INTRODUCTION
TO THE STUDY OF
INTERNATIONAL LAW,
DESIGNED
AS AN AID IN TEACHING, AND IN HISTORICAL STUDIES.
BY
THEODORE D. WOOLSEY,
PRESIDENT OF YALE COLLEGE.
SECOND EDITION, REVISED AND ENLARGED.
NEW YORK:
CHARLES SCRIBNER, 124 GRAND STREET
1864.
f*
Entered, according to Act of Congress, in the year 1S64, by
CHARLES SCRIBXER,
In the Clerk s Office of the District Court of the United States for the Southern District of
New York.
JOHN F. TROW,
PRINTER, STEHEOTYPER, A^IJ E~ECTBOT\PE!t,
50 Greene street, New Yt rk.
TO
FRANCIS LIEBER,
AS A TOKEN OF RESPECT FOR HIS SERVICES IN THE FIELD
OF POLITICAL SCIENCE, THIS WORK IS INSCRIBED
BY HIS FRIEND
THE AUTHOR.
;;
& *j r^t *jt o
PKEFACE TO THE SECOND EDITION.
THIS brief exposition of the law of nations was writ
ten for the purpose of supplying a practical want, which
the author felt for a number of years, while engaged in
teaching that science. The want was that of a com
pendious treatise, intended not for lawyers, nor for
those who have the profession of law in view, but for
young men, who are cultivating themselves by the
study of historical and political science. The plan of
the work shaped itself through its relations to those for
whose use it was designed. While the state of the law
of nations as it is was regarded as the chief point to be
secured, it seemed almost equally important to compare
the actual law with the standard of justice, and, by ex
hibiting the progress of the science in a historical way,
to bring it into connection with the advances of human
ity and of civilization. The success of the work, of
which the first edition, issued early in the summer of
1860, has been for some time exhausted, shows that a
want has been met by it, if not satisfied.
6 PREFACE.
In this second edition the author has done what he
could, amid many labors, to purge the work from errors,
to improve the arrangement, and to supply what was
deficient. Meanwhile a war, as just and necessary as it is
vast in its proportions, has burst upon the country, and
has given rise to new questions touching neutral and
belligerent rights, in discussing which, this nation, so
tenacious, formerly, of the neutral ground, has seemed
inclined to go over to the other position. Naturally,
some of these points are looked at in the present edition
of this work, with the feeling, it is hoped, that the law
of nations must be represented as it is, and that no
temporary bias can be permitted to exert any influence
in the statement of any doctrine. May the war end
speedily, if possible, before these words shall appear
in print, but not without the destruction of slavery,
the union of the States on a basis of justice, and the
observance of the rules of international law in the in
tercourse between all other nations and our republic !
YALE COLLEGE, Jan. 1, 1864.
CONTENTS.
INTRODUCTORY CHAPTER.
DEFINITION, GROWTH, JURAL AND MORAL GROUNDS, SOURCES OP INTERNATIONAL LAW.
1, 2. A law of action, for states as for individuals, founded injustice.
3, 4. International law, what, in a wider sense ?
5. Actual international law, what ?
6. Its genesis and voluntary nature. It is of later growth than state law.
7. Why it arose in Christian states.
8. Quite imperfect elsewhere. Illustrations of this from Greece and Rome.
Not true that these nations had no international law. Its leading features
in mediasval Europe.
9. Names given to this science. Not the same as jus geiriium.
10. Differs from jus naturale.
11. Definition of jus naturale by Grotius.
12. Puffendorf confounds jus naturale and international law.
13. A reference to the standard of justice necessary in international law.
14. It cannot be resolved into contract-obligation.
15. Must be looked at both as a positive law, and in its relations to jus and
morals. Its jural grounds.
16. Its moral grounds.
17. Particular rights and obligations of nations.
18. Observations on certain rights. 1. The right of reputation.
19. 2. The right of redress.
20a. 3. Is there a right of punishing other states ?
206. Obligation of states to aid justice outside of their own bounds.
21. 4. Is there a right of conquest ?
22. Moral relations, or duties and moral claims of states.
23. Observations on certain duties. 1. Humanity.
24. 2. Comity.
