deemed to continue until
notice of discontinuance, in the absence of positive proof of discon-
tinuance by other evidence. Thus ships captured for endeavouring
to enter or leave the Confederate ports were condemned as prize when
their officers saw, or swore they saw no blockading ships off the
ports they were making for or quitting {q). A milder rule towards
neutrals was adopted by France in 1870. French naval officers were
instructed that ships approaching a blockaded port were not to be
deemed to intend violating the blockade, until its notification had been
inscribed on their register or ship's papers, by an officer of one of
c 61Sb. ^^^ ships forming the blockade (r).
Turkish A question respecting the efficiency of a blockade arose during the
^eB^k^ea ^*®* Turco-Eussian war. Turkey proclaimed a blockade of the whole
of the coasts of the Black Sea, from Trebizond to the mouth of the
Danube, and maintained it by a force of cruisers in the Black Sea
itself. This force prevented most of the trade with the Bussian porta
from being carried on; but, besides this, the Porte stationed two
cruisers in the Bosphorus, and any vessels which escaped the Black
Sea squadron were captured on arriving there, and taken before the
(n) Geipel T. Smith, L. R. 7 Q. B. 410. {q) The Baigorry, 2 Wallace, 480 ; Th»
The Olindo Rodngttes, 174 U. S. Reports, Andromeda, Ibid. p. 481.
p. 510. (r) See Instmotions, art. 7. BarbouZy
(o) The dreaeeian, 2 Wallace, 149. Jurisp. da Consea des Prises, 1870~71|
(p) Wheaton by Dana, note 232. Appendix.
RIGHTS OP WAR AS TO NEUTRALS. 693
Prize Court, sitting at Oonstaotinople. A more complete and efficient Chap. III.
blockade coiild not possibly be devised, nevertheless it was argued for
the owners of the prizes, that being neutral vessels (mostly Greek), as
soon as they had escaped the Black Sea squadron, they were free, and
were no longer liable to capture. The Turkish Pri^e Court, however,
condemned the vessels. This case was peculiarly important from the
fact that some of the foreign ambassadors at the Porte had intimated
that if these vessels were not condemned, the blockade would not be
recognized by other countries. To hold that these Greek vessels were
not liable to be captured in the Bosphorus would have been tanta-
mount to opening the general commerce of the Black Sea to
Greece, and this woiild haye immediately invalidated the whole
blockade («). g 513^^
The blockade of Formosa was notified by France in 1884. Great Blookadeof
Britain protested, through its ambassador at Paris, alleging that the ^<«ii^^<>»*
force at the disposal of the French admiral was insufficient. The
blockade was in consequence abandoned till the arrival of reinforce-
ments (0- ^ §618d.
The blockade of insurgent Haytian ports, proclaimed by Hayti in Bloobide of
November, 1888, having ceased to be effective in the July following, ^
Lord Salisbury notified to the Haytian government that it could no
longer be respected, and that British vessels entering or leaving ports
in the possession of the insurgents must not be molested by the govern-
ment cruisers (u).
2. As a proclamation, or general public notification, is J^®'^^^?® ^
not of itself sufficient to constitute a legal blockade, so
neither can a knowledge of the existence of such a blockade
be imputed to the party, merely in consequence of such a
proclamation or notification. Not only must an actual
blockade exist, but a knowledge of it must be brought
home to the party, in order to show that it has been
violated (rr). As, on the one hand, a declaration of
blockade which is not supported by the fact cannot be
deemed legally to exist, so, on the other hand, the fact,
duly notified to the party on the spot, is of itself suffi-
cient to affect him with a knowledge of it ; for the public
notifications between governments can be meant only for
the information of individuals ; but if the individual is
personally informed, that purpose is still better obtained
than by a public declaration (y). Where the vessel sails
(<) See the Tim$8, 16th Deo. 1877, («) London Gatttte, 12th July, 1889.
p. 6. \x) The B$t$ey, 1 0. Bob. 93.
{t) Annual Begiiter, 1884, p. 873. (y) Th* Mermrim, 1 0. Bob. 83,
694 ' BIGHTS OP WAB AS TO NEUTRAM,
Part IV. from a country lying sufficiently near to the blockaded
port to have constant information of the state of the
blockade, whether it is continued or is relaxed, no special
notice is necessary ; for the public declaration in this case
implies notice to the party, after sufficient time has
elapsed to receive the declaration at the port whence the
vessel sails (;?)• But where the country lies at such a
distance that the inhabitants cannot have this constant
information, they may lawfully send their vessels conjec-
turally, upon the expectation of finding the blockade
broken up, after it has existed for a considerable time.
In this case, the party has a right to make a fair inquiry
whether the blockade be determined or not, and conse-
quently cannot be involved in the penalties affixed to a
violation of it, unless, upon such inquiry, he receives
notice of the existence of the blockade (a).
ConStPuotive " There are," says Sir W. Scott, " two sorts of blockade;
^oiSdg^ one by the simple Jact only, the other by a notification
accompanied with the fact. In the former case, when
the fact ceases otherwise than by accident, or the shifting
of the wind, there is immediately an end of the blockade ;
but where the fact is accompanied by a public notification
from the government of a belligerent country to neutral
governments, I apprehend, j»nma/ac?ii^, the blockade must
be supposed to exist till it has been publicly repealed.
It is the duty, undoubtedly, of a belligerent country,
which has made the notification of blockade, to notify
in the same way, and immediately, the discontinuance
of it ; to suffer the fact to cease, and to apply the noti-
fication again at a distant time, would be a fraud on
neutral nations, and a conduct which we are not to
suppose that any country would pursue. I do not say
that a blockade of this sort may not, in any case, expire
de facto ; but I say that such a conduct is not hastily to
be presumed against any nation ; and, thei'efore, till such
a case is clearly made out, I shall hold that a blockade by
(.) TheJm9eFetr<mella,20,B^h,m. ^^j 2%. i?^^, 1 0. Rob. 882.
The Cafypto, Ibid. 298. ' '*
RIGHTS OP WAR AS TO NEUTRALS, 695
notification is, primd facie^ to be presumed to continue Chap. HI.
till the notification is revoked " {b\ And in another case
he says: — "The effect of a notification to any foreign
government would clearly be to include all the individuals
of that nation ; it would be nugatory, if individuals were
allowed to plead their ignorance of it ; it is the duty of
foreign governments to communicate the information to
their subjects, whose interests they are bound to protect.
I shall hold, therefore, that a neutral master can never
be heard to aver against a notification of blockade that
he is ignorant of it. If he is really ignorant of it, it may
be subject of representation to his own government, and
may raise a claim of compensation from them, but it can
be no plea in the court of a belligerent. In the case of
a blockade de facto only, it may be otherwise ; but this
is a case of a blockade by notification. Another distinc-
tion between a notified blockade and a blockade existing
de facto only, is, that in the former the act of sailing for
a blockaded place is sufficient to constitute the offence.
It is to be presumed that the notification will be formally
revoked, and that due notice will be given of it; till that
is done, the port is to be considered as closed up, and
from the moment of quitting port to sail on such a desti-
nation, the offence of violating the blockade is complete,
and the property engaged in it subject to confiscation.
It may be different in a blockade existing de facto only;
there no presumption arises as to the continuance, and
the ignorance of the party may be admitted as an excuse
for sailing on a doubtful and provisional destination " {c).
% 515a.
In the case of a simple blockade, the captors are bound to prove its Simple and
existence at the time of capture; while in the case of a public blockade,- f^^^J|^
the claimants are held liable to proof of discontinuance, in order to
protect themselyes from the penalties of alleged violation (<Q. In the
case of a public blockade, a ship hovering near a blockaded port cannot
say she was going to the blockading squadron to ask for authority to
continue her voyage (0).
(*) Thi Nifphmui, I 0. Rob. 171. {e) The Admiral, 3 Wallace, 608 ; The
W The Neptunue, Mmpel, 2 0. Bob. j^,,^ i^d. 83 ; The Cheehire, Bad.
112.
(rf) The Cireateian, 2 Wallace, 160. ^^^'
696 EIGHTS OP WAR AS TO NEUTEAM.
Part IV. " -A- notice of blockade/' says Prof. Bernard, '* muflt not be more
— — extensive than the blockade itself. A belligerent cannot be allowed
Extant of * ^ proclaim that he has instituted a blockade of all the ports of the
notice. enemy, within certain specified limits, when in trath he has only
blockaded some of them. Such a course would introduce all the evils
of what is termed a < paper blockade,' and would be attended with the
grossest injustice to the commerce of neutrals. Accordingly, a neutral
is at liberty to disregard such a notice, and is not liable to the penalties
attending a breach of blockade for afterwards attempting to enter one
of the ports which really are blockaded " ( /).
§616.
^^. . A more definite rule as to the notification of an existing
as to notice, blockado has been frequently provided by conventional
stipulations between different maritime powers. Thus,
by the 18th article of the treaty of 1794, between Great
Britain and the United States, it was declared — " That
whereas it frequently happens that vessels sail for a port
or place belonging to an enemy, without knowing that
the same is either besieged, blockaded, or invested, it is
agreed that every vessel so circumstanced may be turned
away from such port or place ; but she shall not be
detained, nor her cargo, if not contraband, be confiscated,
unless, after notice, she shall again attempt to enter ;
but she shall be permitted to go to any other port or
place she may think proper." This stipulation, which is
equivalent to that contained in previous treaties between
Grreat Britain and the Baltic powers, having been disre-
garded by the naval authorities and prize courts in the
West Indies, the attention of the British government
was called to the subject by an official communica-
tion from the American government. In consequence of
this communication, instructions were sent out in the
year 1804, by the Board of Admiralty, to the naval
commanders and judges of the vice-admiralty courts,
not to consider any blockade of the French West-India
islands as existing, unless in respect to particular
ports which were actually invested; and then not to
capture vessels bound to such ports, unless they should
(/) Moontagne Bemaid, Neufxality of Qt. Britain, p. 231. NoHheoU t. Doug^
las {The Frmeitka)^ 10 Hoo. P. 0. 37.
RIGHTS OP WAR AS TO NEUTRALS. 687
previously have been warned not to enter them. The Chap. HI.
stipulation in the treaty intended to be enforced by these
instructions seems to be a correct exposition of the law
of nations, and is admitted by the contracting parties
to be a correct exposition of that law, or to constitute
a rule between themselves in place of it. Neither the
law of nations nor the treaty admits of the condemnation
of a neutral vessel for the mere intention to enter a
blockaded port, unconnected with any fact. In the
above-cited cases, the fact of sailing was coupled with
the intention, and the condemnation was thus founded
upon a supposed actual breach of the blockade. Sailing
for a blockaded port, knowing it to be blockaded, was
there construed into an attempt to enter that port, and
was, therefore, adjudged a breach of blockade from the
departure of the vessel. But the fact of clearing out for
a blockaded port is, in itself, innocent, unless it be
accompanied with a knowledge of the blockade. The
right to treat the vessel as an enemy, is declared by
Vattel (liv. iii. sect. 177) to be founded on the attempt to
enter ; and certainly this attempt must be made by a
person knowing the fact. The import of the treaty, and
of the instructions issued in pursuance of the treaty, is,
that a vessel cannot be placed in the situation of one
having a notice of the blockade, until she is warned off.
They gave her a right to inquire of the blockading
squadron, if she had not previously received this warning
from one capable of giving it, and consequently dispensed
with her making that inquiry elsewhere. A neutral
vessel might thus lawfully sail for a blockaded port,
knowing it to be blockaded ; and being found sailing
towards such a port would not constitute an attempt to
break the blockade, unless she should be actually warned
off(^).
Where an enemy's port was declared in a state of
blockade by notification, and at the same time when the oflTvho^
is) ntziimmont y. The Newport In- Merry»B Letter to Mr. Seoretarj Madi-
rf ^ /w V ,o- w Box^ 12th April, 1804. Wheaton'e Rep.
turance Company, 4 Cranoh, 18o. Mr. , ... . ^ ' , , ^
^ '^^ ' vol. m. Appendix, p. 11.
RIGHTS OP WAR AS TO NEUTRALS.
/
Partly, notification was issued, news aririved that the blockading
squadron had been driven off by a superior force of the
enemy, the blockade was held by the Prize Court to be
null and defective from the beginning, in the main
circumstance that it is essentially to give it legal opera-
tion ; and that it would be unjust to hold neutral vessels
to the observance of a notification, accompanied by a
circumstance that defeated its effect. This case was,
therefore, considered as independent of the presumption
arising from notification in other instances ; the notifica-
tion being defeated, it must have been shown that the
actual blockade was again resumed, and the vessel would
have been entitled to a warning, if any such blockade
had existed when she arrived off the port. The mere
act of sailing for the port, under the dubious state of the
actual blockade at the time, was deemed insufficient to fix
upon the vessel the penalty for breaking the blockade (A).
New notic^ In the abovo case, a question was raised whether the
^^TS^ notification which had issued was not still operative; but
the court was of opinion that it could not be so con-
sidered, and that a neutral power was not obliged, under
such circumstances, to presume the continuance of a
blockade, nor to act upon a supposition that the blockade
would be resumed by any other competent force. But
in a subsequent case, where it was suggested that the
blockading squadron had actually returned to its former
station off the port, in order to renew the blockade, a
question arose whether there had been that notoriety of
the fact, arising from the operation of time, or other cir-
cumstances, which must be taken to have brought the
existence of the blockade to the knowledge of the
parties. Among other modes of resolving this question,
a prevailing consideration would have been the length of
time in proportion to the distance of the country from
which the vessel sailed. But as nothing more came out
in evidence than that the squadron came off the port on
a certain day, it was held that this would not restore a
{h) The Triheten, C G. Rob. 66.
BIGHTS OP WAR AS TO NEUTRALS. 699
blockade which had been thus effectually raised^ but Chap. III.
that it must be renewed again by notification, before
foreign nations could be affected with an obligation to
observe it. The squadron might return off the port with
different intentions. It might arrive there as a fleet of
observation merely, or for the purpose of only a qualified
blockade. On the other hand, the commander might
attempt to connect the two blockades together ; but this
is what could not be done ; and, in order to revive the
former blockade, the same form of communication must
have been observed de novo that is necessary to establish
an original blockade (i). c 5^9.
3. Besides the knowledge of the party, some act of ®?^^*®*®*
violation is essential to a breach of blockade ; as either neoessarj.
going in or coming out of the port with a cargo laden
after the commencement of the blockade (k).
Thus, by the edict of the States-General of Holland,
of 1630, relative to the blockade of the ports of Flanders,
it was ordered that the vessels and goods of neutrals
which should be found going in or coming out of the
said ports, or so neax thereto as to show beyond a doubt
that they were endeavouring to run into them; or which,
from the documents on board, should appear bound to
the said ports, although they should be found at a
distance from them, should be confiscated, unless they
should, voluntarily, before coming in sight of or being
chased by the Dutch ships of war, change their intention,
while the thing was yet undone, and alter their course.
Bynkershoek, in commenting upon this part of the de-
cree, defends the reasonableness of the provision which
affects yessela found so near to the blockaded ports as to show
beyond a doubt that they were endeavouring to fnin into them^
upon the ground of legal presumption, with the excep-
tion of extreme and well-proved necessity only. Still
more reasonable is the infliction of the penalty of confis-
cation, where the intention is expressly avowed by the
papers found on board. The third article of the same
(i) The Sofnung, Ibid. 112. {k) The Beteey, 1 G. Rob. 93.
700 BIGHTS OP WAR AS TO NEUTRALS.
Partly, edict also subjected to confiscation such vessels and their
cargoes as should come out of the said ports, not having
been forced into them by stress of weather, although
they should be captured at a distance from them, unless
they had, after leaving the enemy's port, performed their
voyage to a port of their own country, or to some other
neutral or free port, in which case they should be exempt
from condemnation ; but if, in coming out of the said
ports of Flanders, they should be pursued by the Dutch
ships of war, and chased into another port, such as their
own, or that of their destination, and found on the high
seas coming out of such portj in that case they might be
captured and condemned. Bynkershoek considers this
provision as distinguishing the case of a vessel having
broken the blockade, and afterwards terminated her
voyage by proceeding voluntarily to her destined port,
and that of a vessel chased and compelled to take refuge ;
which latter might still be captured after leaving the
port in which she had taken refuge. And in conformity
with these principles are the more modem law and
practice {I).
§ 510a.
Intent to The sailing of a vessel with a premeditated intent to violate a
Uook^e blockade is, ipso factOy a violation of the blockade, and renders her
subject to capture from the moment she leaves the port of departure,
and if a master has actual notice of a blockade he is not at liberty
even to approach the blockaded port for the purpose of making
inquiries (m). It is not the mere mental design that subjects the
goods to confiscation, but the overt act of starting for, or proceeding
towards the prohibited port with the knowledge that it is blockaded,
and continuing that course up to the time of capture (n). The
intent, however, must exist in order to constitute the delictum^ and
it must be gathered from the circumstances of each case. It may
be inferred from the bills of lading, the letters and papers on
board, the acts and words of the owners and charterers, or the
spoliation of papers. Delay in sailing after complete loading, or a
change of course in order to avoid a man-of-war, afford good grounds
{I) Bjnkenhoek, Qnsst. Jnr. Pab. (m) The Adukt, 176 V. S. Beports,
lib. i. cap. 11. Ths Wehaart Van P« 362.
•nzii o n -o^y. i^«. T3U 7«i».«i, W Th$ John Gilpin^'BVBAxMotdL.VTaA
F^Uaw, 2 0. Rob. 188, The Juffnn. ^^91; Halleok. oh. 23, § 28. Ye^
Maria Sehroeder, 8 C. Rob. 147. ^ ^^ ^ Oranoh, 446.
BIGHTS OP WAR AS TO NEUTRALS. 701
for suspicion (o). Every dissemblanoe in the ship's papers will be Chap. III.
regarded as intended to conceal what could not safely be disclosed, and
to afford evidence that the destination of the vessel is falsified {p)»
The circumstance that the master was also master of a ship con-
demned before, will be noticed by the Court (q). But if the intention
be bond fide abandoned at the time of capture, the ship will not be
condemned; only in this case very clear and satisfactory proof of
a complete abandonment of the intent will be required (r). Since a
blockade exposes ships intending to enter the port to the risk of con«
fisoation, a shipowner who before the blockade contracted to carry
goods to the port (unless restrained by princes, &c.), is entitled to
throw up his contract when the port becomes blockaded (»). o }^\y[^^
The stringency of the rule prohibiting vessels from entering a Justifiable
blockaded port is only relaxed when the ship attempting to enter does JJ^^^ *
so from reasons of necessity. She may be out of provisions or water, port,
or she may be in a leaking condition, and no other port be of easy
access. The case, however, must be one of absolute and uncontrollable
necessity; and this must be established beyond reasonable doubt.
"Nothing less," says Lord Stowell, ''than an uncontrollable neces-
sity, which admits of no compromise, and cannot be resisted," will be
held a justification of the offence. Any rule less stringent than this
would open the door to all sorts of fraud. Attempted evasions of the
blockade would be excused upon pretences of distress and danger not
warranted by the facts, but the falsity of which it would be diffictdt to
expose (0. § 519c.
The general, but not the universal rule is, that when a ship is con- Oarffo on nhlp
denmed for breach of blockade the cargo follows the same fate. The J^^^^of
owners of the cargo are concluded by the act of the master, even Uookade.
though the breach of blockade was without their privity, or contrary
to their wishes. When the owners of the cargo knew, or might have
known, of the existence of the blockade when the shipment was made,
the inference of law is irresistible that they were privy to violating the
blockade. The master is to be treated as the agent for the cargo as
well as for the ship (v).
With respect to violating a blockade by coming out Violation oi
with a cargo, the time of shipment is very material ; for egrees. ^
although it might be hard to refuse a neutral liberty to
(o) Th$ Oireatsim, 2 Wallace, 185 ; (r) The John Gilpin, Blstchford, Prize
TheBaigorryy Ibid. 474 ; The Andromeda^ Caaes, 291.
n>id. 482 ; The Comeliut, 3 Wallace, 214. («) Oeipel y. Smith, L. R. 7 Q. B. 404.
{p) The Louisa Agnety Blatchfoid, (/) The Diana, 7 Wallace, 369 ; The
Prize Oases, 112; The Mentor, Edw. Jf<|;or j9ar6oMr, Blatohford, Prize Gases,
207. 167; The Forett King, Ibid. 2; The
{q) The Diana, 7 Wallace, 360; The Fanaghia Rhomba, 12 Moo. P. 0. 168.
William H. Northrop, Blatchfoid, Prize (m) The Fanaghia Ehomha (BaUaui r.
Omcb, 235. ^yder)^ 12 Hoo. P. 0. 108.
702 EIGHTS OP WAR AS TO NEUTRALS.
Part IV. retire with a cargo already laden, and by that act already
become neutral property ; yet, after the commencement
of a blockade, a neutral cannot be allowed to interpose,
in any way, to assist the exportation of the property of
the enemy (x). A neutral ship departing can only take
away a cargo bond fide purchased and delivered before the
commencement of the blockade ; if she afterwards take
on board a cargo, it is a violation of the blockade. But
where a ship was transferred from one neutral merchant
to another in a blockaded port, and sailed out in ballast,
she was determined not to have violated the blockade (y).
So where goods were sent into the blockaded port before
the commencement of the blockade, but reshipped by
order of the neutral proprietor, as found unsaleable,
during the blockade, they were held entitled to restitu-
tion. For the same rule which permits neutrals to with-
draw their vessels from a blockaded port extends also,
with equal justice, to merchandise sent in before the
blockade, and withdrawn honA fide by the neutral pro-
§621. prietor(4
Parohaseof After the Commencement of a blockade, a neutral is
S^ded no longer at liberty to make any purchase in that port.
^'^^ Thus, where a ship which had been purchased by a
neutral of the enemy in a blockaded port, and sailed on
a voyage to the neutral country, had been driven by
stress of weather into a belligerent port, where she was
seized, she was held liable to condemnation under the
general rule. That the vessel had been purchased out
of the proceeds of the cargo of another vessel, was con-
sidered as an unavailing circumstance on a question of
blockade. If the ship has been purchased in a blockaded
port, that alone is the illegal act, and it is perfectly
immaterial out of what funds the purchase was effected.
Another distinction taken in argument was, that the vessel
had terminated her voyage, and therefore that the penalty
would no longer attach. But this wm also overruled,
(ar) The Betiey, 1 0. Rob. 98. « TheF^Udam, 4 0. Rob. 89 ; OUteru
i K rwn^ TT r J ..1 TV J ISA ▼• Tfmm Ifm^tance Oompony^ SWheaton,
(y) The Vrow Judith, n)id. 160. '^ '' ^
RIGHTS OP WAR AS TO NEUTRALS. ^03
because the port into which she had been driven was not Chap, m.
represented as forming any part of her original destina-
tion. It was therefore impossible to consider this accident
as any discontinuance of the voyage, or as a defeasance
of the penalty which had been incurred (a). § 522.
A maritime blockade is not violated by sending goods interior canal
to the blockaded port, or by bringing them from the
same, through the interior canal navigation or land car-
riage of the country. A blockade maybe of different
descriptions. A mere maritime blockade, effected by a
force operating only at sea, can have no operation upon
the interior communications of the port. The legal
blockade can extend no further than the actual blockade
can be applied. If the place be not invested on the land
side, its interior communications with other ports cannot
be cut off. If the blockade be rendered imperfect by
this rule of construction, it must be ascribed to its physical
inadequacy, by which the extent of its legal pretensions
is unavoidably limited (i). But goods shipped in a river,
having been previously sent in lighters along the coast
from the blockaded port, with the ship under charter-
party proceeding also from the blockaded port in ballast
to take them on board, were held liable to confiscation.
This case is very different from the preceding, because
there the communication had been by inland navigation,
which was in no manner and in no part of it subject to
the blockade (c). « ggg
The offence incurred by a breach of blockade ffenerall y Duration of
1., ii/w 1 the offence.
remains during the voyage; but the offence never travels
on with the vessel further than to the end of the return
voyage, although if she is taken in any part of that
voyage, she is taken in delicto. This is deemed reason-
able, because no other opportunity is afforded to the
belligerent cruisers to vindicate the violated law. But
where the blockade has been raised between the time of
sailing and the capture, the penalty does not attach;
{a) The Juffinyw Maria Sehroeder, 4 C. Feierhof, 6 Wallaoe, 35.
Bob. note. (r) The Ifeutralitet, 3 0. Bob. 297 ;
(») The Omet, Edw. Ad. Z2\ The The Stert, 4 Ibid. 65.
704
EIGHTS OF WAR AS TO NEUTRALS.
PartlY. because the blockade being gone, the necessity of apply-
ing the penalty to prevent future transgression no longer
exists. When the blockade is raised, a veil is thrown
over everything that has been done, and the vessel is no
longer taken in delicto. The delictum may have been com-
pleted at one period, but it is by subsequent events done
away(rf).
2»?^*ofvi«i- The right of visitation and search of neutral vessels
■earch. at sca is a belligerent right, essential to the exercise of
the right of capturing enemy's property, contraband of
war, and vessels committing a breach of blockade. Even
if the right of capturing enemy's property be ever so
strictly limited, and the rule of free skips free goods be
adopted, the right of visitation and search is essential, in
order to determine whether the ships themselves are
neutral, and documented as such, according to the law
of nations and treaties ; for, as Bynkershoek observes,
"It is lawful to detain a neutral vessel, in order to
ascertain, not by the flag merely, which may be fraudu-
lently assumed, but by the documents themselves on
board, whether she is really neutral." Indeed, it seems
that the practice of maritime captures could not exist
without it. Accordingly the text writers generally con-
cur in recognising the existence of this right {e).
§ 52o«
Right <rf The international law on this subject is ably summed
oonToy. up by Sir W. Scott, in the case of The Maria^ where the
exercise of the right was attempted to be resisted by the
interposition of a convoy of Swedish ships of war. In
delivering the judgment of the High Court of Admiralty
(i) The mhaari Van Pillaw, 2 C. Rob. ^^ j^^ ^ p^ . . j^ ^ .
m;mLisetU.6C Rob 387 Ab to ,,3^ ^^ ^^^^ ^
how far the aot of the maater binds the p j. NeutraU, &c., p. 185. Kliiber,
sMpownermcasesof breachomo^ j^^.^ ^^ ^^^ ^^^^ ^^ y^
see Ae cases collected in Wheaton's j ^^^3 j^ has teen ^^U observed that
Sr^'twalirSa"' ^^' ^'"^"^ theright isnotexercisednpan
^ ^^, « Wallace, 682. ^ ^^^^ ^^^^ ^^^ ^^^ ^ ^^^^ ^^
{e) Bynkershoek, Quast. Jur. Pub. character of which is unknown. Heffter,
lib. i. cap. 14. Vattel, Droit dee (Jens, j igg, Geffcken, note S, dting Haute-
liv. iii. ch. 7, i 114. Martens, Freds, feuille.
&c., Uy. Yiii. c. 7, {} 317, 321. GaUiani,
RIGHTS OP WAR AS TO NEUTRAUS. 705
in that memorable case, this learned civilian lays down Chap. m.
the three following principles of law : — §526.
1. That the right of visiting and searching merchant ^^^^ff^ia.
ships on the high seas, whatever be the ships, the cargoes,
the destinations, is an incontestable right of the lawfully
commissioned cruisers of a belligerent nation. *^I say,
be the ships, the cargoes, and the destinations what they
may, because, till they are visited and searched, it does
not appear what the ships or the destination are ; and it
is for the purpose of ascertaining these points that the
necessity of this right of visitation and search exists.
This right is so clear in principle, that no man can deny
it who admits the right of maritime capture ; because if
you are not at liberty to ascertain by sufficient inquiry
whether there is property that can legally be captured,
it is impossible to capture. Even those who contend for
the inadmissible rule that free ships make free goods ^ must
admit the exercise of this right at least for the purpose
of ascertaining whether the ships are free ships or not.
The right is equally clear in practice ; for practice is
uniform and universal upon the subject. The many
European treaties which refer to this right, refer to it as
pre-existing, and merely regulate the exercise of it. All
writers upon the law of nations unanimously acknowledge
it, without the exception even of Hubner himself, the
great champion of neutral privileges."
2. That the authority of the neutral sovereign being
forcibly interposed cannot legally vary the rights of a
lawfully commissioned belligerent cruiser. ^^ Two sove-
reigns may unquestionably agree, if they think fit, as in
some late instances they have agreed, by special covenant,
that the presence of one of their armed ships along with
their merchant ships shall be mutually understood to
imply that nothing is to be found in that convoy of
merchant ships inconsistent with amity or neutrality ;
and if they consent to accept this pledge, no third party
has a right to quarrel with it, any more than any other
pledge which they may agree mutually to accept. But
surely no sovereign can legally compel the acceptance of
w. z z
706 BIGHTS OP WAE AS TO NEUTRALS.
Part IV. such a security by mere force. The only isecurity known
to the law of nations upon this subject, independently of
all special covenant, is the right of personal visitation
and search, to be exercised by those who have the interest
in making it."
3. That the penalty for the violent contravention of
this right is the confiscation of the property so withheld
from visitation and search. " For the proof of this I
need only refer to Vattel, one of the most correct, and
certainly not the least indulgent, of modem professors of
public law. In book iii. c. 7, sect. 114, he expresses
himself thus : — ^ On ne pent emp^cher le transport des
effets de contrebande, si Ton ne visite pas les vaisseaux
neutres. On est done en droit de les visiter. Quelques
nations puissantes ont refus^ en diff^rents temps de se
soumettre k cette visite. Aujourd'hui un vaisseau neutre,
qui refuseroit de souffrir la visite, se f eroit condamner
par cela seul, comme ^tant de bonne prise.' Vattel is
here to be considered, not as a lawyer merely delivering
an opinion, but as a witness asserting a fact — the fact
that such is the existing practice of modern Europe.
Conformably to this principle, we find in the celebrated
French ordinance of 1681, now in force,' article 12,
^ That every vessel shall be good prize in case of resist-
ance and combat;' and Valin, in his smaller Com-
mentary, p. 81, says expressly, that, although the
expression is in the conjunctive, yet that the resistance
alone is sufficient. He refers to the Spanish Ordinance,
1718, evidently copied from it, in which it is expressed
in the disjunctive, *in case of resistance or combat.'
And recent instances are at hand and within view, in
which it appears that Spain continues to act upon
this principle. The first time it occurs to my notice on
the inquiries I have been able to make in the institutes
of our own country respecting matters of this nature,
except what occurs in the Black Book of the Admiralty,
is in the Order of Council, 1664, art. 12, which directs,
* That when any ship, met withal by the royal navy or
other ship commissionated, shall fight or make resist-
RIGHTS OP WAR AS TO NEUTRALS. 707
ance, the ship and goods shall be adjudged lawful prize.' Chap- HI.
A similar article occurs in the proclamation of 1672.
I am, therefore, warranted in saying that it was the
rule, and the undisputed rule, of the British Admiralty.
I will not say that the rule may not have been broken in
upon, in some instances, by considerations of comity or
of policy, by which it may be fit that the administration
of this species of law should be tempered in the hands
of those tribunals which have a right to entertain and
apply them; for no man can deny that a State may
recede from its extreme rights, and that its supreme
coimcils are authorized to determine in what cases it
may be fit to do so, the particular captor having, in no
case, any other right and title than what the State itself
would possess under the same facts of capture. But I
stand with confidence upon all principles of reason —
upon the distinct authority of Vattel — ^ttpon the insti-
tutes of other great maritime countries, as well as those of
our own country, when I venture to lay it down that, by
the law of nations, as now understood, a deliberate and
continued resistance to search, on the part of a neutral
vessel, to a lawful cruiser, is followed by the legal
consequence of confiscation " (/). g 527,
The judgment of condemnation pronounced in this '^^^^^f
case was followed by the treaty of armed neutrality, isoo.
entered into by the Baltic powers, in 1800, which league
was dissolved by the death of the Emperor Paul ; and
the points in controversy between these powers and
Great Britain were finally adjusted by the convention
of 6th June, 1801. By the 4th article of this conven-
tion, the right of search as to merchant vessels sailing
under neutral convoy was modified by limiting it to public
ships of war of the belligerent party, excluding private
armed vessels. Subject to this modification, the preten-
sion of resisting by means of convoy the exercise of the
belligerent right of search was surrendered by Eussia
and the other Northern powers, and various regulations
(/) The Maria, 1 C. Rob. 840.
zz2
708
BIGHTS OF WAB AS TO NEUTRALS.
PaitlV.
§52&
FoToible
resistanoe b^
an enemy
master.
were provided to prevent the abuse of that right to the
injury of neutral commerce. As has already been ob-
served, the object of this treaty is expressly declared by
the contracting parties, in its preamble, to be the settle-
ment of the differences which had grown out of the armed
neutrality by "an invariable determination of their prin-
ciples upon the rights of neutrality in their application to
their respective monarchies." The 8th article also pro-
vides that " the principles and measures adopted by the
present Act, shall be alike applicable to all the maritime
wars in which one of the two powers may be engaged,
whilst the other remains neutral. These stipulations
shall consequently be regarded as permanent, and shall
serve as a constant rule for the contracting parties in
matters of commerce and navigation " (ff).
In the case of The Maria, the resistance of the convoy-
ing ship was held to be a resistance of the whole fleet of
merchant vessels under convoy, and subjected the whole
to confiscation. This was a case of neutral property con-
demned for an attempted resistance by a neutral armed
vessel to the exercise of the right of visitation and search,
by a lawfully commissioned belligerent cruiser. But the
forcible resistance by an enemy master will not, in
general, affect neutral property laden on board an enemy's
merchant vessel ; for an attempt on his part to rescue his
vessel from the possession of the captor is nothing more
than the hostile act of a hostile person, who has a perfect
right to make such an attempt. " If a neutral master,^'
says Sir W. Scott, " attempts a rescue, or to withdraw
himself from search, he violates a duty which is imposed
upon him by the law of nations, to submit to search, and
to come in for inquiry as to the property of the ship or
{g) The qnestion arising ont of the
case of the Swediah oonvoj gave rise
to several instmctive polemic essays.
The judgment of Sir W. Soott was at-
tacked by Professor J. F. W. Sohlegel,
of Copenhagen, in a Treatise on the
Visitation of Neutral Ships under Con-
Toy, transl. London, 1801 ; and Tindi«
oated by Dr. Croke in ''Remarks on
M. Schlegel*s Work," 1801. See, also,
''Letters of Sulpicius on the Northern
Confederacy," London, 1801. "Sub-
stance of the Speech of Lord Grenville
in the House of Lords, November 13,
1801," London, 1802. Wheaton's Hist.
Law of Nations, pp. 390—420.
EIGHTS OF WAB AS TO NEUTRALS.
709
cargo ; and if he violates this obligation by a recurrence Chap, ni.
to force, the consequence will undoubtedly reach the pro-
perty of his owner ; and it would, I think, extend also to
the whole property intrusted to his care, and thus fraudu-
lently attempted to be withdrawn from the operation of
the rights of war. With an enemy master the case is very
different ; no duty is violated by such an act on his part
— lupum aurihus teneoj and if he can withdraw himself he
has a right so to do " (A). « ggg^
The question how far a neutral merchant has a right ^^8^<>* *
to lade his goods on board an armed enemy vessel, and oany his
how far his property is involved in the consequences of frw«i enemy
resistance by the enemy master, was agitated both in the ^®*®®^'
British and American prize courts, during the last war
between Great Britain and the United States. In a case
adjudged by the Supreme Court of the United States, in
1815, it was determined, that a neutral had a right to
charter and lade his goods on board a belligerent armed
merchant ship, without forfeiting his neutral character,
unless he actually concurred and participated in the
enemy master's resistance to capture (*). Contempo-
raneously with this decision of the American Court, Sir
W. Scott held directly the contrary doctrine, and de-
creed salvage for the recapture of neutral Portuguese
property, previously taken by an American cruiser from
on board an armed British vessel, upon the ground that
the American prize courts might justly have condemned
the property {k). In reviewing its former decision, in a
subsequent case adjudged in 1818, the American Court
confirmed it ; and, alluding to the decisions in the Eng-
lish High Court of Admiralty, stated, that if a similar
case should again occur in that Court, and the decisions
of the American Court should in the meantime have
reached the learned judge, he would be called upon to
acknowledge that the danger of condemnation in the
United States Courts was not as great as he had imagined.
(A) The Catharina Elizabeth, 6 C. Bob. (i) The Nereide, 9 Oranoh, 388.
232. (k) The Fanny, 1 Bods. Ad. 443.
710
EIGHTS OP WAE AS TO NEUTBALS.
Partly. In determining the last-mentioned case, the American
Court distinguished it both from those where neutral
vessels were condemned for the unneutral act of the con-
voying vessel, and those where neutral vessels had been
condemned for placing themselves under enemy's convoy.
With regard to the first class of cases, it was well known
that they originated in the capture of the Swedish convoy,
at the time when Great Britain had resolved to throw
down the glove to all the world, on the contested prin-
ciples of the northern maritime confederacy. But, inde-
pendently of this, there were several considerations which
presented an obvious distinction between both classes of
cases and that under consideration. A convoy was an asso-
ciation for a hostile object. In undertaking it, a State
spreads over the merchant vessels an immunity from
search which belongs only to a national ship ; and by
joining a convoy, every individual vessel puts ofE her
pacific character, and undertakes for the discharge of
duties which belong only to the military marine. If,
then, the association be voluntary, the neutral, in suffer-
ing the fate of the entire convoy, has only to regret his
own folly in wedding his fortune to theirs ; or if involved
in the resistance of the convoying ship, he shares the
fate to which the leader of his own choice is liable in
„ 530 5^^® ^^ capture (/).
Neutral The Danish government issued, in 1810, an ordinance
^^7*r^ reJajting to captures, which declared to be good and
towptnre. ^ lawf ul prize " such vessels as, notwithstanding their flag
is <^nsidered neutral, as well with regard to Great Britain
as the powers at war with the same nation, still, either in
the Atlantic or Baltic, have made use of English convoy."
Under this ordinance, many American neutral vessels
were captured, and, with their cargoes, condemned in
the Danish prize courts for offending against its provi-
sions. In the course of the discussions which subsequently
took place between the American and Danish govern-
ments respecting the legality of these condemnations, the
(/) The Atalanta, 3 Wheaton, 409.
BIGHTS OP WAE AS TO NEUTRALS.
711
principles upon which the ordinance was grounded were Chap- m*
questioned by the United States government, as in-
consistent with the established rules of international law.
It was insisted that the prize ordinances of Denmark, or
of any other particular State, could not make or alter
the general law of nations, nor introduce a new rule
binding on neutral powers. The right of the Danish
monarch to legislate for his own subjects and his own
tribunals, was incontestable ; but before his edicts could
operate upon foreigners carrying on their commerce upon
the seas, which are the common property of all nations,
it must be shown that they were conformable to the law
by which all are bound. It was, however, unnecessary
to suppose, that in issuing these instructions to its
cruisers, the Danish Government intended to do anything
more than merely to lay down rules of decision for its
own tribunals, conformable to what that governnient
understood to be just principles of public law. But the
observation became important when it was considered
that the law of nations nowhere existed in a written code
accessible to all, and to whose authority all deferred ;
and that the present question regarded the application of
a principle (to say the least) of doubtful authority, to the
confiscation of neutral property for a supposed offence
committed, not by the owner, but by his agent the
master, without the knowledge or orders of the owner,
under a belligerent edict, retrospective in its operation,
because unknown to those whom it was to affect. o g3j
The principle laid down in the ordinance, as interpreted Capture
by the Danish tribunals, was, that the fact of having Danish ordi-
navigated under enemy's convoy i^^ per se^ a justifiable mo^^
cause, not of capture merely, but of condemnation in the
courts of the other belligerent ; and thaty without inquir-
ing into the proofs of proprietary interest, or the
circumstances and motives under which the captured
vessel had joined the convoy, or into the legality of the
voyage, or the innocence of her conduct in other respects.
A belligerent pretension so harsh, apparently so new, and
so important in its consequences, before it could be
712
EIGHTS OF WAR AS TO NEUTRALS.
sioners.
Part IV. assented to by the neutral States, must be rigorously
demonstrated by the authority of the writers on public
law, or shown to be countenanced by the usage of
nations. Not one of the numerous expounders of that
law even mentioned it ; no belligerent nation had ever
before acted upon it ; and still less could it be asserted
that any neutral nation had ever acquiesced in it.
Great Britain, indeed, had contended that a neutral State
had no right to resist the exercise of the belligerent claim
of visitation and search by means of convoys, consisting
of its own ships of war. But the records even of the
British Courts of Admiralty might be searched in vain
for a precedent to support the principle maintained by-
Denmark, that the mere fact of having sailed under a
belligerent convoy is, in all cases and under all circum-
§ 532. stances, conclusive cause of condemnation.
4e^m^°*^' The American vessels in question were engaged in
Commifl. their accustomed lawful trade, between Russia and the
United States; they were unarmed, and made no re-
sistance to the Danish cruisers ; they were captured on
the return voyage, after having passed up the Baltic
and been subjected to examination by the Danish
cruisers and authorities ; and were condemned under
an edict which was unknown, and consequently, as to
them, did not exist when they sailed from Cronstadt,
and which, unless it could be strictly shown to be
consistent with the pre-existing law of nations, must be
considered as an unauthorized measure of retrospective
legislation. To visit upon neutral merchants and mari-
ners extremely penal consequences from an act, which
they had reason to believe to be innocent at the time,
and which is not pretended to be forbidden by a single
treaty or writer upon public law, by the general usage of
nations, or even by the practice of any one belligerent,
or the acquiescence of any one neutral State, must re-
quire something more than a mere resort to the supposed
analogy of other acknowledged principles of interna-
tional law, but from which it would be vain to attempt
to deduce that now in question as a corollary.
RIGHTS OP WAR AS TO NEUTRALS. 713
Being found in company with an enemy's convoy Chap. HI.
might, indeed, furnish a presumption that the captured
vessel and cargo belonged to the enemy, in the same
manner as goods taken in an enemy's vessel are presumed
to be enemy's property until the contrary is proved ; but
this presumption is not of that class of presumptions
called presumptiones juris et de jure^ which are held to be
conclusive upon the party, and which he is not at liberty
to controvert. It is a slight presumption only, which
will readily yield to countervailing proof. One of the
proofs which, in the opinion of the American negotiator,
ought to have been admitted by the prize tribunal to
countervail this presumption, would have been evidence
that the vessel had been compelled to join the convoy; or
that she had joined it, not to protect herself from exami-
nation by Danish cruisers, but against others, whose
notorious conduct and avowed principles rendered it cer-
tain that captures by them would inevitably be followed
by condemnation. It followed, then, that the simple
fact of having navigated under British convoy could be
considered as a ground of suspicion only, warranting the
captors in sending in the captured vessel for further
examination, but not constituting in itself a conclusive
ground of confiscation.
Indeed, it was not perceived how it could be so con-
sidered, upon the mere ground of its interfering with the
exercise of the belligerent pretension of visitation and
search, by a State, which, when neutral, had asserted the
right of protecting its private commerce against bellige-
rent visitation and search by armed convoys of its own
public ships.
Nor could the consistency of the Danish government, § 633.
in this respect, be vindicated, by assuming a distinction
between the doctrine maintained by Denmark, when
neutral, against Great Britain, from that which she
sought, as a belligerent, to enforce against America.
Why was it that navigating under the convoy of a neutral
ship of war was deemed a conclusive cause of condemna-
tion ? It was because it tended to impede and defeat
714 RIGHTS OP WAB AS TO NEUTRALS.
Partly, the belligerent right of search — to render every attempt
to exercise this lawful right a contest of violence — to
disturb the peace of the world, and to withdraw from the
proper forum the determination of such controversies by
forcibly preventing the exercise of its jurisdiction.
The mere circumstance of sailing in company with a
helligerent convoy had no such effect; being an eneniy^ the
belligerent had a right to resist. The masters of the
vessels under his convoy could not be involved in the
consequences of that resistance, because they were neu-
tral, and had not actually participated in the resistance.
They could no more be involved in the consequences of
a resistance by the belligerent, which is his own lawful
act, than is the neutral shipper of goods on board a belli-
gerent vessel for the resistance of the master of that
vessel, or the owner of neutral goods found in a belli-
gerent fortress for the consequences of its resistance.
The right of capture in war extends only to things
actually belonging to the enemy, or- such as are con-
sidered as constructively belonging to him, because taken
in a trade prohibited by the laws of war, such as contra-
band or property taken in breach of blockade, and other
analogous cases ; but the property now in question was
neither constructively nor actually the property of the
enemy of Denmark. It was not pretended that it was
actually his property, and it could not be shown to have
been constructively his. If, indeed, these American
vessels had been armed ; if they had thus contributed to
augment the force of the belligerent convoy ; or if they
had actually participated in battle with the Danish crui-
sers— they would justly have fallen by the fate of war,
and the voice of the American government would never
have been raised in their favour. But they were, in
fact, unarmed merchantmen; and far from increasing
the force of the British convoying squadron, their junc-
tion tended to weaken it by expanding the sphere of its
protecting duty; and instead of participating in the
enemy's resistance, in fact there was no battle and no
BIGHTS OP WAR AS TO NEUTRALS. 716
resistance, and the merchant vessels fell a defenceless Chap. ni.
prey to the assailants.
The illegality of the act on the part of the neutral § 634.
masters, for which the property of their owners had been
confiscated, must then be sought for in a higher source,
and must be referred back to the circumstance of their
joining the convoy. But why should this circumstance be
considered illegal, any more than the fact of a neutral
taking shelter in a belligerent port, or under the guns of
a belligerent fortress which is subsequently invested and
taken ? The neutral cannot, indeed, seek to escape from
visitation and search by unlawful means, either of force
or fraud ; but if, by the use of any lawful and innocent
means, he may escape, what is to hinder his resorting to
such means for the purpose of avoiding a proceeding so
vexatious? The belligerent cruisers and prize courts
had not always been so moderate and just as to render
it desirable for the neutral voluntarily to seek for an op-
portunity of being examined and judged by them. Upon
the supposition, indeed, that justice was administered
promptly, impartially, and purely in the prize tribunals
of Denmark, the American shipmasters could have had
no motive to avoid an examination by Danish cruisers,
since their proofs of property were clear, their voyages
lawful, and they were not conscious of being exposed to
the slightest hazard of condemnation in these tribunals.
Indeed, some of these vessels had been examined on
their voyage up the Baltic, and acquitted by the Danish
Courts of Admiralty. Why, then, should a guilty motive
be imputed to them, when their conduct could be more
naturally explained by an innocent one ? Surely, in the
multiplied ravages to which neutral commerce was then
exposed on every sea, from the sweeping decrees of con-
fiscation fulminated by the great belligerent powers, the
conduct of these parties might be sufficiently accounted
, for, without resorting to the supposition that they meant
to resist or even to evade the exercise of the belligerent
rights of Denmark.
