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ELEMENTS 



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INTEENATIONAL LAW. 



ELEMENTS 



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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 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 B grwiuw 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 
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), 

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 
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 Ship ping 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- 
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^^^ ^^ 



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 b