25. 3. Intercourse.
26, 27. Vattel s, Wheaton s, and other divisions of international law.
8 CONTENTS.
28. Custom and free assent alike sources of international law. Thus moral
claims become rights.
29. International law adopted by municipal.
30. Aids for ascertaining what international law is.
31. Stages in the development of international law.
32. Minor differences in the views of different nations concerning it.
33. Uncertainty and want of authority in international law.
34. Importance of the history of international law.
35. Method pursued in this work.
PAET I.
THE ESSENTIAL POWERS OF STATES, AND THEIR RIGHTS AND OBLL
GATIONS, ESPECIALLY IN A STATE OF PEACE.
CHAPTER I.
RIGHTS OF STATES AS INDEPENDENT SOVEREIGNTIES. RULE OF NON-INTER
FERENCE AND ITS EXCEPTIONS.
A state, what ? Pirates no state.
Essential attributes of a state. Sovereignty, independence, equality, all
included in sovereignty. May be parted with by confederated, and by
protected states.
38. Obligations not affected by change of government.
39. All forms of government legitimate in the view of international law.
40. It knows only governments de facto.
41. Assistance to provinces in revolt unlawful, but aid to another state against
rebellion lawful.
42. Non-interference the rule, but with exceptions. Interference when justified.
43. Interference to preserve the balance of power.
44. Historical illustrations of such interference.
45. Interference to prevent revolutions.
46. Instances of such interference in the French revolution. The holy alliance.
Congress of Troppau-Laybach. Congress of Verona.
47. The Monroe doctrine.
48. Eesults of an attempt to establish a law of interference in the internal affairs
of states..
49. Interference in the Belgic revolution of 1830.
50. Interference on the score of religion and humanity.
51. Equality of states. Their rank. Existing rules of rank. These distinc
tions fading out.
CONTENTS.
CHAPTER II.
TERRITORIAL RIGHTS OF STATES AND RIGHTS OF PROPERTY. STRICT RIGHT RENOUNCED
IN THE USE OF NAVIGABLE WATERS.
52. Property of states what, in international law ?
53. Modes of acquiring territory.
54. What is included in territory. Are vessels on the sea territory.
55. Freedom of the high seas and of fishery there. Fishery question between
Great Britain and the United States, until its settlement by the treaty of
1854.
56. Claim of exclusive control over certain waters. 1. Bays. 2. Gulfs.
57. 3. Straits and inland seas. The Danish straits. The Black Sea and its en
trance.
58. 4. Rights over river navigation. Rules of Congress of Vienna. The Rhine.
The Scheldt. The Danube by the treaty of Paris. The Mississippi. The
St. Lawrence. The La Plata system of rivers.
CHAPTER III.
RIGHTS OF INTERCOURSE. RELATIONS OF FOREIGNERS WITHIN A TERRITORY OF THE
STATE.
59. Intercourse of states, how far a right. What a state may not do respecting
intercourse.
60. What a state may do.
61. Individual aliens entitled to protection. Right of asylum, of innocent pas
sage, of emigration.
62. Relations of aliens to the laws, and their condition.
63. Progress of comity and humanity towards aliens illustrated. Droit d au-
baine.
64. Exterritoriality, its limits as to sovereigns, ships of war, armies in transit,
, vessels in French harbors. Treatment of vessels driven into foreign
waters out of their course.
65. Exemptions to foreigners in certain eastern countries.
66. Aliens parting with the character of aliens. Naturalization. Rules of sev
eral nations as it respects naturalization.
67. Domicile, what ?
68. Conflict of laws as to a particular person.
69. Private international law, what ? Its growth. Its leading rules show ten
dency of nations to similar principles of law.
70. Its leading rules. 1. As to personal capacity. Exceptions on political,
moral, and religious grounds.
71. 2. As to rights of property.
10 CONTENTS.
72. 3. As to rights of obligation.
73. 4. As to rights of succession.
74. 6. As to family rights.
75. 6. As to forms of legal acts.
76. Use of courts, how far allowed to strangers. Suits against foreigners.
Proofs. Rogatory commissions.