Even admitting, then, that the neutral American had
no right to put himself xmder convoy or in order to avoid
716 RIGHTS OP WAR AS TO NEUTRALS.
Part IV. tho exercise of the right of visitation and search by a
friend^ as Denmark professed to be, he had still a perfect
right to defend himself against his enemy ^ as France had
shown herself to be, by her conduct, and the avowed
principles upon which she had declared open war against
all neutral trade. Denmark had a right to capture the
commerce of her enemy, and for that purpose to search
and examine vessels under the neutral flag, whilst
America had an equal right to protect her commerce
against French capture by all the means allowed by the
ordinary laws of war between enemies. The exercise of
this perfect right could not legally be affected by the
circumstance of the war existing between Denmark and
England, or by the alliance between Denmark and
France. America and England were at peace. The
alliance between Denmark and France was against
England, not against America ; and the Danish govern-
ment, which had refused to adopt the decrees of Berlin
and Milan as the rule of its conduct towards neutrals,
could not surely consider it culpable on the part of
the American shipmasters to have defended themselves
against the operation of these decrees by every means in
their power. If the use of any of these means conflicted
in any degree with the belligerent rights of Denmark,
that was an incidental consequence, which could not be
avoided by the parties without sacrificing their incon-
testable right of self-defence.
S 686. But it might perhaps be said, that as resistance to the
right of search is, by the law and usage of nations, a sub-
stantive ground of condemnation in the case of the master
of a single ship^ still more must it be so, where many vessels
are associated for the purpose of defeating the exercise of
the same right.
In order to render the two cases stated perfectly
analogous, there must have been an actual resistance on
the part of the vessels in question, or, at least, on the
part of the enemy's fleet, having them at the time under
its protection, so as to connect them inseparably with the
acts of the enemy. Here was no actual resistance on the
BIGHTS OF WAR AS TO NEUTEAXS. 717
part of cither, but only a constructive resistance on the Chap. HI.
part of the neutral vessels, implied from the fact of their
having joined the enemy's convoy. This, however, was,
at most, a mere intention to remty never carried into effect,
which had never been considered in the case of a single
ship, as involving the penalty of confiscation. But the
resistance of the master of a single ship, which is sup-
posed to be analogous to the case of convoy, must refer
to a neutral master, whose resistance would, by the es-
tablished law of nations, involve both ship and cargo in
the penalty of confiscation. The same principle would
not, however, apply to the case of an enemt/ master, who
has an incontestable right to resist his enemy, and whose
resistance could not affect the neutral owner of the cargo,
unless he was on board, and actually participated in the
resistance. Such was, in a similar case, the judgment of
Sir W. Scott. So also the right of a neutral to transport
his goods on board even of an armed belligerent vessel,
was solemnly affirmed by the decision of the highest
judicial tribunal in the United States, during the late
war with Great Britain, after a most elaborate discus-
sion, in which all the principles and analogies of public
law bearing upon the question were thoroughly examined
and considered.
The American negotiator then confidently relied upon
the position assumed by him — that the entire silence of
all the authoritative writers on public law, as to any such
exception to the general freedom of neutral navigation,
laid down by them in such broad and comprehensive
terms, and of every treaty made for the special purpose
of defining and regulating the rights of neutral commerce
and navigation, constituted of itself a strong negative
authority to show that no such exception exists, especially
as that freedom is expressly extended to every case which
has the slightest resemblance to that in question. It
could not be denied that the goods of a friend, found in
an enemy's fortress, are exempt from confiscation as
prize of war; that a neutral may lawfully carry his
goods in an armed belligerent ship ; that the neutral
718 RiaHTS OF WAR A8 TO NEUTRALS.
Part IV. shipper of goods on board an enemy^s vessel, (armed or
unarmed,) is not responsible for the consequences of
resistance by the enemy master. How then could the
neutral owner, both of ship and cargo, be responsible
for the acts of the belligerent convoy, under the pro-
tection of which his property had been placed, not
by his own immediate act, but by that of the master
proceeding without the knowledge or instructions of the
owner ?
Such would certainly be the view of the question,
even applying to it the largest measure of belligerent
rights ever assumed by any maritime State. But when
examined by the milder interpretations of public law,
which the Danish government, in common with the other
northern powers of Europe, had hitherto patronized, it
would be found still more clear of doubt. If, as Den-
mark had always insisted, a neutral might lawfully arm
himself against all the belligerents; if he might place
himself under the convoying force of his own country,
so as to defy the exercise of belligerent force to compel
him to submit to visitation and search on the high seas,
the conduct of the neutral Americans who were driven to
take shelter under the floating fortresses of the enemy
of Denmark, not for the purpose of resisting the exercise
of her belligerent rights, but to protect themselves
against the lawless violence of those whose avowed
purpose rendered it certain, that, notwithstanding this
neutrality, capture would inevitably be followed by con-
demnation, would find its complete vindication in the
principles which the public jurists and statesmen of that
country had maintained in the face of the world. Had
the American commerce in the Baltic been placed under
the protection of the public ships of war of the United
States, as it was admitted it might have been, the
belligerent rights of Denmark would have been just as
much infringed as they were by what actually happened.
In that case, the Danish cruisers must upon Danish
principles, have been satisfied with the assurance of the
commander of the American convoying squadron, as to
RIGHTS OP WAR AS TO NEUTRALS.
719
the neutrality of the ships and cargoes sailing under his Chap. JH.
protection. But that assurance could only have been
founded upon their being accompanied with the ordinary
documents found on board of American vessels, and
issued by the American government upon the represen-
tations and proofs furnished by the interested parties.
If these might be false and fraudulent in the one case,
so might they be in the other, and the Danish govern-
ment would be equally deprived of all means of examining
their authenticity in both. In the one, it would be de-
prived of those means by its own voluntary acquiescence
in the statement of the commander of the convoying
squadron, and in the other, by the presence of a superior
enemy^s force, preventing the Danish cruisers from exer-
cising their right of search. This was put for the sake
of illustration, upon the supposition that the vessels
under convoy had escaped from capture ; for upon that
supposition only could any actual injury have been sus-
tained by Denmark as a belligerent power. Here they
were captured without any hostile conflict, and the
question was, whether they were liable to confiscation
for having navigated under the enemy's convoy, notwith-
standing the neutrality of the property and the lawfulness
of their voyage in other respects.
Even supposing, then, that it was the intention of the § 636.
American shipmasters, in sailing with the British convoy,
to escape from Danish as well as French cruisers, that
intention had failed of its effect ; and it might be asked,
what belligerent right of Denmark had been practically
injured by such an abortive attempt ? If any, it must
be the right of visitation and search. But that right is
not a substantive and independent right, with which
belligerents are invested by the law of nations for the
purpose of wantonly vexing and interrupting the com-
merce of neutrals. It is a right growing out of a greater
right of capturing enemy's property, or contraband of
war, and to be used, as means to an end, to enforce the
exercise of that right. Here the actual exercise of the
right was never in fact opposed, and no injury had
720 EIGHTS OF WAR AS TO NEUTEALS.
Part IV. accrued to the belligerent power. But it would, perhaps,
be said, that it might have been opposed and actually
defeated, had it not been for the accidental circumstance
of the separation of these vessels from the convoying
force, and that the entire commerce of the world with
the Baltic Sea might thus have been effectually protected
from Danish capture. And it might be asked in reply,
what injury would have resulted to the belligerent rights
of Denmark from that circumstance ? If the property
were neutral, and the voyage lawful, what injury would
result from the vessels escaping from examination ? On
the other hand, if the property were enemy's property,
its escape must be attributed to the superior force of the
enemy, which, though a loss^ could not be an injury of
which Denmark would have a lawful right to complain.
Unless it could be shown that a neutral vessel navigating
the seas is bound to volunteer to be searched by the bellige-
rent cruisers, and that she had no right to avoid search
by any means whatever, it was apparent that she might
avoid it by any means not unlawful. Violent resistance
to search, rescue after seizure, fraudulent spoliation or
concealment of papers, are all avowedly unlawful means,
which, unless extenuated by circumstances, may justly
be visited with the penalty of confiscation. Those who
alleged that sailing under belligerent convoy was also
attended with the same consequences, must show it, by
appealing to the oracles of public law, to the text of
treaties, to some decision of an international tribunal, or
g Kov to the general practice and understanding of nations (m).
Treaty * The negotiation finally resulted in the signature of a
United^statea treaty, in 1830, between the United States and Denmark,
andBenmark. ^^ ^j^j^^^ ^^le latter powcr Stipulated to indemnify the
American claimants generally for the seizure of their
property by the payment of a fixed sum en bloc, leaving
it to the American government to apportion it by com-
missioners appointed by itself, and authorized to deter-
mine ^^ according to the principles of justice, equity, and
(m) Mr. Wlaeaton to Count SohimmelmanD, 1828.
EIGHTS OP WAR AS TO NEUT
the law of nations," with a declaration tl
having no other object than to termini
" can never hereafter be invoked, by
other, as a precedent or rule for the fu1
It was suggested by the late Sir Henry M
being an instrument of destruction used under m
the not improbable contingency of the acciden'
means of a neutral yessel might lead to some rei
upon its use (o). In 1877 the American Secreta
to the laying down of torpedoes in the Eusso-Tu:
ployment of torpedoes is so recent a belliger
believed the powers as yet have had no opporj
general regulations, if any, to which they shou
But it is most improbable that maritime pov
interference with a weapon the deadly efficac
tested at Fort Arthur. On the outbreak of we
America, in May, 1898, the Spanish govemmei
to the neutral powers that in consequence of th<
marine defences in the naval ports of Ferrol,
Mahon, entry into those ports by night was f orb
The obstruction of channels of access has
practised, as, in modem times, by Eussia at Se
by Germany during the Franco -Prussian wai
China at Canton and elsewhere during the Tonq
in 1884-5 ; to say nothing of the war now bei:
East between Eussia and Japan. Such obstruc
belligerent right, but the obstruction should
channel re-opened on the termination of hostiliti
A question which is rapidly assuming impor
certainly be raised during the next great maritim
rights which may be exercised by belligerents o
connecting neutral with neutral territory, or ne
These cables have multiplied enormously in rece
like a network over the globe, and through them
the commercial business of the whole world. [
times by the State, more frequently by a pri
unnecessary to argue the enormous loss and inco
result from any interference with them ; but, at
importance during war to the combatants will b<
the temptation to destroy or to tamper with then
neutral ownership, may be beyond the power of
utmost that can be hoped for is to guard as muc
useless and arbitrary damage.
(n) MarteiiB, Nouvean Beoueil, torn. (o) Intemat
Till. p. 850. Elliot*! Amerioan Diplo- {p) WIiarix>
matio Code, vol. i. p. 453. {q) Whartoi
W.
722 BIGHTS OF WAS AS TO NEUTRALS,
Part IT. Submarine cables present too sligbt analogies to admit of regulating
tbeir legal position on the basis of existing international law. No
international convention covers tbem in time of war, and the £reedom
of belligerents with regard to them was especially reserved, at the
instigation of Lord Lyons, by Art. XV. of the Paris Convention of
1884 (r). There is no precedent or judicial decision on the subject.
They must eventually be dealt with by individual treaty or special
agreement, and that stage will not be reached until a sufficiency of
experiences and illustrative cases have been accumulated in actual war-
fare. Meanwhile the Institut du Droit International, at their Brussels
session in 1902, have adopted a set of rules which at any rate show
the trend of feeling among the picked jurists of the civilised nations.
The rules are as follows : —
( 1 ) Submarine cables connecting two neutral territories are inviolable.
(2) Gables connecting the territories of two belligerents, or two
parts of the territory of one of the belligerents, can be cut
anywhere except in the territorial or the neutralised waters of a
neutral territory.
(3) The cables connecting neutral territory with the territory of one
of the belligerents can in no case be cut in the territorial sea or
the neutralised waters of a neutral territory.
On the high seas such cable can only be cut if there is an
effective blockade and within the limits of the line of blockade,
and subject always to the re-establishment of the cable with the
smallest possible delay. The cable can always be cut on the
territory and in the territorial sea of an enemy territory up to
within three marine miles of low- water mark.
(4) It is to be understood that the Hberty of the neutral State to
send despatches does not imply the right of using them or per-
mitting their usage to lend assistance to one of the belligerents.
(5) These rules admit of no distinction between State cables and
those belonging to individuals, nor between cables which are
enemy property and cables which are neutral property («).
The application during war time of wireless telegraphy to the com-
munication of news from neutral ships will probably require inter-
national regulation during the immediate future. But the claim made
by Admiral AlexeiefP on behalf of the Bussian Government to seize as
lawful prize all neutral vessels containing ''improved apparatus not
yet provided for by existing conventions," which may be arrested " off
Ewantung or within the zone of operations of the Bussian fleet," and
to treat newspaper correspondents found on board them as spies, has
met with the strongest reprobation in Great Britain and the United
States (0.
(r) Hertslet, Gommeroial Treaties, vol. zyii. p. 500. ,
(«) Annuaire de 1* Institut, 1902, p. 331. See an article by Professor Holland in
the Journal da Droit International Prire for 1898, p. 648, and also a leading article
in the •< Times " of April 4, 1904.
(0 See "Times," April 18, 1904.
TREATY OP PEACE.
723
CHAPTER IV.
TEEATY OF PEACE.
§688.
The power of concluding peace, like that of declaring Power of
war, depends upon the municipal constitution of the dependent on
State. These authorities are generally associated. In ooLtitutionr
unlimited monarchies, both reside in the sovereign ; and
even in limited or constitutional monarchies, each may
be vested in the Crown, Such is the British Constitution,
at least in form; but it is well known, that in its
practical administration, the real power of making war
actually resides in the Parliament, without whose appro-
bation it cannot be carried on, and which body has
consequently the power of compelling the Crown to make
peace, by withholding the supplies necessary to prosecute
hostilities. The American Constitution vests the power
of declaring war in the two houses of Congress, with the
assent of the President. By the forms of the Constitution,
the President has the exclusive power of making treaties
of peace, which, when ratified with the advice and consent
of the Senate, become the supreme law of the land, and
have the effect of repealing the declaration of war and all
other laws of Congress, and of the several States which
stand in the way of their stipulations. But the Congress
may at any time compel the President to make peace, by
refusing the means of carrying on war. In France, the
King has, by the express terms of the constitutional
charter, power to declare war, to make treaties of peace,
of alliance, and of commerce ; but the real power of
making both peace and war resides in the Chambers,
which have the authority of granting or refusing the
means of prosecuting hostilities.
3a2
724 TREATY OF PEACE.
Part IV. The power of making treaties of peace, like that of
§ 639. making other treaties with foreign States is, or may be,
makSJ^' limited in its extent by the national constitution. We
treaties of havo already seen that a general authority to make
limited in treaties of peace necessarily implies a power to stipulate
the conditions of peace ; and among these may properly
be involved the cession of the public territory and other
property, as well as of private property included in the
eminent domain. If, then, there be no limitation,
expressed in the fundamental laws of the State, or
necessarily implied from the distribution of its constitu-
tional authorities, on the treaty-making power in this
respect, it necessarily extends to the alienation of public
and private property, when deemed necessary for the
n 540 national safety or policy (a).
indemnitvto The duty of making compensation to individuals,
for lossefl by whoso private property is thus sacrificed to the general
gu^oconoea- ^gif^re^ ig inculcated by public jurists, as correlative to
the sovereign right of alienating those things which are
included in the eminent domain ; but this duty must
have its limits. No government can be supposed to be
able, consistently with the welfare of the whole commu-
nity, to assume the burden of losses produced by conquest,
or the violent dismemberment of the State. Where,
then, the cession of territory is the result of coercion and
conquest, forming a case of imperious necessity, beyond
the power of the State to control, it does not impose any
obligation upon the government to indemnify those who
may sufEer a loss of property by the cession (ft).
BismembOT- The fundamental laws of most free governments limit
l^teMty.***^ the treaty-making power, in respect to the dismember-
ment of the State, either by an express prohibition, or by
necessary implication from the nature of the constitution.
Thus, even under the constitution of the old French
monarchy, the States-General of the kingdom declared
that Francis I. had no power to dismember the kingdom,
(a) Vide ante, Pt. iii. ch. 2, { 266. Gens, liy. i. oh. 20, { 244 ; Uv. ir. ch. 2,
{b) Grotius, de Jor. Bel. ao Pan. § 12. Kent's Comment, on Americaa
lib. iii. cap. 20, { 7. Vattel, Droit des Law, Tol. i. p. 178, 5th ed.
TREATY OF PEACE. 725
as was attempted by the Treaty of Madrid, concluded by Chap- IV.
that monarch ; and that not merely upon the ground that
he was a prisoner, but that the assent of the nation, repre-
sented in the States-General, was essential to the validity
of the treaty. The cession of the province of Burgundy
was therefore annulled, as contrary to the fundamental
laws of the kingdom ; and the provincial States of that
duchy, according to Mezeray, declared, that *' never
having been other than subjects of the crown of France,
they would die in that allegiance ; and if abandoned by
the king, they would take up arms, and maintain by
force their independence, rather than pass under a
foreign dominion." But when the ancient feudal consti-
tution of France was gradually abolished by the disuse
of the States-General, and the absolute monarchy became
firmly established under Richelieu and Louis XIV., the
authority of ceding portions of the public territory, as
the price of peace, passed into the hands of the king, in
whom all the other powers of government were concen-
trated. The different constitutions established in France,
subsequently to the Revolution of 1789, limited this
authority in the hands of the Executive in various
degrees. The provision in the Constitution of 1795, by
which the recently-conquered countries on the left bank
of the Rhine were annexed to the French territory,
became an insuperable obstacle to the conclusion of peace
in the conferences at Lisle. By the Constitutional
Charter of 1830, the king is invested with the power of
making peace, without any limitation of this authority,
other than that which is implied in the general distribu-
tion of the constitutional powers of the government.
Still it is believed that, according to the general under-
standing of French public jurists, the assent of the
Chambers, clothed with the forms of a legislative act, is
considered essential to the ultimate validity of a treaty
ceding any portion of the national territory. The extent
and limits of the territory being defined by the municipal
laws, the treaty-making power is not considered sufficient
to repeal those laws.
726
TREATY OF PEACE.
PartlV.
Treaty-
making power
of Great
Britaia.
§643.
Treaty-
In Great Britain, the treaty-making power, as a branch
of the regal prerogative, has in theory no limits ; but it is
practically limited by the general controlling authority
of Parliament ; whose approbation is necessary to carry
into effect a treaty, by which the existing territorial
arrangements of the empire are altered.
In confederated governments, the extent of the treaty-
oTa co^^*' making power, in this respect, must depend upon the
federation, nature of the confederation. If the union consists of
a system of confederated States, each retaining its own
sovereignty complete and unimpaired, it is evident that
the federal head, even if invested with the general power
of making treaties of peace for the confederacy, cannot
lawfully alienate the whole or any portion of the terri-
tory of any member of the union, without the express
assent of that member. Such was the theory of the
ancient Germanic Constitution ; the dismemberment of
its territory was contrary to the fundamental laws and
maxims of the empire; and such is believed to be the
actual constitution of the present Germanic Confedera-
tion. This theory of the public law of Germany has
often been compelled to yield in practice to imperious
necessity ; such as that which forced the cession to France
of the territories belonging to the States of the empire,
on the left bank of the Rhine, by the treaty of Luneville,
in 1800. Even in the case of a supreme Federal govern-
ment, or composite State, like that of the United States
of America, it may, perhaps, be doubted how far the mere
general treaty-making power, vested in the federal head,
necessarily carries with it that of alienating the territory
of any member of the union without its consent.
The effect of a treaty of peace is to put an end to the
war, and to abolish the subject of it. It is an agreement
to waive all discussion concerning the respective rights
and claims of the parties, and to bury in oblivion the
original causes of the war. It forbids the revival of the
same war, by resuming hostilities for the original cause
which first kindled it, or for whatever may have occurred
in the course of it. But the reciprocal stipulation of
§644.
Effects of a
treaty of
peace.
TREATY OP PEACE*
perpetual peace and amity between the
imply that they are never again to m
each other for any cause whatever. T
to the war which it terminates ; and is
sense that the war cannot be revived foi
This will not, however, preclude the
and resist, if the grievances which oi
the war be repeated — for that would fun
and a new cause of war, equally just
If an abstract right be in question bet\i
on which the treaty of peace is silent,
all previous complaints and injury, ari
claim, are thrown into oblivion, by th<
sarily implied, if not expressed ; but tl
not thereby settled either one way oi
the absence of express renunciation o
remains open for future discussion. Ar
arrangement of a matter in dispute, if :
limited, has reference only to that pa
asserting the claim, and does not precluc
any subsequent pretensions to the sam<
grounds. Hence the utility in practic
general renunciation of all pretensions
controversy, which has the effect of pre
the assertion of the claim in any mode (
The treaty of peace does not extinguig
upon debts contracted or injuries inflid
the war, and unconnected with its cause
an express stipulation to that effect. 1
private rights acquired antecedently to tl
injuries unconnected with the causes wh
war. Hence debts previously contrac
respective subjects, though the remedy f
is suspended during the war, are revive
tion of peace, unless actually confiscated,
in the rigorous exercise of the strict ri{
trary to the milder practice of recent ti
(0) Vattel, Droit des Oeiui, liy. iy. ch. 2, i{
728 TREATY OF PEACE,
Partly, even cases where debts contracted, or injuries committed,
between the respective subjects of the belligerent nations
during the war, may become the ground of a valid claim,
as in the case of ransom-bills, and of contracts made by
prisoners of war for subsistence, or in the course of trade
carried on under a license. In all these cases, the remedy
may be asserted subsequently to the peace (d).
utijM»iiUtu The treaty of peace leaves everything in the state in
ovei^^tyof which it found it, unless there be some express stipula-
SeaJntro^" tion to the contrary. The existing state of possession is
be ezpreaaed. maintained, except so far as altered by the terms of the
treaty. If nothing be said about the conquered country
or places, they remain with the conqueror, and his title
cannot afterwards be called in question. During the
continuance of the war, the conqueror in possession has
only a usufructuary right, and the latent title of the
former sovereign continues, until the treaty of peace, by
its silent operation, or express provisions, extinguishes
s fi4A ^^® *^*^^ ^^^ ever(^).
EflPeot of * The restoration of the conquered territory to its original
tCTrito^bya Sovereign, by the treaty of peace, carries with it the
^^^' restoration of all persons and things which have been
temporarily under the enemy's dominion, to their original
state. This general rule is applied, without exception,
to real property or immovables. The title acquired in
war to this species of property, until confirmed by a treaty
of peace, confers a mere temporary right of possession.
The proprietary right cannot be transferred by the con-
queror to a third party, so as to entitle him to claim
against the former owner, on the restoration of the terri-
tory to the original sovereign. If, on the other hand,
the conquered territory is ceded by the treaty of peace
to the conqueror, such an intermediate transfer is thereby
confirmed, and the title of the purchaser becomes valid
and complete. In respect to personal property or
(rf) Kent's Oomment. vol. i. p. 168, Gens, liv. iii. oh. 13, {} 197, 198. Mar-
6th ed. teas, Prdcis da Droit dee Gens, Uy. iii.
(f) Grotiae, de Jur. Bel. ao Pac. lib. oh. 4, § 282. Eluber, Droit des Gens
iii. oap. 6, {§ 4, 5. Vattel, Droit dee Modeme de rEorope, j§ 254-^259.
TEEATY OF PEACE. 729
movables, a difEerent rule is applied. The title of the tJhap. IV.
enemy to things of this description is considered complete
against the original owner after twenty-four hours' pos-
session, in respect to booty on land. The same rule was
formerly considered applicable to captures at sea; but
the more modem usage of maritime nations requires a
formal sentence of condemnation as prize of war, in order
to preclude the right of the original owner to restitution
on payment of salvage. But since the jus postUminii does
not, strictly speaking, operate after the peace, if the
treaty of peace contains no express stipulation respecting
captured property, it remains in the condition in which
the treaty finds it, and is thus tacitly ceded to the actual
possessor. The jus postUminii is a right which belongs
exclusively to a state of war ; and therefore a transfer to
a neutral, before the peace, even without a judicial sen-
tence of condemnation, is valid, if there has been no
recovery or recapture before the peace. .The interven-
tion of peace covers all defects of title, and vests a lawful
possession in the neutral, in the same manner as it quiets
the title of the hostile captor himself (/). « ..-
A treaty of peace binds the contracting parties from From what
the time of its signature. Hostilities are to cease between treaV oi
them from that time, unless some other period be provided ^u^^^"
in the treaty itself. But the treaty binds the subjects ^p^**^^-
of the belligerent nations only from the time it is notified
to them. Any intermediate acts of hostility committed
by them before it was known, cannot be punished as
criminal acts, though it is the duty of the State to make
restitution of the property seized subsequently to the
conclusion of the treaty ; and in order to avoid disputes
respecting the consequences of such acts, it is usual to
provide, in the treaty itself, the periods at which hos-
tilities are to cease in different places. Grotius intimates
an opinion that individuals are not responsible, even
civiliter^ for hostilities thus continued after the conclusion
of peace, so long as they are ignorant of the fact,
(/) Vattel, liv. iii. ch. 14, {} 209, 212, 216. The PurisHma Cuneeption, 6 0. Rob.
45 ; The Sophia, Ibid. 138.
730
TREATY OF PEACE.
Partly, although it is the duty of the State to make restitution,
wherever the property has not been actually lost or de-
stroyed. But the better opinion seems to be, that wherever
a capture takes place at sea, after the signature of the
treaty of peace, mere ignorance of the fact will not
protect the captor from civil responsibility in damages;
and that, if he acted in good faith, his own government
must protect him and save him harmless. When a place
or country is exempted from hostility by articles of
peace, it is the duty of the State to give its subjects
timely notice of the fact. In such a case it is the actual
wrong-doer who is made responsible to the injured party,
and not the superior commanding officer of the fleet,
unless he be on the spot, and actually participating in
the transaction. Nor will damages be decreed by the
Prize Court, even against the actual wrong-doer, aiter a
S 648 l^pso of a great length of time (ff).
Ceaaation of When the treaty of peace contains an express stipula-
after txeatj. tiou that hostilities are to cease in a given place at a
certain time, and a capture is made previous to the expi-
ration of the period limited, but with a knowledge of the
peace on the part of the captor, the capture is still
invalid ; for since constructive knowledge of the peace,
after the periods limited in the different parts of the
world, renders the capture void, much more ought actual
knowledge of the peace to produce that effect. It may,
however, be questionable whether anything short of an
official notification from his own government would be
sufficient, in such a case, to affect the captor with the
legal consequences of actual knowledge. And where a
capture of a British vessel was made by an American
cruiser, before the period fixed for the cessation of hos-
tilities by the Treaty of Ghent, in 1814, and in ignorance
of the fact, — but the prize had not been carried infra
prcesidia and condemned, and while at sea was recaptured
by a British ship of war, after the period fixed for the
cessation of hostilities, but without knowledge of the
iff) The Mentor, 1 0. Bob. 121.
peace, — 11 was juuiuiaiiy uetemiiiieu, j,nu,j, iiie puesuBsiuu v*m»4». * • •
of the vessel by an American cruiser was a lawful posses-
sion, and that the British recaptor could not, after the
peace, lawfully use force to divest this lawful possession.
The restoration of peace put an end, from the time
limited, to all force; and then the general principle
applied, that things acquired in war remain, as to title
and possession, precisely as they stood when the peace
took place. The uti possidetis is the basis of every treaty
of peace, unless the contrary be expressly stipulated.
Peace gives a final and perfect title to captures without
condemnation, and as it forbids all force, it destroys all
hope of recovery, as much as if the captured vessel was
carried infra prcesidia and judicially condemned (A).
Things stipulated to be restored by the treaty, are to inwhatoon-
be restored in the condition in which they were first tatenar^tT
taken, unless there be an express provision to the con- ^ "Stored,
trary ; but this does not refer to alterations which have
been the natural effect of time, or of the operations of
war. A fortress or town is to be restored as it was when
taken, so far as it still remains in that condition when the
peace is concluded. There is no obligation to repair, as
well as restore, a dismantled fortress or a ravaged terri-
tory. The peace extinguishes all claim for damages
done in war, or arising from the operations of war.
Things are to be restored in the condition in which the
peace found them ; and to dismantle a fortification or
waste a country after the conclusion of peace, and pre-
viously to the surrender, would be an act of perfidy. If
the conqueror has repaired the fortifications, and re-
established the place in the state it was in before the
siege, he is bound to restore it in the same condition
But if he has constructed new works, he may demoli*
them ; and, in general, in order to avoid disputes, it
advisable to stipulate in the treaty precisely in v
(A) Valin, Traits des Friaes, oh. 4, Jnrispnideiioe, torn. iz. tit. F^'
\^ 4, 5. Emerigon, Traits d'Assaranoey time, \ 6. Kent's Conuner
oh. 12, \ 19. Merlin, B^ertoire de p. 172, 6th ed.
r32
THEATY OF PEACE.
PartlY. condition the places occupied by the enemy are to be
restored (/)•
§ 860. ' ^
Bre^ofthe The violation of any one article of the treaty is a
violation of the whole treaty; for all the articles are
dependent on each other, and one is to be deemed a
condition of the other. A violation of any single article
abrogates the whole treaty, if the injured party so elects
to consider it. This may, however, be prevented by an
express stipulation, that if one article be broken, the
others shall nevertheless continue in full force. If the
treaty is violated by one of the contracting parties, either
by proceedings incompatible with its general spirit, or
by a specific breach of any one of its articles, it becomes
not absolutely void, but voidable at the election of the
injured party. If he prefers not to come to a rupture,
the treaty remains valid and obligatory. He may waive
or remit the infraction committed, or he may demand a
just satisfaction (k).
§ 661.
Disputes Treaties of peace are to be interpreted by the same
SSa^tSi rules with other treaties. Disputes respecting their
•djusted. meaning or alleged infraction may be adjusted by amic-
able negotiation between the contracting parties, by the
mediation of friendly powers, or by reference to the
arbitration of some one power selected by the parties.
This latter office has recently been assumed, in several
instances, by the five great powers of Europe, with the
view of preventing the disturbance of the general peace,
by a partial infraction of the territorial arrangements
stipulated by the treaties of Vienna, in consequence of
the internal revolutions which have taken place in some
of the States constituted by those treaties. Such are the
protocols of the conference of London, by which a sus-
pension of hostilities between Holland and Belgium was
enforced, and terms of separation between the two coun-
tries proposed, which, when accepted by both, became
(i) Vattel, Droit des Gens, liy. iv. oh. 3, { 81.
{k) Grotiasy de Jnr. Bel. ao Pao. lib. ii. oap. 15, { 16 ; lib. iii. cap. 19, i 14.
Vattel, Hv. iv. ch. 4, {§ 47, 48, 64.
TREATY OF P£A.C£.
733
the basis of a permanent peace. The objections to this ta^P- ^7-
species of interference, and the difficulty of reconciling
it with the independence of the smaller powers, are
obvious; but it is clearly distinguishable from that
general right of superintendence over the internal affairs
of other States, asserted by the powers who were the
original parties to the Holy Alliance, for the purpose of
preventing changes in the municipal constitutions not
proceeding from the voluntary concession of the reigning
sovereign, or supposed in their consequences, immediate
or remote, to threaten the social order of Europe. The
proceedings of the conference treated the revolution, by
which the union between Holland and Belgium, esta-
blished by the Congress of Vienna, had been dissolved,
as an irrevocable event; and confirmed the independence,
neutrality, and state of territorial possession of Belgium,
upon the conditions contained in the Treaty of the 15th
November, 1831, between the five powers and that king-
dom, subject to such modifications as might ultimately
be the result of direct negotiations between Holland and
Belgium (Z),
In the same way the Great Powers, signatories of the Berlin Treaty,
intervened to regulate the state of affairs caused by the revolutionary
union of Eastern Boumelia with Bulgaria in 1885 (m) ; and compelled
Greece to preserve the peace the year following (n).
(0 Wheaton's Hist. Law of Nations, («) ^nte, § 70 k. See further tmie,
pp 538-665. p^ jj ^ J Lawrence, Essay V.
(m) Ante, § 70j.
^^raitf:^ *1-* ri •li£:ii :•: ir:^ :o* iriii-* zi ri«e treaty is a
"ff -Ix.*! c. .f tl»* ▼T-'iL-* trearr; f c iZ tie irdeles are
c-'»Tr. i-rtLt '.c. *ii»\b. :cj:-rr. iz.»i •:c:»r 5$ to \^ deemed a
frx.-il'z.c. 'A tl»r :cz>rr- A T{»:'i.ti:c :f ^zt sn^le aitide
i'.r'-trttr* tl'T ▼!•:'•* tTrarr. if il-e i:i;:ir**l party so elects
Vj tr,^^{ irrT h. TLi* riAv. h :^»"-r^er, le prerented by an
eiire-* *^":-Llit£ :c. tl^t if cn-e aj-n:Ie be broken, the
ctLer* *LlII ii^Trrtl-rle?*^ ci'tiii^e in fill f«>rce. If the
tr^^tj 1* t: litei ^-v cue cf th^^ o: nrractiii^ parties, either
It prrx^^iii:^^ iiK^-nireirile with its general spirit, or
\jj a «j.-e<r:£c tre^iL of anT oL.e of its articles, it becomes
not aw.!::t^!v roiL b:it Toiiible at the election of the
iiijured party. If he prefer r§ not to ojme to a rupture,
the treaty rercaiiis ralid and obligatory. He may waive
or remit the infraction committed, or he may demand a
jui^t satisfaction (k).
Vji^mum Treaties of peace are to be interpreted by the same
u^h^hnw rule?* with other treaties. Disputes respecting their
^"** meaning or alleged infraction may be adjusted by amic-
able negotiation between the contracting parties, by the
mediation of friendly powers, or by reference to the
arbitration of some one power selected by the parties.
This latter oflBce has recently been assumed, in several
instances, by the five great powers of Europe, with the
view of preventing the disturbance of the general peace,
by a partial infraction of the territorial arrangements
Pitipulated by the i.^..ilt^ .f Tl^i.aaj iu consequence of
this intenial I'evolutions which have taken place in somo
of the States constituted by those treaties. Such are thfi
prrjti>col» of the conference of London j by which a su^
pension of hostilitiee between Holland and Belgium was
enforced, and tonus of separation between UMfciiWO coon-
tricB proposed^ wliich, when accepted hj^^ liecmoi:
{1} Vatu^), t>rtpit de« Oemi, ti^^^B|^ f 8L
V«lt*l, liv. iv, db. 4, fl 47, 4fl
t0tf<<
general ngW oi r ^ ^ the P" . ^^e pnrp**® .
f other States. ^^HoVy Ani«^?^*^;,^,uU.tion« ^"^
,«nal parties to tue J ^unidpa*. cod .g^vng
proceeding' v^tween »oi» , ^^n tti»"
^ . • u the utiwo w*- , Vienna^ i"*^ , i.^„«ndeuce,
\ the cottdioooa cou fP**'*^ ^tixnat«ly
^"^^^Lt to ^ -^i%*i*»**^
oil a\ieii(i ^
APPENDIX A.
ENGLISH AND AMEEIOAN NATURALIZATION ACTS.
L ENGLISH ACTS.— 33 & 34 Viot. c. 14.
An Act to amend the Law relating to the legal condition of Aliens and
British Subjects. [12th Maj, 1870.]
Whkreas it is expedient to amend the law relating to the legal con-
dition of aliens and British subjects :
Be it enacted by the Queen's most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Peurliament assembled, and by the authority
of the same, as follows :
1. This Act may be cited for all purposes as ''The Naturalization Short title.
Act, 1870."
Status of Aliens in the United Kingdom,
2. Eeal and personal property of every description may be taken, Oapaoity of
acquired, held, and disposed of by an alien in the same manner in all an alien as to
respects as by a natural-born British subject ; and a title to real and property,
personal property of every description may be derived through, from,
or in succession to an alien, in the same manner in all respects as
through, from, or in succession to a natural-born British subject :
Provided, —
(1.) That this section shall not confer any right on an alien to hold
real property situate out of the United Kingdom, and shall
not qualify an alien for any office or for any municipal,
parliamentary, or other franchise :
(2.) That this section shall not entitle an aHen to any right or
privilege as a British subject, except such rights and privileges
m respect of property as are hereby expressly given to him :
(3.) That this section shall not affect any estate or interest in real
or personal property to which any person has or may become
entitled, either mediately or immediately, in possession or
expectancy, in pursuance of any disposition made before the
passing of this Act, or in pursuance of any devolution by law
on the death of any person dying before the passing of this
Act.
3. Where Her Majesty has entered into a convention with any Power of
foreim State to the effect that the subjects or citizens of that State who naturalized
have been naturalized as British subjects may divest themselves of their aliens to
status as such subjects, it shall be lawful for Her Majesty, by Order in ^livest *hem-
Council, to declare that such convention has been entered into by Her ^^^ ^ "^
Majesty ; and from and after the date of such Order in Council, any oertain cases,
person being originally a subject or citizen of the State referred to in
such Order, who has been naturalized as a British subject, may, within
r36
APPENDIX.
How Biitish-
bom subjeot
may cease to
besuoh.
Alien not
entitled to
jniyde
medietate
lingon.
Capacity of
Bntish
sabject to
renounce
allegiance to
Her Majesty.
such limit of time as may be provided in tbe conventioii, make a deda-
ration of alienage, and from and after the date of his so making such
declaration such person shall be regarded as an alien, and as a subject
of the State to which he originally belonged as aforesaid.
A declaration of alienage may be made as follows ; that is to say, —
If the declarant be in the United Kingdom in the presence of any
justice of the peace, if elsewhere in Her Majesty's dominions in the
presence of any judge of any court of civil or criminal jurisdiction, of
any justice of the peeuse, or of any other officer for the time being
authorized by law in the place in which the declarant is to administer
an oath for any judicial or other legal purpose. If out of Her Majesty's
dominions in the presence of any officer in the diplomatic or consular
service of Her Majesty.
4. Any person who by reason of his having been bom within the
dominions of Her Majesty is a natural-born subject, but who also at
the time of his birth became under the law of any foreign State a sub-
ject of such State, and is still such subject, may, if of full age and not
under any disability, make a declaration of alienage in manner afore-
said, and from and after the making of such declaration of alienage
such person shall cease to be a British subject. Any person who is bom
out of Her Majesty's dominions of a father being a British subject
may, if of full age, and not under any disability, make a declaration of
alienage in manner aforesaid, and from and after the making of such
declaration shall cease to be a British subject.
5. From and after the passing of this Act, an alien shall not be
entitled to be tried by a jury de medietate linguae, but shall be triable
in the same manner as if he were a natural-bom subject.
JExpatrtation,
6. Any British subject who has at any time before, or maj at any
time after the passing of this Act, when in any foreign State and not
under any disability voluntarily become naturalized in such State, shall
from and after the time of his so having become naturalized in such
foreign State, be deemed to have ceased to be a British subject and be
regarded as an alien : Provided, —
(1.) That where any British subject has before the passing of this
Act voluntarily become naturalized in a foreign State and yet
is desirous of remaining a British subject, he may, at any
time within two years after the passing of this Act, make a
declaration that he is desirous of remaining a British subject,
and upon such declaration herein-after referred to as a decla-
ration of British nationality being made, and upon his taking
the oath of allegiance, the declarant shall be deemed to be
and to have been continually a British subject; with this
qualification, that he shall not, when within the limits of the
foreign State in which he has been naturalized, be deemed to
be a British subject, unless he has ceased to be a subject of
that State in pursuance of the laws thereof, or in pursuance
of a troaty to that effect :
(2.) A declaration of British nationality may be made, and the oath
of allegiance b<B taken as Allows; that is to say, — ^if the
declarant be in the United Kingdom in the presence of a
justice of the peace ; if elsewhere in Her Majesty's dominions
in the presence of any judge of any court oi ci^il or criminal
jurisdiction, of any justice of the peace, or of any other officer
for the time being authorized by law in the place in which
the declarant is to administer an oath for any judicial or other
NATUJttAUZATION. 737
legal purpose. If out of Her Majesty's dominions in the
presence of any officer in the diplomatic or consular service of
Her Majesty.
Naturalization and resumption of British Nationality,
7. An alien who, within such limited time before making the appli- Certificate of
cation hereinafter mentioned as may be allowed by one of Her Majesty's naturaliza-
Principal Secretaries of State, either by general order or on any special ^^
occasion, has resided in the United Kingdom for a term of not less than
five years, or has been in the service of the Crown for a term of not
less than five years, and intends when naturalized, either to reside in
the United Kmgdom, or to serve under the Grown, may apply to one
of Her Majesty's Principal Secretaries of State for a certificate of
naturalization.
The applicant shall adduce in support of his application such evidence
of his residence or service, and intention to reside or serve, as such
Secretary of State may require. The said Secretary of State, if satis-
fied with the evidence adduced, shall take the case of the applicant into
consideration, and may, with or without assigning any reason, give or
withhold a certificate as he thinks most conducive to the public good,
and no appeal shall lie from his decision, but such certificate shall not
take effect until the applicant has taken the oath of allegiance.
An alien to whom a certificate of naturalization is granted shall in
the United Kingdom be entitled to all political and other rights, powers,
and privileges, and be subject to all obligations, to which a natural-
bom British subject is entitled or subject in the United Kingdom, with
this qualification, that he shall not, when within the limits of the
foreign State of which he was a subject previously to obtaining his
certificate of naturalization, be deemed to be a British subject unless he
has ceased to be a subject of that State in pursuance of the laws thereof,
or in pursuance of a treaty to that effect.
The said Secretary of State may in manner aforesaid grant a special
certificate of naturalization to any person with respect to whose
nationality as a British subject a doubt exists, and he may specify in
such certificate that the grant thereof is made for the purpose of quieting
doubts as to the right of such person to be a British subject, and the
grant of such special certificate shall not be deemed to be any admis-
sion that the person to whom it was granted was not previously a
British subject.
An alien who has been naturalized previously to the passing of this
Act may apply to the Secretary of State for a certificate of naturaliza-
tion imder this Act, and it shall be lawful for the said Secretary of
State to grant such certificate to such naturalized alien upon the same
terms and subject to the same conditions in and upon which such cer-
tificate might have been granted if such alien had not been previously
naturalized in the United Kingdom.
8. A natural-born British subject who has become an alien in pur- Certificate of
Buance of this Act, and is in this Act referred to as a statutory alien, re -admission
may, on performing the same conditions and adducing the same evi- ^^^JJ^^y^
dence as is required in the case of an alien applying for a certificate of
nationality, apply to one of Her Majesty's Principal Secretaries of State
for a certificate hereinafter referred to as a certificate of re-admission to
British nationality, re- admitting him to the status of a British subject.
The said Secretary of State shall have the same discretion as to the
giving or withholding of the certificate as in the case of a certificate of
naturalization, and an oath of allegiance shall in like mcumer be
required previously to the issuing of the certificate.
w. 3 b
738
APPENDIX.
Form of oath
of allegiance.
A statuiofy alien to whom a certificate of re-admiasioiL to British
nationalitj baa been granted ahall, from the date of the certificate of
re-admission, but not in respect of any preyious transaction, resume
his position as a British subject ; with this qualification, that wiihin
the limits of the foreign State of which he becflmie a subject he shall
not be deemed to be a British subject unless he has ceaised to be a
subject of that foreign State according to the laws thereof, or in pur-
siianoe of a treaty to that effect.
The jurisdiction by this Act conferred on the Secretary of State in
tlie United Kingrdom in respect of the grant of a certificate of re-ad-
mission to British nationality, in the case of any statutory alien being
in any British possession, may be exercised by the governor of 8U(£
possession ; and residence in such possession shall, in the case of such
person, be deemed equivalent to residence in the United Kingdom.
9. The oath in this Act referred to as the oath of allegiance shall be
in the form following ; that is to say, —
'* I do swear that I will be faithful and bear
" true allegiance to Her Majesty Queen Victoria, her heirs and suc-
'' cessors, according to law. So help me OOD.''
National
status ol
married
women and
infant
children.
Begnlations
as to registra-
tion.
Kaiional itaius of married women and infant children.
10. The following enactments shall be made with respect to the
national status of women and children :
(1.) A married woman shall be deemed to be a subject of the State
of which her husband is for the time being a subject :
(2.) A widow being a natural-bom British subject, who has become
an alien by or in consequence of her marriage, shall be deemed
to be a statutory alien, and may as such at any time during
widowhood obtain a certificate of re-admission to British
nationality in manner provided by this Act :
(3.) Where the father being a British subject, or the mother being
a British subject and a widow, becomes an alien in pursuance
of this Act, every child of sudi father or mother who during
infancy has become resident in the countxy where the father
or mother is naturalized, and has, according to the laws of
such country, become naturalized therein, shall be deemed to
be a subject of the State of which the faUier or mother has
become a subject, and not a British subject :
(4.) TVhere the father, or the mother beine a widow, has obtained a
certificate of re-admission to Britim nationality, every child
of such father or mother who during infancy has become
resident in the British dominions with such father or mother,
shall be deemed to have resumed the position of a British
subject to all intents :
(5.) Where the father, or the mother being a widow, has obtained a
certificate of naturalization in the United Kingdom, eveiy
child of such father or mother who during infancy has become
resident with such father or mother in any part of the United
Kingdom, shall be deemed to be a naturalized British subject.
Supplemental Provisiom.
11. One of Her Majesty's Principal Secretaries of State may by
regulation provide for the following matters :
(1.) The form and registration of declarations of British nationalitf :
(2.) The form and registration of certificates of naturalization in the
United Kingdom :
(3.) The form and registration of certificates of re-admission to
British nationality :
(4.)
(5.)
NATURALIZATION. 739
The form and registration of declarations of alienage :
The registration by officers in the diplomatic or consular service
of Her Majesty of the births and deaths of British subjects
who may be bom or die out of Her Majesty's dominions, and
of the marriages of persons married at any of Her Majesty's
embassies or legations :
(6.) The transmission to the United Kingdom for the purpose of
registration or safe keeping, or of being produced as evidence
of any declarations or cert^cates made m pursuance of this
Act out of the United Kingdom, or of any copies of such
declarations or certificates, e&o of copies of entries contained
• in any register kept out of the United Kingdom in pursuance
of or for the purpose of carrying into effect the provisions of
this Act:
(7.) With the consent of the Treasury the imposition and application
of fees in respect of any registration authorized to be made
by this Act, and in respect of the making any declaration or
the grant of any certificate authorized to be made or granted
by this Act.
The said Secretary of State, by a further reflation, may repeal,
alter, or add to any regulation previously made by him in pursuance
of this section.