77. Effects of foreign judgments.
78. Crimes committed abroad may come under two jurisdictions.
79. Extradition.
80. International copy and patent right.
81. Appendix. Case of Martin Koszta.
CHAPTER IV.
THE FORMS AND AGENTS 0? INTERNATIONAL INTERCOURSE.
SECTION I. The Forms of Intercourse, or International Courtesy.
82. General comity between nations.
83. Respect for the reputation of another state. The Hiilsemann affair.
84. Treatment of foreign sovereigns, etc. Ceremonial of Courts. Diplomatic
correspondence of states.
85. Ceremonial of the sea. Forms of politeness there.
86. Disputes in Cent. XVII., concerning ceremonies at sea.
SECTION II. TJie Agents in the Intercourse of Nations; or Ambassadors and
Consuls.
87. Persons appointed to manage the intercourse between nations.
88. Origin of the privilege of ambassadors.
89. Temporary and resident ambassadors.
90. Is there any obligation to receive ambassadors ?
91. Right of sending ambassadors.
92a. Privileges of ambassadors.
1. Their inviolability.
2. Their exterritoriality, as (1.) immunity from criminal, (2.) from civil ju
risdiction.
92&. (8.) Immunity of their hotel and goods without right of asylum for crimi
nals. (4.) Immunity from imposts to a certain extent.
92c. (5.) Freedom of private worship.
92d. (6.) Privileges of ambassador s family and tram.
(7.) His power over his suite.
8 92e. Limits of his immunity, ambassador engaging in trade rcommitting great
crimes.
93. Relations of an ambassador to a third power.
CONTENTS. 11
94. Rank of ambassadors, ceremonial, termination of their mission.
95. Consuls. Origin of the consular office. Consuls of the middle ages.
96. Functions of consuls. Their jurisdiction out of Christendom. Their privi
leges and status. Their privileges in non-Christian countries. Who can
serve as consuls.
CHAPTER Y.
OF THE RIGHT OF CONTRACT, OR OF TREATIES BETWEEN STATES.
97. Of contract in general, especially between states. With whom can states
make contracts ?
98. What treaties are lawful ?
99. Treaties made by a limited sovereign.
100. Treaties procured by fraud falsehood or force, not binding.
101. Treaties to do an unlawful thing, not binding.
102. Kinds of treaties.
103. Treaties of alliance.
104. Treaties of confederation.
105. Treaties of guaranty. Guaranties of treaties. Origin of guaranties to
treaties.
106. Other modes of confirming the faith of treaties. Hostages. Pledges.
107. When do treaties begin to be binding ?
108. Violation of treaties.
109. Interpretation of treaties. Repugnant clauses and conflicting treaties.
PAET II.
INTERNATIONAL LAW AND USAGE IN A STATE OF WAE.
CHAPTER I.
OF A NATION S RIGHT OF SELF-DEFENCE AND REDRESS OF INJURIES, OR OF WAR,
CAPTURE, AND TREATIES OF PEACE.
SECTION I. Of War.
110. Of war in general.
111. War and just war, what? Who is to judge of its justice? Are nations
bound to resort to arbitration ? Ought an ally to judge ?
112. Rightfulness of war. For what may war be undertaken ?
113. Defensive and offensive war.
12 CONTENTS.
114. Measures for redress falling short of war. 1. Embargo. Hostile embargo.
2. Retorsion. 3. Reprisals. Greek and Roman, mediaeval and modern
usage as to reprisals.
115. Commencement of war. Declaration. Greek and Roman practice. Mediae
val practice. Modern. Reasons for the modern usage.
116. What notice of a state of war ought to be given ?
117. Effects of war. Non-intercourse with the enemy. License to trade.
118. Enemy s property within a belligerent country.
119. Have all in each hostile state a right to wage war ?
120. Treatment of enemy s property on land and sea compared.
121. Forces employed in war, especially on the sea. Privateers.
122. Evils of privateering. Testimony to these evils. Endeavors to stop it by
treaty. Declaration of Paris, 1856. Attitude of the United States.
123. Restrictions on privateering to prevent its evils.
SECTION II. Laws and Usages of War, especially on Land.
124. Laws and usages of war somewhat vague, yet improving. Causes of this
amelioration.
125. Fundamental rules of war.
126. Retaliation.
127. Special rules (1.) as to weapons and ways of injuring an enemy s person.
(2.) Allowable weapons in war. (3.) Breach of faith. Solicitations to
crime.
128. (4.) Treatment of captured persons, especially of soldiers. (5.) Treatment
of irregular troops.
129. (6.) Non-combatants and their property. Usages of the Romans, of the mid
dle ages, etc., of the thirty years war, of the time of Louis XIV., of
Frederick the Great, and the English in the American war, of Napoleon.
130. Summing up.
131. (7.) Public property.
132. (8.) Sieges and storms of forts and towns.
133. Laws of war on the sea.
134. Commercia belli.
135. Spies.
SECTION III. Of Civil Wars, Wars with Savages, Piracy, and the Slave-trade.
136. Civil wars. "Wars with savages.
137. Pirates and their treatment.
138. Is the slave-trade piracy ?
SECTION TV. Of Capture and Recapture, Occupation and Recovery of Territory.
| 139. Capture in general, especially from enemies.
140. Property in prizes how and when begun ?
CONTENTS. 13
5 141. Complete title given by a court.
5 142. Ransom of captured vessels. Hostages to secure ransom.
j 143. Recapture. Rights of the original owner. Jus postliminii.
5 144. Rewards for capture and recapture. Salvage. Its amount.
\ 145. Effects of temporary conquests.
SECTION V. Of the Suspension and Close of War, especially of Truce and Peace.
\ 146. Intercourse in war, (1.) for the purposes of war.
5 147. (2.) Licences and safe conducts.
\ 148. Truce or armistice.
5 149. Time when a truce begins. End of a truce.
5 150. Peace, what ? Of treaties of peace in general. Language used in treaties.
\ 151. Restrictions on the power to make peace.
\ 152. Effect of treaties of peace.
\ 153. Continued.
\ 154. Time when a treaty begins to be binding.
CHAPTER II.
OF THE RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS.
SECTION II. Of the Obligations and Rights of Neutral States.
155. Doctrine of neutrality of modern growth. Neutrals, who ? Gradations of
neutrality. Permanent neutrality. Armed neutrality.
156. Obligations of neutrals to be impartial.
157. To stand aloof from both parties.
158. To be humane to both.
159. The neutral may admit into his ports war-vessels of the belligerents.
160. What neutrals may not do. Cases doubtful or disputed. (1.) Transit.
161. (2.) Furnishing troops to belligerents.
162. What may a neutral s subject do ?
163. Rights of neutrals. Case of the Caroline.
164. Continued.
165. Municipal laws enforcing neutrality.
166. Case of the British ambassador in 1856.
1666. Relation of neutrals to the parties in an internal war.
SECTION II. Of the Rights and Liabilities of Neutral Commerce.
167. Importance of questions touching rights of neutral trade.
168. Who are neutrals, and what is neutral property ?
169a. General principles as to liability of goods to capture.
1696. Nationality of goods and vessels as affecting their liability to capture.
14 CONTENTS.
170. Treatment of vessels conveying hostile goods.
171. Justice of the rules respecting neutral trade considered.
172. Former practice in regard to neutral trade.
173. Historical illustrations.
174. Continued.
175. Declaration attached to the peace of Paris in 1856.
176. Opinions of publicists.
177. Neutral property in armed enemies vessels.
178. Contraband of war.
179. What goods are contraband in the usage of nations ?
180. Results as to deciding what articles are contraband. Occasional contraband.
181. Is it just and sanctioned by usage ? Opinions in respect to it.
182. Preemption. English practice in cases of preemption.
183. Penalty for contraband at sea. Treaty modifying the penalty.
184. Neutrals carrying the enemy s despatches. Case of the Trent.
185. Trade closed in peace, but open in war.
186. Blockade. What places can be blockaded ? Why is a breach of blockade
unlawful ? Validity of a blockade. Paper or cabinet blockades un
lawful.