Any regulation made by the said Secretary of State in pursuance of
this section shall be deemed to be within the powers conferred by this
Act, and shall be of the same force as if it had been enacted in this
Act, but shall not so fax as respects the imposition of fees be in force
in any British possession, and shall not, so far as respects any other
matter, be in force in any British possession in which any Act or
ordinance to the contrary of or inconsistent with any such direction
may for the time being be in force.
12. The following regulations shall be made with respect to evidence BegnlationB
under this Act : — as to evidenoe.
(1.) Any declaration authorized to be made under this Act may be
proved in any legal proceedings by the production of the
original declaration, or of any copy thereof certified to be a
true copy by one of Her Majesty's Principal Secretaries of
State, or by any person authorized by regulations of one of
Her Majesty's Principal Secretaries of State to give certified
copies of such declaration, and the production of such declara-
tion or copy shall be evidence of the person therein named as
declarant having made the same at the date in the said
declaration mentioned :
(2.) A certificate of naturalization may be proved in any legal
proceeding by the production of the original certificate, or of
any copy thereof certified to be a true copy by one of Her
Majestpr's Principal Secretaries of State, or by any person
authorized by regulations of one of Her Majesty's Prmcipal
Secretaries of State to give certified copies of such certificate:
(3.) A certificate of re-admission to British nationality may be proved
in any legal proceeding by the production of the original
certificate, or of any copy thereof certified to be a true copy
by one of Her Majesty's Principal Secretaries of State, or by
any person authorized by regulations of one of Her Majesty's
Principal Secretaries of State to give certified copies of such
certificate :
(4.) Entries in any register authorized to be made in pursuance of
this Act shall be proved by such copies and certified in such
manner as may be directed by one of Her Majesty's Principal
3b2
740
APPENDIX.
Saying of
letters of
denization.
Savinff as to
Britiah ships.
Saving of
allegianoe
prior to ex-
patriation.
Power of
colonies to
legiidate with
respect to
naturaliza-
tion.
Definition of
terms.
SecretarieB of State, and the copies of sacli entriea shall be
evidence of any matters by this Act or by any regulation of
the said Secretary of State authorized to be inserted in the
register :
(5.) The Documentary Evidence Act, 1868, shaU apply to any regu-
lation made by a Secretary of State, in pursuance of or for
the purpose of carrying into effect any of the provisions of
this Act.
Miscellaneous,
13. Nothing in this Act contained shall affect the grant of letters of
denization by Her Majesty.
14. Nothing in this Act contained shall qualify an alien to be the
owner of a British ship.
16. Where any British subject has in pursuance of this Act become
an alien, he shall not thereby be discharged from any liability in
respect of any acts done before the date of his so becoming an alien.
16. All laws, statutes, and ordinances which may be duly made bj
the legislature of any British possession for imparting to any person
the privileges, or any of the privileges, of naturalization, to be enjoyed
by such person witldn the limits of such possession, shall within such
limits have the authority of law, but shall be subject to be cx)nfirmed
or disallowed by Her Majesty in the same manner, and subject to the
same rules in and subject to which Her Majesty has power to confirm
or disallow any other laws, statutes, or ordinances in that possession.
17. In this Act, if not inconsistent with the context or subject-
matter thereof, —
''Disability" shall mean the status of being an infant, lunatic,
idiot, or married woman :
''British possession" shall mean any colony, plantation, island,
territory, or settlement within Her Majesty's dominions, and
not within the United Elingdom, and all territories and
places under one legislature are deemed to be one British
possession for the purposes of this Act :
"The Governor of any British possession" shall include any
person exercising the chief authority in such x)osseasion :
*' Officer in the Diplomatic Service of Her Majesty " shall mean
any Ambassador, Minister or Charge d' Affaires, or Secretary
of Legation, or any person appointed by such Ambassador,
Minister, Charg6 d' Affaires, or Secretary of Legation to
execute any duties imposed by this Act on an officer in the
Diplomatic Service of Her Majesty :
*' Officer in the Consular Service of Her Majesty " shall mean and
include Consul-General, Consul, Vice-Consul, and Consular
Agent, and any person for the time being discharging the
duties of Consul-GFeneral, Consul, Yice-Consul, and Consular
Agent (a).
35 & 36 Vict. o. 39.
An Act for amending the Law in certain cases in relation to Naturaltza-
tion. [25th July, 1872.]
Whekeas by a Convention between Her Majesty and the United
States of America, supplementary to the Convention of the thirteenth
day of May one thouscmd eight hundred and seventy, respecting
(a) Here follows a claoae and schedule repealing earlier Acts in whole or in part.
February one thousaad eight hundred and seventy-one, and a copy of
which is contained in the schedule to this Act, provision is made in
relation to the renunciation by the citizens and subjects therein men-
tioned of naturalization or nationedity in the presence of the officers
therein mentioned :
And whereas doubts are entertained whether such provisions are
altogether in accordance with ** The Naturalization Act, 1870 : " And
whereas other doubts have arisen with respect to the effect of " The
Naturalization Act, 1870," on the rights of women married before the
passing of that Act ; and it is expedient to remove such doubts :
Be it enacted by the Queen's most excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and Com-
mons, in this present Parliament assembled, and by the authority of
the same, as follows :
1. This Act may be cited for all purposes as "The Naturalization Short title.
Act, 1872," and this Act and *' The Naturalization Act, 1870," may be
cited together as **The Naturalization Acts, 1870 and 1872."
2. Any renunciation of naturalization or of nationality made in Confirmation
manner provided by the said supplementary Convention by the persons of remmoia-
and under the circumstances in the said Convention in that behalf tion of nation-
mentioned shall be valid to all intents, and shall be deemed to be the^^Jonven-
authorized by the said ** Naturalization Act, 1870." This section shall ^ion.
be deemed to take effect from the date at which the said supplementary
Convention took effect.
3. Nothing contained in "The Naturalization Act, 1870," shall Saving clanae
deprive any married woman of any estate or interest in real or personal *5 ^ prj^erty
property to which she may have become entitled previously to the ^oxnen.
passing of that Act, or affect such estate or interest to her prejudice.
SCHEDULE.
Convention between Her Majesty and the United States of America,
supplementary to the Convention of May 13, 1870, respecting
Naturalization.
Signed at Washington, 2Zrd February^ 1871.
[^Ratijications exchanged at Washington^ May 4th, 1871.]
Whereas by the second article of the Convention between Her
Majesty the Queen of the United Kingdom of Great Britain and
Lreland and the United States of America for regulating the citizenship
of subjects and citizens of the contracting parties who nave emigrated
or may emigrate from the dominions of the one to those of the other
party, signed at London, on the 13th of May, 1870, it was stipulated
that the manner in which the renunciation by such subjects anr
citizens of their naturalization, and the resumption of their native all<
giance, may be made and publicly declared, should be agreed upon '
8ie governments of the respective countries; Her Majesty the Qu
of the United Kingdom of Great Britain and Lreland and the Presi
of the United States of America, for the purpose of effecting
agreement, have resolved to conclude a supplemental Conventi(
have named as their plenipotentiaries, that is to say ; Her Majf
Queen of the United Kingdom of Great Britain and LreL
Edward Thornton, Knight Ck»mmander of the Most Honoura<
of the Bath, and Her Envoy Extraordinary and Minister F
742 APPENDIX.
tiaiy to the United States of America; and the President of the
United States of America, Hamilton Fish, Secretary of State; wlio
have agreed as follows :
AbtigleI.
Any person being originally a citizen of the United States who had,
preyiously to May 13, 1870, been naturalized as a British subject, may
at any time before Ang^st 10, 1872, and any British subject who, at
the date first aforesaid, had been naturalized as a citizen within the
United States, may at any time before May 12, 1872, publicly declare
his renunciation of such naturalization by subscribing an instrument
in writing, substantially in the form hereunto appended, and desig-
nated as Annex (A).
Such renunciation by an original citizen of the United States, of
British nationality, shall, within the territories and jurisdiction of the
United States, be made in duplicate, in the presence of any court
authorized by law for the time being to admit aliens to naturalization,
or before the clerk or prothonotary of any such court ; if the declarant
be beyond the territories of the United States, it shall be mside in
duplicate, before any diplomatic or consular officer of the United
States. One of such duplicates shall remain of record in the custody
of the court or officer in whose presence it was made ; the other shall
be, without delay, transmitted to the department of State.
Such renunciation, if declared by an original British subject, of his
acquired nationality as a citizen of the United States, shall, if the
declarant be in the United Kingdom of Great Britain and Ireland, be
made in duplicate, in the presence of a justice of peace ; if elsewhere
in Her Britannic Majesty's dominions, in triplicate, in the presence of
any judge of civil or criminal jurisdiction, of any justice of the peace,
or of any other officer for the time being authorized by law, in the
place in which the declarant is, to administer an oath for any judicial
or other legal purpose ; if out of Her Majesty's dominions, in tripli-
cate, in the presence of any officer in the diplomatic or consular serrice
of Her Majesty.
Article II.
The contracting parties hereby engage to communicate each to the
other, from time to time, lists of the persons who, within their respec-
tive dominions and territories, or before their diplomatic and consular
officers, have declared their renunciation of naturalization, with the
dates and places of making such declarations, and such information as
to the abode of the declarsmts, and the times and places of their
naturalization, as they may have furnished.
Article HI.
The present Convention shall be ratified by Her Britannic Majesty,
and by the President of the United States by and with the advice and
consent of the Senate thereof, and the ratifications shall be exchanged
at Washington as soon as may be convenient.
In witness whereof, the respective plenipotentiaries haye signed the
same, and have affixed thereto their respective seals.
Done at Washington, the twenty-third day of February, in the year
of our Lord one thousand eight hundred and seventy-one.
(L.S.J Edwd. Thoknton.
(l.s.) Hamilton Fish.
NATURALIZATION. 743
Annbx (A.)
I, A. J5., of (insert abode), being originally a citizen of the United
States of America {or a British subject), and having become naturalized
within the dominions of Her Britannic Majesty as a British subject
(or M a citizen within the United States of America), do hereby renounce
my naturalization as a British subject {or citizen of the United States) ;
and declare that it is my desire to resume my nationality as a citizen
of the United States {or British subject),
(Signed) A. B.
Made and subscribed before me in {insert country or
other subdivision, and state province, colony, legatioji^ or consulate), this
day of , 187 .
(Signed) E. F.,
Justice of the Peace {or other title).
(L.S.) Edwd. Thornton.
(l.6.) Hamilton Fish.
II. AMERICAN ACT.
Beyised Statutes. Title XXX.
Naturcdization,
Sec. 2165. An alien may be admitted to become a citizen of the Aliens Kow
United States in the following manner, and not otherwise : — naturalized.
(I.) He shall declare on oath, before a circuit or district court of the Deolarationof
United States, or a district or supreme court of the territories, intention.
or a court of record of any of the States having common law u April,
i'urisdiction, and a seal and clerk, two years at least prior to 1802, ▼. 2,
lis admission, that it is bond fide his intention to become a pp- 153, 166 ;
citizen of the United States and to renounce for ever all ^^ ^ay,^l^824,
allegiance and fidelity to any foreign prince, potentate, State, ^' » P*
or sovereignty, and, particularly by name, to the prince,
potentate, State, or sovereignty of which the alien may be at
the time a citizen or subject (6).
(2.) He shall at the time of his application to be admitted, declare, OatK to snp-
on oath, before some one of the courts above specified, that he port Gonstitu-
will support the Constitution of the United States, and that u^^^^^^j^
he absolutely and entirely renounces and abjures all allegiance ^^ * '
and fidelity to every foreign prince, potentate. State, or i802 v 2
sovereignty, and, particularly by name, to the prince, poten- p. 153. * '
tate. State, or sovereignty of which he was before a citizen or
subject ; which proceedings shall be recorded by the clerk of
the court.
(3.) It shall be made to apnear to the satisfaction of the court Residence in
admitting such alien mat he has resided within the United the United
States five years at least, and within the State or Territory 5^*!*' °^
where such court is at the time held, one year at least ; and «J|^'nJ^al
that during that time he has behaved as a man of a good character,
moral character, attached to the principles of the Constitution
of the United States, and well disposed to the good order and
happiness of the same ; but the oath of the applicant shall in
no case be allowed to prove his residence.
(&) Campbell Y. Gordon, 6 Granoh, 176; Stark v. Chesapeake Ins. Cb., 7 Gtaaoh,
420 ; Chirac v. Chirac, 2 Wheaton, 269 ; Oibom v. U. S. Bank, 9 Wheaton, 827 ;
Spratt V. Sprattf 4 Peten, 393.
744
APPENDIX.
Titles of
nobility
renounoed.
Aliens
honoarably
disohariQea
from nulitaiy
service.
17 July, 1862,
T. 12, p. 697.
Hinor resi-
dents.
26 May, 1824,
▼. 4, p. 69.
Widow and
children of
declarants.
26 March,
1804, V. 2,
p. 293.
Alien of
African
nativity and
descent.
14 July, 1870,
V. 16, p. 266.
Befiidenoe of
five years in
United States.
3 March,
1813. V. 2,
p. 811.
Alien enemies
not admitted.
14 April,
1802, V. 2,
p. 163.
30 July, 1813,
T. 3, p. 63.
Children of
persons
naturalized
under certain
laws to be
citizens.
14 April,
1802, v. 2,
p. 166.
Naturaliza-
tion of seamen.
7 June, 1872,
T. 17, p. 268.
(4.) In case the alien applying to be admitted to citizenship has
borne any hereditary tide, or been of any of the orders of
nobility in the kingdom or State from which he came, he shall,
in addition to the above requisites, make an express rennnda-
tion of his title or order of nobility in the court to which his
application is made, and his renunciation shall be recorded in
the court.
Sec. 2166. Any alien of the age of 21 years and upwards, who has
enlisted, or may enlist, in the armies of the United States, either the
regular or volunteer forces, and has been, or may be hereafter, honour-
ably discharged, shall be admitted to become a citizen of the United
States, upon his petition, without any previous declaration of his
intention to become such ; and he shall not be required to prove more
than one year's residence within the United States previous to his
application to become such citizen ; and the court admitting such ahen
shall, in addition to such proof of residence and good moral character,
as now provided by law, be satisfied by competent proof of such person's
having been honourably discharged from the service of the United
States.
Sec. 2167. Any alien being under the age of 21 years, who has
resided in the United States three years next preceding his arrival at
that age, and who has continued to reside therein to the time he may
make application to be admitted a citizen thereof, may after he arrives
at the age of 21 years, and after he has resided five years within the
United States, including the three years of his minority, be admitted
a citizen of the United States without having made the declaration
required in the first condition of sec. 2165, but such alien shall make
the declaration required therein at the time of his admission ; and shall
further declare on oath, and prove to the satisfaction of the court, that,
for two years next preceding, it has been his bond fide intention to
become a citizen of the United States ; and he shall in all respects
comply with the laws in regard to naturalization.
Sec. 21 68. When any alien, who has complied with the first condition
in sec. 2165, dies before he is actually naturalized, the widow and the
children of such alien shall be considered as citizens of the United
States, and shall be entitled to all rights and privileges as such, upon
taking the oaths prescribed by law.
Sec. 2169. The provisions of this title shall apply to aliens of African
nativity, and to persons of African descent.
Sec. 2170. No alien shall be admitted to become a citizen who has
not for the continued term of five years next preceding his admission
resided within the United States.
Sec. 2171. No alien who is a native citizen or subject, or a denizen
of any country. State, or sovereignty with which the United States are
at war, at the time of his application, shall be then admitted to become
a citizen of the United States.
Sec. 2172. The children of persons who have been duly naturalized
under any law of the United States, or who, previous to ihte passing of
any law on that subject by the government of the United States, may
have become citizens of any one of the States, under the laws thereof,
being under the age of 21 years at the time of the naturalization of
their parents, shall, if dwelling in the United States, be considered as
citizens thereof, and the children of persons who now are or have been
citizens of the United States, shall, though bom out of the limits and
jurisdiction of the United States, be considered as citizens thereof (c).
By sec. 2174, foreign seamen who have served for three yean oa
board a United States merchant vessel, may be naturalized.
(c) Campbell v. Oifrdon, 6 Oraaoh, 176,
EXTRADITION. 745
APPENDIX B.
ENGLISH AND AMEEICAN EXTEADITION ACTS.
I. ENGLISH ACTS.-— 33 & 34 Viot. Chap. 52.
An Act for amending the Law relating to the Extradition of Criminals,
[9th August, 1870.]
Whebeas it is expedient to amend the law relating to the surrender
to foreign States of persons accused or convicted of the commission of
certain crimes within the jurisdiction of such States, and to the trial of
criminals surrendered by foreign States to this country :
Be it enacted by the Queen's most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority
of the same, as follows :
Preliminary,
1. This Act may be cited as ** The Extradition Act, 1870." gtort title.
2. Where an arrangement has been made with any foreign State -vTheroar-
with respect to the surrender to such State of any fugitive criminals, rangementfor
Her Majesty may, by Order in Council, direct that this Act shall apply surrender of
in the case of such foreign State. ^'^!^"' nil
Her Majesty may, by the same or any subsequent order, limit the JJc^^^dl to
operation of the order, and restrict the same to fugitive criminals who apply Act.
are in or suspected of being in the part of Her Majesty's dominions
specified in the order, and render the operation thereof subject to such
conditions, exceptions, and qualifications as may be deemed expedient.
Every such order shall recite or embody the terms of the arrange-
ment, and shall not remain in force for any longer period than the
arrangement.
Every such order shall be laid before both Houses of Parliament
within six weeks after it is made, or, if Parliament be not then sitting,
within six weeks after the then next meeting of Parliament, and shidl
also be published in the London Gazette.
3. The following restrictions shall be observed with respect to the Restriotions
surrender of fugitive criminals : on surrender
(1.) A fugitive criminal shall not be surrendered if the offence in of criminals,
respect of which his surrender is demanded is one of a political
character, or if he prove to the satisfaction of the police
magistrate or the court before whom he is brought on habeas
corpus, or to the Secretary of State, that the requisition for
his surrender has in fact been made with a view to try or
punish him for an offence of a political character :
(2.) A fugitive criminal shall not be surrendered to a foreign State
unless provision is made by the law of that Sti^te, or by
arrangement, that the fugitive criminal shall not, until he has
been restored or had an opportunity of returning to Her
Majesty's dominions, be detained or tried in that foreign
746
APPENDIX.
PkOTirioDB of
smuig'eineiit
for surrezLcUar.
Pablication
and effect of
order.
Liability of
criminal to
surrender.
Order of
Secretary of
State for issue
of warrant in
United King-
dom if crime
is not of a
political
character.
Issue of war-
rant by police
magistrate,
justice, &c.
State for any o£Pence committed prior to his surrender other
than the extradition crime proved by the facts on which the
surrender is grounded :
(3.) A fugitive criminal who has been accused of some offence within
English jurisdiction not being the offence for which his
surrender is asked, or is undergoing sentence under anj
conviction in the United Kingdom, shall not be surrendered
until after he has been discharged, whether by acquittal or oa
expiration of his sentence or otherwise :
(4.) A fugitive criminal shall not be surrendered until the expiration
of fifteen days from the date of his being committed to piison
to await his surrender.
4. An Order in Council for applying this Act in the case of any
foreign State shall not be made unless the arrangement —
(1.) provides for the determination of it by either party to it after
the expiration of a notice not exceeding one year ; and
(2.) is in conformity with the provisions of this Act, and in particular
with the restrictions on the surrender of fugitive criminals
contained in this Act.
5. When an order applying this Act in the case of any foreign State
has been published in the Lotuhn Gazette, this Act (after tiie date
specified in the order, or if no date is specified, after the date of the
publication,) shall, so long as the order remains in force, but subject
to the limitations, restrictions, conditions, exceptions, and qualifications^
if any, contained in the order, apply in the case of such foreign State.
An Order in Council shall be conclusive evidence that the arrangement
therein referred to complies with the requisitions of this Act, and that
this Act applies in the case of the foreign State mentioned in the order,
and the validity of such order shall not be questioned in any legal
proceedings whatever.
6. Where this Act applies in the case of any foreign State, eveij
fugitive criminal of that State who is in or suspected of being in any
part of Her Majesty's dominions, or that part which is specified in the
order applying this Act (as the case may be), shall be liable to be
apprehended and surrendered in manner provided by this Act, whether
the crime in respect of which the surrender is sought was committed
before or after the date of the order, and whether there is or is not
any concurrent jurisdiction in any Court of Her Majesty's dominions
over that crime (d).
7. A requisition for the surrender of a fugitive criminal of any
foreign State, who is in or suspected of being in the United Kingdom,
shall be made to a Secretary of State by some person recognised by the
Secretary of State as a diplomatic representative of that foreign State.
A Secretary of State may, by order under his hand and seal, signify to
a police magistrate that such requisition has been made, and require
him to issue his warrant for the apprehension of the fugitive criminal.
If the Secretary of State is of opinion that the offence is one of a
political character, he may, if he think fit, refuse to send any such
order, and may also at any time order a fugitive criminal accused or
convicted of such offence to be discharged from custody.
8. A warrant for the apprehension of a fugitive criminal, whether
accused or convicted of crime, who is in or suspected of being in the
United Kingdom, may be issued —
(1.) by a police magistrate on the receipt of the said order of the
Secretary of State, and on such evidence as would in his
(d) See sect. 2 of the next Act.
EXTRADITION. 747
opinion justify the issue of the warrant if the crime had been
committed or the criminal convicted in England ; and
(2.) by a police magistrate or any justice of the peace in any part of
the United Kingdom, on such information or complaint and
such evidence or after such proceedings as would in the
opinion of the person issuing the warrant justify the issue of
a warrant if the crime had been committed or the criminal
convicted in that part of the United Kingdom in which he
exercises jurisdiction.
Any person issuing a warrant under this section without an order from
a Secretary of State shall forthwith send a report of the fact of such
iJBSue, together with the evidence and information or complaint, or
certified copies thereof, to a Secretary of State, who may if he think fit
order the warrant to be ccmcelled, and the person who has been appre-
hended on the warrant to be discharged.
A fugitive criminal, when apprehended on a warrant issued without
the order of a Secretary of State, shall be brought before some person
having power to issue a warrant imder this section, who shall by
warrant order him to be brought and the prisoner shall accordingly be
brought before a police magistrate.
A fugitive criminal apprehended on a warrant issued without the
order of a Secretary of State shall be discharged by the police
magistrate, unless the police magistrate, within such reasonable time
as, with reference to the circumstances of the case, he may ^x, receives
from a Secretary of State an order signifying that a requisition has
been made for the surrender of such criminal.
9. When a fugitive criminal is brought before the police magistrate, Hearing of
the police magistrate shall hear the case in the same manner, and have <»8© and evi-
the same jurisdiction and powers, as near as may be, as if the prisoner 5^®v^ ^^h'
were brought before him charged with an indictable ofPence committed ^j crime^^
in England.
The police magistrate shall receive any evidence which may be
tendered to show that the crime of which the prisoner is accused or
alleged to have been convicted is an offence of a political character or
is not an extradition crime.
10. In the case of a fugitive criminal accused of an extradition Committal or
crime, if the foreign warrant authorizing the arrest of such criminal is discharge of
duly authenticated, and such evidence is produced as (subject to the prisoner,
provisions of this Act) would, according to the law of England, justify
the committal for trial of the prisoner if the crime of which he is
accused had been committed in England, the police magistrate shall
commit him to prison, but otherwise shall order him to be discharged.
In the case of a fugitive criminal alleged to have been convicted of
an extradition crime, if such evidence is produced as (subject to the
provisions of this Act) would, according to the law of England, prove
that the prisoner was convicted of such crime, the police magistrate
shall commit him to prison, but otherwise shall order him to be
discharged.
If he commits sueh criminal to prison, he shall commit him to the
Middlesex House of Detention, or to some other prison in Middlesex,
there to await the warrant of a Secretary of State for his surrender,
and shall forthwith send to a Secretary of State a certificate of the
committal, and such report upon the case as he may think fit.
1 1. If the police magistrate commits a fugitive criminal to prison, he Sarrender of
shall inform such criminal that he will not be surrendered until after Jngitive to
the expiration of fifteen days, and that he has a right to apply for a t^^J^^t of
writ of habeas corpus. ^oretary of
Upon the expiration of the said fifteen days, or, if a writ of habeas State.
748
APPENDIX.
Bisohargfe of
persona ap-
prehoDded if
not conveyed
out of United
Kingdom
"within two
months.
Execution of
warrant of
police magis-
trate.
Depositions to
be evidenoe.
6 & 7 Vict.
0.76.
Authentica-
tion of depo-
sitioDs and
warrants.
29 & 30 Vict.
c. 121.
corpus is issued, after the decision of the Court upon the return to the
writ, as the case may be, or after such further period as may be allowed
in either case by a Secretary of State, it shall be lawful for a Secretaiy
of State, by warrant imder his hand and seal, to order the fugitive
criminal (if not delivered on the decision of the Court) to be sur-
rendered to such person as may in his opinion be duly authorized to
receive the fugitive criminal by the foreign State from which the
requisition for the surrender proceeded, and such fugitive criminal
shall be surrendered accordingly.
It shall be lawful for any person to whom such warrant is directed
and for the person so authorized as aforesaid to receive, hold in custody,
and convey within the jurisdiction of such foreign State the criminal
mentioned in the warrant; and if the criminal escapes out of any
custody to which he may be delivered on or in pursuance of such,
warrant, it shall be lawful to retake him in the same manner as any
person accused of any crime against the laws of that part of Her
Majesty's dominions to which he escapes may be retaken upon an
escape.
1 2. If the fugitive criminal who has been committed to prison is not
surrendered and conveyed out of the United Kingdom within two
months after such committal, or, if a writ of habeas corpus is issued,
after the decision of the Court upon the return to the writ, it shall be
lawful for any judge of one of Her Majesty's Superior Courts at
Westminster, upon application made to him by or on behalf of the
criminal, and upon proof that reasonable notice 6t the intention to
make such application has been given to a Secretary of State, to order
the criminal to be discharged out of custody, unless sufficient cause is
shown to the contrary.
13. The warrant of the police magistrate issued in pursuance of this
Act may be executed in any part of the United Kingdom in the same
manner as if the same had been originally issued or subsequently
indorsed by a justice of the peace having jurisdiction in the place
where the same is executed.
14. Depositions or statements on oath, taken in a foreign Stat-e,
and copies of such original depositions or statements, and foreign
certificates of or judicial documents stating the fact of conviction, may,
if duly authenticated, be received in evidence in proceedings under this
Act.
15. Foreign warrants and depositions or statements on oaih, and
copies thereof, and certificates of or judicisd documents stating the fact
of a conviction, shall be deen^ed duly authenticated for the purposes
of this Act if authenticated in manner provided for the time being by
law or authenticated as follows :
(1.) If the warrant purports to be signed by a judge, magistrate, or
officer of the foreign State where the same was issued ;
(2.) If the depositions or statements or the copies thereof purport to
be certified under the hand of a judge, magistrate, or officer
of the foreign State where the same were taken to be the
original depositions or statements, or to be true copies thereof,
as the case may require ; and
(3.) If the certificate of or judicial document stating the fact of
conviction purports to be certified by a judge, magistrate, or
officer of the foreign State where the conviction took place ;
and
if in every case the warrants, depositions, statements, copies, certificates,
and judicial documents (as the case may be) are authenticated by the
oath of some witness or by being sealed with the official seal of the
minister of justice, or some other minister of State : And all Courts of
oJB&oial seal, and shall admit the documents so authenticated by it to be
received in evidence without further proof.
Crimes committed at Sea,
16. Where the crime in respect of which the surrender of a fugitive Jurisdiction
criminal is sought was committed on board any vessel on the high seas as to crimes
which comes into any port of the United Kingdom, the following cmnmitted at
provisions shall have effect :
(1.) This Act shall be construed as if any stipendiary magistrate in
England or Ireland, and any sheriff or sheriff substitute in
Scotland, were substituted for the police magistrate throughout
this Act, except the part relating to the execution of the
warrant of the police magistrate :
(2.) The criminal may be committed to any prison to which the
person committing him has power to commit persons accused
of the like crime :
(3.) If the fugitive criminal is apprehended on a warrant issued
without the order of a Secretary of State, he shall be brought
before the stipendiary magistrate, sheriff, or sheriff substitute
who issued the warrant, or who has jurisdiction in the port
where the vessel lies, or in the place nearest to that port.
Fugitive Criminals in British Possessions.
17. This Act, when applied by Order in Council, shall, unless it is Proceedings
otherwise provided by such order, extend to every British possession in as.to.fu^ti^o
the same manner as if throughout this Act the British possession were bJI^^ ^
substituted for the United Kingdom or England, as the case may require, possessions,
but with the following modifications ; namely,
(1.) The requisition for the surrender of a fugitive criminal who is
in or suspected of being in a British possession may be made
to the governor of that British possession by any person
recognized by that governor, as a consul general, consul, or
vice-consul, or (if the fugitive criminal has escaped from a
colony or dependency of the foreign State on behalf of which
the requisition is made) as the governor of such colony or
dependency :
(2.) No warrant of a Secretary of State shall be required, and all
powers vested in or acts authorized or required to be done
under this Act by the police magistrate and the Secretary of
State, or either of them, in relation to the surrender of a
fugitive criminal, may be done by the governor of the British
possession alone :
(3.) Any prison in the British possession may be substituted for f
prison in Middlesex :
(4.) A ludge of any court exercising in the British possession t'
like powers as the Court of Queen's Bench exercises
England may exercise the power of discharging a crim'
when not conveyed within two months out of such Br
possession.
18. If by any law or ordinance, made before or after the pasp
this Act by the Legislature of any British possession, provision 7
for carrying into effect within such possession the surrender of
criminals who are in or suspected of being in such British po
Her Majesty may, by the Order in Council applying this Act i^
of any foreign State, or by any subsequent Order, either
suspend the operation within any such British possession
or of any part thereof, so far as it relates to such f o
760
APPENDIX.
and 80 long aa sucli law or oTdinanoe oontmues in force, there, and
no longer ;
or direct that such law or ordinance, or any part thereof, shall have
effect in such British possession, with or without modifications sjid
alterations, as if it were part of this Act.
Criminal sur-
rendered by
foreign State
not triable for
previoiu
crime.
As to nse of
forms in
second
schedule.
Berocation,
&o., of Order
in Council.
Application of
Act in Chan-
nel Islands
and Isle of
Man.
Saying for
Indian
treaties.
Power of
foreign State
to obtain evi-
dence in
United King-
dom.
Foreign State
indudes
dependencies.
Definition of
terms.
''British pos-
session : "
Oeneral Provisiotu.
19. "Where, in pursuance of any arrangement with a foreign State,
any person accused or convicted of any crime which, if committed in
England, would be one of the crimes described in the first schedule to
this Act is surrendered by that foreign State, such person shall not,
until he has been restored or had an opportunity of returning to such
foreign State, be triable or tried for any offence committed prior to the
surrender in any part of Her Majesty's dominions other than such of
the said crimes as may be proved by the facts on which the surrender
is grounded.
20. The forms set forth in the second schedule to this Act, or forma
as near thereto as circumstances admit, may be used in all matters to
which such forms refer, and in the case of a British possession may be
so used, mutatis mutandis, and when used shall be deemed to be valid
and sutBcient in law.
21. Her Majesty may, by Order in Council, revoke or alter, subject
to the restrictions of this Act, any Order in Ck)uncil made in pursuance
of this Act, and all the provisions of this Act with respect to the original
order shall (so far as applicable) apply, mutatis mutandis, to any such
new order.
22. This Act (except so far as relates to the execution of warrants in
the Channel Islands) shall extend to the Channel Islands and Isle of
Man in the same manner as if they were part of the United Kingdom;
and the royal courts of the Channel Islands are hereby respecdvely
authorized and required to register this Act.
23. Nothing in this Act shall affect the lawful powers of Her Majesty
or of the Governor-General of India in Council to make treaties for the
extradition of criminals with Indian native States, or with other Asiatic
States conterminous with British India, or to carry into execution the
provisions of any such treaties made either before or after the passing
of this Act.
24. The testimony of any witness may be obtained in relation to any
criminal matter pending in any Court or tribunal in a foreign State in
like manner as it may be obtained in relation to any civil matter under
the Act of the session of the nineteenth and twentiedi years of the reign
of Her present Majesty, chapter one hundred and thirteen, intituled
"An Act to provide for taking evidence in Her Majesty's dominions
in relation to civil and commercial matters pending before foreign
tribunals ; " and all the provisions of that Act shall be construed as if
the term civil matter included a criminal matter, and the term cause
included a proceeding against a criminal : Provided that nothing in
this section shall aj^ply in the case of any criminal matter of a political
character.
25. For the purposes of this Act, eveiy colony, dependency, and
constituent part of a foreign State, and every vessel of that State, shall
(except where expressly mentioned as distinct in this Act) be deemed
to be within the jurisdiction of and to be part of such foreign State.
26. In this Act, imless the context otherwise requires, —
The term ''British possession" means any colony, plantation, island,
territory, or settlement within Her Majesty's dominions,
and not within the United Kingdom, the Channel Manda^
ana JLSie oi jman ; ana au colonies, pianiaiiouB, iBiauucs, i.urri-
torieB, and eettlements under one legislature, as hereinafter
defined, are deemed to be one British possession :
The term ** legislature" means any person or persons who can <<Legiflla-
exercise legislative authority in a British possession, and tare : ''
-where there are local legislatures as well as a central legisla-
ture, means the central legislature only :
The term ** governor " means any person or persons administering ** Governor: *'
the government of a British possession, and includes the
governor of any part of India :
The term ** extradition crime" means a crime which, if committed "Extradition
in England or within English jurisdiction, would be one of crime:"
the crimes described in the first schedule to this Act :
The terms ** conviction" and "convicted" do not include or refer "Convic-
to a conviction which under foreign law is a conviction for tion : "
contumacy, but the term ** accused person" includes a person
BO convicted for contumacy :
The term " fugitive criminal " means any person accused or con- "Fugitive
victed of an extradition crime committed within the jurisdic- criminal: "
tion of any foreign State who is in or is suspected of being in
some part of Her Majesty's dominions; and the term "fugitive <«Fujritive
criminal of a foreign State" means a fugitive criminal accused oriminal of
or convicted of an extradition crime committed within the a foreign
j urisdiction of that State : State : ^'
The term "Secretary of State" means one of Her Majesty's «* Secretary of
Principal Secretaries of State : State : "
The term " police magistrate " means a chief magistrate of the « PoUoe
metropolitan police courts, or one of the other magistrates of magistrate : "
the metropolitan police coxirt in Bow Street :
The term "justice of the peace " includes in Scotland any sheriff, "Justice of
sheriff's substitute, or magistrate : peace: '*
The term "warrant," in the case of any foreign State, includes "Warrant
any judicial document authorizing the arrest of a person
accused or convicted of crime.
Repeal of Acts,
27. The Acts specified in the third schedule to this Act are hereby Eepe-
repealed as to the whole of Her Majesty's dominions ; and this Act Acts
(with the exception of anything contained in it which is inconsistent ^^^
with the treaties referred to in the Acts so repealed) shall apply (as
regards crimes committed either before or after the passing of this Act),
in the case of the foreign States with which those treaties are made, in
the same manner as if an Order in Council referring to such treaties
had been made in pursuance of this Act, and as if such order had
directed that every law and ordinance which is in force in any Briti&^
possession with respect to such treaties should have effect as part
this Act.
Provided that if any proceedings for or in relation to the surrer
of a fugitive criminal have been commenced under the said
previondy to the repeal thereof, such proceedings may be comp?
and the fugitive surrendered, in the same manner as if this A
not passed.
752 APPENDIX.
SCHEDULES,
FIEST SCHEDULE.
List of CitncEfl.
The following list of crimes is to be construed according to the law
existing in England, or in a British possession (as the case may be), at
the date of the alleged crime, whether by common law or by statute
made before or after the passing of this Act :
Murder, and attempt and conspiracy to murder.
Manslaughter.
Counterfeiting and altering money and uttering counterfeit or
altered money.
Forgeiy, counterfeiting and altering, and uttering what is forged
or counterfeited or altered.
Embezzlement and larceny.
Obtaining money or goods by false pretences.
Crimes by bankrupts against bankruptcy law.
Fraud by a bailee, banker, affent, factor, trustee, or director, or
member, or public officer of any company made criminal by
any Act for the time being in force.
Bape.
Abduction.
Child stealing.
Burglary and housebreaking.
Arson.
Robbery with violence.
Threats by letter or otherwise with intent to extort.
Piracy by law of nations.
Sinking or destroying a yessel at sea, or attempting or conspiring
to do so.
Assaults on board a ship on the high seas with intent to destroy
life or to do grievous bodily harm.
Bevolt or conspiracy to revolt by two or more persons on board a
ship on the high seas against the authority of the master.
SECX)ND SCHEDULE (*).
THIKD SCHEDULE.
Year and Chapter.
6&7Viot. c. 76 .,
6 & 7 Vict. 0. 76 .
8 & 9 Yiot. 0. 120 .
26 & 26 Vict. 0. 70 .
29 & 30 Vict. c. 121
Title.
An Act for giving effeot to a convention between Her
Majesty and the King of the French for the appre-
hension of certain offenders.
An Aot for giving effeot to a treatr between Her
Majesty and the United States of America for the
apprehension of certain offenders.
An Act for facilitating execution of the treaties with
France and the United States of America for the
apprehension of certain offenders.
An Act for giving effect to a convention between Her
Majesty and the King of Denmark for the mutual
surrender of criminals.
An Act for the amendment of the law relating to txeatieB
of extradition.
{p) Containing Forma of Order and Warrants.
EXTRADITION. 763
86 & 37 Vict. Chap. 60.
An Act to amend the Extradition Act, 1870. [5th August, 1873.]
Be it enacted by the Queen's most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority
of the same, as follows :
1. This Act shall be construed as one with the Extradition Act, 1870, Construction
(in this Act referred to as the principal Act,) and the principal Act and °^ '^f t^?*^
this Act may be cited together as the Extradition Acts, 1870 and 1873, ^^^' ,7 ®'.
and this Act may be cited alone as the Extradition Act, 1873. c 62.
2. Whereas by section six of the principal Act it is enacted as ' * ^
follows: K^eo?
** Where this Act applies in the case of any foreign State, every 33 & 34 Vict.
fugitive criminal of that State who is in or suspected of being in any c 52.
part of Her Majesty's dominions, or that part which is specified in the
order applying this Act (as the case may be), shall be liable to be
apprehended and surrendered in manner provided by this Act, whether
the crime in respect of which the surrender is sought was committed
before or after the date of the order, and whether there is or is not any
concurrent jurisdiction in any Court of Her Majesty's dominions over
that crime.''
And whereas doubts have arisen as to the application of the said
section to crimes committed before the passing of the principal Act, and
it is expedient to remove such doubts, it is therefore hereby declared
that—
A crime committed before the date of the order includes in the said
section a crime committed before the passing of the principal Act,
and the principal Act and this Act shall be construed accordingly.
3. Whereas a person who is accessory before or after the fact, or Liability of
counsels, procures, commands, aids, or abets the commission of any accessories to
indictable ofPence, is by English law liable to be tried and punished as ^ ^^'Iv,
if he were the principal offender, but doubts have arisen whether such ^^ ® '
person as well as the principal offender can be surrendered under the
principal Act, and it is expedient to remove such doubts; it is therefore
hereby declared that —
Every person who is accused or convicted of having counselled,
procured, commanded, aided, or abetted the commission of any
extradition crime, or of being aooeesoiy before or after the fact to
any extradition crime, shall be deemed for the purposes of the
principal Act and this Act to be accused or convicted of having
committed such crime, and shall be liable to be apprehended
and surrendered accordingly.
4. Be it declared, that the provisions of the principal Act relating to Explanation
depositions and statements on oath taken in a foreign State, and copies of sect. 14 of
of such original depositions and statements, do and shall extend to ^^ * ^^ ^^^'
affirmations taken in a foreign State, and copies of such affirmations, gtatonaits on
5. A Secretary of State may, by order under his hand and seal, oathinolad-
require a police magistrate or a justice of the peace to take evidence ing affirma-
for the purposes of any criminal matter pending in any court or tribunal tions.
in any foreign State; and the police magistrate or justice of the peace, Power of
upon the receipt of such order, shall take the evidence of eyeTj witness ^^S .
appearing before him for the purpose in like manner as if such witness uii^Khig-
appeared on a charge against some defendant for an indictable offence, dom for
and shall certify at the foot of the depositions so taken that such evi- foreign
dence was taken before him, and shall transmit the same to the Secre- criminal mat-
w. 3 c
754 APPENDIX.
tary of State ; such evidence may be taken in the presence or absence
of the person charged, if any, and the fact of such presence or absence
shall be stated in such deposition.
Any person may, after payment or tender to him of a reasonable
sum for his costs and expenses in this behalf, be oompelled, for the
purposes of this section, to attend and give evidence and answer
questions and produce documents, in like manner and subject to the
like conditions as he may in the case of a charge preferred for an
indictable offence.
Every person who wilfully gives false evidence before a pohce
ma^strate or justice of the peace under this section shall be guilty of
penury.
Provided that nothing in this section shall apply in the case of any
criminal matter of a political character.
Explanation ^' The jurisdiction conferred by section sixteen of the principal Act
of aeot. 16 on a stipendiary magistrate, and a sheriff or sheriff substitute, shall be
^ 33 & 34 deemed to be in addition to, and not in derogation or exclusion of, the
Viot. 0. 62. jurisdiction of the police magistrate.
Explanation 7. For the purposes of the principal Act and this Act a diplomatic
of diplomatio representative of a foreign State shall be deemed to include any person
representative recognised by the Secretary of State as a consul-general of that State,
andoonaul. ^j^^ j^ consul or vice-consul shall be deemed to include any person
recognised by the governor of a British possession as a consular o£Bcer
of a foreign State.
Addition to 8. The principal Act shall be construed as if there were included
Hat of crimes in the first schedule to that Act the list of crimes contained in the
in schedule, schedule to this Act.
SCHEDULE.— List of Okimes.
The following list of crimes is to be construed according to the law
existing in England or in a British possession (as the case may be) at
the date of the alleged crime, whether by common law or by statute
made before or after the passing of this Act :
Kidnapping and false imprisonment.
Perjury, and subordination of perjury, whether under common or
statute law.
24 & 25 Viot. ^y indictable offence under the Larceny Act, 1861, or any Act
c. 96, &o, amending or substituted for the same, which is not included in the
first schedule to the principal Act.
Any indictable offence under the Act of the session of the twentj-
fourth and twenty-fifth years of the reign of Her present Majesty,
chapter ninety*seven, '* To consolidate and amend the statute law of
England and Ireland relating to malicious injuries to property," or any
Act amending or substituted for the same, which is not included in the
first schedule to the principal Act.
Any indictable offence under the Act of the session of the twentj-
fourth and twenty-fifth years of the reign of her present Majesty,
chapter ninety-eight, '* To consolidate and amend the statute law of
England and Ireland, relating to indictable offences by forgery," or
any Act amending or substituted for the same, which is not included
in the first schedide to the principal Act.
Any indictable offence under the Act of the session of the twenty-
fourth and twenty-fifth years of the reign of her present Majesty,
chapter ninety-nine, *' To consolidate and amend the statute law of the
United Kingdom against offences relating to the coin," or any Act
EXTBADmON. 755
amending or substituted for tho same, which is not included in the .
first schedule to the principal Act.
Any indictable offence under the Act of the session of the twenty-
fourth and twenty- fifth years of the reign of her present Majesty,
chapter one hundred, *^ To consolidate and amend the statute law of
England and Ireland relating to offences against the person," or any
Act amending or substituted for the same, which is not included in the
first schedule to the principal Act.
Any indictable offence under the laws for the time being in force in
relation to bankruptcy which is not included in the first schedule to
the principal Act.
Existing English Extradition Treaties,
Extradition treaties are now in force between Gbeat Britain and the
Argentine (1889); Austria-Hungary (1873); Belgium (1901); Bolivia
(1892); Brazil(1872); Chile (1897); China (1894); Columbia (1888);
Denmark (1873); Ecuador (1880); France (1843-52-76-89-96); Ger-
many (1872); German Dependencies (1894); Guatemala (1 895) ; Hayti
(1874); Italy (1873); Liberia (1892) ; Luxembourg (1880) ; Mexico
(1886); Monaco (1891); Netherlands (1898) ; Portugal (1892); Rou-
mania (1893); Russia (1886) ; Salvador (1881) ; San Marina (1899) ;
Servia (1900); Siam(1886); Spain (1878 and 1889); Sweden and
Norway (1873); Switzerland (1880) ; Tonga (1879); United States
(1794_1842-89— 1900); Uruguay (1884— 1891). The text of these
will be found in the Appendix to the 5th edition of Clarke's Law of
Extradition (/).
n.-.AMERIOAN ACT.
Revised Statutes, Title LXVI., Extradition.
Sec. 5270. Whenever there is a treaty or convention for extra- FugitiveB
dition between the government of the United States and any foreign fP™ J**® J^"
government, any justice of the Supreme Court, circuit judge, district foreign*
judge, commissioner authorized to do so by any of the Courts of the country.
United States, or judge of a court of record of general jurisdiction of 12th Aug.
any State, may, upon complaint made under oath charging any person 1848, c. 167,
found within the limits of any State, district, or territory, with having *• h ▼• 9|
committed within the jurisdiction of any such foreign government any P* '
of the crimes provided for by such treaty or convention, issue his
warrant for the apprehension of the person so charged, that he may be
brought before such justice, judge, or commissioner, to the end that
the evidence of criminality may be heard and considered. If, on such
hearing, he deems the evidence sufficient to sustain the charge under
the provisions of the proper treaty or convention, he shall certify the
same, together with a copy of all the testimony taken before him, to
the Secretary of State, that a warrant may issue upon the requisition
of the proper authorities of such foreign government, for the sur-
render of such person, according to the stipulations of the treaty or
convention ; and he shall issue his warrant for the commitment of the
person so charged to the proper jail, there to remain until such sur-
render shall be made (y).
(/) The operation of the Extradition And see Clarke, 6th ed. p. 125, and
Acta 18 suspended in Canada during the App. p. Izi.
subsistence of the Fugitive Criminals (g) InreKaine^ 11 Howard, 103; Ex
(Canada) Act, 1886. Order in Council, parte Von Aernam, 3 Blatchford, 160 ;
17th Nov. 1888, L. G. 1888, p. 6411. Inre Heiftrich, 6 ibid. 414; Case of J. F,
3c2
766
Eridenoe on
the heariDg.
12th Aagr.
1848, c. 167,
B. 2, T. 9,
p. 3U2.
22nd June,
1860, 0. 184,
V. 12, p. 84.
Soriender of
thefogitiTe.