187. Evidence of a blockade. What is due notice ? What is a discontinuance
of a blockade ?
188. Penalty for breach of blockade. Duration of liability to penalty.
189. Attempts to stretch the doctrine of blockade. Prussian decree. Berlin
decree. First and second orders in council. Milan decree. British or
ders in council of 1809.
190. The right of search. Its narrow limits. Duty of submitting to it. Treaties
often regulate the right
191. Is there a right of convoy ? Historical illustrations.
192. Its justice considered.
193. Neutrals under belligerent convoy.
194. Search during peace to execute revenue laws.
195. Search on suspicion of piracy.
196. Search of foreign vessels, suspected of being slavers, unauthorized.
197. But conceded by treaties between most of the European states. Examples
of such treaties.
198. Obligations of the United States in regard to the slave-trade. Resolutions
of Congress, Feb. 28, 1823. Negotiations in England, and convention of
1824, amended by Senate of United States, then rejected by England.
199. Treaty of Washington in 1842. Practice under the treaty.
200. What does the right of search mean ? Doctrine held by the United States.
New discussion concerning the right in 1858, 1859. New arrangements
with Great Britain in 1862.
201. Nationality of vessels a legitimate matter for inquiry in peace.
202. Right of search for her seamen claimed by Great Britain.
CONTENTS. 15
CONCLUSION.
DEFECTS, SANCTIONS, PROGRESS, AND PROSPECTS OF INTERNATIONAL LAW.
203. Defects of international law. 1. Its uncertainty.
204. 2. Its narrow limits.
205. 3. There is no umpire in controversies.
206. Projects of peace between nations. 1. St. Pierre s. 2. J. Bentham s.
3. Kant s. Wm. Ladd s essay.
207. Sanctions of international law.
208. Progress and improvement of international law.
209. Its prospects for the future.
210. Importance of the study, especially in this country.
Appendix I. Selection of wcrks relating to international law.
Appendix IL List of the principal political treaties since the Reformation.
INTERNATIONAL LAW.
INTRODUCTORY CHAPTER. .
DEFINITION, GROWTH, JUEAL AND MORAL GROUNDS, SOURCES OF
INTERNATIONAL LAW.
1-
LN order to protect the individual members of human so
ciety from one another, and to make just society possible, the
Creator of man has implanted in his nature certain concep
tions which we call rights, to which in every case obligations
correspond. These are the foundation of the system of justice,
and the ultimate standard with which laws are compared, to
ascertain whether they are just or unjust. They involve, amid
all the inequalities of condition, a substantial equality of the
members of society before the tribunal of law and justice, be
cause the physical, intellectual, and moral natures of all imply
the same capacity and destination, and because to the capacity
and destination of man his rights or powers of free action
must correspond. On this basis within the state, and often
without any direct co-operation of its members, a system of
law grows up, which, while it may be imperfect, approaches
with the progress of the society in knowledge and moral cul
tivation to the standard of perfect justice..
And even the moral progress of society, the ability of its
members to acknowledge their reciprocal claims, and discharge
their duties to each other to fulfil their part in that moral
sphere which lies in great measure quite beyond the reach of
2
18 INTRODUCTORY CHAPTER. 2
positive law this also is dependent to a great degree upon
their correct estimate of rights and obligations.
2-
Nations or organized communities of men differ from the
individual men of a state, in that they are self-governed, that
no law is imposed on them by any external human power, but
they retain the moral accountable nature, which must govern
the members of a single society. They cannot have intercourse
with one another without feeling that each party has rights
and obligations. They have, as states, a common nature and
destination, whence an equality of rights arises. And hence
proceeds the possibility of a law letiveen nations which is, just,
as expressing reciprocal rights and obligations, or just as ex
pressing a free waiver of the rights which are by all acknowl
edged, and which may also embody by mutual agreement rules
defining their more obvious claims and duties, or aiming to
secure their common convenience and welfare. (Comp. 27.)