12th Aug.
1848, c. 167,
B. 3, y. 9,
p. 302.
Time allowed
for extradi-
tion.
V. 9, p. 303.
Continuance
of proTisions
limited.
/». 3rd March,
1869, c. 141,
8. 1, V, 16,
p. 337.
APPENDIX.
Seo. 5271. In erery case of complaint, and of a hearing upon the
return of the warrant of arrest, copies of the depositions, upon i^hich
an original warrant in any foreign country may have heen g^nted,
certified under the hand of the person issuing such warrant, and attested
upon the oath of the party producing them to be true copies of the
original depositions, may be received in evidence of the criminality of
the person so apprehended, if they are authenticated in such manner
as would entitle them to be received for similar purposes by the
tribunals of the foreign country from which the accused party escaped.
The certificate of the principal diplomatic officer or consular officer of
the United States resiaent in such foreign country shall be proof that
any paper or other document so offered is authenticated in the manner
required by this section (A).
Sec. 5272. It shall be lawful for the Secretary of State, under his
hand and seal of office, to order the person so committed to be deliTored
to such person as shall be authorized, in the name and on behalf of
such foreign government, to be tried for the crime of which such person
shall be so accused, and such person shall be delivered up accordingly;
and it shall be lawful for the person so authorized to hold such person
in custody and to take him to the territory of such foreign government^
pursuant to such treaty. If the person so accused shall escape out of
any custody to which he shall be committed, or to which he shall be
deHvered, it shall be lawful to retake such person in the same manner
as any person accused of any crime against the laws in force in that
part of the United States to which he shall so escape, may be retakea
on an escape (i).
Sec. 5273. Whenever any person who is committed under this title,
or any treaty, to remain until delivered up in pursuance of a requisition,
is to be delivered up and conveyed out of the United States within two
calendar months alter such commitment, over and above the time
actually required to convey the prisoner from the jail to which he was
committed, by the readiest way, out of the United States, it shall be
lawful for any judge of the United States, or of any State, upon
application made to him by or on behalf of the person so committed,
and upon proof made to him that reasonable notice of the intention to
make such application has been given to the Secretary of State, to order
the person so committed to be discharged out of custody, unless
sufficient cause is shown to such judge why such discharge ought not
to be ordered.
Sec. 5274. The provisions of this title relating to the surrender of
persons who have committed crimes in foreign countries, shall continue
in force during the existence of any treaty of extradition with any
foreign government, and no longer.
The other sections of this title (Sees. 5275 to 5280) relate to the
mode in which a person demanded by the United States from a foreign
country is to be protected and guarded, to fugitives from one State of
the Union to another, and to the arrest of seamen deserting from ships
in ports of the United States.
Existing American Extradition Treaties.
The United States have extradition treaties with the Argentine
(1896); Austria-Hungary (1856); Belgium (1901-2) ; Bolivia (1900);
Dos Santot, 2 Brock, 493 ; T. 5. v. Davis,
2 Sumner, 92 ; The BritUh Prisoners, 1
Wood & M. 66.
(h) In re Kains, 14 Howard, 103 ; In
re ffeinrichf 5 Blatchford, 414; In re
Francois Farez, 7 ihid. 345.
(i) In re Kaine, 14 Howard, 103.
i5razu ^i»y/-»;; uniie (^lyuu;; vjoiumoia ^i»»o;; uenmarK ^^lyu:^;
Ecuador (1892); France (1843-45-68) ; Great Britain (1842-89—1900)
Hayti (1864); Italy (1868-9); Japan (1886); Luxembourg (1883)
Mexico (1899—1902); Netherlands (1887); Nicaragua (1870) ; Norway
(1893); Ottoman Empire ( 1 874) ; Peru ( 1 899) ; Prussia and other States
of North German Confederation (1868); Eussia (1887); Salvador
(1870) ; Servia (1901) ; Sweden (1893) ; Switzerland (1900). See Clarke
on Extradition, Appendix, p. ococxcii.
APPENDIX C.
ENGLISH AND AMEEICAN FOREIGN ENLISTMENT ACTS.
I.— ENGLISH ACT.— 33 & 34 Vict. Chap. 90.
An Act to regulate the conduct of Her Majesty* a Subjects during the
existence of hostilities between foreign States with which Her Majesty
is at peace. [9M August, 1870. J
Whereas it is expedient to make provision for the regulation of the
conduct of Her Majesty* s subjects during the existence of hostilities
between foreign States with which Her Majesty is at peace :
Be it enacted by the Queen's most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority
of the same, as follows :
Preliminary.
1. This Act may be cited for all purposes as " The Foreign Enlist- Sho
ment Act, 1870." Aof
2. This Act shall extend to all the dominions of Her Majesty, a
including the adjacent territorial waters. o'
3. This Act shall come into operation in the United Kingdom im- ,
mediately on the passing thereof, and shall be proclaimed in every
British possession oy the governor thereof as soon as may be after he
receives notice of this Act, and shall come into operation in that Britis^
possession on the day of such proclamation, and the time at which th
Act comes into operation in any place is, as respects such place, in t]
Act referred to as the commencement of this Act.
Illegal Enlistment.
4. If any person, without the license of Her Majesty, being a T
subject, within or without Her Majesty's dominions, accepts or
to accept any commission or engagement in the military or nava)
of any foreign State at war with any foreign State at peace v
Majesty, and in this Act referred to as a friendly State, or v
British subject or not within Her Majesty's dominions, inr
other person to accept or agree to accept any commission or g\
in the military or naval service of any such foreign State as r
He shall be guilty of an offence against this Act, a
punishable by fine and imprisonment, or either of
768
iPPENDIX.
Penalty on
embarking
to service.
ments, at the discretion of the Court before which the offender is
convicted ; and imprisonment, if awarded, may be either with or
without hard labour.
Penaltjon 5. If any person, without the license of Her Majesty, being a
leaving Her British subject, quits or goes on board any ship with a view of quitting
dominionB ^®^ Majesty's dominions, with intent to accept any commission or
with intent to engagement in the military or naval service of any foreign State at war
serve a foreign with a friendly State, or, whether a British subject or not, within Her
State. Majesty's dominions, induces any other person to quit or to go on board
any ship with a view of quitting Her Majesty's dominions with the
like intent, —
He shall be guilty of an ojffence against this Act, and shall be
punishable by fine and imprisonment, or either of such punish-
ments, at the discretion of the Court before which the offender is
convicted ; and imprisonment, if awarded, may be either with or
without hard labour.
6. If any person induces any other person to quit Her Majesty's
dominions or to embark on any ship within Her Majesty's dominions
^If^repre- ' ^^<^®r a misrepresentation or false representation of the service in which
sentationn aa ^^^^ person is to be engaged, with the intent or in order that such
person may accept or agree to accept any commission or engagement in
the militaiy or naval service of any foreign State at war with a friendly
State,—
He shall be guilty of an offence against this Act, and shall be
punishable by fine and imprisonment, or either of such punish-
ments, at the discretion of the Court before which the offender is
convicted ; and imprisonment, if awarded, may be either with or
without hard labour.
7. If the master or owner of any ship, without the license of Her
Majesty, knowingly either takes on board, or engages to take on board,
or has on board such ship within Her Majesty's dominions any of the
following persons, in this Act referred to as illegally enlisted persons;
that is to say,
(1.) Any person who, being a British subject within or without
the dominions of Her Majesty, has, without the license oi
Her Majesty, accepted or agreed to accept any commission
or engagement in the military or naval service of anj
foreign State at war with any friendly State :
(2.) Any person, being a British subject, who, without the license
of Her Majesty, is about to quit Her Majesty's dominions
with intent to accept any commission or engagement in the
military or naval service of any foreign State at war with a
friendly State :
(3.) Any person who has been induced to embark under a misrepre-
sentation or false representation of the service in which such
person is to be engaged, with the intent or in order that such
person may accept or agree to accept any commission or
engagement in the military or naval service of any foreign
State at war with a friendly State :
such master or owner shall be guilty of an offence against this Act,
and the following consequences shall ensue ; that is to say,
(1.) The offender shall be punishable by fine and imprisonment,
or either of such punishments, at the discretion of the
Court before which the offender is convicted; and impri-
sonment, if awarded, may be either with or without hard
labour: and
(2.) Such ship shall be detained until the trial and conviction or
acquittal of the master or owner, and until all
Penalty on
taking
illegraJlv
enlisted
persons on
iXMirdBhip.
FOREIGN ENLISTMENT. 769
inflicted on the master or owner have been paid, or the
master or owner has given security for the payment of such
penalties to the satisfaction of two justices of the peace, or
other magistrate or magistrates having the authority of two
justices of the peace : and
(3.) All illegally enlisted persons shall immediately on the discovery
of the offence be taken on shore, and shall not be allowed to
return to the ship.
Illegal Shipbuilding and Illegal Expeditions,
8. If any person within Her Majesty's dominions, without the Penalty on
license of Her Majesty, does any of the following acts ; that is to say, illegal ship-
(1.) Builds or agrees to build, or causes to be built any ship with y?*^^"^^-
intent or knowledge, or having reasonable cause to believe ^q^^ expeai-
that the same shall or will be employed in the military or
naval service of any foreign State at war with any friendly
State: or
(2.) Issues or delivers any commission for any ship with intent
or knowledge, or having reasonable cause to believe that
the same shall or will be employed in the military or
naval service of any foreign State at war with any friendly
State: or
(3.) Equips any ship with intent or knowledge, or having reason-
able cause to believe that the same shall or will be employed
in the military or naval service of any foreign State at war
with any friendly State : or
(4.) Despatches, or causes or allows to be despatched, any ship with
intent or knowledge, or having reasonable cause to believe that
the same shall or will be employed in the military or naval
service of any foreign State at war with any friendly State :
such person shall be deemed to have committed an offence against
this Act, and the following consequences shall ensue :
(1.) The offender shall be punishable by fine and imprisonment, or
either of such punishments, at the discretion of the Couit
before which the offender is convicted ; and imprisonment, if
awarded, may be either with or without hard laoour :
(2.) The ship in respect of which any such offence is committed, and
her equipment, shall be forfeited to Her Majesty :
Provided that a person building, causing to be built, or equipping a
ship in any of the cases aforesaid, in pursuance of a contract made
before the commencement of such war as aforesaid, shall not be liable
to any of the penalties imposed by this section in respect of such
building or equipping if he satisfies the conditions following ; that is
to say,
(1.) If forthwith upon a proclamation of neutrality being issued by
Her Majesty he gives notice to the Secretary of State that he
is so building, causing to be built, or equipping such ship,
and furnishes such particulars of the contract and of any
matters relating to, or done, or to be done under the contract
as may be required by the Secretary of State :
(2.) If he gives such security, and takes and permits to be taken
such other measures, if any, as the Secretary of State may
Srescribe for ensuring that such ship shall not be despatched,
elivered, or removed without the license of Her Majesty
until the termination of such war as aforesaid.
9. Where any ship is built by order of or on behalf of any foreign Presumytion
State when at war with a friendly State; or is delivered to or to the as to eyidenoe
760
APPENDIX.
inoa«eof
illegal tthip.
Penalty on
aiding the
warlike
equipment of
foreign ships.
Penalty on
fittiDg out
naval or
military
expeditions
without
license.
Punishment
of accessories.
Limitation of
term of
imprisonment.
Illegal prize
brought into
British ports
restored.
order of each foreign State, or any person who to the knowledge of
the person building is an agent of such foreign State, or is paid fur bj
such foreign State or such agent, and is employed in the military or
naval service of such foreign State, such ship shall, until the contrary
is proved, be deemed to have been built with a view to being so em-
ployed, and the burden shall lie on the builder of such ship of proving
that he did not know that the ship was intended to be so employed in.
the military or naval service of such foreign State.
10. If any person within the dominions of Her Majesty, and with-
out th© license of Her Majesty, —
By adding to the number of the guns, or by changing those on
board for other guns, or by the addition of any equipment for war,
increases or augments, or procures to be increased or augmented, or is
knowingly concerned in increasing or augmenting the warlike force of
any ship which at the time of her being within the dominions of Her
Majesty was a ship in the military or naval service of any foreign
State at war with any friendly State, —
Such person shall be guilty of an offence against this Act, and shall
be punishable by fine and imprisonment, or either of such punish-
ments, at the discretion of the Court before which the offender is
convicted ; and imprisonment, if awarded, may be either with or
without hard labour.
1 1 . If any person within the limits of Her Majesty's dominions, and
without the license of Her Majesty, —
Prepares or fits out any naval or military expedition to proceed
against the dominions of any friendly State, the f oUowing consequences
shall ensue :
(1.) Every person engaged in such preparation or fitting out, or
assisting therein, or employed m any capacity in such expe-
dition, shall be guilty of an offence against this Act, and
shall be punishable by fine and imprisonment, or either of
such punishments, at the discretion of the Court before which
the offender is convicted; and imprisonment, if awarded, may
be either with or without hard labour.
(2.) All ships, and their equipments, and all arms and munitions of
war, used in or forming part of such expedition, shall be
forfeited to Her Majesty.
12. Any person who aids, abets, counsels, or procures the commis-
sion of any offence against this Act, shall be liable to be tried and
punished as a principal offender.
13. The term of imprisonment to be awarded in respect of any
offence against this Act shall not exceed two years.
Illegal Prize,
14. If, during the continuance of any war in which Her Majesty
may be neutral, any ship, goods, or merchandize captured as prize of
war within the territorial jurisdiction of Her Majesty, in violation of
the neutrality of this realm, or captured by any ship which may have
been built, equipped, commissioned, or despatched, or the force of
which may have been augmented, contrary to the provisions of this
Act, are brought within the limits of Her Majesty's dominions by the
captor, or any agent of the captor, or by any person having come into
possession thereof with knowledge that the same was prize of war so
captured as aforesaid, it shall be lawful for the original owner of such
prize, or his agent, or for any person authorized in that behalf by the
Government of the foreign State to which such owner belongs, to
make application to the Couit of Admiralty for seizure and detention
ot Bucn prize, ana tae uoun snau, on aue prooi oi xne lacis, oraer
such prize to be restored.
Every such order shall be executed and carried into effect in the
same manner, and subject to the same right of appeal, as in case of any
order made in the exercise of the ordinary jurisdiction of such Court;
and in the meantime and until a final order has been made on such
application the Court shall have power to make all such provisional
and other orders as to the care or custody of such captured ship, goods,
or merchandize, and (if the same be of perishable nature, or incurring
risk of deterioration) for the sale thereof, and with respect to the
deposit or investment of the proceeds of any such sale, as may be made
by such Court in the exercise of its ordinary jurisdiction.
General Provision,
15. For the purposes of this Act, a license by Her Majesty shall be License by
under the sign manual of Her Majesty, or be signified by Order in ^^ Majeshr,
Council or by proclamation of Her Majesty. ^^ ^^^'^^
Legal Procedure,
16. Any offence against this Act shall, for all purposes of and Jnrisdiotion
incidental to the trial and punishment of any person guilty of any such in respect of
offence, be deemed to have been committed either in the place in which ^ffenow by
the offence was wholly or partly committed, or in any place within SSdMtAot,
Her Majesty's dominions in which the person who committed such
offence may be.
17. Any offence against this Act may be described in any indict- Venae in
ment or other document relating to such offence, in cases where the reBpect of
mode of trial requires such a description, as having been committed at off^^^oee by
the place where it was wholly or partly committed, or it may be 5?^«t"^.
averred generally to have been committed within Her Majesty's 2*&2dVio
dominions, and the venue or local description in the margim may be
that of the oounty, city, or place in which the trial is held.
18. The following authorities, that is to say, in the United Kingdom Power to
any judge of a Superior Court, in any other place within the jurisdic- remove
tion of any British court of justice, such Court, or, if there are more ^2^
Courts than one. the Court having the highest criminal j urisdiction in
that place, may, by warrant or instrument in the nature of a warrant
in this section included in the term *' warrant," direct that any
offender charged with an offence against this Act shall be removed to
some other place in Her Majesty's dominions for trial in cases where
it appears to the authority granting the warrant that the removal
of such offender would be conducive to the interests of justice, and
any prisoner so removed shall be triable at the place to which he is
removed, in the same manner as if his offence had been committed a
such place.
Any warrant for the purposes of this section may be addressed
the master of any ship or to any other person or persons, and
person or persons to whom such warrant is addressed shall )
power to convey the prisoner therein named to any place or p
named in such warrant, and to deliver him, when arrived at
place or places, into the custody of any authority designated I
warrant.
Every prisoner shall, during the time of his removal under r
warrant as aforesaid, be deemed to be in the legal custody of t'
or persons empowered to remove him.
19. All proceedings for the condemnation and forfeiture
pr ship and equipment, or arms and munitions of war, in j
762
APPENDIX.
ships for
offencefi
against Act.
Regulations
as to proceed
ings against
the offender
and against
the ship.
Officers
authorized to
seize offend-
ing ships.
Powers of
officers
authorized to
seize ships.
Special
power of
Secretary of
State or chief
this Act shall require the sanction of the Secretary of 8tate or such
chief executive authority as is in this Act mentioned, and shall be had
in the Court of Admiralty, and not in any other Court ; and the Court
of Admiralty shall, in addition to any power given to the Court
by this Act, have in respect of any ship or other matter brought
before it in pursuance of this Act all powers which it has in the
case of a ship or matter brought before it in the exercise of its ordinary
jurisdiction.
20. Where any offence against this Act has been committed by any
• person by reason whereof a ship, or ship and equipment, or anna and
munitions of war, has or have become liable to forfeiture, proceedings
may be instituted contemporaneously or not, as may be thought fit,
against the offender in any Court having jurisdiction of the offence,
and against the ship, or ship and equipment, or arms and munitions
of war, for the forfeiture in the Court of Admiralty ; but it shall not
be necessary to take proceedings against the offender because prooeed-
iDgs are instituted for the forfeiture, or to take proceedings for the
foiieiture because proceedings are taken against the offender.
21. The following officers, that is to say,
(1.) Any officer of Customs in the United Kingdom, subject never-
theless to any special or general instructions from tiie
Commissioners of Customs or any officer of the Board of
Trade, subject nevertheless to any special or general instruc-
tions from the Board of Trade :
(2.) Any officer of Customs or public officer in any British possea-
sion, subject nevertheless to any special or general instruc-
tions from the governor of such possession :
(3.) Any commissioned officer on full pay in the military service of
the Crown, subject nevertheless to any special or general
instructions from his commanding officer :
(4.) Any commissioned officer on full pay in the naval service of the
Crown, subject nevertheless to any special or general instruc-
tions from the Admiralty or his superior officer,
may seize or detain any ship liable to be seized or detained in pursu-
ance of this Act, and such officers are in this Act referred to as the
'4ocal authority;" but nothing in this Act contained shall derogate
from the power of the Court of Admiralty to direct any ship to be seized
or detained by any officer by whom such Court may have power under
its ordinary jurisdiction to direct a ship to be seized or detained.
22. Any officer authorized to seize or detain any ship in respect of
any offence against this Act may, for the purpose of enforcing such
seizure or detention, call to his aid any constable or officers of police,
or any officers of Her Majesty's army or navy or marines, or any excise
officers or officers of Customs, or any harbour-master or dock-master,
or any officers having authority by law to make seizures of ships, and
may put on board any ship so seized or detained any one -or more of
such officers to take charge of the same, and to enforce the provisions
of this Act, and any officer seizing or detaining any ship under this Act
may use force, if necessary, for the purpose of enforcing seizure or
detention, and if any person is killed or maimed by reason of his resist-
iog such officer in the execution of his duties, or any person acting under
his orders, such officer so seizing or detaining the ship, or other person,
shall be freely and fully indemnified as well against the Queen's
Majesty, her heirs and successors, as against all persons so killed,
maimed, or hurt.
23. If the Secretary of State or the chief executive authority is
satisfied that there is a reasonable and probable cause for believing
that a ship within Her Majesty's dominions has been or is being biiiKv
FOREIGN ENLISTMENT.
763
cominissioned, or equipped contraiy to this Act, and is about to be exeoative
taken beyond the limits of such dominions, or that a ship is about to authori^ to
be despatched contrary to this Act, such Secretary of State or chief ^®^*^ ""P-
executive authority shall have power to issue a warrant stating that
there is reasonable and probable cause for believing as aforesaid, and
upon such warrant the local authority shall have power to seize and
search such ship, and to detain the same until it has been either
condemned or released by process of law, or in manner hereinafter
mentioned.
The owner of the ship so detained, or his agent, may apply to the
Court of Admiralty for its release, and the Court shall as soon as
possible put the matter of such seizure and detention in course of trial
between the applicant and the Grown.
If the applicant establish to the satisfaction of the Court that the
ship was not and is not being built, conmiissioned, or equipped, or in-
tended to be despatched contrary to this Act, the ship shall be released
and restored.
If the applicant fail to establish to the satisfaction of the Court that
the ship was not and is not being built, commissioned, or equipped, or
intended to be despatched contraiy to this Act, then the ship shall
be detained till released by order of the Secretary of State or chief
executive authority.
The Court may in cases where no proceedings are pending for its
condemnation, release any ship detained under this section on the
owner giving security to the satisfaction of the Court that the ship
shall not be employed contrary to this Act, notwithstcmding that the
applicant may have failed to establish to the satisfaction of the Court
that the ship was not and is not being built, commissioned, or intended
to be despatched contrary to this Act. The Secretary of State or the
chief executive authority may likewise release any ship detained under
this section on the owner giving security to the satisfaction of such
Secretary of State or chief executive authority that the ship shall not
be employed contrary to this Act, or may release the ship without such
security if the Secretary of State or chief executive authority think fit
so to release the same.
If the Court be of opinion that there was not reasonable and pro-
bable cause for the detention, and if no such cause appear in the course
of the proceedings, the Court shall have power to declare that the
owner is to be indemnified by the payment of costs and damages in
respect of the detention, the amount thereof to be assessed by the
Court, and any amount so assessed shall be payable by the Commis-
sioners of the Treasury out of any moneys legedly applicable for that •
purpose. The Court of Admiralty shall also have power to make a
nke order for the indemnity of the owner, on the application of such
owner to the Court, in a summary way, in cases where the ship is re-
leased by the order of the Secretary of State or the chief executive
authority, before any application is made by the owner or his agent to
the Court for such release.
Nothing in this section contained shall affect any proceedings insti-
tuted or to be instituted for the condemnation of any ship detained
under this section where such ship is liable to forfeiture, subject to this
provision, that if such ship is restored in pursuance of this section, all
proceedings for such condemnation shall be stayed; and where the
Court declares that the owner is to be indemnified by the payment of
costs and damages for the detainer, aE costs, charges and expenses in-
curred by such owner in or about any proceedings for the condemnation
of such ship shall be added to the costs and damages payable to him
in respect of the detention of the ship.
764
APPENDIX.
Special power
of local
authority to
detain ship.
Power of
Secretary of
State or
executive
authority to
grant search
warrant.
Exercise of
powers of
Betretary of
State or chief
executive
authority.
Appeal from
CSourtof
Admiralty.
Nothing in this section contained Bhall ap^y to any foreign non-
commissioned ship despatched from any part of Her Majesty's dominions
after having come within them under stress of weather or in the course
of a peaceful voyage, and upon which ship no fitting out or equipping
of a warlike character has taken place in this country.
24. Where it is represented to any local authority, as defined hy this
Act, and such local authority believes the representation, that there is
a reasonable and probable cause for believing that a ship within Her
Majesty's dominions has been or is being built, commissioned, or
equipped contrary to this Act, and is about to be taken beyond the
limits of such dominions, or that a ship is about to be despatched con-
trary to this Act, it shall be the duty of such local authority to detain
such ship, and forthwith to conmiunicate the fact of such detention to
the Secretary of State or chief executive authority.
Upon the receipt of such communication, the Secretary of State or
chief executive authority may order the ship to be released if he thinks
there is no cause for detaining her, but if satisfied that there is reason-
able and probable cause for believing that such ship was built, com-
missioned, or equipped, or intended to be despatched in contravention
of this Act, he sh^ issue his warrant, stating that there is reasonable
and probable cause for believing as aforesaid, and upon such warrant
being issued further proceedings shall be had as in cases where the
seizure or detention has taken place on a warrant issued by the Secre-
tary of State without any communication from the local authority.
Where the Secretary of State or chief executive authority orders the
ship to be released on the receipt of a communication from the local
authority without issuing his warrant, the owner of the ship shall be
indemnified by the payment of costs and damages in respect of the
detention upon application to the Court of Admiralty in a summary
way in like manner as he is entitled to be indemnified where the Secre-
tary of State having issued his warrant under this Act releases the ship
before any application is made by the owner or his agent to the Court
for such release.
25. The Secretary of State or the chief executive authority may, by
warrant, empower any person to enter any dockyard or other place
within Her Majesty's dominions, and inquire as to the destination of
any ship which may appear to him to be intended to be employed in
the naval or military service of any foreign State at war with a friendly
State, and to search such ship.
26. Any powers or jurisdiction by this Act given to the Secretary
of State may be exercised by him throughout the dominions of Her
Majesty, and such powers and jurisdiction may also be exercised by
any of the following officers, in this Act referred to as the chief execu-
tive authority, within their respective jurisdictions; that is to say,
(1.) In Ireland by the Lord Lieutenant or other the chief governor
or governors of Ireland for the time being, or the chief sec-
retary to the Lord Lieutenant :
In Jersey by the Lieutenant Governor :
In Guernsey, Aldemey, and Sark, and the dependent islands by
the Lieutenant (Governor :
(4.) In the Isle of Man by the Lieutenant Governor :
(5.) In any British possession by the Governor.
A copy of any warrant issued by a Secretary of State or by any
officer authorized in pursuance of this Act to issue such warrant in
Ireland, the Channel Islands, or the Isle of Man shall be laid before
Parliament.
27. An appeal may be had from any decision of a Court of Admi-
ralty under this Act to the same tribunal and in the same manner to
(2.)
(3.)
FOREIGN ENLISTMENT. 765
and in which an appeal may be had in cases within the ordinary juris*
diction of the Court as a Court of Admiralty.
28. Subject to the pronsions of this Act providing for the award Indemnity to
of damages in certain cases in respect of the seizure or detention of a officers,
ship by the Court of Admiralty no damages shall be payable, and no
officer or local authority shall be responsible, either civilly or crimi-
nally, in respect of the seizure or detention of any ship in pursuance
of this Act.
29. The Secretary of State shall not, nor shall the chief executive Indemnity to
authority, be responsible in any action or other legal proceedings Secretary of
whatsoever for any warrant issued by him in pursuance of this Act, or executive
be examinable as a witness, except at his own request, in any court authority,
of justice in respect of the circumstances which led to the issue of the
warrant.
Interpretation Clause,
30. In this Act, if not inconsistent with the context, the following Interpreta-
terms have the meanings hereinafter respectively assigned to them ; tlon uf terms,
that is to say,
** Foreign State" includes any foreign prince, colony, province, or part «< Poreim
of any province or people, or any person or persons exercising or State : *^
assuming to exercise the powers of government in or over any
foreign country, colony, province, or part of any province or
people :
** Military service" shall include military telegraphy and any other «« Military
employment whatever, in or in connection with any military servioe:''
operation :
''Naval service " shall, as respects a person, include service as a <(KaTal
marine, employment as a pilot in piloting or directing the course service: "
of a ship of war or other ship when such ship of war or other
ship is being used in any military or naval operation, and any
employment whatever on board a ship of war, transport, store
ship, privateer or ship under letters of marque ; and as respects
a ship, include any user of a ship as a transport, store ship,
privateer or ship under letters of marque :
'' United Kingdom "includes the Isle of Man, the Channel Islands, « United
and other adjacent islands : Kingdom : ''
"British possession" means any territory, colony, or place being "British
part of Her Majesty's dominions, and not part of the United poasession : ''
Kingdom, as defined by this Act :
''The Secretaiy of State" shall mean any one of Her Majesty's '<The
Principal Secretaries of State : Secretary of
"The Governor" shall as respects India mean the Governor-General State: "
or the governor of any presidency, and where a British possess- **C^ovemor:"
sion consists of several constituent colonies, mean the Governor-
General of the whole possession, or the governor of any of the
constituent colonies, and as respects any other British possession
it shall mean the officer for the time being administering the
p;ovemment of such possession ; also any person acting for or
in the capacity of a governor, shall be included under the term
"Governor" :
"Court of Admiralty" shall mean the High Court of Admiralty of « Court of
England or Ireland, the Court of Session of Scotland, or any Admiralty : "
Vice- Admiralty Court within Her Majesty's dominions :
"Ship" shall include any description of boat, vessel, floating bat- "Ship:*'
tery, or floating craft ; also any description of boat, vessel, or
other craft or battery, made to move either on the surface of or
766
APPENDIX.
" Building : "
"Equip-
ping:'*
<< Ship and
equipment : "
"Mwter."
Repeal of
Foreign
Enlistment
Act.
69 Geo. III.
0. 69.
Saving as to
oommiBBioned
foreign ships.
Penalties not
to extend to
persons
enteriog into
military
service in
Asia.
69 Geo. 3,
c. 69, 8. 12.
under water, or sometimes on the surface of and sometimes
under water :
' Building" in relation to a ship shall include the doing any act
towards or incidental to the construction of a ship, and all \rord8
haying relation to bidlding shall be construed accordingly :
** Equipping" in relation to a ship shall include the furnishing a
ship with any tackle, apparel, furniture, provisions, arms, muni-
tions, or stores, or any other thing which is used in or about a
ship for the purpose of fitting or adapting her for the sea or for
naval service, and all words relating to equipping shall be con-
strued accordingly :
'' Ship and equipment " shall include a ship and everything in or
belonging to a ship :
'' Master " shall include any person having the charge or command
of a ship.
Repeal of Acts and Saving Clauses.
31. From and after the commencement of this Act, an Act passed
in the fifty-ninth year of the reign of His late Majesty King (ieorge
the Third, chapter sixty-nine, intituled "An Act to prevent the
enlisting or engagement of His Majesty's subjects to serve in foreign
service, and the fitting out or equipping, in His Majesty's dominions,
vessels for warlike purposes, without His Majesty's license," shall be
repealed : Provided that such repeal shall not afiect any penalty for-
feiture, or other punishment incurred or to be incurred in respect of
any offence committed before this Act comes into operation, nor the
institution of any investigation or legal proceeding, or any other
remedy for enforcing any such penalty, foiieiture, or punishment as
aforesaid.
32. Nothing in this Act contained shall subject to foifeiture any
commissioned ship of any foreign State, or give to any British Court
over or in respect of any ship entitled to recognition as a commissioned
ship of any foreign State any jurisdiction which it would not have had
if this Act had not passed.
33. Nothing in this Act contained shall extend or be construed to
extend to subject to any penalty any person who enters into the mili-
taiy service of any prince, State, or potentate in Asia, with such leave
or license as is for the time being required by law in the case of sub-
jects of Her Majesty entering into the military service of princes, States,
or potentates in Asia.
II.— PROCLAMATION UNDER THE FOREIGN ENLISTMENT
AOT(*).
By ths Knra.
A Proclamation,
Edward, R. and I.
Whereas we are happily at peace with all sovereigns, powers, and
States : And whereas a state of war unhappily exists between His
Majesty the Emperor of All the Russias and His Majesty the Emperor
of Japan, and between their respective subjects, and others inhabiting
within their countries, territories, or dominions : And whereas we are
on terms of friendship and amicable intercourse with each of these
powers, and with their several subjects, and others inhabiting within
their countries, territories, or dominions : And whereas great numbers
{h) London Gazette Extraordinary, Feb. 12th, 1901.
F0BEI9N ENLISTMENT. 767
oi our loyal subjects reside and carry on commerce, and possess
property and establishments, and enjoy various rights and privileges,
within the dominions of each of the aforesaid powers, protected by the
faith of treaties between us and each of the aforesaid powers : And
whereas we, being desirous of preserving to our subjects the blessings
of peace, which they now happily enjoy, are firmly purposed and
determined to maintain a strict and impartial neutrality in the said
state of war unhappily existing between the aforesaid powers : we,
therefore, have thought fit, by and with the advice of our Privy
Council, to issue this our royal proclamation: And we do hereby
strictly charge and command all our loving subjects to govern them-
selves accordingly, and to observe a strict neutrality in and during the
aforesaid war, and to abstain from violating or contravening either
the laws and statutes of the realm in this behalf, or the law of nations
in relation thereto, as they will answer to the contrary at their peril :
And whereas in and by a certain statute made and passed in a session
of Parliament holden in the 33rd and 34th year of the reign of Her
late Majesty Queen Victoria, intituled ''An Act to Regulate the
conduct of Her Majesty's Subjects during the existence of Hostilities
between Foreign States with which Her Majesty is at Peace," it is,
among other things, declared and enacted as follows : —
The proclamation then recites sees. 2 and 4 — 10 of the Act as above
set out, and continues : —
And whereas by the said Act it is further provided that ships built,
commissioned, equipped, or despatched in contravention of the said
Act, may be condemned and forfeited by judgment of the Court of
Admiralty; and that if the Secretary of State or chief executive
authority is satisfied that there is a reasonable and probable cause for
believing that a ship within our dominions has been or is being built,
commissioned, or equipped, contrary to the said Act, and is about to
be taken beyond the limits of such dominions, or that a ship is about
to be despatched contrary to the Act, such Secretary of State or chief
executive authority shall have power to issue a warrant authorizing
the seizure and search of such ship and her detention until she has
been either condemned or released by process of law.
And whereas certain powers of seizure and detention are conferred
by the said Act on certain local authorities ;
Now, in order that none of our subjects may unwarily render them-
selves liable to the penalties imposed by the said statute, we do hereby
strictly command that no person or persons whatsoever do commit any
act, matter, or thing whatsoever contrary to the provisions of the said
statute, upon pain of the several penalties by the said statute imposed
and of our high displeasure.
And we do hereby further warn and admonish all our loving sub-
jects, and all persons whatsoever entitled to our protection, to observe
towards each of the aforesaid powers, their subjects, and territories,
and towards all belligerents wnatsoever with whom we are at peace,
the duties of neutrality ; and to respect, in all and each of them, the
exercise of belligerent rights.
And we herebv further warn all our loving subjects, and all persons
whatsoever entitled to our protection, that if any of them shall pre-
sume, in contempt of this our royal proclamation, and of our high dis-
pleasure, to do any acts in derogation of their duty as subjects of a
neutral power in a war between other powers, or in violation or contra-
vention of the law of nations in that behalf, as more especially by
breaking, or endeavouring to break, any blockade lawfully and
actually established by or on behalf of either of the said powers, or
by carrying officers, soldiers, despatches, arms, ammunition, military
768 APPENDIX.
stores or materials, or any article or articles considered and deemed to
be contraband of war according to the law or modem nsases of
nations, for the use or service of either of the said powers, that all per-
sons so ofFending, together with their ships and goods, will rightfully
incur and be justly liable to hostile capture, and to the penalties
denounced by the law of nations in that behalf.
And we do hereby give notice that all our subjects and persons
entitled to our protection who may misconduct themselves in the pre-
mises will do so at their peril and of their own wrong ; and that they
will in no wise obtain any protection from us against such capture or
such penalties as aforesaid, but will, on the contrary, incur our high
displeasure by such misconduct.
Given at our Court at Buckingham Palace, this eleventh day of
February, in the year of our Lord one thousand nine hundred and
four, and in the fourth year of our reign.
God save the Sang.
RuUifor Observation of Neutrality issued under the above Proclamation
by the Foreign Secretary to the Lords of the Admiralty and all the
Heads of Government Departments,
Foreign Office, February 10, 1904.
My Lords, — His Majesty being fuUy determined to observe the
duties of neutrality during the existing state of war between Eussia
and Japan ; being, moreover, resolved to prevent, as far as possibly
the use of His Majesty's harbours, ports, and coasts, and the waters
within His Majesty's territorial jurisdiction, in aid of the warUke
purposes of either belligerent, has commanded me to communicate to
your lordships, for your guidance, the following rules, which are to be
treated and enforced as His Majesty's orders and directions : —
Bule 1. During the continuance of the present state of war, all ships
of war of either belligerent are prohibited from making use of any
port or roadstead in the United Kingdom, the Isle of Man, or the
Channel Islands, or in any of His Majesty's colonies or foreign
possessions or dependencies, or of any waters subject to the territorial
jurisdiction of the British Crown, as a station or place of resort for
any warlike purpose, or for the purpose of obtaining any facilities for
warlike equipment; and no ship of war of either belligerent shall
hereafter be permitted to leave any such port, roadstead, or waters
from which any vessel of the other belligerent (whether the same shaJl
be a ship of war or a merchant ship) shall have previously departed
until after the expiration of at least twenty-four hours from the
departure of such last-mentioned vessel beyond the territorial juris-
diction of His Majesty.
Rule 2. If there is now in any such port, roadstead, or waters
subject to the territorial jurisdiction of the British Crown any ship of
war of either belligerent, such ship of war shall leave such port, road-
stead, or waters within such time not less than twenty-four hours as
shall be reasonable, having regard to all the circumstances and the
condition of such ship as to repairs, provisions, or things necessary ior
the subsistence of her crew ; and if after the date hereof any ship of
war of either belligerent shall enter any such port, roadstead, or waters
subject to the territorial jurisdiction of the British Crown, such ship
shall depart and put to sea within twenty-four hours after her entrance
into any such port, roadstead, or waters, except in case of stress ol
weather, or of her requiring provisions or things necessary for the
subsistence of her creW) or repairs ; in either of which cases the
FOREIGN ENUSTMENT, ,769
authoritieB of the port, or of the nearest port (as the case may be),
shall require her to put to sea as soon as possible after the expiration
of such period of twenty-four hours, without permitting her to take in
supplies beyond what may be necessary for her immediate use ; and
no such vessel which may have been allowed to remain within British
waters for the purpose of repair shall continue in any such port,
roadstead, or waters, for a longer period than twenty-four hours after
her necessary repairs shall have been completed. Provided, never-
theless, that in aU cases in which there shall be any vessels (whether
ships of war or merchant ships) of both the said belligerent parties in
the same port, roadstead, or waters within the territorial jurisdiction
of His Majesty, there shall be an interval of not less than twenty-four
hours between the departure therefrom of any such vessel (whether a
ship of war or merchant ship) of the one belligerent, and the subsequent
departure therefrom of any ship of war of the other belligerent ; and
the time hereby limited for the departure of such ships of war respec-
tively shall always, in case of necessity, be extended so far as may be
requisite for giving efPect to this proviso, but no further or otherwise.
Rule 3. No ship of war of either belligerent shall hereafter be
permitted, while in any such port, roadstead, or waters subject to the
territorial jurisdiction of His Majesty, to take in any supplies, except
provisions and such other things as may be requisite for the subsistence
of her crew, and except so much coal only as may be sufficient to carry
such vessel to the nearest port of her own country, or to some nearer
named neutral destination, and no coal shall again be supplied to any
such ship of war in the same or any other port, roadstead, or waters
subject to the territorial jurisdiction of His Majesty, without special
permission, until after the expiration of three months from the time
when such coal may have been last supplied to her within British
waters as aforesaid.
Eule 4. Armed ships ot either belligerent are interdicted from
carrying prizes made by them into the ports, harbours, roadsteads, or
waters of the United Kingdom, the Isle of Man, the Channel Islands,
or any of His Majesty's colonies or possessions abroad.
The governor or other chief authority of each of His Majesty's
territories or possessions beyond the seas shall forthwith notify and
publish the above rules.
I have, &c. Lansdowke.
II.— Amebioan Act.
An Act in addition to the " Act for the Punishment of certain Crimes
against the United States,^^ and to repeal the Acts therein mentioned
(1818) (^).
Be it enacted by the Senate and House of Representatives of the
United States of America, in Congress assembled, That if any citizen
of the United States shall, within the territory or jurisdiction thereof,
accept and exercise a commission to serve a foreign prince, State,
colony, district, or people, in war, by land or by sea, against any
prince, State, colony, district, or people, with whom the United States
{k) This Aot is given as it was origin- text. It wiU be found in the U. S.
ally passed in order to retain the nam- Bevised Statutes under the titla of
benng of the sections referred to in the Neutrality.
W. 3d
770 APPENDIX.
are at peace, the person so offending shall be deemed guilty of a high
misdemeanour, and shall be fined not more than two thousand dollarsy
and shall be imprisoned not exceeding three years.
Sect. 2. And be it further enacted, That if any person shall, within
the territory or jurisdiction of the United States, enlist or enter him-
self, or hire or retain another person to enlist or enter himself, or to go
beyond the limits or jurisdiction of the United States with intent to be
enlisted or entered in the service of any foreign prince, State, colony,
district, or people, as a soldier, or as a marine or seaman, on board of
any vessel of war, letter of marque, or privateer, every person so
offending shall be deemed guilty of a high misdemeanour, and shall be
fined not exceeding one thousand dollars, and be imprisoned not ex-
ceeding three years : Provided that this Act shall not be construed to
extend to any subject or citizen of any foreign prince. State, colony,
district, or people, who shall transiently be within the United States,
and shall on board of any vessel of war, letter of marque, or privateer,
which at the time of its arrival within the United States, was fitted and
equipped as such, enter and enlist himself, or hire or retain another
subject or citizen of the same foreign prince, State, colony, district, or
people, who is transiently within the United States, to enlist or enter
himself to serve such foreign prince, State, colony, district, or people,
on board such vessel of war, letter of marque, or privateer, if the
United States shall then be at peace with such foreign prince, State,
colony, district, or people.
Sect. 3. And be it further enacted, That if any person shall, within
the limits of the United States, fit out and arm, or attempt to fit out
and arm, or procure to be fitted out and armed, or shall knowingly be
concerned in the furnishing, fitting out, or arming, of any ship or vessel
with intent that such ship or vessel shall be employed in the service of
any foreign prince or State, or of any colony, district, or people, to
cruise or commit hostilities against the subjects, citizens, or property of
any foreign prince or State, or of any colony, district, or people with
whom the United States are at peace, or shall issue or deHver a com*
mission within the territory or jurisdiction of the United States, for
any ship or vessel, to the intent that she may be employed as afore*
said, every person so offending shall be guilty of a high misdemeanour,
and shall be fined not more than ten thousand dollars, and imprisoned
not more than three years ; and every such ship or vessel, with her
tackle, apparel, and furniture, together with all materials, arms, ammu-
nition, and stores, which may have been procured for the building and
equipment thereof, shall be forfeited ; one-half to the use of the in-
former, and the other half to the use of the United States.
Sect. 4. And be it further enacted, That if any citizen or citizens of
the United States shall, without the limits thereof, fit out and arm, or
attempt to fit out and arm, or procure to be fitted out and armed, or
shall knowingly aid or be concerned in Ihe furnishing, fitting out, or
arming, any private ship or vessel of war, or privateer, with intent that
such ship or vessel shall be employed to cruise, or commit hostilities,
upon the citizens of the United States, or their property, or shall take
the command of, or enter on board of any such ship or vessel, for the
intent aforesaid, or shall purchase any interest in any such ship or
vessel, with a view to share in the profits thereof, such persons so
offending shall be deemed guilty of a high misdemeanour, and fined
not more than ten thousand dollars, and imprisoned not more than ten
years ; and the trial for such offence, if committed within the limits of
the United States, shall be in the district in which the offender shall
be apprehended or first brought.
Sect. 5. And be it further enacted, That if any persons shall, within
FOKEIGN ENLISTMENT. 771
the territory or jurisdiction of the United States, increase or augment,
or procure to be increased or augmented, or shall knowingly be con-
cerned in increasing or augmenting the force of any ship of war,
cruiser, or other armed vessel, which, at the time of her arrival within
the United States, was a ship of war, or cruiser, or armed vessel, in
the service of any foreign prince or State, or of any colony, district, or
people, or belonging to the subjects or citizens of any such prince or
State, colony, district, or people, the same being at war with any
foreign prince or State, or of any colony, district, or people with whom
the United States are at peace, by adding to the number of the guns of
such vessel, or by chanpng those on board of her for guns of a larc^er
calibre, or by the addition thereto of any equipment solely applicable
to war, every person so ofPending shall be deemed guilty of a high
misdemeanour, shall be fined not more than one thousand dollars, and
be imprisoned not more than one year.
Sect. 6. And be it further enacted, That if any person shall, within
the territory or jurisdiction of the United States, begin or set on foot,
or provide or prepare the means for any military expedition or enter-
prise, to be carried on from thence against the territory or dominions
of any foreign prince or State, or of any colony, district, or people,
with whom the United States are at peace, every person so onending
shall be deemed guilty of a hig^h misdemeanour, and shall be fined not
exceeding three thousand dollELrs, and be imprisoned not more than
one year.
Sect. 7. And be it further enacted, That the District Courts shall
take cognizance of complaints, by whomsoever instituted, in cases of
captures made within the waters of the United States, or within a
marine league of the coasts or shores thereof.
Sect. 8. And be it further enacted, That in every case in which a
vessel shall be fitted out and armed, or attempted to be fitted out and
armed, or in which the force of any vessel of war, cruiser, or other
armed vessel, shall be increased or augmented, or in which any military
expedition or enterprise shall be begun or set on foot, contrary to the
provisions and prohibitions of this Act; and in every case of the
capture of a ship or vessel within the jurisdiction or protection of the
United States as before defined, and in every case in which any process
issuing out of any Court of the United States shall be disobeyed or
resisted by any person or persons having the custody of any vessel of
war, cruiser, or other armed vessel of any f orei^ prince or State, or of
any colony, district, or people, or of any subjects or citizens of any
foreign prince or State, or of any colony, district, or people, in every
case it shall be lawful for the President of the United States, or such
other person as he shall have empowered for that purpose, to employ
such part of the land or naval £>rces of the United States, or of the
militia thereof, for the purpose of taking possession of and detaining
any such ship or vessel, with her prize or prizes, if any, in order to the
execution of the prohibitions and penalties of this Act, and to the
restoring the prize or prizes in the cases in which restoration shaU have
been adjudged, and also for the purpose of preventing the carrying on
any such expedition or enterprise from the territories or jurisdiction of
the United States against the territories or dominions of any foreign
prince or State, or of any colony, district, or people, with whom the
United States are at peace.
Sect. 9. And be it further enacted. That it shall be lawful for the
President of the United States, or such person as he shall empower for
that purpose, to employ such part of the land or naval forces of the
United States, or of the militia thereof, as shall be necessary to compel
any foreign sliip or vessel to depart the United States in all oases in
8d2
772 APPENDIX.
which by the law of nations or the Treaties of the United States, thej
ought not to remain within the United States.
Sect. 10. And be it further enacted, That the owners or conBigiieeB
of every armed ship or yessel sailing out of the ports of the United
States, belonging wholly or in part to citizens thereof, shall enter into
bond to the United States, with sufficient sureties, prior to clearing oat
the same, in double the amount of the value of the vessel and cargo on
board, including her armament, that the said ship or vessel shall not
be employed by such owners to cruise or commit hostilities against the
subjects, citizens, or property, of any foreign prince or State, or of any
colony, district, or people, with whom the United States are at peace.
Sect. 11. And be it further enacted. That the collectors of the
Customs be, and they are, hereby respectively authorized and required
to detain any vessel manifestly built for warlike purposes, and abont
to depart the United States, of which the cargo shall principally con-
sist of arms and munitions of war, when the number of men shipped
on board, or other circumstances, shall render it probable that such
vessel is intended to be employed by the owner or owners to cruise or
commit hostilities upon the subjects, citizens, or property of any foreign
State, or of any Colony, district, or people, with whom the United
States are at peace, until the decision of the JPresident be had thereon,
or until the owner or owners shall give such bond and security as is
required of the owners of armed &ips by the preceding section of
this Act.
Sect. 12. And be it further enacted, That the Act passed on the
fifth day of June One thousand seven hundred and ninety-four, entitled,
''An Act in addition to the Act for the pimishment of certain crimes
against the United States," continued in fortje, for a limited time, by
the Act of the second of March One thousand seven hundred and
ninety-seven, and perpetuated by the Act passed on the twenty-fourth
of Anril One thousand eight hundred, and the Act passed on tiie four-
teentn day of June One thousand seven hundred and ninety-seyen,
entitled, ** An Act to prevent citizens of the United States from priya-
teering against nations in amity with, or against the citizens of, the
United States,'' and the Act passed the third day of March Onetiioa-
sand eight hundred and seventeen, entitled, ''An Act more effectually
to preserve the neutral relations of the United States," be, and the
same are hereby severally repealed: Provided nevertheless, that persons
having heretofore offended against any of the Acts aforesaid may be
prosecuted, convicted, and punished as if the same were not repealed;
and no forfeiture heretofore incurred by a violation of any of the Acts
aforesaid shall be affected by such repeal.
Sect. 13. And be it further enacted. That nothing in the foregoing
Act shall be construed to prevent the prosecution or punishment of
treason, or any piracy defined by the laws of the United States.
NAVAL PEIZE. 773
APPENDIX D.
ENGLISH NAVAL PRIZE ACT.
27 & 28 Vict. Chap. 25.
An Act /or regulating Naval Prize of War. [2Srd June^ 1864.]
Whereas it is expedient to enact permanently, with amendments,
such provisions concerning Naval Prize, and matters connected there-
with, as have heretofore been usually passed at the beginning of a
war:
Be it therefore enacted by the Queen's most Excellent Majesty, by
and with the advice and consent of the Lords Spiritual and Temporal
and Commons, in this present Parliament assemUed, and by the autho-
rity of the same, as follows :
Preliminary,
1. This Act may be cited as The Naval Prize Act, 1864. gi^orfc title.
2. In this Act — Interpreta-
The term ''the Lords of the Admiralty" means the Lord High tion of terms.
Admiral of the United Kingdom, or the Commissioners for exe-
cuting the office of Lord Hi^ Admiral :
The term ''the High Court of Admiralty" means the High Court
of Admiralty of England :
The term "any of Her Majesty's ships of war" includes any of
Her Majesty's vessels of war, and any hired armed ship or vessel
in Her Majesty's service :
The term "officers and crew" includes flag officers, commanders,
and other officers, engineers, seamen, marines, soldiers, and others
on board any of Her Majesty's ships of war :
The term "slup" includes vessel and boat, with the tackle, furni-
ture, and apparel of the ship, vessel, or boat :
The term " ship papers " includes all books, passes, sea briefs,
charter parties, bills of lading, cockets, letters, and other docu-
ments and writings delivered up or found on board a captured
ship:
The term '' goods " includes all such things as are by the course of
admiralty and law of nations the subject of adjudication as prize
(other than ships).
I. Peize Courts.
3. The High Court of Admiralty, and every Court of Admiralty or High Court of
of Vice-Admiralty, or other Court exercising admiralty jurisdiction in Admiralty
Her Majesty's dominions, for the time being authorized to take cogni- *^^ ?*^iv»
zance of and judicially proceed in matters of prize, shall be a Prize ^^ Courts
Court within the meaning of this Act. 1^ porpoBce
Every such Court, other than the High Court of Admiralty, is com- of Act.
prised in the term " Vice- Admiralty Prize Court," when hereafter used
in this Act.
High Court of Admiralty,
4. The High Court of Admiralty shall have jurisdiction throughout Jnrisdiotion
Her Maj esty's dominions as a Prize Court. ^ High Conrt
The High Court of Admiralty as a Prize Court shall have power to ^ -Admiralty.
774
APPENDIX.
Appeal to
Queen in
Coundli in
what cases.
Jnrifldiction
of Jadicial
Committee in
prize appeals.
Custody of
prooeeses,
papers, &o.
Limit of time
for appeal.
Enforcement
of orders of
High Court,
&c.
Salaries of
judges of
Vice- Admi-
ralty Prize
Courts.
Betiring
pensions of
judges, as in
22 & 23 Vict.
0.26.
Returns from
Vice- Admi-
ralty Prize
Courts.
enforce any order or decree of a Vice-Admiralty Prize Court, and any
order or decree of the Judicial Committee of the Privy Council, in a
prize appeal.
Appeal; Judicial Committee,
5. An appeal shall lie to Her Majesty in Council from any order or
decree of a Prize Court, as of right in case of a final decree, and in
other cases with the leave of the Court making the order or decree.
Every appeal shall be made in such manner and form and subject
to such regulations (including regulations as to fees, costs, charges, and
expenses), as may for the time being be directed by order in council,
and in the absence of any such order, or so far as any such order does
not extend, then in such manner and form and subject to such regu-
lations as are for the time being prescribed or in force respecting
maritime causes of appeal.
6. The Judicial Committee of the Privy Council shall have jurisdic-
tion to hear and report on any such appeal, and may therein exercise
- all such powers as for the time being appertain to them in respect of
appeals from any Court of Admiralty Jurisdiction, and all such powers
as are under this Act vested in the High Court of Admiralty, and all
such powers as were wont to be exercised by the Commissioners of
Appeal in Prize Causes.
7. All processes and documents required for the purposes of any
such appeal shall be transmitted to and shall remain in custody of the
Begistrar of Her Majesty in Prize Appeals.
8. In every such appeal the usual inhibition shall be extracted from
the Eegistry of Her Majesty in Prize Appeals within three months
after the date of the order or decree appealed from if the appeal be
from the High Court of Admiralty, and wit^n six months e^r that
date if it be from a Vice- Admiralty Prize Court.
The Judicial Committee may, nevertheless, on sufficient cause shown,
allow the inhibition to be extracted and the appeal to be prosecuted
after the expiration of the respective periods aforesaid.
Vice-Admiralty Prize Courts,
9. Every Vice- Admiralty Prize Court shall enforce within its juris-
diction all orders and decrees of the Judicial Committee in Prize
Appeals, and of the High Court of Admiralty in Prize Causes.
10. Her Majesty in Council may grant to the Judge of any Vice-
Admiralty Prize Court a salary not exceeding five hundred pounds a
year, payable out of money provided by Parliament, subject to such
regulations as seem meet.
A Judge to whom a salary is so granted shall not be entitled to any
further emolument, arising from fees or otherwise, in respect of prize
business transacted in his Court.
An account of all such fees shall be kept by the Itegistrar of the
Court, and the amount thereof shall be carried to and form part of the
Consolidated Fund of the United Kingdom.
1 1 . In accordance, as far as circumstances admit, with the principles
and regulations laid down in the Superannuation Act, 1859, Her
Majesty in Council may grant to the Judge of any Vice-Admiralty
Prize Court an annual or other allowance, to take effect on the termi-
nation of his service, and to be payable out of money provided by
Parliament.
12. The Begistrar of every Vice-Admiralty Prize Court shall, on
the First day of January and First day of July in every year, make
out a return (in such form as the Lords of the Admiralty from time to
time direct) of all cases adjudged in tilie Court since the last half-
NAVAL PRIZE. 775
yearly return, and shall with all convenient speed send the same to the
Eegistrar of the High Oourt of Admiralty, who shall keep the same in
the Begistry of that Oourt, and who shall, as soon as conveniently may
be, send a copy of the returns of each half-year to the Lords of the
Admiralty, who shall lay the same before both Houses of Parliament.
General.
13. The Judicial Committee of the Privy Council, with the Judge General
of the High Court of Admiralty, may from time to time frame General orders for
Orders for regulating (subject to the provisions of this Act) the pro- Prize Courts,
cedure and practice of Prize Courts, and the duties and conduct of the
officers thereof and of the practitioners therein, and for regulating the
fees to be taken by the officers of the Courts, and the costs, charges,
and expenses to be allowed to the practitioners therein.
Any such General Orders shall have full effect, if and when approved
by Her Majesty in Council, but not sooner or otherwise.
Eveiy Order in Council made under this section shall be laid before
both Houses of Parliament.
Every such Order in Council shall be kept exhibited in a conspicuous
place in each Court to which it relates.
14. It shall not be lawful for any registrar, marshal, or other officer Prohibition of
of any Prize Court, or for the liegistrar of Her Majesty in Prize officer of
Appeals, directly or indirectly to act or be in any manner concerned as ^*"?® Court
advocate, proctor, solicitor, or agent, or otherwise, in any Prize Cause J^J|^p**^
or Appeal, on pain of dismissal or suspension from office, by order of ' '
the Court or of the Judicial Committee (as the case may require).
15. It shall not be lawful for any proctor or solicitor, or person PiroWbition of
practising as a proctor or solicitor, being employed by a party in a proctors being
Prize Cause or Appeal, to be employed or concerned, by himself or his ^^cerned for
partner, or by any other person, directly or indirectly, by or on behalf parties in a
of any adverse party in that Cause or Appeal, on pain of exclusion or cause,
suspension from practice in prize matters, by order of the Court or of
the Judicial Committee (as the case may require).
n. — ^Pbocedxjbe in Prize Causes.
Proceedings hy Captors,
16. Every ship taken as prize, and brought into port within the Custody of
i'urisdiction of a Prize Court, shall forthwith, and without bulk broken, prize ship.
)Q delivered up to the marsh^ of the Court.
If there is no such marshal, then the ship shall be in like manner
delivered up to the principal officer of customs at the port.
The ship shall remain in the custody of the marshal, or of such
officer, subject to the orders of the Court.
17. The captors shall, with all practicable speed after the ship is Bringing in
brought into port, bring the ship papers into the registry of the of eMp papers.
Court.
The officer in command, or one of the chief officers of the capturing
ship, or some other person who was present at the capture, and saw
the ship papers delivered up or found on board, shall make oath that
they are brought in as they were taken, without fraud, addition, sub-
duction, or alteration, or else shall account on oath to the satisfaction
of the Court for the absence or altered condition of the ship papers or
any of them.
WhiBre no ship papers are delivered np or found on board the
captured ship, the officer in command, or one of the chief officers of the
776
APPENDIX.
Issue of
monition.
Examinations
on standing
interroga-
tories.
Adjudication
hy Court.
Further
proof.
Custody, fto.,
of ships of
war.
Entry of
claim;
security for
costs.
Power to
Court to
direct ap«
praisement.
capturing sliip, or some other person wlio was present at the eaptnze,
shall make oath to that effect.
18. As soon as the affidavit as to ship papers is filed, a monition
shall issue, returnable within twenty days from the service thereof,
citinfz: all persons in general to show cause why the captured ahip
should not be condemned.
19. The captors shall, with all practicable speed after the oaptured,
ship is brought into port, bring three or four of the principal peraozLS
belonging to the captured ship before the Judge of the Court or some
person authorized in this behalf, by whom they shall be examined on
oath on the standing interrogatories.
The preparatory examinatioos on the standing interrogatories shall,
if possible, be concluded within five days from the commencement
thereof.
20. After the return of the monition, the Court shall, on production
of the preparatory examinations and ship papers, proceed with all
convenient speed either to condemn or to release the captured ship.
21. Where, on production of the preparatory examinations and ship
papers, it appears to the Court doubtful whether the captured ship is
good prize or not, the Court may direct further proof to be adduced
either by affidavit or by examination of witnesses, with or without
pleadings, or by production of further documents ; and on such further
proof being adduced the Court shall with all convenient speed proceed
to adjudication.
22. The foregoing provisions, as far as they relate to the custody of
the ship, and to examination on the standing interrogatories, shall not
apply to ships of war taken as prize.
Claim,
23. At any time before final decree made in the cause, any person
claiming an interest in the ship may enter in the registry of the Court
a claim, verified on oath.
Within five days after entering the claim, the claimant shall give
security for costs in the sum of sixty pounds ; but the Court shall have
power to enlarge the time for giving security, or to direct security to be
given in a larger sum, if the circumstances appear to require it.
Appraisement,
24. The Court may, if it thinks fit, at any time direct that the
captured ship be appraised.
Every appraisement shidl be made by competent persons sworn to
make the same according to the best of tiieir skill and knowledge.
Delivery on Bail.
25. After appraisement, the Court may, if it thinks fit, direct that
the captured ship be delivered up to the claimant, on his giving
to clainfanT"^ security to the satisfaction of the Court to pay to the captors the
on bail. appraised value thereof in case of condemnation.
Power to
Court to
Power to
Court to
order sale.
Sale on con-
demnation.
Sale.
26. The Court may at any time, if it thinks fit, on account of the
condition of the captured ship, or on the application of a claimant^
order that the captured ship be appraised as aforesaid (if not already
appraised), and be sold.
27. On or after condemnation the Court may, if it thinks fit, ordet
that the ship be appraised as aforesaid (if not already appraified^ and
be sold.
NAVAL PRIZE. 777
28. Every sale shall be made by or under the superinteiideiice of How sales to
the Marshal of the Oourt or of the officer haying the custody of the ^ made,
captured ship.
29. The proceeds of any sale, made either before or after condemna- Payment of
tion, and after condemnation the appraised value of the captured prooeedsto
ship, in case she has been delivered up to a claimant on bail, shall be Paymaster-
paid under an order of the Court either into the Bank of England to ^^'T^ ^'^
the credit of Her Majesty's Paymaster- General, or into the hands of ^coomitaiit.
an official accountant (belonging to the commissariat or some other
department) appointed for this purpose by the commissioners of Her
Majesty's Treasury or by the Lords of the Admiralty, subject in either
case to such regulations as may from time to time be made, by Order
in Council, as to the custody and disposal of money so paid.
Small-Armed Ships.
30. The captors may include in one adjudication any number, not One adjndioa-
exceeding six, of armed ships not exceeding one hundred tons each, tion as to
taken within three months next before institution of proceedings. several small
Goods,
31. The foregoing provisions relating to ships shall extend and Application
apply, mutatis mutandis^ to goods taken as prize on board ship ; and o^ loregoing
the Court may direct such goods to be unladen, inventoried and P^^isionsto
, J "^ ° ' prize ffoods.
warehoused. *" **
Monition to Captors to proceed,
32. If the captors fail to institute or to prosecute with effect pro- Power to
ceedings for adjudication, a monition shall, on the application of a Court to call
claimant, issue against the captors, returnable within six days from the ^^^^^ ^
service thereof , citing them to appear and proceed to adjudication; and Sdjudioation
on the return thereof the Court shall either forthwith proceed to
adjudication or direct further proof to be adduced as aforesaid, and
then proceed to adjudication.
Claim on Appeal.
33. Where any person, not an original party in the cause, intervenes Person inter*
on appeal, he shall enter a claim, verified on oath, and shall give veninffon
security for costs. appeal to
enter daim.
III. — Special Cases of Capture.
Land Expeditions,
34. Where, in an expedition of any of Her Majesty's naval or naval Jurisdiction of
and military forces against a fortress or possession on land, goods Prize Court in
belonging to the State of the enemy or to a public trading company of case of capture
the enemy exercising powers of government are taken in the fortress or ^^on. ^^^^'
possession, or a ship is taken in waters defended by or belonging to
the fortress or possession, a Prize Court shall have jurisdiction as to
the goods or ship so taken, and any goods taken on board the ship, as
in case of prize.
Conjunct Capture with Ally,
35. Where any ship or goods is or are taken by any of Her Jurisdiction of
Majesty's naval or naval and military forces while acting in conjunction Prize Court in
with any forces of any of Her Majesty's allies, a Prize Court shall ^^ ®' ®?P®"
have jurisdiction as to the same as in case of prize, and shall have ^^^ ^^
power, after condemnation, to apportion the due share of the proceeds
to Her Majesty's ally, the proportionate amount and the disposition of
-which share shall be such as may from time to time be agreed between
Her Majesty and Her Majesty's ally.
778
APPENDIX.
Bestriction
on petitions
by asserted
joint captors.
In case of
offence by
captors, price
to be reserred
for Crown.
Joint Capture,
36. Before condemDation, a petition on behalf of asserted joint
ciptors shall not (except by special leave of the Court) be admitted,
unless and uotil they give security to the satisfaction of the Coait
to contribute to the actual captors a just proportion of any costs,
charges, or expenses or damages that may be incurred by or awarded
against the actual captors on account of the capture and detention of
the prize.
After condemnation, such a petition shall not (except by special
leave of the Court) be admitted unless and until the asserted joint
captors pay to the actual captors a just proportion of the costs,
charges, and expenses incurred by the actual captors in the case, and
give such security as aforesaid, and show sufficient cause to the Cbait
why their petition was not presented before condemnation.
Provided, that nothing in the present section shall extend to the
asserted interest of a flag officer claiming to share by virtue of his flag.
Offences against Law of Prize.
37. A Prize Court, on proof of any offence against the law of
nations, or against this Act, or any Act relating to naval discipline, or
agpainst any Order in Council or Boyal Proclamation, or of any breach
of Her Majesty's instructions relating to prize, or of any act of dis-
obedience to the orders of the Lords of the Admiralty, or to the com-
mand of a superior officer, committed by the captors in relation to any
ship or goods taken as prize, or in relation to any person on board any
such ship, may, on condemnation, reserve the prize to Her Majesty's
disposal, notwithstanding any grant that may have been made by
Her Majesty in favour of captors.
Pre-emption,
Purchase bv 38. Where a ship of a foreign nation passing the seas laden with
Admiralty for naval or victualling stores intended to be carried to a port of any
pubUo service enemy of Her Majesty is taken and brought into a port of the United
board7orein Kingdom, and the purchase for the service of Her Majesty of the
ships. stores on board the ship appears to the Lords of the Admiralty expe-
dient without the condemnation thereof in a Prize Court, in that case
the Lords of the Admiralty may purchase, on the account or for the
service of Her Majesty, all or any of the stores on board the ship; and
the Commissioners of Customs may permit the stores purchased to bo
entered and landed within any port.
Capture hy Ship other than a Ship of War,
Prizes taken 89. Any ship or goods taken as prize by any of the officers and crew
by ships other of a ship other than a ship of war of Her Majesty shall, on condemna-
than ships of ^^j^ beloDff to Her Majesty in her Office of Admiralty.
war to be ' '^ j -^ «/
droits of
Admiralty. IV. — Prize Salvage.
Salvage to 40. Where any ship or goods belonging to any of Her Majest/s
re-captors of subjects, after being taken as prize by the enemy, is or are retaken
British ship from the enemy by any of Her Majesty's ships of war, the same shall
^'em °^ ^® restored by decree of a Prize Court to the owner, on his paying as
enemy. -gnzQ salvage one-eighth part of the value of the prize to be decreed
and ascertained by the Court, or such sum not exceeding one-eighth
part of the estimated value of the prize as may be agreed on between
the owner and the recaptors, and approved by order of the Court; pro-
vided, that where the re-capture is made under circumstances of special
difficulty or danger, the Prize Court may, if it thinks fit, award to the
NAVAL PRIZE. 779
re-captors as prize salvage a larger part than one-eightli part, but not
exceeding in any case one-fourth part, of the value of the prize.
Provided also, that where a ship after being so taken is set forth or
used by any of Her Majesty's enemies as a ship of war, this provision
for restitution shall not apply, and the ship shall be adjudicated on as
in other cases of prize.
41. Where a ship belonging to any of Her Majesty's subjects, after p^j^igaioii to
being taken as prize by the enemy, is retaken from the enemy by any re-captured
of Her Majesty's ships of war, she may, with the consent of the re- ship to pro-
captors, prosecute her voyage, and it shall not be necessary for the re- o«ed on
captors to proceed to adjudication till her return to a port of the United v<>y*fi^-
Kingdom.
The master or owner, or his agent, may, with the consent of the
re-captors, unload and dispose of the goods on board the ship before
adjudication.
In case the ship does not, within six months, return to a port of the
United Kingdom, the re-captors may nevertheless institute proceed-
ings against the ship or goods in the High Court of Admiralty, and the
Court may thereupon award prize salvage as aioresaid to the re-captors,
and may enforce payment thereof, either by warrant of arrest against
the ship or goods, or by monition and attachment against the owner.
V. — Pbizb Bount'x.
42. If, in relation to any war, Her Majesty is pleased to declare, by prfze bounty
proclamation or Order in Council, her intention to grant prize bounty to ofacers and
to the officers and crews of her ships of war, then such of the officers ^^^ present
and crew of any of Her Majesty's ships of war as are actually present ** ^^^t'
at the taking or destroying of any armed ship of any of Her Majesty's ^^J^* ^
enemies shall be entitled to have distributed among them as prize
bounty a sum calculated at the rate of five pounds for each person on
board the enemy's ship at the beginning of the engagement.
43. The number of the persons so on board the enemy's ship shall Asoertaln-
be proved in a Prize Court, either by the examinations on oath of the ment of
survivors of them, or of any three or more of the survivors, or if there amount of
is no survivor by the papers of the enemy's ship, or by the examina- ^^ean»^Y
tion on oath of three or more of the officers and crew of Her Majesty's ^rize Court,
ship, or by such other evidence as may seem to the Court sufficient in
the circumstances.
The Court shall make a decree declaring the title of the officers and
crew of Her Majesty's ship to the prize bounty, and stating the amount
thereof.
The decree shall be subject to appeal as other decrees of the Court.
44. On production of an official copy of the decree the commissioners Payment of
of Her Majesty's Treasury shall, out of money provided by Parliament, prize bounty
pay the amount of prize bounty decreed, in such manner as any Order *''^a'd©d.
in Council may from time to time direct.
VI. — Miscellaneous Pbovisions.
Hansom,
45. Her Majesty in Council may from time to time, in relation to Power for
any war, make such orders as may seem expedient, according to regulating
circumstances, for prohibiting or allowing, wholly or in certain cases, ransom by
or subject to any conditions or regulations or otherwise, as may from ^^^^
time to time seem meet, the ransoming or the entering into any contract °®'™*^*
or agreement for the ransoming of any ship or goods belonging to any
of Her Majesty's subjects, and taken as prize by any of Her Majesty's
enemies.
780
APPENDIX.
Puniahment
of masters of
merohant
Tssaels under
oonvey dis-
obeying
orders or
deeerting
oonyoj.
Prize ships
and goods
liable to
duties and
forfeiture.
Regulations
of customs to
be observed as
to prize ships
and goods.
Power for
treasury to
remit Customs
Any contract or agreement entered into, and any biU, bond, or other
security given for ransom of any ship or goods, shall be under the
exclusive jurisdiction of the High Court of Admiralty as a Prize Coart
(subject to appeal to the Judicial Committee of the Privy CouncU),
and if enter^ into or given in contravention of any such Order in
Council shall be deemea to have been entered into or given for an
illegal consideration.
If any person ransoms or enters into any contract or agreement for
ransoming any ship or goods, in contravention of any such Order in
Council, he shall for every such offence be liable to be proceeded
against in the High Court of Admiralty at the suit of Her Majesty in
her Office of Admiralty, and on conviction to be fined, in the discretion
of the Court, any sum not exceeding five hundred pounds.
Convoy.
46. If the master or other person having the command of any ship
of any of Her Majesty's subjects, under the convoy of any of Her
Majesty's ships of war, wilfully disobeys any lawful signal, instruction,
or command of the commander of the convoy, or without leave deserts
the convoy, he shall be liable to be proceeded against in the High Court
of Admiralty at the suit of Her Majesty in her Office of Admiralty,
and upon conviction to be fined, in the discretion of the Court, any
sum not exceeding five hundred pounds, and to suffer imprisonment
for such time, not exceeding one year, as the Court may adjudge.
Customs Duties and Regulations,
47. All ships and goods taken as prize and brought into a port of
the United Kingdom shall be liable to and be charged with the same
rates and charges and duties of customs as under any Act relating to
the customs may be chargeable on other ships and goods of the like
description; and
All goods brought in as prize which would on the voluntary impor-
tation thereof be nable to forfeiture or subject to any restriction under
the laws relating to the Customs, shall be deemed to be so liable and
subject, unless the Commissioners of Customs see fit to authorize the
sale or delivery thereof for home use or exportation, unconditionally or
subject to such conditions and regulations as they may direct.
48. Where any ship or goods taken as prize is or are brought into a
port of the United Kingdom, the master or other person in charge or
command of the ship which has been taken or in which the goods are
brought sball, on arrival at such port, bring to at the proper place of
discharge, and shall, when required by any officer of Customs, deliver
an account in writing under his hand concerning such ship and goods,
giving such particulars relating thereto as may be in his power, and
shall truly answer all questions concerning such ship or goods asked by
any such officer, and in default shall forfeit a sum not exceeding one
hundred pounds, such forfeiture to be enforced as forfeitures for offences
against the laws relating to the Customs are enforced, and every such
ship shall be liable to such searches as other ships are liable to, and
the officers of the Customs may freely go on board such ship and bring
to the Queen's warehouse any goods on board the same, subject never-
theless to such regulations in respect of ships of war belon&;ing to Her
Majesty as shall from time to time be issued by the Commissioners of
Her Majesty's Treasury.
49. Goods taken as prize may be sold either for home consumption
or for exportation; and if in the former case the proceeds thereof, after
payment of duties of Customs, are insufficient to satisfy the just and
NAVAL PBIZE. 781
reasonable claims thereon, the Commissioners of Her Majesty's Treasury duties in
may remit the whole or such part of the said duties as they see fit. certain cases.
Perjury,
60. If any person wilfully and corruptly swears, declares, or affirms Puniahment
falsely in any prize cause or appeal, or in any proceeding under this of persona
Act, or in respect of any matter required by this Act to be verified on fir^ifty «>£
oath, or suborns any other person to do so, he shall be deemed guilty P^''J*"T-
of perjury, or of subornation of perjury (as the case may be), and shall
be liable to be punished accordingly.
Limitation of Actions , Sfc.
51. Any action or proceeding shall not lie in any part of Her Actions
Majesty's dominions against any person acting under the authority or against
in the execution or intended execution or in pursuance of this Act for pe™o^
any alleged irregularity or trespass, or other act or thing done or not to b/
omitted by him under this Act, unless notice in writing (specifying brought witb-
the cause of the action or proceeding) is given by the intending plain- out notice, &c.
ti£E or prosecutor to the intended defendant one month at least before
the commencement of the action or proceeding, nor unless the action
or proceeding is commenced within six months next after the act or
thing complained of is done or omitted, or, in case of a continuation
of damage, within six months next after the doing of such damage has
ceased.
In any such action the defendant may plead generally that the act
or thing complained of was done or omitted by him when acting under
the authority or in the execution or intended execution or in pursuance
of this Act, and may give all special matter in evidence; and the
plaintiff shall not succeed if tender of sufficient amends is made by the
defendant before the commencement of the action; and in case no
tender has been made, the defendant may, by leave of the Court in
which the action is brought, at any time pay into Court such sum of
money as he thinks fit, whereupon such proceeding and order shall be
had and made in and by the Court as may be had and made on the
payment of money into Court in an ordinary action ; and if the plain-
tiff does not succeed in the action, the defendant shall receive such
full and reasonable indemnity as to all costs, charges, and expenses
incurred in and about the action as may be taxed and allowed by the
proper officer, subject to review ; and though a verdict is given for the
plaintiff in the action he shall not have costs against the defendant,
unless the judge before whom the trial is had certifies his approval of
the action.
Any such action or proceeding against any person in Her Majesty's
Naval service, or in &e employment of the Lords of the Admiralty,
shall not be brought or instituted elsewhere than in the United
Kingdom.
Petitions of Right.
52. A petition of right, imder the Petitions of Biffht Act, 1860, Jurisdiction of
may, if the suppliant thinks fit, be intituled in the High Court of Higb Court of
Admiralty, in case the subject-matter of the petition or any material '^*^"^*^*^L^'*
part thereof arises out of the exercise of any belligerent right on behalf S^t^*
of the Crown, or would be cognizable in a Prize Court within Her certain cases.
Majesty's dominions if the same were a matter in dispute between as in 23 & 24
private persons. Vict. o. 34.
Any petition of right under the last-mentioned Act, whether intituled
in the High Court of Admiralty or not, may be prosecuted in that
Court, if the Lord Chancellor thinks fit so to direct
782 APPENDIX.
The provifiions oi this Act relatiye to appeal, and to the framing
and approval of general orders for regulating the procedure and prac-
tice 01 the High Court of Admiralty, shall extend to the case of any
such petition of right intituled or directed to be prosecuted in that
Court; and, subject thereto, all the provisions of the Petitions of Biglit
Act, 1860, shall apply, mutatis mutandis, in the case of any such peti-
tion of right ; and for the purposes of the present section, the terms
''Court" and ''Judge" in that Act shall respectively be understood
to include and to mean the High Court of Admiralty and the judge
thereof, and other terms shall have the respective meanings given to
them in that Act.
Orders in Council.
Power to ^3* Her Majesty in Council may from time to time make such Orders
make orders in Council as seem meet for the better execution of this Act.
in council. 54. Every Order in Council under this Act shall be published in the
Order in London Gazette, and shall be laid before both Houses of Parliament
council to be within thirty days after the making thereof, if Parliament is then
gazetted, &c. sitting, and, if not, then within thirty days after the next meeting of
Parb'ament.
Savings.
Not to affect 65. Nothing in this Act shall—
Cro ^* ^' ff t ^^'^ ^^® ^ *^® officers and crew of any of Her Majesty's ships of
of treaties &c. ^^' ^^7 right or daim in or to any ship or goods taken as
prize or the proceeds thereof, it being the intent of this Act
that such officers and crews shall continue to take only such
interest (if any) in the proceeds of prizes as may be from time
to time granted to them by the Crown ; or
(2.) aftect the operation of any existing treaty or convention with
any foreign power ; or
(3.) take away or abridge the power of the Crown to enter into any
treaty or convention with any foreign power containing any
stipidation that may seem meet concerning any matter to
which this Act relates ; or
(4.) take awav, abridge, or control, further or otherwise than as
expressly provided by this Act, any right, power, or preroga-
tive of Her Majesty the Queen in ri^t of her Crown, or in
right of her Office of Admiralty, or any right or power of the
Lord High Admiral of the United Elingdom, or of the com-
missioners for executing the office of Loni High Admiral ; or
(5.) take away, abridge, or control, further or otherwise than as
expressly provided by this Act, the jurisdiction or authority
of a Prize Court to take cognizance of and judicially proceed
upon any capture, seizure, prize, or reprisal of any ship or
goods, and to hear and determine the same, and, according
to the course of Admiralty and the law of nations, to adjudge
and condemn any ship or goods, or any other jurisdiction or
authority of or exerciseable by a Ptize Court.
Commencement.
Commenoe- 56. This Act shall commence on the commencement of the Naval
ment of Act. Agency and Distribution Act, 1864 (/).
(/) By the operation of the Supreme Court of Admiralty is assigned, subject
Court of Judicature Act, 1873 (36 & 37 to any rule under the Act which may
Vict. c. 66), the jurisdiction of the High transfer it to some other dirisioii, to
TREATY OP WASHINQTOX, 1871. ^83
APPENDIX E.
THE TREATY OF WASHINGTON, 1871.
Concluded May 8, 1871 ; Rattficaiiona Exchanged June 17, 1871 ;
Proclaimed July 4, 1871.
The ITnited States of America and Her Britannic Majesty, being
desirous to provide for an amicable settlement of all causes of differ-
ence between the two countries, have for that purpose appointed their
respective Plenipotentiaries, that is to sav : the President of the United
States has appointed, on the part of the United States, as Commis-
sioners in a Joint High Commission and Plenipotentiaries, Hamilton
Fish, Secretary of State ; Bobert Cumming Schenck, Envoy Extraor-
dinary and Minister Plenipotentiary to Great Britain ; Samuel Nelson,
an Associate Justice of the Supreme Court of the United States;
Ebenezer Eockwood Hoar, of Massachusetts; and George Henry
Williams, of Oregon ; and Her Britannic Majesty, on her part, has ap-
pointed as Her High Commissioners and Plenipotentiaries, the Eight
Honourable George Frederick Samuel, Earl de Grey and Earl of Eipon,
Viscount Goderich, Baron Grantham, a Baronet, a Peer of the United
Kingdom, Lord President of Her Majesty's Most Honourable Privy
Council, Knight of the Most Noble Order of the Garter, &c., &c. ; the
Eight Honourable Sir Stafford Henry Northcote, Baronet, one of Her
Majesty's Most Honourable Privy Council, a Member of Parliament,
a Companion of the Most Honourable Order of the Bath, &c., &c. ; Sir
Edwaid Thornton, Knight Commander of the Most Honourable Order
of the Bath, Her Majesty's Envoy Extraordinary and Minister Pleni-
potentiary to the United States of America; Sir John Alexander
Macdonald, Knight Commander of the Most Honourable Order of the
Bath, a member of Her Majesty's Privy Council for Canada, and
Minister of Justice and Attorney-General of Her Majesty's Dominion
of Canada ; and Mountague Bernard, Esquire, Chichele Professor of
International Law in the University of Oxford.
And the said Plenipotentiaries, after having exchanged their full
powers, which were found to be in due and proper form, have agreed
to and concluded the following articles :
Abticle I.
Whereas differences have arisen between the government of the Alabama
United States and the government of Her Britannic Majesty; and still dUims to be
exist, growing out of the acts committed by the several vessels which reared to
have given rise to the claims generically known as the '^Alabama •'™*^'*<"**
Claime " :
And whereas Her Britannic Majesty has authorized Her High Com-
Sfvi^%.f m^'cSS^ ti^^ »i™^*y ^ transfer!^ to the Court of
Siw«l LS^ ^^^..S^^i^in^ T; ^PP«*^J ^^^ ^^^^^ Court a further
f^^^M^J^^J J^^lJ^^Jl 4^^ lies to the House of Lords
!^^^r?h« ~X^ ai S« lA^pellate Jurisdiction Act, 1876, s. 3).
the Lord Chief Justice, be heard by ™ °^^ ^V^ f?**^ 5^^ H^ *? ^^_
another jud^e of the High Court. B^ Sl^L^^^fi JfTvJT^^^^
sect. 18 if the same Actfthe appellate SPJi^^^L^?! ^^iJ^t'J^lJi' \ '^
jurisdiction of the JudiJial Committee ^^^ fio^T International Law,
on appeal from the High Court of Ad- PP' ^^' **"» ^^'
784
APPENDIX.
Arbitraion,
how to be
named.
VAoanciefi,
how filled.
miflsionerfl and Plenipotentiaries to express, in a friendly spirit, the
regret felt by Her Majesty's government for the escape, under what-
ever circumstances, of The Alabama and other yessels from Britifili
ports, and for the depredations committed by those vessels :
Now, in order to remove and adjust all complaints and claims on
the part of the United States, and to provide for the speedy settlement
of such claims, which are not admitted by Her Britannic Majesty's
government, the High Contracting Parties agree that all the said
claims, growing out of acts committed by the aforesaid vessels and
generically known as the ^'Alabama Claims,*^ shidl be referred to a
Tribunal of Arbitration to be composed of five Arbitrators, to be
appointed in the following manner, that is to say : One shall be named
by the President of the United States ; one shall be named by Her
Britannic Majesty ; His Majesty the King of Italy shall be requested
to name one ; the President of the Swiss Confederation shall be re-
quested to name one ; and His Majesty the Emperor of Brazil shall
be requested to name one.
In case of the death, absence, or incapacity to serve of any or either
of the said Arbitrators, or, in the event of either of the said Arbitrators
omitting or declining or ceasing to act as such, the President of the
United States, or Her Britannic Majesty, or His Majesty the King of
Italy, or the President of the Swiss Confederation, or His Majesty the
Emperor of Brazil, as the case may be, may forthwith name another
person to act as Arbitrator in the place and stead of the Arbitiator
originally named by such head of a State.
And in the event of the refusal or omission for two months after
receipt of the request from either of the High Contracting Parties of
His Majesty the King of Italy, or the President of the Swiss Con-
federation, or His Majesty the Emperor of Brazil, to name an Arbi-
trator either to fill the original appointment or in the place of one who
may have died, be absent, or incapacitated, or who may omit, decline,
or from any cause cease to act as such Arbitrator, His Majebtythe
King of Sweden and Norway shall be requested to name one or more
persons, as the case may be, to act as such Arbitrator or Arbitrators.
Article TI.
Arbitratora to ^® Arbitrators shall meet at Geneva, in Switzerland, at the earliest
meet, wher, convenient day after they shall have been named, and shall proceed
and where ; impartially and carefully to examine and decide all questions that shall
their powers ; be laid before them on the part of the governments of the United
a majority to States and Her Britannic Majesty respectively. All questions oon-
decide. sidered by the tribunal, including the mial award, shall be decided by
a majority of all the Arbitrators.
Agents of Each of the High Contracting Parties shall also name one person io
each party. attend the tribunal as its agent to represent it generally in all matters
connected with the arbitration.
Case of each
party, Ac,
when to he
given to
arbitrators.
Article III.
The written or printed case of each of the two parties, accompanied
by the documents, the official correspondence, and other evidence on
which each relies, shall be delivered m duplicate to each of the Arbi-
trators and to the agent of the other party as soon as may be after the
organization of the tribunal, but within a period not exceeding fii^
months from the date of the exchange of the ratifications of this
treaty.
TREATY OF WASHINGTON, 1871. 785
Artiolb rv.
Within foTir months after the delivery on both sides of the written Counter caae,
or printed case, either party may, in like manner, deliver in duplicate &<5-
to each of the said Arbitrators, and to the agent of the other party, a
oonnter-case, and additional documents, correspondence, and evidence,
in reply to the case, documents, correspondence, and evidence so pre-
sented by the other party.
The Arbitrators may, howevei^, extend the time for delivering such Time may be
counter-case, documents, correspondence, and evidence, when, in their extended,
judgment, it becomes necessary, in consequence of the distance of the
place from which the evidence to be presented is to be procured.
If in the case submitted to the Arbitrators either party shall have Doomnents
specified or alluded to any report or document in its own exclusive and papers to
possession without annexing a copy, such party shall be bound, if the !>« produced,
other party thinks proper to apply for it, to furnish that party with a
copy tiiereof ; and either party may call upon the other, through the
Arbitrators, to produce the originals or certified copies of any papers
adduced as evidence, giving in each instance such reasonable notice as
the Arbitrators may require.
Abticle V.
It shaU be the duty of the agent of each party, within two months Arffuments
after the expiration of the time limited for the delivery of the counter- and briefs,
case on both sides, to deliver in duplicate to each of the said Arbi-
trators and to the agent of the other party a written or printed argu-
ment showing the points and referring to the evidence upon which his
government relies: and the Arbitrators may, if they desire further
elucidation with regard to any point, require a written or printed state-
ment or argument, or oral argument by counsel upon it ; but in such
case the other party shall be entitled to reply either orally or in
writing, as the case may be.
Aeticlb VI.
In deciding the matters submitted to the Arbitrators, they shall be Bules to
governed by the following three rules, which are agreed upon by the govern the
High Contracting Parties as rules to be taken as applicable to the case, ^bSrdeoS^
and by such prmciples of international law not inconsistent there-
with as the Arbitrators shall determine to have been applicable to the
case.
RULES.
A neutral government is bound —
First, to use due diligence to prevent the fittin^-out, arming, or equip- Obligation of
ping, within its jurisdiction, of any vessel which it has reasonable neutral
ground to believe is intended to cruise or to carry on war against a government
tower with which it is at peace ; and also to use like diligence to ^^ vesseh^in
prevent the departure from its jurisdiction of any vessel intended to its waters;
cruise or carry on war as above, such vessel having been specially
adapted, in whole or in part within such jurisdiction, to warlike use.
Secondly, not to permit or suffer either belligerent to make use of as to the use
its ports or waters as the base of naval operations against the other, or of its ports ;
for the purpose of the renewal or augmentation of military supplies or
arms, or the recruitment of men.
w. P> E
786 APPENDIX.
to Drevent Thirdly, to ezeroiBe due diligence in its own ports and waters, and,
▼ioUtion of ita as to all persons within its jurisdiction, to prevent anj violation of the
obligaUoM. foregoing obligations and duties.
These rules Her Britannic Majesty has commanded her High Commissionen and
not admitted Plonipotentiaries to declare that Her Majesty's GoYemment cannot
to have been assent to the foregoing rules as a statement of principles of interaa-
Se ola^ tional law which were in force at the time when the claims mentioned
uooe. ^ Article I. arose ; but that Her Majest^s government, in order to
evince its desire of strengthening the fnenSj relationB between the
two countries and of making satisfactory provision for the future, agreas
that, in deciding the questions between the two countriee arising out
of those claims, the Arbitrators should assume that Her Majesty's
government had undertaken to act upon the principles set iorik in
Siese rules.
Rnles to And the High Contracting Parties agree to observe these roles as
goyem future between themselves in future, and to bring them to the knowledge of
other maritime powers, and to invite them to accede to them.
Article VII.
Deoision to be The decision of the tribunal shall, if possible, be made within thiee
made, when, months from the close of the argument on both sides,
and in what j^ gj^^j] y^^ made in writing, and dated, and shall be signed hj the
^^°^ • Arbitrators who may assent to it.
If Great ^® ^^ tribunal shall first determine as to each yessel separatelj
Britain ia whether Great Britain has, by any act or omission, failed to fulfil any
found in fanlt, of the duties set forth in the foregoing three rules, or recognized hy
* *^"?* """^ t^® principles of international law not inconsistent with such rules,
awLded ^^^ *^*^ certify such fact as to each of the said vessels. In case the
tribunal find that Great Britain has failed to fulfil any duty or dutias
as aforesaid, it may, if it think proper, proceed to award a sum in groes
to be paid by Great Britain to the United States for all the daime
referred to it ; and in such case the gross sum so awarded shall be paid
in coin by the Government of Great Britain to the Government of the
United States, at Washington, within twelve months after the date oi
the award.
Award to be ^^® award shall be in duplicate, one copy whereof shall be delivered
in duplicate. ^ *^® agent of the United States for his Government, and the other
copy shall be delivered to the agent of Great Britain for his Govern-
ment.
Article Vm.
Ezpensee of Each Government shall pay its own agent, and provide for th«
the arbitra- proper remuneration of the counsel employed by it and of the Arbi-
tion, how to trator appointed by it, and for the expense of preparing and submit-
be defrayed, ^jj^g i^^^ ^^se to the tribunal. All other expenses connected with the
arbitration shall be defrayed by the two Governments in ^^
moieties.
Article IX.
Arbitrators to The Arbitrators shall keep an accurate record of their proceedingSf
keep a record, and may appoint and employ the necessary officers to assist them.
Article X.
If Gi«at In case the tribunal finds that Great Britain has f aUed to fulfil any
Britun ia ^^^y ^^ duties as aforesaid, and does not award a sum in gross, the
and'a SroJr ^^^^ Contracting Parties agree that a Board of Assessors shaU be
Bum is not appointed to ascertain and determine what claims are valid, and whw
awarded, amount or amounts shall be paid by Great Britain to the United
TEEATY OP WASHINGTON, 1871. 787
States on aoconnt oi the liability arising from such failure, as to eacK board of
vessel according to the extent of 8u<£ liability as decided by the afiaeeaorsto
Arbitrators. todKi^
The Board of Assessors shall be constituted as follows : One member Qiaims.
thereof shall be named by the President of the United States, one
member thereof shall be named by Her Britannic Majesty, and one
member thereof shall be named by the representative at Washington
of His Majesty the King of Italy ; and in case of a vacancy happening
from any cause, it shall be filled in the same manner in which the
original appointment was made.
As soon as possible after such nominations the Board of Assessors Board, when
shall be organized in Washington, with power to hold their sittings to meet,
there, or in New York, or in Boston. The members thereof shaJl Members to
severally subscribe a solenm declaration that they will impartially and aubsoribe a
carefully examine and decide, to the best of their judgment, and declaration,
according to justice and equity, all matters submitted to them, and shall
forthwith proceed, imder such rules and regulations as they may pre-
scribe, to the investigation of the claims which shall be presented to
them by the government of the United States, and shall examine and
decide upon them in such order and manner as they may think proper,
but upon such evidence or information only as shall be furnished by
or on behalf of the governments of the United States and of Great
Britain respectively. They shall be bound to hear on each separate
claim, if required, one person on behalf of each government, as counsel
or agent. A majority of the Assessors in each case shall be sufficient
for a decision.
The decision of the Assessors shall be given upon each claim in Decision,
writing, and shall be signed by them respectively and dated. when and how
Every claim shall be presented to the Assessors within six months fi^iven.
from the day of their ^t meeting ; but they may, for good cause Claims, when
shown, extend the time for the presentation of any claim to a further *® ^!i*'^'
period not exceeding three months. *^ *
The Assessors shall report to each government at or before the Report of
expiration of one year from the date of their first meeting the amount assesBors ;
of claims decided by them up to the date of such report ; if further
claims then remain undecided, they shall make a further report at or
before the expiration of two years from the date of such first meeting ;
and in case any claims remain imdetermined at that time, they shall
make a final report within a further period of six months.
The report or reports shall be made in duplicate, and one copy how to be
thereof shall be delivered to the Secretary of State of the United made and to
States, and one copy thereof to the representative of Her Britannic ^ ^^^®'
Majesty at Washington. ^^^"^
All sums of money which may be awarded under this article shall Awards, when
be payable at Washington, in coin, within twelve months after the ^^ ^^®" ^
delivery of each report. ^
The Board of Assessors may employ such clerks as they shall think Clerks,
necessary.
The expenses of the Board of Assessors shall' be borne equally by Expenses,
the two governments, and paid from time to time, as may be found
expedient on the production of accounts certified by the Board. The
remuneration of the Assessors shall also be paid by the two govern-
ments in equal moieties in a similar manner.
Articlb XI.
The High Contracting Parties engage to consider the result of the Decisions of
prooeedingsof the Tribunal of Arbitration and of the Board of Assessors, the arbitra-
3 1,2 *°"'°*
7«8
APPENDIX.