This law of intercourse between nations has been united
with political law, or the doctrine concerning the constitution
of the state and the relations of the government to the people,
under the head of public law, as opposed to private, or to the
system of laws within the state, by which the relations of its
individual members are defined and protected.* And yet
there is a branch of this law which has both a private and a
public character, private as relating to persons, and public as
agreed upon between nations. This law is now extensively
called international law.
3.
International law, in a wide and abstract sense, would em-
intemationai brace those rules of intercourse between nations,
law in the wid-
estBense. which are deduced from their rights and moral
claims ; cr in other words, it is the expression of the jural
and moral relations of states to one another.
* Comp. for example, Kliiber, 2, and for the next remark Hurd s Law of Free
dom and Bondage, 25. The Germans excel us in the neatness of their divisions
of jural science, e. g. Offentliches recht is divided into Staatsrecht and Yolkerrecht.
6 INTERNATIONAL LAW. 19
According to this definition, if we could once find ont
what are the rights and obligations, the moral claims and
duties of nations as such, by mere deduction, the principles of
this science would be settled. But such an abstract form of
the science, commanding general assent, neither has appeared,
nor is likely to appear. The advantage of separating inter
national law in its theoretical form from the positive existing
Code, depends not on the possibility of constructing a perfect
code according to a true theory, but on the fact, that right
views of justice may serve as a touchstone of actual usages and
regulations ; for in all jural science it is most important to dis
tinguish between the law as it is, and as it ought to be. This
same distinction is made by those* who discriminate between
international law, the positive admitted law, and interna
tional morality. But the latter term must be objectionable
to those at least who make a distinction between morals and
jus. The law of nations, both as it is and as it ought to be,
does not confine itself within the jural sphere.
4.
In a more limited sense international law would be the
system of positive rules, by which the nations of intern, law m a
. J . , more limited
the world regulate their intercourse with one an- sense.
other. But in strictness of truth this definition is too broad,
for there is no such law recognized as yet through all nations.
Neither have the more civilized states of the East agreed with
those of Europe, nor the states of antiquity with those of
modern times, unless it be in a few provisions, which together
would constitute an exceedingly meagre code.
M
o.
Coming within narrower limits, we define international
law to be the aggregate of the rules, which Chris- Actual positive
tian states acknowledge, as obligatory in their re- mtcriu law
lations to each othev, and to each other s subjects. The rules
* Comp. an article attributed to Mr. Senior in Edinburgh Review, No. 156, for
April, 1843.
20 INTRODUCTORY CHAPTER. 6
also which they unite to impose on their subjects, respectively,
for the treatment of one another, are included here, as being in
the end rules of action for the states themselves. Here notice,
1. That as Christian states are now controllers of opin-
ding beyond i n among men, their views of law are begin-
, ning to spread Beyond the bounds of Christen
dom, as into Turkey and China.
2. That the definition cannot justly be widened to include
but not observed "the law which governs .Christian states in their
ges- intercourse with savage or half-civilized tribes ; or
even with nations on a higher level, but lying outside of their
forms of civilization. In general, towards such nations, they
have acted on the principle that there is no common bond of
obligation between them and the other party, observing so
much of international law as suited their policy or sense of
right at the time. Especially towards savage tribes they have
often acted with flagrant selfishness, as if they feared no retri
bution from a weaker party, or were beyond the reach of pub
lic opinion. (Comp. 136, and 204.)
3. The rules of action agreed upon by two or more Chris
tian states, but not by all, or the most of them, form no part
of international law ; although they often illustrate it, and
often pave the way for the admission of new modifications of it.
4. Nations, it is conceded by all, have obligations towards
foreigners, who are not constituent parts of any nation ; or, at
least, of a nation by which the law of nations is acknowledged.
The consideration of the rights, or moral claims of such per
sons, belongs to international law, not as the system of rules
observed between nations, but as involving obligations which
all nations, or all Christian nations, acknowledge.
O
6.
The way in which positive international law becomes such,
Genesis of intern, shows that it must be progressive and somewhat
tary nature. uncertain. Eight, as Heffter remarks,* is either
guaranteed, under the protection and force of a competent
* Volkerrecht, 2.