1 1<> should Huch Board be appointed, as a full, perfect, and final settlemeiit
be final. of all the claims hereinoefore referred to ; and further engage that
CUims not every such claim, whether the same may or may not have been pre-
presented to gented to the notice of, made, preferred, or laid before the Tribunal or
finiUlT'iiettled ^^*^» shall, from and after the conclusion of the proceedings of the
^ * Tribunal or Board, be considered and treated as finally settled, baiied,
and thenceforth inadmissible.
Certain dalms
(other than
the Alabama
olaims)
against either
govenunent
to be referred
to three com-
missioners.
Their powers
and datiee.
Abhole Xn.
The High Contracting Parties a^ree that all claims on the part of
corporations, companies, or private individuals, citizens of the United
States, upon the government of Her Britannic Majesty, arising out of
acts committed against the persons or property of citizenfl of the
United States during the period between the 13th of April, 1861, and
the 9th of April, 1865, inclusive, not being claims growing out of the
acts of the vessels referred to in Article I. of this treaty, and fJl daims,
with the like exception, on the part of corporations, companies or
private individuals, subjects of Her Britannic Majesty, upon the
government of the United States, arising out of acts committed against
the persons or property of subjects of Her Britannic Majesty during
the same period, which may have been presented to either government
for its interposition with the other, and which yet remain unsettled, as
well as any other such claims which may be presented within the time
specified in Article XIV. of this treaty, shaU oe referred to three Com-
missioners, to be appointed in the following manner, that is U) say:
One Commissioner shall be named by the President of the United
States, one by Her Britannic Majesty, and a third by the President ol
the United States and Her Britannic Majesty conjointly ; and in case
the third Commissioner shall not have been so named within a period
of three months from the date of the exchange of the ratifications of
this treaty, then the third Commissioner shall be named by the repre-
sentative at Washington of His Majesty the King of Spain. In case oi
the death, absence, or incapacity of any Commissioner, or in the event
of any Commissioner omitting or ceasing to act, the vacancy shall be
filled in the manner hereinbefore provided for making the original
appointment ; the period of three months in case of such substitution
being calculated from the date of the happening of the vacancy.
The Commissioners so named shall meet at Washington at the earliest
convenient period after they have been respectively named ; and shall;
before proceeding to any business, make and subscribe a solemn decla-
ration that they will impartially and carefully examine and decade, to
the best of their judgment, and according to justice and equity, all
such claims as shall be laid before them on the part of the governments
of the United States and of Her Britannic Majesty, respectively; and
such declaration shall be entered on the record of their proceedings.
ARTICLE xm.
Claims to be The Commissioners shall then forthwith proceed to the investigation
investigated, ^f ^^iQ claims which shall be presented to them. They shall investigate
and decide such claims in such order and such manner as they may
think proper, but upon such evidence or information only as shall be
furnished oy or on behalf of the respective governments. They shaU
be bound to receive and consider all written documents or statements
which may be presented to them by or on behalf of the respective
governments in support of, or in answer to, any claim, and to hear, if
required, one person on each side on behalf of each government, ^
counsel or agent for such government, on each and eveiy separate
TREATY OF WASHINGTON, 1871. 789
claim. A majorifcj of the Oommissioners shall be sufficient for an A majority to
award in each case. The award shall be given upon each claim in decide,
writing, and shall be signed by the Commissioners assenting to it. It
shall be competent for each government to name one person to attend
the Commissioners as its agent, to present and support claims on its
behalf, and to answer claims made upon it, and to represent it gene-
rally in all matters connected with the investigation and decision
thereof.
The High Contracting Parties hereby engage to consider the decision Decisions to
of the Commissioners as absolutely final and conclusive upon each be final,
claim decided upon by them, and to give full effect to such decisions
without any objection, evasion or delay whatsoever.
Article XIY.
Eveiy claim shall be presented to the Commissioners within six ciaima, when
months from the day of their first meeting, unless in any case where to bepre-
reasons for delay shall be established to the satisfaction of the Com- sented to the
missioners, and then, and in any such case, the period for presenting op™™"-
the claim may be extended by Uiem to any time not exceeding three
months longer.
The Commissioners shall be bound to examine and decide upon every When to be
claim within two years from the day of their first meeting. It shall be dedded.
competent for the Commissioners to decide in each case whether any
claim has or has not been duly made, preferred, and laid before them,
either wholly or to any and what extent, according to the true intent
and meaning of this treaty.
Article XV.
All sums of money which may be awarded by the Commissioners on Awards, when
account of any claim shall be paid by the one government to the other, to be paid,
as the case may be, within twelve months after the date of the final
award, without interest, and without any deduction save as specified
in Article XYI. of this treaty.
Article XVI.
The Commissioners shall keep an accurate record and correct Becoids.
minutes or notes of all their proceedings, with the dates thereof, and
may appoint and employ a secretary, and any other necessary officer Secretary,
or officers, to assist them in the transaction of the business which may
come before them.
Each government shall pay its own Commissioner and agent or Expenses,
counsel. All other expenses shall be defrayed by the two govern-
ments in equal moieties.
The whole expenses of the Commission, including contingent Chargeable
expenses, shall be defrayed by a rateable deduction on the amount of ^"^ awards,
the sums awarded by the Commissioners, provided always that such
deduction shall not exceed the rate of five per cent, on the sums so
awarded.
Article XVII.
The High Contracting Parties engaee to consider the result of the Decision of
proceedings of this Commission as a fml, perfect, and final settlement oommis-
of all such claims as are mentioned in Article XII. of this treaty upon ^o"^ to be
either government ; and further engage that every^uch claim, whether oiaim^^hat
or not the scune may have been presented to the notice of, made, pre- might have
f erred, or laid before the said Commission, shall, from and alter the been nre-
condusion of the proceedings of the said Oonmiission, be considered Mated,
and treated as finally settle^ barred, and thenceforth inadmissible.
790
APPENDIX.
Rights of the
inhabitants of
the United
States in
certain sea
fisheries in
common with
British
subjects.
Salmon and
shad fisheries
reserved for
British fisher-
Aeticlb XVIII.
It is agreed by the High. Contracting Parties, that in addition to the
liberty secured to the United States fishermen by the GonTention
between the United States and Great Britain, signed at London on
the 20th day of October, 1818, of taking, curing, and drying fish on
certain coasts of the British North American Colonies therein defined,
the inhabitants of the United States shall have, in common with the
subjects of Her Britannic Majesty, the liberty, for the term of years
mentioned in Article XXXIIl. of this treaty, to take fish of every
kind, except shell-fish, on the sea-coasts and shores, and in the bajs,
harbours, and creeks, of the Provinces of Quebec, Nova Scotia, and
New Brunswick, and the Colony of Prince Edward's Island, and of tiie
several islands thereunto adjacent, without being restricted to any dis-
tance from the shore, with permission to land upon the said coasts and
shores and islands, and also upon the Magdalen Islands, for the pur-
pose of diying their nets and curing their fish : provided that, in so
doing they do not interfere with the rights of private property, or with
British fishermen in the peaceable use of any part of the said coasts in
their occupancy for the same purpose.
It is understood that the above-mentioned liberty applies solely to
the sea fishery, and that the salmon and shad fisheries, and all other
fisheries in rivers and the mouths of rivers, are hereby reserved
exduaively for British fishermen.
Rights of
British
subjects in
certain United
States sea
fisheries.
Salmon and
shad fisheries
zeaerved«
Abticle XIX.
It is agreed by the High Contracting Parties that British subjects
shall have, in common with the citizens of the United States, the
liberty, for the term of years mentioned in Article XXXIIl. of this
treaty, to take fish of every kind, except shell-fish, on the eastern sea-
coasts and shores of the United States north of the thirty-ninth paralld
of north latitude, and on the shores of the several islands thereunto
adjacent, and in the bays, harbours, and creeks of the said sea-coasts
and shores of the United States and of the said islands, without being
restricted to any distance from the shore, with permission to land upon
the said coasts of the United States and of the islands aforesaid, for the
purpose of drying their nets and curing their fish : provided that, in
so doing, they do not interfere with the rights of private property, or
with the fishermen of the United States in the peaceable use of any
part of the said coasts in their occupancy for the same purpose.
It is understood that the above-mentioned liberty applies solelj to
the sea fishery, and that salmon and shad fisheries, and all ouier
fisheries in rivers and mouths of rivers, are hereby reserved exdusivelj
for fishermen of the United States.
right of
fishing.
AbtioleXX.
Certain places It is agreed that the places designated by the Commissioners ap-
resorved from pointed under the First Article of the treaty between the United States
the common and Ghreat Britain, concluded at Washington on the 6th of June, 1864,
upon the coasts of Her Britannic Majesty's dominions and the United
States, as places reserved from the common right of fishing under that
treaty, shall be regarded as in like manner reserved from the oonunon
right of fishing under the preceding Articles. In case any question
should arise between the governments of the United States and of Her
Britannic Majesty as to the common right of fishing in places not thus
designated as reserved, it is agreed that a Commission shiul be (^>point6d
to designate such places, and shall be constituted in the same manner,
TREATY OF WASHINGTON, 187]. 791
and Kaye the same powers, duties, and authority as the Commission
appointed under the said First Article of the treaty of the 5th of June,
1854.
ABTicaiiE XXI.
It is agreed that, for the term of years mentioned in Article XXXIII. Certain fish-
of this treaty, fish-oil and fish of all kinds (except fish of the inland ^^^^ */^ **^
lakes, and of the rivers falling into them, and except fish preserved in ^^j^
oU), being the produce of the fisheries of the United States or of the
Dominion of Canada, or of Prince Edward's Island, shall be admitted
into each country, respectively, free of duty (m).
Abticlb XXII.
Inasmuch as it is asserted by the government of Her Britannic Oommis-
Majesty that the privileges accorded to the citizens of the United States joiiers to
under Article X Vni. of this treaty are of greater value than those ^^^^^tion
accorded by Articles XIX. and XXI. of this treaty to the subjects of if aoTTto be '
Her Britannic Majesty, and this assertion is not admitted by the govern- paid bv
ment of the United States, it is further agreed that Commissioners tTnited States
shall be appointed to determine, having regard to the privileges ^^^T^^f^^
accorded by me United States to the subjects of Her Britannic Majesty, a^XViL..
as stated in Articles XIX. and XXI. of this treaty, the amount of any
compensation which, in their opinion, ought to be paid by the govern-
ment of the United States to the government of Her Britannic Majesty
in return for the privileges accorded to the citizens of the United States
imder Article XV III. of this treaty; and that any sum of money which
the said Commissioners may so award shall be paid by the United
States government, in a gross sum, within twelve months after such
award uiall have been given.
Artiolb xxm.
The Commissioners referred to in the preceding Article shall be Oommis-
appointed in the following manner, that is to say : One Commissioner sionera how to
shall be named by the President of the United States, one by Her ^ appointed.
Britannic Majesty, and a third by the President of the United States
and Her Britannic Majesty conjointly ; and in case the third Commis-
sioner shaU not have been so named within a period of three months
from the date when this Article shall take effect, then the third Com-
missioner shall be named by the representative at London of His
Majesty the Emperor of Austria and King of Hungary. In case of the
death, absence, or incapacity of any Commissioner, or in the event of
any Commissioner omitting or ceasing to act, the vcu»incy shall be filled
in the manner hereinbefore provided for making the original appoint-
ment, the period of three months in case of such substitution being
calculated from the date of the happening of the vacancy.
The Commissioners so named shall meet in the City of Halifax, in When and
the Province of Nova Scotia, at the earliest convenient period after ^^fj?^ .
they have been respectively named, and shall, before proceeding to any JJ^^g^ g^
business, make and subscribe a solemn declaration that they will daties.
impartially and carefully examine and decide the matters referred to
them to ihe best of their judgment, and according to justice and
equity ; and such declaration shall be entered on the record of their
Eadi of the High Contracting Parties shaU also name one person to Agent for
attend the Commission as its agent, to represent it generally in all each govern-
matters conneoted with the Commission. ™^ '
(m) Articles XVIII. to XXI. were Babseqaently abrogated by the United States,
aee anta^ { ISOa.
r93
APPENDIX.
Proceedings
before thes»e
oommis-
sionera, how
to be oon-
duoted.
Documents
endpapers.
Ahticle XXIV.
The proceedings shall be conducted in such order as the Comimfi-
sioners appointed under Articles XXII. and XXIII. of this Treaty
shall determine. They shall be bound to receive such oral or written
testimony as either government may present. If either party shall
offer oral testimony, the other party shall have the right of cross-exar
mination, under such rules as the Commissioners shaU. prescribe.
If in the case submitted to the Commissioners either party shall hare
specified or alluded to any report or document in its own ezdusiTe poe-
session, without annexing a copy, such party shall be bound, if the
other party thinks proper to apply for it, to furnish that party with a
copy thereof ; and either party may call upon the other, through the
Commissioners, to produce the originals or certified copies of any papen
adduced as evidence, giving in each instance such reasonable notioe as
the Commissioners may require.
The case on either side shall be closed within a period of six moiiths
from the date of the organisation of the Commission, and the Conimis-
sioners shall be requested to give their award as soon as possible there-
after. The aforesaid period of six months may be extended for three
months in case of a vacancy occurring among the Commissioners under
the circumstances contemplated in Article XXTTT. of this treaty.
Abtiolb XXV.
The Commissioners shall keep an accurate record and correct minutes
or notes of all their proceedings, with the dates thereof, and may ap-
point and employ a secretary, and any other necessary officer or officers,
to assist them in the transaction of the business which may come before
them.
Each of the High Contracting Parties shall pay its own CommiBsioner
and agent or counsel ; all other expenses shall be defrayed by the two
governments in equal moieties.
AeholbXXVT.
The navigation of the Biver St. Lawrence, ascending and descending,
from the forty-fifth parallel of north latitude, where it ceases to form
the boundary between the two countries, from, to, and into the sea,
shall for ever remain free and open for the purposes of oonmierce to the
citizens of the United States, subject to any laws and regulations of
Great Britain, or of the Dominion of Canada, not inconsistent with
such privilege of free navigation.
The navigation of the Eivers Yukon, Porcupine, and Btikine, ascend-
ing and descending, from, to, and into the sea, shall for ever remain
free and open for the purposes of commerce to the subjects of Her
Britannic Majesty and to the citizens of the United States, subject to
any laws and reg^ations of either country within its own territory not
inconsistent with such privilege of free navigation.
Aktiole xxvn.
Use in oom- The government of Her Britannic Majesty engages to urge upon the
mon of certain government of the Dominion of Canada to secure to the citizens of the
®*^*^ ^ United States the use of the Welland, St. Lawrence, and other canals
^^^^^ in the Dominion on terms of equality with the inhabitants of the
Domini<m, and the government of the United States engages that the
subjects of Her Britannic Majesty shaU enjoy the use of me St. Gair
Flats' Canal on terms of equality with the inhabitants of the United
States, and further engages to urge upon the State governments to
Cases to be
oloaedinsiz
months.
Awards.
Beoords,
Expenses.
Nayigation of
the St. Law-
rence to be
free.
Other riyeiB.
TREATY OF WASHINGTON, 1871. 798
Becure to the subjeots of Her Britannic Majesty the use of the several
State canals connected with the navigation of the lakes or rivers
traversed by or contiguous to the boundaiy-line between the posses-
sions of the High Contracting Parties on terms of equality with the
inhabitants of the United States.
abtiolk xxvm.
The navigation of Lake Michigan shall also, for the term of years NavigatioD
mentioned in Article XXXIII. of this treaty, be free and open for the of Lake
purposes of commerce to the subjects of Her Britannic Majesty, subject Michigan,
to any laws and regulations of the United States or of the States bor-
dering thereon not inconsistent with such privilege of free navigation.
Article XXIX.
It is agreed that, for the term of years mentioned in Article XXXIII. Thioagh
of this treaty, goods, wares or merchandise arriving at the ports of transit of
New York, Boston, and Portland, and any other ports in the United g^^^^
States which have been or may, from time to time, be specially desig- J^d^d^tLMa
nated by the President of the United States, and destined for Her for the other.
Britannic Majesty's possessions in North America, may be entered at
the proper custom-house and conveyed in transit, without the payment
of duties, through the territory of the United States, under such rules,
regulations and conditions for the protection of the revenue as the
goveiimient of the United States may from time to time prescribe ;
and, under like rules, regulations, and conditions, goods, wares, or
merchandise may be conveyed in transit, without the payment of duties,
from such possessions through the territory of the United States for
export from the said ports of the United States.
It is further agreed that, for the like period, goods, wares, or mer-
chandise, arriving at any of the ports of Her Britannic Majesty's pos-
sessions in North America, and destined for the United States, may be
entered at the proper custom-house and conveyed in transit, without
the payment of duties, through the said possessions, under such rules
and regulations and conditions for the protection of the revenue as the
governments of the said possessions may from time to time prescribe ;
and, under like rules, regulations, and conditions, goods, wares, or mer-
chandise may be conveyed in transit, without payment of duties, from
the United States through the said possessions to other places in the
United States, or for export from portis in the said possessions.
Abtiolb XXX.
It is agreed that, for the term of years mentioned in Article XXXIII. Sll^^Slf '«#
of this treaty, subjects of Her Britannic Majesty may carry in British fi^^f^^^^
vessels, without payment of duty, goods, wares, or merchandise from p^^ ^
one port or place within the territory of the United States upon the another in
St. I^wrence, the Great Lakes, and the rivers connecting the same, to the same
another port or place within the territory of the United States as afore- oo'u^try;
said : provided, that a portion of such transportation is made through
the Dominion of Canada by land carriage and in bond, under such
rules and regulations as may be agreed upon between the goveiimient
of Her Britannic Majesty and the government of the Unit^ States.
Oitizens of the Umted States may, for the like period, carry in United
States vessels, without payment of duty, goods, wares, or merchandise
from one port or place within the possessions of Her Britannic Majesty
in North America to another port or place within the said possessions :
provided, that a portion of such transportation is made through the
794
APPENDIX.
Export duties.
tenitoiy of the United States by land carnage and in bond, under Buch
rules and regulations as may be agreed upon between the gOTenuneiit
of the United States and the gOTemment of Her Britannic Majesty.
The goremment of the United States farther engages not to impose
any export duties on goods, wares, or merchandise carried under this
article through the territory of the United States ; and Her Majesty'^
gOTermnent engages to urge the parliament of the Dominion of Canada
and the legislatures of the other Colonies not to impose any export
duties on goods, wares, or merchandise carried under this article; and
the gOTemment of the United States may, in case such export duties
are imposed by the Dominion of Canada, suspend, dnring the period
that such duties are imposed, the right of carrying granted under ^
article in favour of the subjects of Her Britannic Majesty.
The government of the United States may suspend the right of
. carrying granted in favour of the subjects of Her Britannic Majestr
Umtod SUta. ^^^^^ ^^ article, in case the Dominion of (Janada should at any time
deprive the citizens of the United States of the use of the canala in
the said Dominion on terms of equality with the inhabitants of the
Dominion, as provided in Article XXVJLL.
Suspension of
these priTi-
Duty on
lumber cut m
Maine and
shipped to the
United States.
ProTisions of
Arte. XVin.
andXXV. to
extend to
Newfoond-
land.
Arte. XVm.
to XXV. and
Art. KXK
when to take
eAeot*
Article XXXI.
The government of Her Britannic Majesty further engages to urge
upon the parliament of the Dominion of Canada and the legislatiiie of
^lew Brunswick that no export duty, or other duty, shall be levied on
lumber or timber of any hind cut on that portion of the American
territory in the State of Maine watered by the River St. John and its
tributaries, and floated down that river to the sea, when the same is
shipped to the United States from the Province of New Brunswick.
And, in case any such export or other duly continues to be levied after
the expiration of one year from the date of the exchange of the ratifi-
cations of this treaty, it is agreed that the government of the United
States may suspend the right of carrying hereinbefore granted under
Article XXX. of this treaty for such period as such export or other
duty may be levied.
Article XXXU.
It is further agreed that the provisions and stipulations of Articles
XVULl. to XXV. of this treaty, induaive, shall extend to the Colony
of Newfoundland so far as they are applicable. But if the Imperial
parliament, the legislature of Newfoundland, or the oongress of the
United States, shafi not embrace the Colony of Newfoundland in thfflr
laws enacted for carrying the foregoing articles into effect, then this
article shall be of no effect ; but the omission to make provision by
law to give it effect, by either of the legislative bodies aforesaid, shall
not in any way impair any other artides of this treaty.
Aruglb XXXm.
The foregoing Articles AVllL to XXV., induaive, and ArtideXXX.
of this treaty, shall take effect as soon as the laws required to cany
them into operation shall have been passed by the Imperial parliament
of Great Britain, by the parliament of Canada, and by the legifilatai^
of Prince Edwaid's Island on the one hand, and by the congress of the
United States on the other. Such assent having been given, the said
artides shall remain in force for the period of ten years from the date
at which they may come into operation ; and further until the expia-
tion of two years after either of the High Contracting Parties shafl
have given notice to the other of its wish to terminate the same ; each
-^--1
TREATY OF WASHINGTON, 1871. 796
of the High Contracting Parties being at liberty to give such notice
to the other at the end of the said period of ten years or at any time
afterward (n).
Abtiole XXXIV.
Whereas it was stipulated by Article I. of the treaty concluded at Beoifiion as to
Washington on the 15th of June, 1846, between the United States JJj**^"^®**
and Her Britannic Majesty, that the line of boundary between the ^^^.^ ^
territories of the United States and those of Her Britannic Majesty, Emperor of
from the point on the forty-ninth parallel of north latitude up to which Germany as
it had already been ascertained, should be continued westward along arbitrdtor.
the said parallel of north latitude ''to the middle of the channel which
separates the continent from Yancouver's Islandj and thence southerly,
through the middle of the said channel and of Fuca Straits, to the
Pacific Ocean" ; and whereas the Commissioners appointed by the two
High Contracting Powers to determine that portion of the boundary
which runs southerly through the middle of the channel aforesaid were
imable to agree upon the same ; and whereas the government of Her
Britannic Majesty claims that such boundary line shoidd, under the
terms of the trealy above recited, be run through the Bosario Straits,
and the government of the United States claims that it should run
through me Canal de Haro, it is agreed that the respective claims of
the government of the United States and of the government of Her
Britannic Majesty shall be submitted to the arbitration and award of
His Majesty the Emperor of Germany, who, having regard to the
above-mentioned article of the said treaty, shall decide thereupon,
finally and without appeal, which of those claims is most in accord-
ance with the true interpretation of the treaty of June 15, 1846.
Abtiole XXXV.
The award of His Majesty the Emperor of Oermany shall be con- Award to be
sidered as absolutely final and conclusive ; and full effect shall be oo»cl"»jo> i*"
given to such award without any objection, evasion, or delay what- ^^^^
soever. Such decision shall be given m writing and dated; it shall be
in whatsoever form His Majesty may choose to adopt ; it shall be de-
livered to the representatives or other public agents of the United
States and of Great Britain respectively, who may be actually at
Berlin, and shall be considered as operative from the day of the date
of the delivery thereof.
Abtiole XXXVI.
The written or printed case of each of the two parties, accompanied Cases of the
by the evidence offered in support of the same, sh^ be laid before His ^iJ?^l^ *®
Majesty the Emperor of Germany within six months from the date of tiSewbiteftor
the exchange of the ratifications of this treaty, and a copy of such case
and evidence shall be communicated by each party to the other through
their re^ective representatives at Berlin.
The High Contracting Parties may indude in the evidence to be
considered by the Arbitrator such documents, official correspondence,
and other official or public statements bearing on the subject of the
reference as they may consider necessary to the support of their
respective cases.
After the written or printed case shall have been communicated by Gonnter-
each party to the other, each party shall have the power of drawing up
and laying before the Arbitrator a second and definitive statement, if
it think nt to do so, in reply to the case of the other party so oommu-
in) Bee 86 ft 86 Viot. o. 46.
796
APPENDIX.
Papenand
doonments.
Agents of
each goYern*
nient.
Proceeding
of the arbi-
trator.
Secretary or
clerk.
Expenses,
how to be
paid.
form of
award.
Ratifications.
nicated, whioh definitive Btatemeut Bhall be so laid before the Arbi-
trator, and also be mutually communicated in the same manner as
aforesaid, by each party to the other, within six months from the date
of laying the first statement of the case before the Arbitrator.
Abticlb xxxvn.
If, in the case submitted to the Arbitrator, either party shall spedfj
or allude to any report or document in its own exdosiye possesaon
without annexing a copy, such party shall be bound, if the other paitj
thinks proper to apply for it, to furnish that party with a copy thereof,
and either party may call upon the other, through the Arbitrator, to
Sroduoe the originals or certified copies of any papers adduced as eri-
ence, giving in each instance such reasonable notice as the Arbitrator
may require. And if the Arbitrator should desire further elucidation
or evidence with regard to any point contained in the statements laid
before him, he shall be at liberty to require it &om either party, and
he shall be at liberty to hear one counsel or agent for each party, in
relation to any matter, and at such time, and in such manner, as he
may think fit.
artiolb xxxvm.
The representatives or other public agents of the United States and
of Great Britain at Berlin, respectively, shall be considered as tlie
agents of their respective governments to conduct their cases before
the Arbitrator, who shall be requested to address all his commanica-
tions, and give all his notices, to such representatives or other public
agents, who shall represent their respective governments generaUy in
afi matters connected with the arbitration.
Abticle XXXIX.
It shall be competent to the Arbitrator to proceed in the said arbi-
tration, and all matters relating thereto, as and when he shall see fit,
either in person, or by a person or persons named by him for that
purpose, either in the presence or absence of either or both agents, and
either orally or by written discussion or otherwise.
Abticle XL.
The Arbitrator may, if he think fit, appoint a secretary or clerk for
the purposes of the proposed arbitration, at such rate of remuneration
as he shall think proper. This and aU other expenses of and con-
nected with the said arbitration, shall be provided for as hereinafter
stipulated.
Abtiole XTil.
The Arbitrator shall be requested to deliver, together with bis
award, an account of all the costs and expenses whida he may bftyj
been put to in relation to this matter, which shall forthwith be repaid
by the two governments in equal moieties.
Abtiole XLII.
The Arbitrator shall be requested to give his award in writing 9B
early as convenient after the whole case on each side shall have been
laid before him, and to deliver one copy thereof to each of the said
agents.
Abticlb XTJII.
The present treaty shall be duly ratified by the President (rf ^^
United States of America, by and with the advice and consent of the
Senate thereof, and by Her Britannic Majesty; and the ratifications
shall be exchanged either at Washin^n or at London within bix
months from the date hereof, or earlier if possible.
CONVENTION FOR SETTLEMENT OF INTERNATIONAL DISPUTES
797
In faith whereof, we, the respeotiTe FlenipotentiarieSy haye signed
this treaty, and haye hereunto affixed our seals.
Done in Duplicate at Washington the 8th day of May, in the year of
our Lord 1871.
[KS.]
Hamiltok Fish.
x.s;
EOBT. 0. SOHEKOK.
X.8/
Samxtbl Nelson.
L.8.'
Ebbnbzbk Rookwood Hoab.
X.8."
Gbo. H. Williams.
■L.8.'
De Gbey and Ripon.
X.8.'
Stafford H. Nobthcote.
X.8."
Edwd. Thornton.
X.8;
John A. Macdonald.
L.S.'
MOUNTAGTJE BERNARD.
APPENDIX F.
CONVENTION FOR THE PACIFIC SETTLEMENT OF
INTERNATIONAL DISPUTES,
Signed at the Hague^ July 29^A, 1899, by representatives of the
Oovernments of Oermany, Austria, Belgium, Bulgaria, Denmark,
Spain, the United States, Mexico, France, Great Britain, Greece,
Italy, Japan, Luxcfnbourg, Montenegro, Holland, Persia, Portugal,
Roumania, Russia, Servia, Siam, Sweden and Noi*way, and
Stcitzerland (o).
(Translation.)
Tttlb I. — On the Maintenance of the General Peace.
Art. 1. With a view to obviatinff as far as possible recourse to force
in the relations between States, me Signatory Powers agree to use
their best efforts to insure the pad£o settlement of international
differences.
Tftlb n. — On Good Offices and Mediation.
Art. 2. In case of serious disagreement or conflict, before an appeal
to arms, the Signatory Powers agree to have recourse, as far as circum-
stances allow, to the good offices or mediation of one or more friendly
Powers.
Art. 3. Independently of this recourse, the Signatory Powers recom-
mend that one or more Powers, strangers to me dispute, should, on
their own initiative, and as far as circumstances may allow, offer their
good offices or mediation to the States at variance. Powers, strangers
to the dispute, have the right to offer good offices or mediation, even
during the course of hostilities. The exercise of this right can
never be regarded by one or the other of the parties in conflict as an
unfriendly act.
Art. 4. The part of the mediator consists in reconciling the opposing
claims, and appeasing the feelings of resentment which may have
arisen between the States at variance.
Art. 6. The functions of the mediator are at an end when once it is
declared, either by one of the parties to the dispute, or by the mediator
(o) See $ 288o, anfe.
798 APPENDIX.
himBelf , that the means of recondliatioii proposed by him are not
accepted.
Abt. 6. Oood offices and mediation, either at the request of the
Sarties at yariance, or on the initiatiye of Powers strangers to the
ispute, have exclusively the character of advice, and never have bind-
ing force.
Abt. 7. The acceptance of mediation cannot, therefore, unless there
be an agreement to the contrary, have the efEect of interrupting, delay-
ing, or hindering mobilisation or other measures of preparations for
war. If mediation occurs after the commencement of hostilities, it
causes no interruption to the military operations in progress, unless
there be an agreement to the contrary.
Abt. 8. The Signatory Powers are agreed in recommending the
application, when circumstances allow, of special mediation in the
following form: — In case of a serious difference, endangering the
peace, the States at variance choose respectively a Power, to whom
they entrust the mission of entering into direct communication with
the Power chosen on the other side, with the object of preventing the
rupture of pacific relations. For the purpose of this mandate, the term
of which, unless otherwise stipulated, cannot exceed thirty days, the
States in conflict cease from all direct communication on the subject of
the dispute, which is regarded as referred exclusively to the me£ating
Powers, who must use their best efforts to settle it. In case of a
definite rupture of pacific relations, these Powers are charged with the
joint task of taking advantage of any opportunity to restore peace.
Title m. — On International Cammisstona of Inquiry,
Abt. 9. In differences of an international nature, involving neither
honour nor vital interests, and arising from a difference of opinion on
points of fact, Ihe Signatory Powers recommend that the parties, who
nave not been able to come to an agreement by means of diplomacy,
should, as far as circumstances allow, institute an International Com-
mission of Inquiry to facilitate a solution of these differences by
elucidating the facts by means of an impartial and conscientious
investigation.
Abt. 10. The International Commissions of Inquiry are constituted
by special agreement between the parties in conflict. The Convention
for an inquiry defines the facts to be examined and the extent of the
Commissioners' powers. It settles the procedure. On the inquiry
both sides must be heard. The form and the periods to be observed,
if not stated in the Inquiry Convention, are decided by the Commis-
sion itself.
Abt. 11. The International Commissions of Inquiry are formed,
unless otherwise stipulated, in the manner fixed by Article 32 of the
present Convention.
Art. 12. The Powers in dispute engage to supply the International
Commission of Inquiry, as fully as they may tlunk possible, with all
means and facilities necessary to enable it to be completely acquainted
with and to accurately imderstand the facts in question.
Art. 13. The International Commission of Inquiry communicates its
Beport to the conflicting Powers, signed by all the members of the
Commission.
Abt. 14. The Beport of the International Commission of Inquiry is
limited to a statement of facts, and has in no way the character of an
arbitral award. It leaves the conflicting Powers entire freedom as to
the effect to be given to this statement.
. I
CONVENTION FOR SETTLEMENT OF INTERNATIONAL DISPUTES.
Title IV. — On International Arbitration.
Ohapteb I. — On the System of Aebitilation.
Abt. 15. Intematioiial arbitration has for its object the settlement
of differences between States by judges of their own choice, and on the
basis of respect for law.
Abt. 16. In questions of a legal nature, and especially in the inter-
pretation or application of International Conventions, arbitration is
recognized by the Signatory Powers as the most efEective and at the
same time the most equitable means of settling disputes which diplo-
macy has failed to settle.
AjEiT. 17. The Arbitration Gonyention is concluded for questions
already existing, or for questions which may arise eventually. It may
embrace any dispute or only disputes of a certain categoiy.
Abt. 18. The Arbitration Convention implies the engagement to
submit loyally to the Award.
Abt. 19. Independently of general or private Treaties expressly
stipulating recourse to arbitration as obligatory on the Signatory
Powers, these Powers reserve to themselves the right of concluding,
either before the ratification of the present Act, or later, new agree-
ments, general or private, with a view to extending obligatory arbitra-
tion to all cases which they may consider it possible to submit to it.
Chafteb II. — Ok the Pebmanent Coubt op Abbitbatiok.
Abt. 20. With the object of facilitating an immediate recourse to
arbitration for international differences, which it has not been possible
to settle by diplomacy, the Signatory Powers undertake to organise a
Permanent Court of Arbitration, accessible at all times, and operating,
unless otherwise stipidated by the parties, in accordance with the rules
of procedure inserted in the present Convention.
Abt. 21. The Permanent Court shall be competent for all arbitra-
tion cases, unless the parties agree to institute a special Tribunal.
Abt. 22. An International Bureau, established at the Hague, serves
as record office for the Court. This Bureau is'the channel for commu-
nications relative to the meetings of the Court. It has the custody of
the archives and conducts all the administrative business. The Signa-
tory Powers undertake to communicate to the International Bureau at
the Hague a duly certified copy of any conditions of arbitration arrived
at between them, and of any award concerning them delivered by
special Tribunals. They also undertake to communicate to the Bureau
the laws, regulations, and documents eventually showing the execution
of the awards given by the Court.
Abt. 23. Within the three months following its ratification of the
present Act, each Signatory Power shall select four persons at the
most, of known competency in questions of international law, of the
highest moral reputation and disposed to accept the duties of Arbi-
trators. The persons thus selected shall be inscribed, as members of
the Court, in a list which shall be notified by the Bureau to all the
Signatory Powers. Any alteration in the list of Arbitrators is brought
by the Bureau to the knowledge of the Signatory Powers. Two or
more Powers may agree on the selection in common of one or more
members. The same person can be selected by different Powers.
The members of the Uourt are appointed for a term of six years.
Their appointments can be renewed. In case of the death or retire-
ment 01 a member of the Court, his place shall be filled in accordance
with the method of his appointment.
799
800 APPJiNDDL
Art. 24. Wlien the Signatory Powers desire to have recourse to the
Permanent Court for the settlement of a difference that has ansen
between them, the Arbitrators called upon to form the competent
Tribunal to decide this difPerence must oe chosen from the general
list of members of the Court. Failing the direct agreement of the
parties on the composition of the Arbitration Tribun^, the following
course should be pursued. Each party appoints two Arbitrators, and
these together choose an Umpire. If the yotee are equal, the choioe
of the Umpire is entrusted to a third Power, selected by the parties
by common accord. If an agreement is not arriyed at on this subject,
each party selects a different Power, and the choice of the Umpire ia
made in concert by the Powers thus selected. The Tribimal being
thus composed, the parties notify to the Bureau their determination to
have recourse to the Court, and the names of the Arbitrators. The
Tribunal of Arbitration assembles on the date fixed by the parties.
The members of the Court, in the dischar^ of their duties, and out
of their own country, enjoy diplomatic privileges and immunities.
Art. 25. The Tribunal of Arbitration has its ordinaiy seat at the
Hague. Except in cases of necessity the place of session can only be
altered by the Tribunal with the assent of the parties.
Art. 26. The International Bureau at the Hague is authorised to
place its premises and its staff at the disposal of the Signatory Powen
lor the operations of any special Board of Arbitration. The juris-
diction of the Permanent Court may, within the conditions laid down
in the Begulations, be extended to disputes between non-Signatory
Powers, or between Signatory Powers and non-Signatory Powers, 3
the parties are agreed on recourse to this Tribunal.
Art. 27. The Signatory Powers consider it their duty, if a serionB
dispute threatens to break out between two or more of them, to remind
these latter that the Permanent Court is open to them. Consequently,
they declare that the fact of reminding the conflicting paxties of the
provisions of the present Convention, and the advice given to them, in
the highest interests of peace, to have recourse to the Permanent
Court, can only be regarded as friendly actions.
Art. 28. A Permanent Administrative Council composed of the
Diplomatic Bepresentatives of the Signatory Powers accredited to the
Hague and of the Netherland Minister for Foreign Affairs, who will
act as President, shall be instituted in this town as soon as possible
after the ratification of the present Act by at least nine Powers. This
Council will be charged with the establishment and organization of the
International ' Bureau, which will be imder its direction and control
It will notify to the Powers the constitution of the Court and will
provide for its installation. It will settle its Rules of EVocedure and
all other necessary Eegulations. It will decide all questions of admi-
nistration which may arise with regard to the operations of the Court.
It will have entire control over the appointment, suspension, or dismissal
of the officials and employes of the Bureau. It will fix ihe payments
and salaries, and control the general expenditure. At meetings duly
summoned the presence of five members is sufficient to render vaHd
the discussions of the Council. The decisions are taken by a majority
of votes. The Council communicates to the Signatory Powers without
delay the Eegulations adopted by it. It furnishes them with an annual
Beport on the labours of the Court, the working of the administration,
and the expenses.
Art. 29. The expenses of the Bureau shall be borne by the Signatory
Powers in the proportion fixed for the International Bureau of the
Universal Postaf Union.
CONVENTION rOE SETTLEMENT OF INTERNATIONAL DISPUTES. 801
Ghapteb III. — On Abbitkal Procbdubb.
Abt. 80. With a view to encourage the development of arbitration,
the Signatory Powers have agreed on the following Eules, which shall
be applicable to arbitral proc^ore, unless other Eules have been agreed
on by the parties.
Abt. 81. The Powers who have recourse to arbitration sign a special
Act (Oompromis) in which the subject of the differences is clearly
defined, as well as the extent of the Arbitrators' powers. This Act
implies the undertaking of the parties to submit loyally to the award.
Abt. 82. The duties of Arbitrators may be conferred on one Arbi-
trator alone or on several Arbitrators selected by the parties as they
please, or chosen by them from the members of the Permanent Court
of Arbitration established by the present Act. Failing the constitution
of the Tribunal by direct a^eement between the parties, the following
course shall be pursued : Each party appoints two Arbitrators, and
these latter togedier choose an Umpire. In case of equal voting, the
choice of the Umpire is intrusted to a third power, selected by the
parties by common accord. If no agreement is arrived at on this sub-
ject, each party selects a different Power, and the choice of the Umpire
is made in concert by the Powers thus selected.
Abt. 33. When a Sovereign or the Chief of a State is chosen as
Arbitrator, the arbitral procedure is settled by him.
Abt. 34. The Umpire is by right President of the Tribunal. When
the Tribimal does not include an Umpire, it appoints its own President.
Abt. 35. In case of the death, retirement, or disability from any
cause of one of the Arbitrators, his place shall be filled in accordance
with the method of his appointment.
Abt. 36. The Tribunal's place of session is selected by the parties.
Failing this selection, the Tribunal sits at the Hague. The place thus
fixed cannot, except in case of necessity, be changed by the Tribunal
without the assent of the parties.
Abt. 37. The parties have the right to appoint delegates or special
agents to attend the Tribunal for Uie purpose of serving as interme-
diaries between them and the Tribunal. They are further authorised
to retain, for the defence of their rights and interests before the
Tribunal, counsel or advocates appointed by them for this purpose.
Abt. 38. The Tribunal decides on the choice of languages to be used
by itself, and to be authorised for use before it.
Abt. 89. As a general rule, the arbitral procedure comprises two
distinct phases, — ^preliminary examination and discussion. Preliminary
examination consists in the communication by the respective agents to
the members of the Tribunal and to the opposite party of all printed
or written Acts, and of all documents contaimng the arguments
invoked in the case. This communication shall be made in me form
and within the periods fixed by the Tribunal, in accordance with
Article 49. Discussion consists in the oral development before the
Tribunal of the arguments of the parties.
Abt. 40. Every document produced by one party must be communi-
cated to the other party.
Abt. 41. The discussions are under the direction of the President.
They are only public if it be so decided by the Tribunal, with the
assent of the parties. They are recorded in the proc^s-verbaux drawn
up by the Secretaries appointed by the President. These proc^s-
verbaux alone have an autnentic character.
Abt. 42. When the preliminary examination is concluded, the
Tribunal has the right to refuse discussion of all fresh Acts or docu-
w. 3 F
802
APPENDIX,
ments whioh one party may desire to submit to it without the oonsent of
the other party.
Art. 43. The Tribunal is free to take into^consideration fresh Acts
or documents to which its attention may be drawn by the agents or
counsel of the parties. In this case the Tribunal has the right to
require the production of these Acts or documents, but is obUged to
make them known to the opposite party*
Abt. 44. The Tribunal can besides require from the agents of the
parties the production of all Acts, and can demand all necessary
explanations. In case of refusal the Tribunal takes note of it.
Art. 45. The agents and counsel of the parties are authorised to
present orally to the Tribunal all the arguments they may think
expedient in defence of their case.
Art. 46. They have the right to raise objections and points. The
decisions of the Tribunal on these points are final, and cannot form
the subject of any subsequent discussion.
Art. 47. The members of the Tribunal have the right to pat
questions to the agents and counsel of the parties, and to demand
explanations from them on doubtful points. Neither the questiona
put, nor the remarks made by members of the Tribunal during the
discussions, can be regarded as an expression of opinion by the
Tribunal in general or by its members in particular.
Abt. 48. The Tribunal is authorised to declare its competence in
interpreting the ''Oompromis" as well as the other Treaties which
may be invoked in the case, and in applying the principles of Inter-
national Law.
Art. 49. The Tribunal has the right to issue Hules of PK)oedure
for the conduct of the case, to decide the forms and periods within
which each party must conclude its arguments, and to arrange all the
formalities required for dealing with the evidence.
Art. «50. When the agents and counsel of the parties have submitted
all explanations and evidence in support of their case, tlie President
pronounces the discussion closed.
Art. 61. The deliberations of the Tribunal take place in private.
Every decision is taken by a majority of members of the Tribunal
The refusal of a member to vote must be recorded in the proems-
verbal.
Art. 62. The award given by a majority of votes is aocompanied by
a statement of reasons. It is drawn up in writing and signed by each
member of the Tribunal. Those members who are in the minority
may record their dissent when signing.
Art. 53. The award is read out at a public meeting of the Tribunal,
the agents and counsel of the parties being present or duly sunmioned
to attend.
Art. 54. The award, duly pronounced and notified to the agents of
the parties at variance, puts an end to the dispute definitely and
without appeal.
Art. 55. The parties can reserve in the " Compromis " the right to
demand the revision of the award. In this case, and unless there be
an agreement to the contrary, the demand must be addressed to the
Tribunal which pronounced the award. It can only be made on the
ground of the discovery of some new fact calculated to exercise a
decisive influence on the award, and which, at the time the discusnon
was closed, was unknown to the Tribunal and to the party demanding
the^ revision. Proceedings for revision can only be instituted by a
decision of the Tribunal expressly recording the existence of the new
fact, recognising in it the character described in the foregoing para-
graph, and declaring the demand admissible on this ground. The
DECL^ATION OF PARIS. 803
'^ Oompromis " £xes the period within which the demand for revision
must be made.
Abt. 66. The award is only binding on the parties who concluded
the '* Oompromis." When there is a question of interpreting a
Convention to which Powers ot^er than those concerned in the dispute
are parties, the latter notify to the former the **Compromis" they have
concluded. Each of these powers has the right to intervene in the
case. If one or more of them avail themselves of this right the
interpretation contained in the award is equally binding on them.
Art. 57. Each party pays its own expenses and an equal share of
those of the Tribunal.
Geitbbal Pbovisions.
Abt. 58. The present Convention shall be ratified as speedily as
possible. The ratifications shall be deposited at the Hague. A procds-
verbal shall be drawn up recording the receipt of each ratification,
and a copy duly certified shall be sent, through ihe diplomatic channel,
to all the Powers who were represented at the International Peace
Conference at the Hague.
Akt. 69. The non-Signatory Powers who were represented at the
International Peace Conference can adhere to the present Convention.
For this purpose they must make known their adhesion to the
Contracting Powers by written notification addressed to the Nether-
land Government, and communicated by it to all the other Contracting
Powers.
Art. 60. The conditions on which the Powers who were not repre-
sented at the International Peace Conference can adhere to the present
Convention shall form the subject of a subsequent Agreement among
the Contracting Powers.
Art. 61. In the event of one of the High Contracting Parties
denouncing the present Convention, this denunciation will not take
effect untQ a year after its notification, made in writing, to the
Netherland Government^ and by it communicated at once to all the
other Contracting Powers.
APPENDIX G.
DECLARATION OF PARIS.
Declaration signed by the Plenipoientiariea of Great Britain^ Austria,
France, Prussia, Russia, Sardinia, and Turkey respecting Maritime
Law, Paris, Uth April, 1866.
The Plenipotentiaries who signed the Treaty of Paris of the dOth
March, 1856, assembled in Conference, —
Considering :
That Maritime Law, in time of war, has long been the subject of
deplorable disputes ;
That the uncertainty of the law, and of the duties in such a matter,
gives rise to differences of opinion between neutrals and belligerents
which may occasion serious difficulties, and even conflicts ;
3r2
804 APPENDIX.
That it is oonsequently adyantageous to establish a unilonn doctrine
on so important a point ;
That the Plenipotentiaries assembled at Paris cannot better respond
to the intentions by which their GoTemments are animated than by
seeking to introduce into international relations fixed principles in this
respect ;
The aboye-mentioned Plenipotentiaries being duly authorized re-
solyed to concert among themselyes as to the means of attaining this
object ; and haying come to an agreement, haye adopted the following
solemn Declaration : —
1. Priyateerinff is, and remains aboHshed ;
2. The Neutr^ Flag coyers Enemy's Gbods, with the exception of
Contraband of War ;
3. Neutral Goods, with the exception of Contraband of War, are
not liable to capture under Enemy's flag ;
4. Blockades, in order to be binding, must be effectiye, that is to
say, maintained by a force su£Gicient really to preyent access to the
coast of the enemy.
The Goyemments of the undersigned Plenipotentiaries engage to
bring the present Declaration to the knowledge of the States which
haye not taken part in the Congress of Paris, and to inyite them to
accede to it.
Conyinced that the maxims which they now proclaim cannot but be
receiyed with gratitude by the whole world, the undersigned Plenipo-
tentiaries doubt not that the efforts of their Goyernments to obtain the
general adoption thereof, will be crowned with full success.
The present Declaration is not and shall not be binding, except
between those Powers who haye acceded, or shall accede to it.
Done at Paris, 16th April, 1856.
APPENDIX H.
TsBBiTOBiAL Watebs Jubisdiotion Aot, 1878.
41 & 42 Vior. Chap. 78.
An Act to regulate the Law relating to the Trial of Offences committed
on the Sea within a certain distance of the Coasts of Her MajesU^s
Dominions. [16/A August^ 1878.J
Whebeas the rightful jurisdiction of Her Majesty, her heirs and
successors, extends and has always extended oyer the open seas adja-
cent to the coasts of the United ^ngdom and of all other parts of Her
Mfnesty's dominions to such a distance as is necessary for the defence
and security of such dominions ;
And whereas it is expedient that all offences committed on the open
sea within a certain distance of the coasts of the United Kingdom and
of all other parts of Her Majesty's dominions, by whomsoeyer com-
mitted, should be dealt with according to law :
Be it therefore enacted by the Queen's most excellent Majesty, by
and with the adyice and consent of the Lords Spiritual and Temporal,
TERRITORIAL WATERS JURISDICTION ACT. 806
and Commons, in this present Parliament assembled, and by the
authority of the eame, as follows :
1. This Act may be cited as the Territorial Waters Jurisdiction Act, Short title.
1878.
2. An offence committed by a person, whether he is or is not a Amendment
subject of Her Majesty, on the open sea within the territorial waters of of the law as
Her Majesty's dominions, is an offence within the jurisdiction of the J? J^® i™8-
Admiral, although it may have been committed on board or by means ^^S^^j
of a foreign ship, and the person who committed such offence may be
arrested, tried, and punished accordingly.
3. Proceedings for the trial and punishment of a person who is not Restriction on
a subject of Her Majesty, and who is charged with any such offence as introduction
is declared by this Act to be within the jurisdiction of the Admiral, o^I«^<^-
shall not be instituted in any court of the United Kingdom, except ^J^igtment '
with the consent of one of Her Majesty's Principal Secretaries of State, of offence,
and on his certificate that the institution of such proceedings is in his
opinion expedient, and shall not be instituted in any of the dominions
of Her Majesty out of the United Kingdom, except with the leave of
the Governor of the part of the dominions in which such proceedings
are proposed to be instituted, and on his certificate that it is expedient
that such proceedings should be instituted.
4. On the trial of any person who is not a subject of Her Majesty Provisions as
for an offence declared by this Act to be within the jurisdiction of the to procedure.
Admiral, it shall not be necessary to aver in any indictment or infor-
mation on such trial that such consent or certificate of the Secretary of
State or Governor as is required by this Act has been g^ven, and the
fact of the same having been given shall be presumed unless disputed
by the defendant at the trial ; and the production of a document pur-
porting to be signed by one of Her Majesty's Principal Secretaries of
State as respects the United Kingdom, and by the Governor as respects
any other part of Her Majesty's dominions, and containing such consent
and certificate, shall be sufficient evidence for all the purposes of this
Act of the consent and certificate required by this Act.
Proceeding before a justice of the peace or other magistrate previous
to the committal of an offender for trial or to the determination of the
justice or magistrate that the offender is to be put upon his trial shall
not be deemed proceedings for the trial of the offence committed by
such offender for the purposes of the said consent and certificate under
this Act.
5. Nothing in this Act contained shall be construed to be in dero- Saving as to
gation of any rightful jurisdiction of Her Majesty, her heirs or succes- j^iriadiction.
sors, under the law of nations, or to affect or prejudice any jurisdiction
conferred by Act of Parliament or now by law existing in relation to
foreign ships or in relation to persons on board such ships.
6. This Act shall not prejudice or affect the trial in manner hereto- Saving as to
fore in use of any act of piracy as defined by the law of nations, or piracy,
affect or prejudice any law relating thereto ; and where any act of
piracy as defined by the law of nations is also any such offence as is
declared by this Act to be within the jurisdiction of the Admiral, such
offence may be tried in pursuance of this Act, or in pursuance of any
other Act of Parliament, law, or custom relating thereto.
7. In this Act, unless there is something inconsistent in the context, Definitions,
the following expressions shall respectively have the meanings herein-
after assigned to them ; that is to say,
'* The jurisdiction of the Admiral," as used in this Act, includes the << Jurisdio-
jurisdiction of the Admiralty of England and Ireland, or either tion of the
of such jurisdictions as used in any Act of Parliament ; and for Admiral : "
the purpose of arresting any person charged with an offence
806 APPENDIX.
declared by this Act to be within the jurisdiction of the Admiral,
the territorial waters adjacent to the United Kingdom, or any
other part of Her Majesty's dominions, shall be deemed to be
within the jurisdiction of any judge, magistrate, or officer having
power within such United Kingdom, or other part of Her Ma-
jesty's dominions, to issue warrants for arresting or to arrest
persons charged with offences committed within the jurisdiction
of such judge, magistrate, or officer :
<* United '' United Kingdom " includes the Isle of Man, the Channel Islands,
Kingdom : " and other adjacent islands :
'* Territorial "The territorial waters of Her Majesty's dominions," in reference
waters of Her to the sea, means such part of the sea adjacent to the coast of
Majesty's the United Kingdom, or the coast of some other part of Her
dominions : Majesty's dominionp, as is deemed by international law to be
within the territorial sovereignty of Her Majesty ; and for the
purpose of any offence declared by this Act to be within the
jurisdiction of the Admiral, any part of the open sea within
one marine league of the coast measured from low- water mark
shall be deemed to be open sea within the territorial waters of
Her Majesty's dominions :
** QoTemor:" " Governor," as respects India, means the Governor General or the
Oovemor of any presidency; and where a British possession
consists of several constituent colonies, means the Governor
General of the whole possession or the Governor of any of the
constituent colonies ; and as respects any other British posses-
sion, means the officer for the time being administering the
^vemment of such possession ; also any person acting for or
in the capacity of Governor shall be included under uie term
** Governor " :
« Oflenoe : " *' Offence " as used in this Act means an act, neglect, or default of
such a description as would, if committed within the body of a
county in England, be punishable on indictment according to the
law of England for the time being in force :
''Ship:'* "Ship" includes every description of ship, boat, or other floating
craft:
** Foreign « Foreign ship " means any ship which is not a British ship.
APPENDIX I.
INTEBNATIONAL CONVENTION FOR SEOUEING THE FEEE
NAVIGATION OF THE SUEZ CANAL.
(Translation.)
The Governments of (a) , wishing to establish, by a Conven-
tional Act, a definite system destined to guarantee at all times, and for
all the Powers, the free use of the Suez Maritime Canal, and thus to
complete the system under which the navigation of this Canal has been
placed by the Firman of His Imperial Majesty the Sultan, dated the
22nd Februaiy, 1866 (2 Zilkad6, 1282), and sanctioning the Gonces-
[a) See } 205d, ante, p. 317.
SUEZ CANAL CX)NVENTION. 807
doDs of His Highness the Khedive, have named as their Plenipo-
tentiaries, that is to say :
Who, having communicated to each other their respective full
powers, found in good and due form, have agreed upon the following
Articles: —
Article I.
The Suez Maritime Canal shall always be free and open, in time of
war as in time of peace, to every vessel of commerce or of war, without
distinction of flag.
Consequently, the High Contracting Parties agree not in any way
to interfere with the free use of the Canal, in time of war as in time
of peace. .
The Canal shall never be subjected to the ezerdse of the right of
blockade.
Artiole n.
The High Contracting Parties, recognizing that the Fresh-Water
Canal is indispensable to the Maritime Canal, take note of the engage-
ments of His Highness the Khedive towards the Universal Suez Canal
Company as regards the Fresh- Water Canal, which engagements are
stipulated in a convention bearing date the 18th March, 1863, contain-
ing an exposi and four Articles.
They undertake not to interfere in any way with the security of that
Canal and its branches, the working of which shall not be exposed to
any attempt at obstruction.
Article III.
The High Contracting Parties likewise undertake to respect the
plant, establishments, buildings, and works of the Maritime Canal and
of the Fresh- Water Canal.
Article IV.
The Maritime Canal remaining open in time of war as a free
passage, even to the ships of war of belligerents, according to the
terms of Article I. of the present Treaty, the High Contracting Parties
agree that no right of war, no act of hostility, nor any act having for
its object to obstruct the tree navigation of the Canal, shall be com-
mitted in^e Canal and its ports of access, as well as within a radius
of three marine miles from those ports, even though the Ottoman
Empire should be one of the belligerent Powers.
Vessels of war of belligerents shall not revictual or take in stores in
the Canal and its ports of access, except in so far as may be strictly
necessary. The transit of the aforesaid vessels through the Canal
shall be effected with the least possible delay, in accordance with the
Hegulations in force, and without any other intermission than that
resulting from the necessities of the service.
Their stay at Port Said and in the roadstead of Suez shall not exceed
twenty-four hours, except in case of distress. In such case they shall
be bound to leave as soon as possible. An interval of twenty-four
hours shall always elapse between the sailing of a belligerent ship from
one of the ports of access and the departure of a ship belonging to the
hostile Power.
Article V.
In time of war belligerent Powers shall not disembark nor embark
within the Canal and its ports of access either troops, munitions, or
materials of war. But in case of an accidental hindnmce in the Canal,
808 APPENDIX.
men may be embarked or disembarked at the ports of access by detach*
ments not exceeding 1,000 men, with a corresponding amount of war
material.
Abticle YI,
Prizes shall be subjected, in all respects, to the same rules as the
vessels of war of belligerents.
Article VII.
The Powers shall not keep any vessel of war in the waters of the
Canal (including Lake Timsah and the Bitter Lakes).
Nevertheless, they may station vessels of war in the ports of access
of Port Said and Suez, the number of which shall not exceed two for
each Power.
This right shall not be exercised by belligerents.
Abtiolb vin.
The Agents in Egypt of the Signatory Powers of the present Treaty
shall be charged to watch over its execution. In case of any event
threatening the security or the free passage of the Canal, they shall
meet on the summons of three of their number, under the presidency
of their Doyen, in order to proceed to the necessary verifications.
They shall inform the Khedivial Government of the danger which
they may have perceived, in order that that (Government may take
proper steps to insure the protection and the free use of the Canal.
[Under any circumstances, they shall meet once a year to take note of
the due execution of the Treaty.
The last-mentioned meetings shall take place under the presidency
of a Special Commissioner nominated for that purpose by the Imperii
Ottoman Government. A Commissioner of the Khedive may also take
part in the meeting, and may preside over it in case of the absence of
the Ottoman Commissioner] (a).
They shall especially demand the suppression of any work or the
dispersion of any assemblage, on either bank of the Canal, the object
or efPect of which might be to interfere with the liberty and the entire
security of the navigation.
Article IX.
The Egyptian Gt)vemment shall, within the limits of its powers
resulting from the Firmans, and under the conditions provided for in
the present Treaty, take the necessary measures for insuring the
execution of the said Treaty.
In case the Egyptian Government should not have sufficient means
at its disposal, it shall call upon the Imperial Ottoman Government,
which shall take the necessary measures to respond to such appeal ;
shall give notice thereof to the Signatory Powers of the Declaration of
London of the 17th March, 1885 ; and shall, if necessary, concert with
them on the subject.
The provisions of Articles IV., V., VII., and VIII. shall not interfere
with the measures which shall be taken in virtue of the present
Article.
Article X.
Similarly, the provisions of Articles IV., V., VII., and VIII. shall
not interfere with the measures which His Majesty the Sultan and His
{a) The exeoutioii of these proTiaions ifl indefinitelj anspended. See Art. VI. of
the Anglo-Frezioh Dedaration regarding Egypt, post, p. 815.
SUEZ CANAL CONVENTION. 809
Highness the Khedive, in the name of His Imperial Majesty, and
within the limits of the Firmans granted, might find it necessary to
take for securiDg by their own forces the^ defence of Egypt and the
maintenance of public order.
In case His Imperial Majesty the Sultan, or His Highness the
Khedive, should find it necessary to avail themselves of the exceptions
for which this Article provides, the Signatory Powers of the Declara-
tion of London shall be notified thereof by the Imperial Ottoman
Government.
It is likewise understood that the provisions of the four Articles
aforesaid shall in no case occasion any obstacle to the measures which
the Imperial Ottoman Government may think it necessary to take in
order to insure by its own forces the defence of its other possessions
situated on the eastern coast of the Eed Sea.
ARTICLE XL
The measures which shall be taken in the cases provided for by
Articles IX. and X. of the present Treaty shall not interfere with the
free use of the Canal. In the same cases, the erection of permanent
fortifications contrary to the provisions of Article YUI. is prohibited.
Abticle xn.
The High Contracting Parties, by application of the principle of
equality as regards the free use of the Canal, a principle which forms
one of the bases of the present Treaty, agree that none of them shall
endeavour to obtain with respect to the Canal territorial or commercial
advantages or privileges in any international arrangements which may
be concluded. Moreover, the rights of Turkey as the territorial
Power are reserved.
Article XIII.
With the exception of the obligations expressly provided by the
clauses of the present Treaty, the sovereign rights of His Imperial
Majesty the Sultan, and the rights and immunities of His Highness
the Khedive, resulting from the Firmans, are in no way affected.
Abtiolb xrv.
The High Contracting Parties agree that the engagements resulting
from the present Treaty, shall not be limited by the duration of the
Acts of Concession of &e Universal Suez Canal Company.
Article XV.
The stipulations of the present Treaty shall not interfere with the
sanitary measures in force in Egypt.
Artiole XVI.
The High Contracting Parties undertake to bring the present Treaty
to the knowledge of the States which have not signed it, inviting them
to accede to it.
In witness whereof the respective Plenipotentiaries have signed the
present Treaty, and have affixed to it the seal of their arms.
810
APPENDIX.
APPENDIX K.
THE ANGLO-FRENCH AGEEEMENT, 1904.
Convention stoned at London,. April 8, 1904.
His Majesty the King of the United Kingdom of Great Britain and
Ireland and of the British Dominions beyond the Seas, Emperor of
India, and the President of the French Bepublic, having resolved to
put an end, by a friendly Arrangement, to the difficulties which have
arisen in Newfoundland, have decided to conclude a Convention to that
effect, and have named as their respective Plenipotentiaries :
His Majesty the King of the United Kingdom of Great Britain and
Ireland and of the British Dominions beyond the Seas, Emperor of
India, the Most Honourable Henry Charles Keith Petty-Fitzmaurice,
Marquess of Lansdowne, His Majesty's Principal Secretary of State
for Foreign Affairs ; and
The President of the French Eepublic, his Excellency Monsieur
Paul Cambon, Ambassador of the French Eepublic at the Court of
His Majesty ^e King of the United Kingdom of Great Britain and
Ireland ana of the British Dominions beyond the Seas, Emperor of
India ;
Who, after having communicated to each other their full powers,
found in good and due form, have agreed as follows, subject to the
approval of their respective Parliaments : —
Abtiolb I.
France renounces the privileges established to her advantage by
Article XIII. of the Treaty of Utrecht, and confirmed or modified by
subsequent provisions.
Abtigle n.
France retains for her citizens, on a footing of equality with Britiah
subjects, the right of fishing in the territorial waters on that portion of
the coast of Newfoundland comprised between Cape St. John and Cape
Eay, passing by the north ; this right shall be exercised during the
usual fishing season closing for all persons on the 20th October of each
year.
The French may therefore fish there for every kind of fish, including
bait and also shell fish. They may enter any port or harbour on the
said coast and may there obtain supplies or bait and shelter on the
same conditions as the inhabitants of Newfoundland, but they will re-
main subject to the local Eegulations in force ; they may also fish at
the mouths of the rivers, but without going beyond a straight line
drawn between the two extremities of the banks, where the river
enters the sea.
They shall not make use of stake-nets or fixed engines without per-
mission of the local authorities.
On the above-mentioned portion of the coast, British subjects and
French citizens shall be subject alike to the laws and Eegulations
now in force, or which may hereafter be passed for the establishment
THE ANGLO-FKENCH AGREEMENT, 1904. 811
of a dose time in regard to any particular kind of fish, or for the im-
provement of the fisheries. Notice of any fresh laws or Eegulations
shall be given to the Government of the French Eepublic three
months before they come into operation.
The policing of the fishing on the above-mentioned portion of the
coast, and for prevention of illicit liquor traffic and smuggling of
spirits, shall form the subject of Eegulations drawn up in agreement
by the two Governments.
Abtiole in.
A pecuniary indemnity shall be awarded by His Britannic Majesty's
Government to the French citizens engaged in fishing or the prepara-
tion of fish on the ** Treaty Shore," who are obliged, either to abandon
the establishments they possess there, or to give up their occupation,
in consequence of the modification introduced by the present Conven-
tion into the existing state of affairs.
This indemnity cannot be claimed by the parties interested unless
they have been engaged in their business prior to the closing of the
fishing season of 1903.
Claims for indeomity shall be submitted to an Arbitral Tribunal,
composed of an officer of each nation, and, in the event of disagree-
ment, of an Umpire appointed in accordance with the procedure laid
down by Article XXX II. of The Hague Convention. The details
regulating the constitution of the Tribunal and the conditions of the
inquiries to be instituted for the purpose of substantiating the claims,
shall form the subject of a special Agreement between the two
Governments.
Abtigle IV.
His Britannic Majesty's Government, recognizing that, in addition
to the indemnity referred to in the preceding Article, some territorial
compensation is due to France in return for the surrender of her
privilege in that part of the Island of Newfoundland referred to in
Article II., agree with the Government of the French Eepublic to the
provisions embodied in the following Articles : —
Article V.
The present frontier between Senegambia and the English Colony
of the Gambia shall be modified so as to give to France Yarbutenda
and the lands and landing places belonging to that locality.
In the event of the river not being open to maritime navigation up
to that point, access shall be assured to the French Government at a
point lower down on the Eiver Gambia, which shall be recognized by
mutual agreement as being accessible to merchant ships engaged in
maritime navigation.
The conditions which shall govern transit on the Eiver Gambia and
its tributaries, as well as the method of access to the point that may
be reserved to France in accordance with the preceding paragraph,
shall form the subject of future agreement between the two Govern-
ments.
In any case, it is understood that these conditions shall be at least
as favourable as those of the system instituted by application of the
General Act of the African Conference of the 26th February, 1885,
and of the Anglo-French Convention of the 14th June, 1898, to the
English portion of the basin of the Niger.
812 APPENDIX.
Article VI.
The group known as the lies de Los, and situated opposite Konakij,
is ceded by His Britannic Majesty to France.
Article VIT.
Persons born in the territories ceded to France by Articles V. and VL
of the present Convention may retain British nationality by means of
an individual declaration to that effect, to be made before the proper
authorities by themselves, or, in the case of children under age, by
their parents or guardians.
The period within which the declaration of option referred to in the
S receding para^rraph must be made, shall be one year, dating from the
ay on which French authority shall be established over the territory
in which the persons in question have been bom.
Native laws and customs now existing will, as far as possible, remain
tmdisturbed.
In the lies de Los, for a period of thiriy years from the date of
exchange of the ratifications of the present Convention, British fisher-
men shall enjoy the same rights as French fishermen with regard to
anchorage in all weathers, to taking in provisions and water, to making
repairs, to transhipment of goods, to the sale of fish, and to the landing
and drying of nets, provided always that they observe the conditions
laid down in the French Laws and Hegulations which may be in force
there.
Article VIII.
To the east of the Niger the following line shall be substituted for
the boundary fixed between the French and British possessions by the
Convention of the 14th June, 1898, subject to the modifications which
may result from the stipulations introduced in the final paragraph of
the present Article.
Starting from the point on the left bank of the Niger laid down in
Article III. of the Convention of the 14th June, 1898, that is to say,
the median line of the Dallul Mauri, the frontier shall be drawn along
this median line until it meets the circumference of a circle drawn from
the town of Sokoto as a centre, with a radius of 160,932 metres (100
miles). Thence it shall follow the northern arc of this circle to a point
situated 5 kilometres south of the point of intersection of the above-
mentioned arc of the circle with the route from Dosso to Matankari via
Maourede.
Thence it shall be drawn in a direct line to a point 20 kilometres
north of Konni (Birni-N'Kouni), and then in a direct line to a point
15 kilometres south of Maradi, and thence shall be continued in a
direct line to the point of intersection of the parallel of 13^ 20^ north
latitude with a meridian passing 70 miles to the east of the second
intersection of the 14th degree of north latitude and the northern arc
of the above-mentioned circle.
Thence the frontier shall follow in an easterly direction the parallel
of 13° 20' north latitude until it strikes the left bank of the Biver
Komadugu Waub6 (Komadougou Ouobe), the thalweg of which it
will then follow to Lake Chad. But, if before meeting this river the
frontier attains a distance of 5 kilometres from the caravan route from
Zindex to Yo, througl^ Sua Kololua (Soua Kololoua), Adeber, and
Kabi, the boundary shall then be traced at a distance of 5 kilometres
to the south of this route until it strikes the left bank of the Biver
Komadugu Waub6 (Komadougou Ouob6), it being nevertheless
THE ANGLO-FRENCH AGREEMENT, 1904. 813
understood that, if the boundary thus drawn should happen to pass
through a village, this village, with its lands, shall be assigned to the
Government to which would fall the larger portion of the village and
its lands. The boundary will then, as before, follow the thalweg of
the said river to Lake Chad.
Thence it will follow the degree of latitude passing through the
thalweg of the mouth of the said river up to its intersection with the
meridian running 35' east of the centre of the town of Kouka, and
will then follow this meridian southwards until it intersects the
southern shore of Lake Chad.
It is agreed, however, that, when the Commissioners of the two
Qovemments at present engaged in delimiting the line laid down in
Article IV. of the Convention of the 14th June, 1898, return home
and can be consulted, the two Governments will be prepared to
consider any modifications of the above frontier line which may seem
desirable for the purpose of determining the line of demarcation with
greater accuracy. In order to avoid the inconvenience to either party
which might result from the adoption of a line deviating from recog-
nized and well-established frontiers, it is agreed that in those portions
of the projected line where the frontier is not determined by the trade
routes, regard shall be had to the present political divisions of the
territories so that the tribes belonging to the territories of Tessaoua-
Maradi and Zinder shall, as far as possible, be left to Erance, and
those belonging to the territories of the British zone shall, as far as
possible, be left to Great Britain.
It is further agreed that, on Lake Chad, the frontier line shall, if
necessary, be modified so as to assure to France a con^munication
through open water at all seasons between her possessions on the
north-west and those on the south-east of the Lake, and a portion of
the surface of the open waters of the Lake at least proportionate to
that assigned to her by the map forming Annex 2 of the Convention
of the 14th June, 1898.
In that portion of the Eiver Komadugu which is common to both
parties, the populations on the banks shall have equal rights of
fishing.
Abticle IX.
The present Convention shaU be ratified, and the ratifications shall
be exchanged, at London, within eight months, or earlier if possible.
In witness whereof his Excellency the Ambassador of the French
Bepublic at the Court of His Majesty the King of the United KiDgdom
of Great Britain and Ireland and of the British Dominions beyond the
Seas, Emperor of India, and His Majesty's Principal Secretary of
State for Foreign Affairs, duly authorized for that purpose, have signed
the present Convention and have affixed thereto their seals.
Done at London, in duplicate, the 8th day of April, 1904.
(L.S.) LANSDOWNE. (L.S.) PAUL CAMBON,
814 • APPENDIX.
Declaration respecting Egypt and Morocco,
Abticlb I.
His Britannic Majesty's Oovemment declare that they have no
intention of altering the political statas of Egypt.
The Government of the French Republic, for their part, declare that
they ,will not obstruct the action of Qreat Britain in that country by
asking that a limit of time be fixed for the British occupation or in
any other manner, and that they give their assent to the draft Khe-
divial Decree annexed to the present Arrangement, containing the
guarantees considered necessaiy for the protection of the interests of
3ie Egyptian bondholders, on the condition that, after its promulga-
tion, it cannot be modified in any way without the consent of the
Powers Signatory of the Convention of London of 1885.
It is agreed that the post of Director-General of Antiquities in
Egypt shall continue, as in the past, to be entrusted to a French
savant.
The French schools in Egypt shall continue to enjoy the same
liberty as in the past.
Artiolb n.
The Gbvemment of the French Bepublic declare that they have no
intention of altering the political status of Morocco.
His Britannic Majesty's Government, for their part, recognize that
it appertains to France, more particularly as a power whose dominions
are conterminous for a great distance with those of Morocco, to preserve
order in that country, and to provide assistance for the purpose of all
administrative, economic, financial, and military reforms which it may
require.
They declare that they wiU not obstruct the action taken by France
for this purpose, provided that such action shall leave intact the rights
which Great Britain, in virtue of Treaties, Conventions, and usage,
enjoys in Morocco, including the right of coasting trade between the
ports of Morocco, enjoyed by British vessels since 1901.
Abticlb m.
His Britannic Majesty's Government, for their part, will respect the
rights which France, in virtue of Treaties, Conventions, and usage
enjoys in Egypt, including the right of coasting trade between Egyptian
ports acoordea to French vessels.
Abticlb IV.
The two Governments, being equally attached to the principle of
commercial liberty both in Egypt and Morocco, declare that they wOl
not, in those countries, countenance any inequality either in the impo-
sition of customs duties or other taxes, or of railway transport charges.
The trade of both nations with Morocco and with Egypt shall enjoy
the same treatment in transit through the French and British posses-
sions in Africa. An Agreement between the two Governments shall
settle the conditions of such transit and shall determine the points of
entry.
This mutual engagement shall be binding for a period of thirty
years. Unless this stipulation is expressly denounced at least one year
in advance, the period shaU be extended for five yeara at a time.
THE ANGLO-FRENCH AGEEEMENT, 1904, 815
Nevertheless, the Government of the French Eepublic reserve to
themselves in Morocco, and His Britannic Majesty's Qovemment
reserve to themselves in Egypt, the right to see that the concessions
for roads, railways, ports, &c., are only granted on such conditions as
will maintain intact the authority of the State over these great under-
takings of public interest.
Article V.
His Britannic Majesty's Government declare that they will use their
influence in order that the French officials now in the Egyptian service
may not be placed imder conditions less advantageous than those
applying to the British officials in the same service.
The Government of the French Republic, for their part, would make
no objection to the application of analogous conditions to British
officials now in the Moorish service.
Aeticle VI.
In order to insure the free passage of the Suez Canal, His Britannic
Majesty's Government declare that they adhere to the stipulations of
the Treaty of the 29th October, 1888, and that they agree to their being
put in force. The free passage of the Canal being thus guaranteed, the
execution of the last sentence of paragraph 1 as well as of paragraph 2
of Article VIII. of that Treaty will remain in abeyance.
Artiolb VII.
In order to secure the free passage of the Straits of Gibraltar, the
two Governments agree not to permit the erection of any fortifications
or strategic works on that portion of the coast of Morocco comprised
between, but not including, Melilla and the heights which command
the right bank of the Eiver Sebou.
This condition does not, however, apply to the places at present in
the occupation of Spain on the Moorish coast of the Mediterranean.
Article VIII.
The two Governments, inspired by their feeling of sincere friendship
for Spain, take into special consideration the interests which that
country derives from her geographical position and from her territorial
possessions on the Moorish coast of the Mediterranean. In regard to
these interests the French Government will come to an understanding
with the Spanish Government.
The agreement which may be come to on the subject between
France and Spain shall be communicated to His Britannic Majesty's
Government.
Article IX.
The two Governments agree to afford to one another their diplomatic
support, in order to obtain the execution of the clauses of the present
Declaration regarding Egypt and Morocco.
In witness whereof his Excellency the Ambassador of the French
Bepublic at the Court of His Majesty the King of the United Kingdom
of Great Britain and Ireland ana of the British Dominions beyond the
Seas, Emperor of India, and His Majesty's Principal Secretary of
State for Foreign Affairs, duly authorized for that purpose, have
signed the present Declaration and have affixed thereto their seals.
Done at London, in duplicate, the 8th day of April, 1904.
(L.S.) LANSDOWNE. (L.S.) PAUL CAMBON.
816 APPENDIX.
Declaration concerning Siam^ MatUigaecar^ and the New Hebrides.
I. — SlAM.
The GoYemment of His Britannic Majesty and the Goyemment of
the French Kepublic confirm Articles 1 and 2 of the Declaration signed
in London on the 15th January, 1896, by the Marquess of Salisbury,
then Her Britannic Majesty's Principal Secretary of State for Foreign
AfiPairs, and Baron de Courcel, then AmbiEissador of the French Bepublic
at the Court of Her Britannic Majesty.
In order, however, to complete these arrangements, they declare by
mutual agreement that the influence of Great Britain shall be recog-
nized by France in the territories situated to the west of the basin of
the Kiver Menam, and that the influence of France shall be recognized
by Great Britain in the territories situated to the east of the same
region, all the Siamese possessions on the qbjbX and south-east of the
zone above described ana the adjacent islands coming thus henceforth
under French influence, and, on the other hand, all Siamese posses-
sions on the west of this zone and of the Gulf of Siam, including the
Malay Peninsula and the adjacent islands, coming under English
influence.
The two Contracting Parties, disclaiming all idea of annexing any
Siamese territory, and determined to abstain from any act which
might contravene the provisions of existing Treaties, agree that, with
this reservation, and so far as either of them is concerned, the two
Governments shall each have respectively liberty of action in their
spheres of influence as above defined.
H. — ^Madagasoab.
In view of the Agreement now in negotiation on the questions of
jurisdiction and the postal service in Zanzibar, and on the adjacent
coast, His Britannic Majesty's Gt)vernment withdraw the protest which
they had raised against the introduction of the Customs TariJQP es-
tablished at Madagascar after the annexation of that island to France.
The Government of the French Bepublic take note of this Declaration.
III. — New Hebrides.
The two Governments agree to draw up in concert an Arrangement
which, without involving any modification of the political statue quo,
shall put an end to the difficulties arising from the absence of jurisdic-
tion over the natives of the New Hebrides.
They agree to appoint a Commission to settle the disputes of their
respective nationals in the said islands with regard to landed property.
The competency of this Commission and its rules of procedure sh^
form the subject of a preliminary Agreement between the two
Governments.
In witness whereof His Britannic Majesty's Principal Secretary of
State for Foreign Affairs and his Excellency the Ambassador of the
French BepubHc at the Court of His Majesty the King of the United
Kingdom of Great Britain and Ireland and of the British Dominions
beyond the Seas, Emperor of India, duly authorized for that purpose,
have signed the present Declaration and have affixed thereto their seals.
Done at London, in duplicate, the 8th day of April, 1904.
itii
LANSDOWNE.
PAUL CAMBON.
INDEX.
The first figure refers to the paragraph in tohich the subject will he found;
the second figures refer to the page,
PAGE
ABSENT PAETIE8, legal proceedings against, § 142 226
AOTIONS-AT-LAW regulated by lex fori, § 94 150
against foreign sovereigns, § 101 b 162
between alien enemies, § 310 434
ADJUDICATIONS of international tribunals, a source of inter-
national law, § 16 24
ADMIEALTY, Court of, conclusiveness of sentence as to
title, § 188 221
droits of, § 802 424
courts, are courts of international law, §15 d 80
jurisdiction, § 177 275
ADRIATIC SEA, daim of Venice to, § 181 283
AGENT to receive money in enemy's coimtry, § 816 b 443
AIX-LA-CHAPELLE, Congress of , § 64 92
ALABAMA, THE, facts relating to, § 489 r 606
ALAND ISLANDS not to be fortified, § 62 a 88
ALASKA., settlement of boundary dispute, § 176 a 274
ALTBEBT, LTJCIEN, case of, § 161 8 250
ALIENS, rights of, to hold lands in various States, § 82 a ... . 136
in England 735
resident in foreign country, position of, § 161 I 242
testamentary domicile of, in England, § 88 b 140
divesting of British nationality acquired by , 735
not entitled to jury de medietate lingua 736
children of ambassadors born abroad, are not, § 224 .... 332
ALLEGIANCE, definition of , § 151 A 238
discussion between England and United States as to,
§1510 246
distinguished from domicile, § 828 455
renunciation of British 736
oath of, British 738
w. 3 G
818 INDEX.
PAGE
ALLIANCE, treaties of , § 278 392
of England and Holland, § 281 398
of England and Portngal, § 284 898
the Holy, § 64 92
ALLIES, recapture of goods of, from the enemy, § 368 614
ALTEENAT, diplomatic usage of , § 157 255
AMBASSADORS, history of their privileges, § 206 321
reasons for them, §6 7
rights of a State to send and receive, § 207 321
conditional reception of, § 210 324
functions of, § 212 325
distinguished from envoys, § 214 326
powers of, as to negotiating, § 217 329
what laws they are subject to, § 95 150
instructions to, § 219 329
exemption of, from local laws, § 98 154
Sassports for, § 220 330
uties of , § 221 330
privileges of ,§ 224 331
inviolability of, § 224 a 332
extent of their immunity, § 226 333
offences by, § 225 338
houses, their exemption, § 227 340
discussion between America and Prussia respect-
ing inviolability of , § 228 841
suits by and against, § 225 d 334
taxation of , § 242 354
privilege of their messengers, § 2M 854
passage of, through a foreign State, § 224 832
their freedom of worship, § 248' 858
termination of their mission, § 250 360
exterritoriality of their houses, § 225 a 388
privileges of, in Endand, § 225 o 385
expulsion of, § 225 tt 837
ANDOERE, Republic of, § 36 d 61
ANDEASSY NOTE, issuing of, § 70 d 1 10
ANGAME, DROIT D', during war, § 293 416
ANGLO- JAPANESE TREATY, § 285 402
ANGLO-TURKISH CONVENTION, 1885, ^ 36 o 57
1887, §36 0 58
ANNAM, relations of, with China and France, § 38 b 65
ANTI-SLAVERY CONFERENCE AT BRUSSELS, §§ 126 b,
183 0 208, 218
ARBITRATION as to the north-west boundary, § 176 274
a means of settling disputes, § 288 b 404
at Geneva, § 439 o 604
INDTiX. 819
PAGE
AEBnnRATION--con^t»«(?(/.
establishment of permanent Oourt of, § 288 o 405
text of Hague Convention concerning 797
^ treaties of , § 288 b 405
AEGUELLES, case of, § 116 c 188
AEMED NEUTRALITY of 1780, as to free ships, free goods,
§ 460 622
of 1800, § 468 624
as to ships under convoy, § 627 707
AEMISTICE, or truce, § 400 544
power to conclude, § 401 544
period of operation, § 402 545
rules for interpreting, § 403. 545
expiration of, § 404 546
operation of, § 411 k 560 •
ASHBURTON TREATY as to extradition, § 117 190
construction of, § 117 a 191
AUBAINE, DROIT D', explanation of, § 82 134
AUSTRIA-HUNGARY, constitution of , § 41 a 68
BALANCE OF POWER in Europe, account of , § 64 92
preservation of , § 63 88
BALLOONS, persons in, whether spies, § 344 b 479
BALTIC SEA, whether open to the world, § 186 289
BANKRUPTCY, effect of discharge in foreign country, § 88 . . 143
transfer of property under foreign, § 139 222
international effect of , § 144 228
BARBARY STATES, relations of, to Turkey, § 37 61
present position of , § 37 a 63
BAYS claimed as part of the maritime territory, § 177 276'
BELGIUM, recognition of independence of , S 27 e 44
debts of, when united to Holland, § 29 a 46
interference in, § 71 119
redemption of Scheldt tolls by, § 196 a 299
neutrality of , § 421 571
BERLIN memorandum, issuing of , § 70 d 110
congress of, § 70 h 112
BERNARD, PROF. M., on the carriage of hostile persons, § 604b 677
BIBESCO, PRINCESS, divorce of, § 161 c 236
BIDWELL; AUSTIN, extradition of, § 116 b 186^
birth:, effect of, in various States, § 82 b 137
3o2
820 INDEX.
PAOS
BLACK SEA, navigation of , § 182 284
blockade of, by Turkey, § 618 b 692
BLOCKADE, breach of, forbidden, § 500 687
legal aspect of breach of, ^ 510 a 689
distinguished from siege, § 510 b • 690
extent of , § 510 c 690
what amounts to violation of, § 511 691
temporary interruption of, § 518 691
efficiency of, § 513 a 691
of Black Sea by Turkey, § 518 b 692
knowledge necessary to constitute breach, § 514 693
constructive knowledge of, § 516 694
simple and public, § 615 a 695
notice of, by treaty, § 516 696
force maintaining, dnven off by hostile attack, § 517. . . . 697
when new notice is necessary, § 618 698
some act of violation necessary to constitute a breach, § 519 699
intent to violate, § 519 a 700
justifiable breach of, § 619 b 701
condemnation of cargo, § 519 C 701
violation of, by e^ess, § 520 701
p;oods purchased in port imder, § 521 702
interior water navigation, § 5S2 708
duration of offence of breach, § 528 703
pacific, nature of, § 298 b 415
BOMBAEDMENTS, how to be conducted, § 411 f 659
BOOTY distinguished from prize, § 859 a 504
belongs primarily to the Cfrown, § 869 b 504
joint capture of, § 884 b 629
BOSNIA, occupation of, by Austria, § 70 h 112
BOSPHOEUS, navigation of , § 182 284
BRAZIL, reprisals against, § 298 a 415
BEITISH recognition of the Confederate States, § 27 c 48
subjects in America during the civil war, § 161 P 247
(Irishmen) conspiring against England, § 151 0.. 246
vessels, seized by Germany in the Seine, § 298 c 416
subjects, testamentary domicile of, abroad, § 88 b 140
natural-bom subjects, who are, § 151 K 243
seamen, impressment of, from foreign vessels, § 107 «... 172
offences by, abroad, § 118 a 184
ships, who may own, § 840 b 470
BEITISH EAST AFEICA COMPANY, position of, § 17 a . . 32
BEOWN, JOHN, case of , § 108 c 167
BEUSSELS CONFEEENCE of 1874 555
of 1890, §§ 126 b, 188 c 208, 218
INDEX. 821
FAQB
BULGAEIA, relation of, to Turkey, 1 86 b 65
. tmion with Eastern Eoumelia, § TO j 113
war with Servia, § 70 j 113
treaty of Bucharest, § 70 j 114
abduction and resignation of Prince Alexander, § 70 j . . 116
election of Prince Ferdinand, § 70 j 116
BUNCH, case of Consul, § 249 b 360
BTJRMAH, relations of, with China and England, § 38 b 66
CAGLIAEI, THE, case of , § 124 c 202
CAPACITY OF PERSONS, laws regulating, § 84 140
CAPITULATIONS, between belHgerents, § 264 365
for surrender, § 405 547
regulated by Hague Convention, § 411 i . . 560
capitulation of Manila, § 407 a 549
CAPTORS, when not commissioned, § 367 501
duties of, § 369 0 505
destruction of prizes by, § 369 d , 506
jurisdiction of Courts of the, § 388 531
responsibility of government for their acts when commis-
sioned, § 390 532
ransom of property by, § 411 553
CAPTURE of enemy's private property in war, § 346 480
* of cotton from the Confederates, § 346 a : 482
overrides all liens, § 366 d 500
by non-commissioned captors, § 367 501
validity of, how determined, § 386 530
in neutral waters, § 428 579
restitution for, § 431 583
CARGK), condemnation of, for breach of blockade, § 619 c . . . . 701
CARRIAGE of hostile persons in neutral ships, § 604 b 677
CARTELS, a species of treaty, § 264 365
CASTLEREAGH, LORD, despatch on works of art in the Louvre,
§ 363 494
CERTIFICATE of naturalisation in England 727
CESSION of territory, effect of, on public debts, § 30 a 47
CHESAPEAKE, THE, capture of , § 428 a 580
CHINA, present status of, in international law, § 13 a 23
refusal to receive distasteful person as minister, § 210 . . 324
attack on Pekin Legations, § 224 a 333
consular treaty with United States, § 110 180
consular jurisdiction in, § 110 a 181
relations of, with United States, § 13 22
certain Asiatic kingdoms, § 38 b 65
822 tsvEL.
TASK
CHOICE, domicile of, S 151 C 240
CmZENS of the United States who are, $ 151 L 244
CIVIL WAIt, as it affecCa foreign States, § 2S 37
rights of parties to, § 23 37
rights of legation daring. § 208 323
parties to, § 296 a 417
IS never declared, § 297 a 418
in America, position of the Confederates, § 296 a 417
martial law daring, § 346 f 486
reception of cmisen in British ports, § 434 e 588
CLAYTON BULWER TREATY, abrogation of, § 205 e 319
CLOSTEE SEVEN, conyention of , § 407 548
COALS, as contraband, § 501 g 672
COAST, extent of the term, § 178 277
COCKBXJBN, Sir A., opinion of, as to extent of maritime jnris-
diction, § 177 b 276
as to authoritj of text writers, § 15 a 29
as to immunities of ships of war, § 103 e 167
COLONIAL TRADE, roles as to, during war, § 508 682
COMBATANTS, who are recognised as, 411 e 556
COMITY, as to foreign laws, § 79 130
COMPOSITIVE STATE, definition of, S 46 71
CONFEDERATE STATES, de/aeio gOTemment of, § 21 a 36
recognition of, as belligerents, § 27 e 43
diplomatic agents taken from The Trent, § 109 b 178
cruisers of the, § 124 a , 201
intercourse with foreign States, § 200 a 324
recognition of, by the United States, § 298 a 417
oon&Bcation of private debts bj, § 908 a 433
ships fitted out in England for, § 439 1 607
CONFERENCE for settling disputes, §288e 408
CONFISCATION of enemy's property on the outbreak of
§298 ; 420
of droits of Admiralty, §302 424
of debts during war, § 308 a 433
of private property on land during war, § S40 a 473
CONFLICT OF LAWS, principles for settling, § 78 129
maxims of Huberus, § 80 131
contracts made according to lex loci, § 81 132
rules as to real property, § 81 132
as to personal property, § 83 138
validity of contracts, § 90 145
as to foreign marriages, | 92 146
obligation of a contract, % 143 226
INDEX. 823
PAGE
CONGO, provisions of General Act of Berlin Conference as to
navigation and neutrality of, § 205 b 314
COflQUEST, as affecting the identity of a State, § 24 88
by internal revolution, § 31 47
a title to State property, § 166 261
distinguished from miUt^uy occupation, § 346 c 484
CONSTANTINOPLE, conference at, § 70 e 110
CONSTITUTION of a State, effect of change in, § 28 44
of Austria-Hungary, § 41 a 68
of the United States, § 52 78
of Switzerland, § 57 82
of the Germanic Confederation, § 47 71
of the German Empire, § 51 b 77
CONSULS, jurisdiction of, § 110 179
in Eastern countries, § 110 a 181
treaty as to, betv^een United States and China, § 110. . . . 180
diplomatic position of, § 216 328
have not the same privileges as diplomatic officers, § 249 . 359
condemnation of prizes by, § 389 532
CONTINUOUS VOYAGES, doctrine of , § 508 a 684
difference of carriage by land and by sea, § 508 b 686
CONTEABAND OF WAE, warlike instruments always are, § 476 648
classification of, by Grotius, § 477 649
opinion of Vattel, § 478 649
opinion of Bynkershoek, § 479 650
naval stores as, § 480 650
articles of promiscuous use, when, § 489 657
provisions, when, §§ 490, 501 h 658, 672
Anglo-American treaty of 1794, § 492 659
British order of 1795, as to provisions, § 493 660
general principles applicable to, § 498 , 664
condemnation of goods as, ^ 501 a 667
goods always, in England, § 501 a 667
goods conditionally, § 501 a 668
clfissification of, by tne Supreme Court, § 501 b 669
ult^or destination of, § 501 C 669
trade in, no breach of neutrality, § 501 e 671
ships, § 501 f 672
coals and machinery, § 501 g • 672
enemy's despatches, § 502 673
fraudulent carriage of despatches, § 603 674
diplomatic despatches, § 504 , 675
penalty for carrying, § 505 678
ship must be taken in the act, § 506 678
American rule as to, § 507 679
principle of continuous voyages applied to, § 608 b 686
CONTRACTS, when governed by law of the place where made,
§90 145
execution of, abroad, § 93 147
proceedings to enforce, how regulated, § 94 150
824 INDEX.
COl^TBAGTS— continued. paok
ruleof decision, §148 226
obligation of, §§98 a, 146 148, 229
form of, § 146 230
with the enemy prohibited, § 817 446
CONVENTION, distinguished from a treaty, § 268 377
of the Caudine Forks, § 406 647
of Closter Seven, § 407 548
CONVOY, search of ships under, § 525 704
armed neutrality of 1800, § 527 707
forcible resistance by enemy master, § 528 708
of neutral ships by enemy vessel, § 630 710
captures under Danish ordinance of 1810, § 581 711
COEEA, relations of, with China, § 88 b 65
CORFU, neutraUty of, § 422 b 573
COSTELLO, case of, § 151 P 247
COITEIEHS of ambassadors, their privileges, § 248 354
COUETS, municipal, distinguished from prize, § 892 534
CRACOW, former independence of , § 84 51
former neutrality of, § 422 572
CREDENCE, letters of, § 217 829
CREOLE, THE, case of, § 108 h 168
CRETE, virtual independence of, § 70 m 118
CRIMEAN WAR, declaration of, § 297 a 419
object of, § 70 a 107
trade between the parties during, § 804 a 431
relaxation of rules as to trade during, § 816 a 443
Ionian Islands not a party to, § 85 a 54
CRIMES, deemed local by some systems of law, § 118 182
committed within me three-mile belt of sea, § 177 a .... 276
by British subjects abroad, § 118 a 184
creating a liability to extradition. (See Extradition.)
CRIMINAL SENTENCE, exterritorial effect of, § 121 198
CROWN, rights of, to booty and prize, § 859 b 504
CRUISERS, commissioned, piracy by, § 128 199
responsibility of their government for their acts, § 890 . . 532
belligerent, admission of, into neutral ports, § 434 a . . . . 587
CUBA, hostile expeditions against, in United States, § 489 j . . 601
present position of, with regard to the United States, § 88 c 66
CUSTOMS LAWS, jurisdiction claimed for, § 179 a 279
INDEX. 826
PAQK
DANUBE, navigation of the, § 197 a 300
neutrality of the, § 197 b 301
DARDANELLES, rights of Turkey over, § 182 284
navigation of, § 191 296
DE FACTO government, § 21 a 35
rights of, as to property, § 30 46
DEBTS, due to an enemy, § 306. (See Public Debts.) 431
of territory transferred, § 30 a 47
DECEASED WIFE'S SISTER, marriage of , § 93 b 148
DECLARATION of war, not always issued, § 297 418
of war, in case of civil war, § 297 a 419
of Paris, as to enemy goods under neutral flag, § 355 a . . 498
as to privateering, § 358 a 503
as to free ships free goods, § 475 a 648
as to blockades, § 513 a 691
text of 803
of St, Petersburg, as to explosive bullets, § 343 d 477
of LondoHj as to treaties, § 70 c 108
of the Haffue, as to explosive bullets, poisonous gases, &c.,
§ 343 e 477
DENMARK, sovereignty of, over the Sound, § 183 286
abolition of Sound dues by, § 184 a 288
ordinance of, sequestrating debts due to British subjects,
§ 308 433
indemnity from, to United States, § 397 541
ordinance of 1810, as to convoy, § 531 711
DESERTERS, extradition of, | 120 196
treatment of, in war, § 344 a 479
DESPATCHES of the enemy, carriage of , § 502 673
diplomatic, not contraband, § 504 675
DETRACTION, DROIT DE, § 82 134
DIPLOMATIC usage of the alternate § 167 255
history, § 289 408
language, § 156 254
precedence, § 214 326
letters of credence, § 217 329
etiquette, § 223 331
agents of die Confederate States taken out of The Trent,
§109b 178
intercourse with rebels, § 209 a 324
despatches not contraband, § 504 675
DISCOVERT, as title to State property, § 165 261
DIVORCE, foreign, validity of , § 151 233
when recognized in England, § 151 a .... 235
domicile necessary for, § 151 o 236
826 XNDEX.
PAOB
DOMAIN, public, effect of change of government on, § 31 ... . 47
alienation of, § 31 • 48
conquest of , § 346 480
DOMICILE distinguished from national character, § 151 A . . . . 238
definitions of, § 161 B 239
of origin and of choice, § 151 C 240
law of, regulates universal successions only, § 83 a 139
testamentary, of British subjects, § 83 b 140
matrimonial, § 87 a 142
law of, regulates capacity to marry, § 93 a 148
necessary to grant divorce, § 151 0 236
change of, § 151 E 241
intention to change, § 151 F 242
change of, as to wills, § 83 a 139
conferring a limited national character in time of war,
§ 320 448
distinguished from allegiance, § 328 455
effects of, abroad, | 329 457
renunciation of, § 330 457
election to change not allowed, § 332 460
case of residence in exterritorial community, § 151 0 . . . . 242
DOMINION OF THE SEA, controversy respecting, § 186 289
DEOIT, cPaubaine, § 82 134
d'angarie, § 293 C 416
de detraction, § 82 135
DUE DILIGENCE, in the observance of neutrality, § 439 bb. . 613
EAST INDIA COMPANY, former powers of, § 17 31
abolished, § 17 32
EASTEBN QUESTION, statement of , § 70 a 106
EASTERN EOUMELIA, union with Bulgaria, § 70 j 113
EGYPT, relation of, to Turkey, §§ 36, 36 o 56, 57
present position of, § 36 c 57 — 61
ELBE, navigation of the, § 197 ... , 300
EMBAEGO before declaration of war, § 293 413
EMINENT DOMAIN, right of , § 163 260
EMPEROR, assumption of title of, does not confer pre-eminence,
§159 257
ENEMY, property of, in the country at the outbreak of war,
§ 298 420
discussion on this point as to the war of 1812, § 303 .... 425
debts due to the, § 305 431
trade with. (See Trade.)
INDEX. 827
PAGE
:ENEMY— continued.
quitting countiT' of, on the outbreak of war, § 326 453
house of trade in country of, § 331 464
produce of his territory deemed hostile, § 336 464
rights of war against, §§ 342, 411 1 472, 561
rights against the person of the, § 343 472
private property or, how far liable to capture, § 346 .... 480
ravaging territory of, § 347 487
property of, under neutral flag, § 355 a 498
goods, what are, § 355 c 499
recapture of ships from, § 367 513
recapture of ships of allies from, § 368 514
goods of the, under false papers, 1 473 645
master, forcible resistance by, § bx8 708
commercial intercourse with l^e, | 315 b 443
trade with, during Crimean war, § 315 a 443
debts between, § 315 b 444
contracts with neutrals, § 315 c 444
good faith towards, § 399 543
ENEMY SHIPS ENEMY GOODS. (See Free Ships Free
Goods,)
ENLISTING troops for foreign State, in America, § 439 h 600
illegally in England 757
- ENLISTMENT ACT. (See Foreign Enlistment Act.)
ENYOY distinguished from an ambassador, § 214 326
EQUALITY of States, rights of, § 152 262
EXEQTJATUE, withdrawal of consul's, § 249 359
EXPATEIATION of British subjects, § 151 K 243
of American citizens, § 151 L 244
procedure for, by British subjects 736
EXPLOSIVE BULLETS, prohibited in war, § 343 c 477
EXTEEEITOEIAL effect of municipal laws, § 84 140
of criminal sentences, § 121 198
privilege of ambassador's house, § 227 340
rights of an ambassador, § 224 331
EXTEREITOEIALITY, doctrine of, as to ships, § 103 b 166
opinion of Cockbum, C. J., as to, § 103 e 166
of an ambassador, § 224 a 332
of an ambassador's house, § 225 a 333
EXTEADITION, opinion of jurists, as to, § 115 184
obligation of, considered, § 116 a 186
under the United States constitution, § 116 186
practice of England and the United States, § 116 b, c. . 186, 187
Ashburton treaty, 1 117 190
case of Arguelles, § 116 o 188
828 INDEX.
PAOB
EXTRADITION— con/m««c?.
case of Carl Vogt, § 116 d 188
treaty between France and America, § 118 194
practice of France, § 116 e 188
what criminals are subject to, § 116 f 189
of subjects, § 120 a 196
of deserters, § 120 196
of political refugees, § 116 g 189
trial of persons surrendered under Asbburton treaty,
§U17 a, 117 b 191, 192
Acts, English 745
treaties, English, now in force 755
Acts, American 755
treaties, American, now in force 756
in British possessions 749
FEDERAL union of States, § 41 70
FENIAN BROTHERHOOD, origin of, § 439 1 602
FISHERIES, treaties between England and the United States,
§ 180 280
interpretation of these treaties, § 269 379
abortive treaty of 1888, § 180 a 282
general rights of States to, § 180 280
Newfoundland, dispute between France and Great Britain,
§ 180 a 283
FLAG of truce, use of, § 411 h 560
determines national character of ship, § 340 469
case where it was held not conclusive, § 340 a . . . . 470
FLORIDA, THE, capture of, at Bahia, § 428 b 581
facts relatiug to, § 439 8 607
FOREIGN sovereigns, suit against, § 101 c 162
jurisdiction. (See Jurisdiction.)
judgment, in rem^ conchisiveness of, § 138 221
in personam^ § 147 230
EogUsh law, as to, §§ 148, 148 a 231, 232
divorce, S 151. (See Divorce.) 233
ambassadors in England, § 225 0 335
laws, obligations to regard, § 79 130
marriages, validity of , § 92 146
army or fleet, what laws it is subject to, § 95 150
FOREIGN ENLISTMENT ACTS in the United States, § 437.. 592
in England, § 438 592
events which led to the American Act, § 439 a 595
cases decided on it, § 439 b 596
what constituted an offence under it, § 439 6 .... 598
observance of, in England, 439 n 604
passing of English Act of 1870, § 439 W 608
cases decided on, § 439 z 609
Euglish Act ' 757
American Act 766
INDEX; 829
PAGE
FOBEIQN MABBIAGE, Act of 1892, § 93 e 149
F0EM08A, blockade of, §§ 601 h, 613 c 672, 693
FEANCE, law of, as to foreign marriages, § 92 147
law of, as to exemption of private vessels from the local
laws, § 102 163
law of, as to foreigners in, § 141 224
as to foreign judgments, § 160 232
restoration of works of art taken bj Napoleon I., § 352 . . 494
treaty with United States, as to exclusive admission of her
ships of war, § 425 577
occupation of Eome by, § 76 o 127
intervention of, in Mexico, § 76 a 126
extradition in, § 116 6 188
military service in, § 161 T 251
FEEE SHIPS FEEE GOODS, maxims of , § 446 617
history of the controversy as to, § 446 619
settlement of the question by tne Declaration of Paris,
§ 476 a 648
GENEVA ARBITRATION, facts relating to the, § 439 o— t. .604, 608
GENEVA CONVENTION, terms of, § 343 b 474
extended in principle to maritime warfare, § 343 b 475
GEOFFROY, case of, as to martial law, § 346 g 486
GERMAN EAST AFRICA COMPANY, position of, § 17, note.. 30
GERMAN EMPIRE, § 61 b 77
GERMANIC CONFEDERATION, former constitution of , § 47 . 71
GERMANY, projects for unity of, § 61 a 76
GHENT, TREATY OF, as to the American fisheries, § 270 380
GOODS of the enemy, what are, § 366 c 499
effect of using false papers on, § 473 645
purchased in blockaaed port, § 621 702
GOVERNMENT, distinction between dejure and de facto, § 21 a 35
GREECE, interference in favour of, § 69 101
recognition of independence of , § 27 e 44
accession of present king, § 69, note 104
cession of Ionian Islands to, § 36 a 54
reprisals against, § 293 a 414
pacific blockade of 1886, § 70 k 116
Turkish frontier of ,§ 70 1 113
war with Turkey in 1897, § 70 m 118
GUARANTY, treaties of, § 73 120
effect of such treaties, § 277 391
of neutrality, § 423 574
830 INDBX.
PAGE
HAQXTE, peace conference held at the, § 288 o 405
convention for pacific settlement of international disputes,
§288c 406, 797
convention for regulating the laws and customs of land
warfare, S 411 c 566
convention for adapting Geneva Convention to majrifdme
warfare, § 343 o 475
declaration forbidding the use of explosive bullets, &c.,
§843d 477
HALIFAX fisheries award, § 180 a 282
HANOVER, former connection with England, § 40 67
HAEBOURS, jurisdiction over, § 177 275
HAYTI, blockade of insurgent ports, § 614 d 693
HEFFTER, System of, § 10 15
HERTSLET, works by Sir E., § 289 a 409
HERZEGOVINA, insurrection in, § 70 d 109
occupation of, by Austria, § 70 h 112
HIGH SEAS, vessels on, subject to their own laws, § 106 .... 171
capture of private property on, § 355 b 497
HOLLAND, alliance of, with England, § 281 893
debts of, when united to Belgium, § 30 a 47
separated from Belgium, § 71 119
claims of, to mouths of Ihe Rhine, § 198 301
treaties for the security of, § 421 571
HOLT ALLIANCE, account of , § 64 92
HOMICIDE by a British subject abroad, triable in England,
§ 113 a 184
HOSTAGES for the execution of treaties, § 286 402
HOSTILE expeditions in neutral territory, § 436 591
HOUSE of an ambassador, inviolabilitv of, § 227 340
oif trade in enemy's country, § 334 464
HOVERING ACT, British, § 179 279
HUASOAR, THE, case of, § 124 e 204
HUBERUS, maxims of, as to conflict of laws, § 80 131
HUNGARY, recognition of independence of, § 27 f 44
IMMUNITY of neutral territory, § 426 578
of ships of war in foreign ports, § 96 151
of sovereign in a foreign State, § 95 150
IMPRESSMENT of seamen by England, § 107 172
INDEX. 831
PAGE
INDEPENDENCE, recognition of, by foreign States, § 26 ... . 40
when recognition may be accorded, § 27 d • • 43
of Greece and Belgium, § 27 e, 44
of Texas and Hungary, § 27 f 44
INDIANS in America, their status, § 38 63
treaties between them and the United States, § 38 a ... . 65
INHEEITANOE governed by law of the domicile, § 83 138
INNOCENT PASSAGE, right of, along rivers, § 193 297
INTEEFERENCE, right of, in other States, § 63 88
INTERNATIONAL LAW, origin of , § 1 1
definition of , § 14 24
absence of sanction in, § 1 1
distinguished from natural law, §4 3
utility, the basis of , § 4 5
is derived from reason and usage, §6 8
distinction between public and private, §§ 10, 10 a 15, 16
there is no universal, § 11 17
use of the term, § 12 18
extension of, to Oriental States, § 13 22
sources of , § 15 24
subjects of, § 16 31
private, § 77 128
INTERPRETATION of treaties, rules for, § 287 a 403
of armistice or truce, § 403 545
INTERVENTION, right of, §§ 63, 661 88, 732
instances of, §§ 76 a. 76 b 126, 127
legal aspect of, §§ 63 a, 70 m 89, 117
policy of the United States as regards, § 67 a 97
in Mexico, § 76 a 126
INTESTACY, succession on, § 136 219
IONIAN ISLANDS, former constitution of , § 38 52
cession of, to Greece, § 36 a 54
citizens, their relation to England during the Crimean
war, § 35 a 53
IRISH agitators in America, § 161 0 246
hostile associations in America, § 439 1 602
JAPAN, abolition of consular jurisdiction in, § 13 a 23
status of, in relation to International Law, § 13 a 23
JOINT CAPTURE of prize, § 384 a 513
of booty, § 384b 514
JUDGMENT, foreign, conclusiyenesa of, in personal action,
§§ 147, 148 a 230, 231
conclusiveness of, in rem, § 138 221
English law, § 148 231
American law, § 149 232
French law, § 160 232
832 INDEX.
PAGE
JUDGMENT— con/tnt«rf.
of Prize Court, conclufiiveness of, § 386 540
against absent parties, § 142 226
JUDICIAL POWER in a State, § 111 182
extent of, as to criminal offences, § 113 182
as to property situated in the State, § 134 219
in the United States, § 54 80
JUMEAUX, LES, case of , § 439 b 696
JUEISDICTION of a State in its own territory, § 84 140
oyer its yessels on the high seas, § 108 171
over the sea washing the coast, § 177 275
over ports and mouths of rivers, § 188 293
over straits and sounds, § 190 294
over British subjects in Eastern countries, § 110 a 181
over crimes by British subjects committed abroad, § 113 a 184
over torts committed abroad, § 144 a 229
over the three-mile belt of open sea, § 177 a 276
for customs purposes, § 179 a 279
of courts of captor's country, § 388 631
of neutral State as to captures, § 432 684
statutory, over British territorial waters 804
JUS, use of the term, § 12 18
JUS GENTIUM, meaning of , § 3 3
JUS POSTLIMINII, as to real property during war, § 388 631
JUSTITIA, case of , § 439 x 610
KHEDIVE of Egypt, international status of , § 36 0 67
KING'S CHAMBERS, the, what is included in, § 179 278
capture of prizes in, § 431 683
KOZTA, MARTIN, case of , § 161 8 250
LANDS, tenure of, by aliens, § 82a 136
LAW OF NATIONS. (See International Laic)
LAWRENCE, extradition of, § 117 b 192
LEGATION, rights of , § 206 321
to what States they belong, § 208 322
LEGISLATION, powers of independent States as to, § 77 128
exterritorial operation of, § 84 140
LETTERS of credence, § 217 329
of recall, § 261 360
of marque, § 291 412
INDEX. 833
-_,_ , . PAGE
LEX and^tt*, use of the terms, § 12 18, 19, 20
domicilii^ what cases it governs, § 83 138
forty proceedings determined by, § 94 150
loci contractus, when it governs, § 90 145
lod rex sita governs real property, § 81 132
LICENSE, to trade with the enemy, § 341 471
for protection during war, § 408 549
for trade during war, § 409 550
authority to grant, § 410 551
vitiation of, § 410 a 553
LOANS to belligerents by neutrals, § 424 b 576
LONDON, declaration of, 1871, § 70 c 108
LOPEZ, expeditions of, against Cuba, § 439 j » 601
LOUYKE, restoration of works of art collected in the, § 352 . . 494
LUXEMBUEG, neutrality of , § 422 a 573
MAOHINEEY as contraband of war, § 601 g 672
MACKINTOSH, Sir J., on the intervention in Greece, § 09 103
on the burning of Washington, § 351 492
on the neutrality laws, § 439 593
on martial law, § 346 d 485
MAGNA CHABTA, on the treatment of foreign merchants
during war, § 301 424
MANILA, capitulation of , § 407 a 549
MANUALS OF THE USAGES OF WAR, important indices
of international law, § 15, note 28
adopt the code agreed upon at the Hague Peace Con-
ference, § 411 b 556
MAEITIME jurisdiction, extent of, beyond the shore, § 177 . . 275
coasts, extent of the term, § 178 277
ceremonials, § 160 258
jurisdiction over ports, mouths of rivei-s, &c., § 188 293
jurisdiction for customs purposes, § 179 a 279
jurisdiction of a neutral State, § 432 584
over crimes within the three-mile belt of sea .... 804
MAREIAGE, by what law regulated, § 87 142
laws relating to the ceremony, | 89 145
abroad, when valid at home, § 92 146
Act of 1892, § 93 e 149
capacity of parties to contract, how regulated, § 93 b ... . 148
polygamous, § 93 c 149
clandestine, Scotch, § 93 d 149
MAERIED WOMAN, nationality of British 738
834 iin)EX.
PAGE
MAETIAL LAW, definition of , § 846 c 484
circumstances justifying it, § 346 C • 485
during American Civil War, § 346 0 486
in France in 1832, § 346 0 487
MATEIMONIAL DOMIOILE, how determined, § 87 a 142
MEDIATION to settle international disputes, § 73 120
how effected, §288 > 403
treaties of , § 73 121
proposed in American Civil War, S 73 a 121
conference for, between Eussia and Turkey, §70e 110
provision for, in Treaty of Paris, § 288 a 404
in General Act of Berlin Conference, 1885,
§288b 405
MERCHANT VESSELS, crimes committed on board, when
abroad, § 102 163
on the high seas subject to their own laws, § 106 ...... 171
when in foreign ports, § 103 d 168
are subject to right of search, § 441 614
MERCHANTS residing in the East, national character of, § 333 462
MEXICO, intervention in the affairs of , § 76 a 126
MILITARY occupation during war, § 346 o 484
law, defined, S 346 c 484
government, defined, § 346 o 484
authority over hostile State, § 411 1 561
power over individuals, § 411 1 561
MILITARY SERVICE of British subjects in America during
the civil war, § 161 P 247
Prussian laws of, § 151 R 248
French laws of, § 161 T 251
MINISTERS, classification of, § 211. (See Ambassador) 324
MIRANDA, expedition of , § 439 i 600
MISSISSIPPI, navigation of the, § 200 304
MOHAMMEDAN STATES recognize rights of legation, § 13 . . 21
MOLDAVIA, formerly a semi-sovereign State, § 36. (See
Roumanin) 55
MONACO, a semi-sovereign State, § 36 56
cession of part of, to France, § 36 b 66
MONROE DOCTRINE, statement of, § 67 a 97
extension of, to Central American Canal, § 205 e 317
MONTENEGRO, independence of , § 36 b 55
MUNICIPAL law, whether to be enforced when in excess of
international law, § 439 y 611
law, force of, in Prize Courts, § 397 a 542
Court, distinguished from Prize Court, § 392 534
JNDFA'. 836
FAOB
NAPLES, revolutioa of 1820, § 66 , 93
capture of Th$ Cagliari by, § 124 o 202
NAEEOW SEAS, British claim to, § 181 283
NATION distinguished from State, § 17 32
NATIONAL CHARAOTEE conferred by residence in time of
war, § 320 448
the native character easily reyerts, § 324 450
of merchants in the East, § 333 462
of ships, § 340 469
distinguished from domicile, § 151 A 238
acquisition of, § 161 0 242
incidents of, § 161 H 242
NATXJEAL-BORN British subjects, who are, § 161 K 243
NATURAL LAW, definition of , § 2 2
distinguished from international law, §4 3
opinion of, Hobbes and Fuffendorf, §5 6
NATURALIZATION, rights of a State respecting, § 86 141
treaty between England and America, § 151 si 245
conditions of, in Germany, § 151 £ 248
treaty between America and Germany, § 161 £ 249
Acts, English 735
Acts, American 743
certificate of, in England 737
re-admission to British 737
evidence of 739
supplementary treaty between England and America .... 741
of aliens in America 743
in British colonies * 740
NAVAL PRIZE, British Act regulating 773
NAVAL STORES as contraband. § 480 650
judgment of Lord Stowell as to, § 481 651
opinion of Sir L. Jenkins, § 483 652
Anglo-French treaty, § 484 653
England and the Baltic powers, § 486 654
treaty of 1801 as to, § 486 655
Anglo-Swedish treaty of 1803, § 487 655
when contraband independent of treaty, § 488 656
NAVIGATION, municipal laws of, how regarded by other
States, § 114 184
of the Black Sea, Bosphorus, and Dardanelles, § 182 284
of the Sound and Belts, § 183 286
of rivers flowing through several States, § 193 297
of the Scheldt, § 196 298
of the Danube, § 197 a 300
of the Rhine, § 198 301
of the Mississippi, § 200 304
of the St. Lawrence, 8 203 309
of African rivers, § 206 b 814
of the Suez Canal, § 206 d 315
of the Panama Oanal, § 206 e 317
3h2
836 INDEX.
PAGE
NEGOTIATION, rights of, of aoTereign States, § 252 364
faculty of, how limited or modified by treaty, § 252 364
NETHEBLANDS. {See Holland.)
NEUTEAL impartiality, in what it consists, § 435 690
jurisdiction, extent of, on the coast, § 432 684
limitation of, as to restoring prizes, § 433 . . 686
waters, captures made in, § 428 679
Tessels chased into, § 429 681
violation of, to be complained of only by the
neutral State, § 430 682
ports, prizes carried into, § 387 . • 630
right of enteriuK, § 434 686
territory, prisoners and wounded in, § 411 m 662
hostilities in, § 426 678
passage of armies through, § 427 679
hostile expeditions formed in, § 436 691
condemnation of prizes in, § 3o9 632
vessels on the high seas, immunity of, § 440 613
goods, in enemy vessels, § 442 616
in armed enemy vessels, § 529 709
flag, covers enemy's goods, § 355 a 498
subjects, loans to belCgerents by, § 424 b. . 676
NEUTRALITY, definition of , 5 412 664
different species of, § 413 666
perfect, § 414 665
imperfect, § 415 666
conventional or guaranteed, § 423 674
modified by alliances, § ^^24 675
qualified, by treaty to admit ships of war of one State,
§425 677
must be impartial, § 435 690
laws to preserve, § 436 691
what amounted to a violation of, in America, § 439 e . . . . 698
observance of, by America, § 439 i 600
laws of England, § 439 m 603
of England during the American civil war, § 439 0 .... 604
due diligence required in observance of, § 439 bb 613
contraband trade, no breach of, § 501 e 671
NEUTRALIZATION of the Black Sea, § 182 284
of the Danube, § 197 a 300
of the Suez Canal, § 205 d 316
of ambulances in war, § 343 b 474
NEW GUINEA COMPANY OF BERLIN, position of,
§ 17, note 32
NEWTON, THE, case of, § 103 164
NIGER, provisions of General Act of Berlin Conference as to
neutrality and navigation of, § 205 b 314
NON-COMBATANTS, treatment of, in war, §§ 345, 411 o . .479, 656
NOOTKA SOUND, dispute between England and Spain as to,
§ 167 263
NORTH BORNEO COMPANY, position of, § 17, note 32
INDEX, 837
PAGE
NOETH-WEST boundary, final settlement of, between England
and the United States, § 176. (See Oregon) 274-5
coast of America, dispute as to ownership of, § 168 265
treaty between Eussia and the United States as to, § 169 . . 266
between England and Eussia, as to, § 170 267
OBSTEUCTION of channels of access recognized as belligerent
right, § 637 a 721
OCCUPATION of territory during war, §§ 346 c, 411 1 ... .484, 561
as a title to territory, § 161 260
provisions of General Act of Berlin Conference, § 176 a. . 275
OFFENCES committed on merchant ships in foreign ports, § 102 163
OPINIONS of pubUc law officers, § 16 27
OEDINANCES, a source of International law, § 16 25
authority of , § 16 c 29
OEEGON territory, claim of United States to, § 172 269
claims of England to, § 173 271
negotiation of 1827, § 174 271
convention of 1818, § 176 273
treaty of 1846, § 176 274
OEETO, THE. (See The Florida.)
OEIGIN, domicile of, § 161 C 240
OTTOMAN EMPIEE. (See Turkey.)
PACIFIC BLOCKADE, nature of , § 293 b 415
instances of , § 293 b 415
PACIFICO, DON, case of, § 293 a 414
PANAMA CANAL, international position of, ^| 206 0, 206 6. .314, 317
United States' attitude in regard to, § 206 6 318
Clayton-Bulwer treaty, § 206 e 318
PAPAL BULL of 1493, account of, § 166 262
PAEIS, treaty of. (See Treaty of Paris,)
declaration of. (See Declaration of Paris,)
PAEOLE for prisoners of war, § 411 d 657
PASSAGE of armies through neutral territory, § 427 579
PASSPOETS for ambassadors, § 220 330
and safe conducts in time of war, § 408 549
PAXO, neutrality of, §§ 422 b, 423 673, 574
PEACE, effect of, on treaties, § 276 390
power of making, § 638 723
indemnity to incuviduals for public concession, § 640. (See
Treaties of Peace) 724
838 INDEX.
PAGE
PENALTY for carrying contraband, § 606 678
for breach of blockade, § 609 687
PEESON of the enemy, limits to rights of war against, §§ 342,
411 f 472, 559
PERSONAL union of two States, § 40 67
status, laws respecting, § 84 140
PETITION OF EIGHT under the Naval Prize Act 781
PIRACY under the law of nations, § 122 198
triable everywhere, § 124 200
by municipal law, § 124 200
by commissioned cruisers, § 123 199
ingredients of , § 122 a 199
by insurgents or rebels, § 124 a 201
PIRATES, recapture of ships from, § 361 507
when rebels are, § 124 a 201
POLAND, union of, to Russia, § 43 69
POLITICAL REFUGEES, extradition of, § 116 g 189
POLIZZA, once a semi-sovereign State, § 36 56
POPE, ELECTION OF, veto of Austria, France, and Spain, in,
§76 123
PORTE, OTTOMAN. (See Turkey.)
PORTS, admission of foreign ships of war into, § 100 ........ 156
property carried into neutral, § 387 530
are part of the territory of a State, § 177 275
PORTUGAL, British interference in, § 68 99
how affected by the Quadruple Alliance, § 76 123
alliance of, with England, § 284 398
POSTUMINII, JUS, as to real property during war, § 398 . . 543
PRECEDENCE of States, § 164 253
PRESCRIPTION, a title to the public property of a State, § 164 260
as a claim to parts of the sea, § 181 283
PRISONERS OF WAR, slaughter of , § 343 473
exchange of , § 344 478
who are not entitled to be, § 344 a 479
treatment of, § 411 d 556
PRIVATE INTERNATIONAL LAW, its objects, § 77 128
PRIVATE PROPERTY, capture of, in war, § 346 480
of the enemy on land, § 346 a 482
on land, treated differently to when it is at sea, § 366 . . 497
capture of, at sea, § 356 b 498
debts, during war, § 306 431
debts due to the enemy, § 316 b 443
of a foreign sovereign, § 101 b 162
INDEX. 839
PAGE
PKTVATEERS, commissioniDg of , § 368 602
abolition of, by Declaration of Paris, § 358 a 503
fitted out in United States contrary to the neutrality laws,
§ 439 b 596
PRIZE, distinguished from booty, § 359 a 504
rights of the Crown to, § 359 b 504
abolition of, in the United States Navy, § 373 520
joint capture of, § 384 a 528
condemnation of, how determined, § 385 530
carried into neutral port, § 387 530
illegal, in British ports 740
Act, British Naval 773
causes, procedure in 775
salvage 778
boun^ 779
PRIZE COURT distinguished from Municipal Court, § 392 534
conclusiveness of decision, § 396 540
force of municipal law in, § 397 a 542
in America, rule as to free ships free goods, § 471 644
PRIZES, in foreign ports, how far exempt from local laws, § 105 170
destruction of, at sea, § 359 d 506
destruction of neutral, § 359 e 507
condemnation of, by consul in neutral country, § 389 .... 532
captured in neutral waters, § 428 579
carried into neutral ports, § 434 d 588
fitted out as ships of war, § 380 524
their reception in neutral ports, § 434 f 590
PROBATE of wills in England, § 137 a 221
PROCEEDINGS IN REM, effect of, § 134 219
rule of decision in, § 135 219
conclusiveness of sentence, 1 138 221
against absent parties, § 142 226
PROPERTY of a State, rights of, § 161. (See Public Property) 260
of individuals captured in war, § 346 480
title to, § 359. (See Private Property) 503
of the same owner, in different States, § 77 128
in a State, how regulated, § 86 142
PROTECTORATE of England over the Ionian Islands, § 35 . . 52
of Turkey over Roumania and Servia, § 36 55
cessation of, after the war with Russia, §70h 112
PR0TI8I0NS as contraband of war, § 488 656
British order of 1795, as to, § 493. (See Naval Stores) . . 660
PRUSSIA, discussion with United States as to privilege of an
ambassador's house, § 228 341
Silesian loan case, § 394 538
discussion with United States as to free ships free goods,
§456 628
840 INDEX.
PAGE
PUBLIC debts, how affected by a change of sovereigiL power, § 30 46
effect of treaties on, §28 a 46
Sayment of, bj treaty, § 30 a 47
uring war, § 308 a 433
domain, bow affected by change of sorereign power, § 31 47
property of a State, § 161 260
title to, by conquest and discoTeiy, § 165 261
ships. (See Ships of War.)
QUADEUPLE ALLIANCE of 1824, acconnt o^ § 76 128
EANSOM of captured property, § 411 553
British Liw of, § 411 a 555
EATIFICATION of treaties, § 256 366
EAVAGING territory during war, § 347 487
of American towns by British forces, § 348 488
EEAL PEOPEETY governed hj lex loct, % 81 132
title to, how transferred in war, § 398 543
EEAL UNION of two States, § 41 67
EEBELS as pirates, § 124 a 201
diplomatic intercourse with foreign States, § 209 a 324
EECALL, letters of, § 251 360
EECAPTUEE, rules respecting, § 360 507
from pirates, § 361 507
of neutral property, § 363 509
from an enemy, § 367 513
laws of different countries as to, ^ 371 518
by a non-commissioned vessel, § 381 524
EEdPEOCITY as to confiscating enemy's goods in the country,
§ 301 424
as to recapture of ships of allies, § 368 514
EEOOGNITION of new States, § 27 41
internal sovereignty does not depend on, § 20 34
of belligerency, § 27 b 41
of independence, § 27 41
when to be accorded, § 27 d 43
of Greece and Belgium, | 27 e 44
of Texas and Hungary, § 27 f 44
of the South American Eepublics, § 27 d 43
EEDEESS between nations by force, § 290 411
EEFOEMATION, wars of, § 63 91
BEPATE8 to belligerent ships of war in neutral States, § 434 b 587
EEPEISALS, nature and effect of, § 291 412
in the case of Don Padfico, § 293 a 414
against Brazil, § 293 b 415
for unjust sentence of foreign court, § 391 533
on ambassador sent to an enemy, § 318 446
on persons domiciled in the countiy, § 318 446
INDEX. 841
FAOE
EEQUISinONS during war, § 411 1 662
EESCUE. (See Recapture,)
EETAiilATION, vindictive and amicable, § 290 ♦411
EEYENXJE LAWS not enforced by other States, § 91 226
EHINE, THE, navigation of , § 198 301
EIVERS, rights of navigating, § 192 297
use of their banks, § 194 298
rules of Treaty of Yienna respecting, § 197 299
HOME, occupation of, by France, § 76 c ; . 127
EOMILLY, SIE S., views of, as to works of art in the Louvre,
§ 364 496
EOXJMANIA formed by the union of Moldavia and Wallachia,
§ 36 a 55
end of protectorate of Eus^ia over, § 36 a 55
former relation of, to Turkey, § 36 55
proclaimed a kingdom, § 36 a 55
EOYAL HONOUES, to what States accorded, § 163 252
EULE OF 1756, statement of, § 608 682
applications of, in America, § 508 b 686
EXJSSIA, union of, to Poland, § 43 69
dispute with United States as to north-west coast, § 168. . 265
treaty on the subject, § 169 266
treaty with England on the same subject, § 170 267
cession of protectorate over Moldavia and Wallachia,
§ 36 a .• 55
war with Turkey in 1877, S 70 f Ill
obstruction of the Danube by, § 197 a 300
naval force of, in the Black Sea, § 70 0 108
SAFE-CONDUCT issued during war, § 408 549
SALLY, THE, case of, § 103 164
SALUTES, maritime, § 160 258
SALVAGE on recapture, § 360 507
from pirates, § 361 507
of neutral property, § 363 509
when the ship might have been condemned, § 366 511
actual rescue necessary, § 382 . . . • r 525
rate of, § 384 528
SAN MAEINO, EepubUc of , § 36 d 61
SAY AGES, employment of, in war, § 344 a 479
SAVIQNY on the foimdation of international law, § 13 21
SAVOY, neutrality of part of, § 420 a 571
842 INDEX.
PAGS
SCHELDT, navigation of the, § 196 298
tollfl, redemption of , § 196 a 299
SCOTCH MAREIAGES, clandestine, § 93 d 149
SEARCH, right of, § 624 704
when there is a convoy, § 625 704
immunity of public ships from, § 441 1 614
English treaties as to slave-trade, § 126 206
SELF-DEFENCE, right of , § 62 87
SELF-PRESERVATION, right of, § 61 86
SEMI-SOVEREIGN STATE defined, § 34 51
does not enjoy royal honours, § 166 254
SENTENCE, exterritorial operation of criminal, § 121 198
conclusiveness of foreign, in rem, § 138 221
unjust, of foreign court, a ground for reprisals, § 391 . . 533
6ERVIA, relation of, to Turkey, § 36 b 55
war with Turkey, § 70 d 110
proclaimed a kingdom, § 36 b 55
resignation of King Milan, § 70 1 117
SETTING FORTH as a vessel of war, what amounts to, § 380 524
SHIPS, national character of , § 340 469
exceptional case, where the flag was not conclusive of the
nationality, § 340 a 470
who may own British, § 340 b 470
sale of, by belligerents, § 365 d 500
SHIPS OF WAR, on what terms, admitted into foreign ports,
§ 98 151
implied permission to enter foreign ports, § 100 156
have different privileges to merchant vessels, § 101 158
Spanish, seized in Holland, § 101 159
exemption of, does not justify acts of aggression, § 104 . . 169
does not extend to their prizes, § 106 170
on the high seas subject to their own laws, § 106 171
what amounts to setting forth as, § 380 524
French treaty as to their admission to American ports,
§ 426 577
reception of, in neutral ports during war, § 434 586
liability of, to legal process, § 101 a 161
slaves and criminals escaping to, § 103 0 167
reception of fugitive slaves on, § 133 o , . 218
sale of, by neutrals to belligerents, § 439 z 611
not subject to right of search, § 441 614
SHORE, extent of the term, § 178 277
SIEGES, rules of Hague Convention as to, § 411 f 559
BILESIAN LOAN, causes arising out of, § 394 538
INDEX. 843
PAGE
SLAVE TEADE, how regarded by the law of nations, § 126 . . 206
treaties relating to, § 126 206
decisions of courts as to, § 127 208
held to be not contrary to international law, § 133 214
treaty between England and the United States, § 126 a. . 208
general act of Berlin Conference, § 126 b 208
SLAYES, fugitive, escaping to ships of war, § 103 b 166
reception of fugitive, on ships of war, § 133 c 218
ownership in, recognized by law of England, § 133 a. . , . 217
escaping to foreign countries, § 133 b 217
in the United States, § 133 d 218
SLIDELL AND MASON, the Confederate envoys, capture of,
§ 109 b 178
SOUND, THE, claim of Denmark to sovereignty over, § 183 . . 286
convention of 1841 respecting, § 184 288
dues, abolition of, § 184 a 288
SOUEGES OE INTERNATIONAL LAW, § 16 24
SOUTH AMERICAN REPUBLICS, recognition of their inde-
pendence, § 26 40
SOVEREIGN princes, the subjects of international law, § 18 . . 83
when abroad, § 96 150
personal exemption of, from arrest abroad,
§ 97 153
titles of, § 169 256
suits against foreign, § 101 b 162
power, effects of change in, § 28 44
and State, sometimes used synonymously, § 19 . . 83
States, defined, § 33 60
equality of , J 33 60
rights of, § ftO 86
titles of, § 159 266
SOVEREIGNTY defined, § 20 34
internal and external, § 20 34
how acquired, § 21 34
recognition of, of a new country, § 26 40
SPAIN, war with her colonies, § 67 96
complaints of, as regards American privateers, § 439 i . . 600
dispute with England as to Nootka cound, § 167 263
a party to the Quadruple Alliance, § 76 123
SPIES, treatment of, in war, 1 344 a 479
who are to be deemed, § 411 g 669
SPONSIONS, ratification of , § 266 366
ST. LAWRENCE, navigation of the, § 203 309
ST. PETERSBURG DECLARATION, terms of , § 843 d 477
844 INDEX.
PAGE
STATE, definition of, § 17 31
what constitutes a, § 17 31
acquisition of sovereignty by, § 21 34
identity of , § 22 37
effect of revolution in, § 22 37
civil war in, § 23 37
how affected by external violence, § 24 38
tributary and vassal, § 37 61
single or united, § 39 67
distinguished from nation, § 17 a 32
idea involved in the term, § 17 a 32
meaning of, in the American Constitution, § 17 b 33
extradition of its own subjects, § 120 a 196
protection of its subjects abroad, § 161 1 242
internal independence of, § 72 : 120
choice of rulers by, § 74 122
compacts restraininc^ the independence of , § 76 122
exclusive power of fogislation, § 77 128
power of, to regulate personal statusj § 84 , 140
extra-territorial effect of laws of , § 84 140
independence of, as to judicial power, § 111 182
judicial powers over foreigners in its territory, § 140 .... 223
national proprietary rights, § 161 260
rights of legation, § 207 821
8TATIRA, THE, case of , § 366 509
STATUS, personal, laws regulating, § 84 140
STRA.IT8, jurisdiction over, § 181 283
SUBJECTS, protection of, when abroad, § 161 1 242
extradition of, by their own country, § 120 a 196
SUBMARINE CABLES in time of war, § 637 b 721
SUBSIDY, treaties of , § 279 892
SUCCESSION, universal, regulated bylaw of domicile, § 83 a. . 139
on intestacy, § 136 219
SUEZ CANAL, international position of , § 206 d 315
neutralization of, § 206 d 317
convention 806
SWITZERLAND, independence of its cantons recognized, § 26.. 40
constitution of, § 67 82
changes in the constitution, § 69 a 84
mediation respecting, § 73 120
neutrality of, § 416 566
position of, during wars of the French Revolution, § 417. 567
alliajice with other powers in 1815, § 419 569
rights of, as to part of Savoy, § 420 a 571
TERCEIRA, affair of, § 439 n 604
TERRITORIAL WATERS, extent of , § 177 a 276
INDEX. 845
PAGE
TEREITORY of the enemy, ravaging during war, § 847 487
restoration of, after peace, § 646 728
right of a sovereign over his own, § 86 142
passage of belligerent through neutral, § 427 579
debts of, "when transferred, § 30 a 47
TEXAS, recognition of independence of , § 27 f 44
debts of, when united to United States, § 29 a 46
TEXT WRITERS, a source of international law, § 15 24
authority of, § 16 a 28
TIBET, relations of, with China and England, § 38 b 65
TITLE to property captured in war, § 359 503
to real property, how transferred in war, § 398 543
TITLES of sovereign princes, § 169 256
TOLEN, IGNACIO, case of , § 161 T 251
TORPEDOES, suggestion as to restriction on use of, § 637 a . . 721
lawful to obstruct channels with, § 537 a 721
TOUSIG, SIMON, case of , § 181 S 250
TRADE LAWS, how regarded by other States, § 114 184
TRADE WITH THE ENEMY, unlawfuhiess of , § 309 434
reasons for forbidding it, § 310 435
American decisions, § 311 437
quitting hostile territory at the commencement of war,
§ 313 a 440
strictness of the rules, § 316 443
extent of the restrictions on, § 315 b 443
with the common enemy, unlawful to allies, § 316 445
contracts with the enemy prohibited, § 317 446
domicile, during war, § 319 446
house of trade in enemy's country, § 334 464
license from the enemy, § 341 471
TREASON, by British subjects abroad, triable in England,
§ 113 a 184
TREATIES, a source of international law, §§ 16, 15 b 24, 29
affecting sovereignty of a State, § 25 38
how affected by a change of sovereign power, § 28 44
real and personal, § 29 45
modification of right to contract, § 252 364
form of, § 263 364
when they require ratification, § 264 , 365
refusal to ratify, § 263 372
auxiliary legislative measures, § 266 375
^ when they begin to bind, § 264 373
freedom of consent, how far necessary, § 267 376
transitory, when perpetual, § 268 377
as to fisheries between the United States and England, § 269 379
the operation of which ceases in certain cases, § 276 .... 389
revived on the renewal of peace, § 276 390
of guaranty, §277 391
of alliance, § 278 392
846 INDEX.
PAGB
TEEATIES^— continued.
rules for interpreting, § 287 403
"^ commencement of their operation, § 266 a 376
binding effect of, as to debts, § 29 a 46
modifying neutrality, § 424 575
inviolability of, declaration respecting, § 70 c 108
list of, regarded by United States as abrogated, § 29 a . . 46
TREATIES OE PEACE, power of making, § 538 723
dismemberment of States by, § 541 724
power to make, in England, § 642 726
effects of , § 644 726
uti possidetis, the basis of, § 646 728
restoration of territory by, § 646 728
commencement of, § 647 729
cessation of hostilities after, § 548 730
restoration of things taken, § 649 731
breach of, § 650 732
TREATY OF LONDON, 1871, as to the Black Sea, § 70 c .... 107
TREATY OF PARIS, as to the Black Sea, § 182 a 285
as to navigation of the Danube, § 19y a 300
as to mediation, § 288 a 404
close of Crimean war by, § 70 b 108
TREATY OF WASHINGTON, as to the Canadian fisheries,
§ 180 a 282
articles as to, now abrogated, § 180 a 282
rules of international law in, § 439 p 605
text of 783
TRENT, THE, case of , § 604 a 676
as regards right of search, § 109 b 178
TRIBUNALS, decisions of, a source of international law, § 15. . 27
TRIBUTARY STATES, instances of , § 37 61
TROPPAU AND LAYBACH, congress of , § 66 93
TRUCE. (See Armistice,)
flag of, § 411 h 560
TURKEY, relation of, to Europe, § 70 a 106
how affected by the Treaty of Paris, S 70 b 108
outbreak of last war with Russia, §70f Ill
secret agreement with England, §70g Ill
relation of, to Roumania and Servia, § 36 a 55
consular jurisdiction in, § 110 a 181
neutralization of the Black Sea, § 182 a 284
interferences in, § 70 c 104
rights of, over the Black Sea and the Dardanelles, § 182 . 284
TUSCALOOSA, THE, reception of, at Simon's Bay, § 434 f . . 590
UNION of two States, personal and real, § 40 67
incorporate, § 42 69
federal, § 44 70
INDEX. 847
PAQS
UNITED STATES, acquisition of sovereignty by, § 21 34
acknowledgment of independence of, § 26 40
constitution of , § 62 78
executive power in, § 64 80
treaty-making power in, § 65 81
list of treaties regarded as abrogated by, § 29 a 46
consular treaty with China, § 110 179
extradition treaty with England, § 117 190
treaty with Eussia as to the north-west coast, § 169 .... 266
expiration of the treaty, § 171 267
former claim to the Mississippi, § 201 305
navigation of the St. Lawrence by, § 203 309
legidation in, § 64 a 81
p(3icy of, towards European States, § 67 a 97
practice as to extradition, § 116 0 187
slavery in, § 133 d 218
who are citizens of, § 151 M 245
protection of citizens abroad, § 161 IT 245
expatriation in, § 161 L 244
British subjects in, during the civil war, § 161 P 247
foreign enlistment Acts, § 437 592
complaints of England during the civil war, § 439 o .... 604
Treaty of Washington, 1871, § 439 p 605
indirect claims at Qeneva, § 439 u 608
discussion with Prussia, as to free ships free goods, § 466 . . 628
not a party to the Declaration of Paris, § 358 a 503
relations of, with China, 1 13 a 22
Japan, § 13 a 23
UNJUST SENTENCE of foreign court, § 391 533
UTI POSSIDETIS, basis of treaties of peace, § 646 728
UTILITY, the basis of international law, §4 5
VATTEL, system of , § 9 11
VENICE, claim of, to Adriatic Sea, § 186 291
VERONA, Congress of , § 66 94
VESSELS. (See Ships.)
VICE-ADMIRALTY prize courts 773
VIENNA, TREATY OF, rules as to navigation of rivers in, § 197 299
VIOLATION of neutral waters by capture, § 428 579
complaint of this, only to come from the neutral State, § 430 582
restitution of property for, § 431 683
of blockade, § 6W 687
of blockade by egress, § 620 701
VIRGINIUS, THE, case of , § 124 d 203
VISITATION and search, right of, § 624. (See Search) 704
VOGT, CARL, extradition of, § 116 d 188
VOLUNTARY law of nations, § 8 11
848 INDEX.
PA6B
WALLACTTTA formerly a semi-sovereign State, § 36. (See
Eoumanta) 55
WAE, manuals of the usages of. (See Manuals of the Usages of
War.)
right of making, in whom vested, § 294 416
public or solemn, § 295 416
Serfect or imperfect, § 296 417
eclaration of, how far necessary, § 297 ^: . . 418
enemy's property in the country at the conunencement of,
§298 420
rights of, against an enemy, § 342 472
tendency of modern, § 343 a 473
wounded in, care of, § 343 b 474
exchange of prisoners of, § 344 478
persons exempt from acts of, § 345 479
question as to merchant seamen, § 345 a 480
capture of private property during, § 346 480
military occupation during, § 346 0 484
persons authorized to engage in, § 356 501
title to property captured in, § 85w 503
quitting hostile territory on the outbreak of, § 313 a . . . . 440
extent of intercourse between enemies, § 315 D 443
who are recognized as belligerents, § 411 o 556
cessation of hostilities, § 548 730
(See also Civil War,)
WAEEEN, case of, § 151 P 247
WASHINGTON, burning of, by the British forces, § 351 491
Treaty of, as to the Canadian fisheries, § 180 a 282
abrogation of, § 180 a 282
as to violations of British neutrality, § 439 p . . 605
text of 783
WILLS, how affected by change of domicile, § 83 a 139
of British subjects made abroad, § 83 c 140
"WOLF, system of , § 7 10
WOUNDED in war, Geneva convention relating to, § 343 b . . 474
WRONGS abroad, jurisdiction over, in England, § 144 a 229
ZOLLVEEEIN, formation of the, § 51 c 78
accession of Hamburg and Bremen to, § 51 c 78
THE END.
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