6 INTERNATIONAL LAW. 21
power, (as we see it in the state,) or free, that is, the individ
ual power or person must protect and preserve it for himself.
The law of nations is of this latter kind. First of all, the
single state sets up for itself its views of right against other
states. If it gives up its isolation, it freely forms in inter
course with other states a common right or law, from which
now it can no longer set itself free, without offering up, or at
least endangering, its peaceful relations, and even its exist
ence.
Thus a law of nations can grow up only by the consent of
the parties to it. It is, therefore, more a product of human
freedom than the municipal law of a particular state. Its
natural progress is to start from those provisions which are
necessary in conducting political and commercial intercourse,
while it leaves untouched, for a time, many usages which are
contrary to humanity and morality ; until, with the advance
of civilization, the sway of moral ideas becomes stronger. It
grows into a system of tolerable justice and humanity after,
perhaps long after, municipal legislation has of later growth
worked itself clear of many faults and errors. than< state law -
For although both branches of law have the same foundation
of justice, and although a state, like Eome, for example, with
an advanced system of internal laws, ought to have its views
of international obligations purified ; yet, as states have di
verse interests and opinions, it takes time before a seeming
^nterest can be given up, even after right is acknowledged to
be on the other side ; and it takes time to bring the views of
nations to a common standard.*
* A state in the lower grade of civilization, like a savage, bcccnics ccnscious of
its separate existence in the act of resistance, or of defending that existence. Such
self-preservation on the part of the individual arouses, it may be, no better feeling
than that of independence and self-reliance ; in the state it helps the members to
feel their unity and dependence, and the priceless value of the state itself. Hence
war is a moral teacher : opposition to external force is an aid to the highest civic
virtues. But if this were all there could be no recognition of obligations towards
foreigners, no community of nations, in short, no world. These conceptions grow
up in man, from the necessity of recognizing rules of intercourse, and intercourse is
itself a natural necessity from the physical ordinances of God. Self-protection and
22 INTRODUCTORY CHAPTER. 7
The same causes which have enabled Christian states to
this law reach a higher point of civilization than any other,
arose in Christian _ -, i t n p
states. have made them the first to elaborate a system oi
international law. These causes have been principally, (1.)
the high moral standard of the religion which they in common
professed, a religion which cultivates alike the sentiments of
justice and humanity ; (2.) the inheritance which came to them
of philosophy and legal science from the classical states of an
tiquity, and especially the system of Roman law ; and (3.) a
close historical connection since the times of the Roman em
pire, favoring the spread of common ideas. Thus the same
religious and jural views, and a similar historical development,
give rise to a community of nations, where it is comparatively
easy for common usages to grow up. No such common feel
ing, but quite the opposite, existed between them and their
Mohammedan neighbors ; and hence the latter were long shut
out from the pale of their international law.
8-
In other parts and ages of the world laws have grown up,
intern, law cisc- m groups of nations, for the regulation of their
perfect quite im ~ conduct to each other. But these have all been
Greece and partial, and were never constructed into a science.
The classic states .of antiquity had, at the best, a
very simple and imperfect body of such rules and usages. Am
bassadors and heralds had a sacred character ; truces and treatiel
were acknowledged to be obligatory ; war was usually begun
with an open declaration, and, perhaps, with solemn formali
ties; biA when once begun, it was waged with little rule
or check. The Greeks were favorably situated
for the development of a Hellenic international
law; for, like the Christian states of modern times, they
formed a circle of communities, standing at nearly the same
intercourse are thus the two sources of international law ; they make it necessary,
and the conception in man of justice, of rights and obligations, must follow, because
he has a moral nature.
8 INTERNATIONAL LAW. 23
level of civilization, and in religion, as well as historical tradi
tions, connected with one another. And, in fact, the rudi
ments of such a law appear in the course of Greek history.
They generally gave quarter, allowed the ransom of prisoners,
respected trophies, and consented to truces for the burial of
the dead. They acted on the principle of the balance of pow
er against a dangerous and ambitious state belonging to their
circle ; they had a usage bearing some resemblance to the
modern consular system; and they sometimes by treaties or
perpetual leagues, as the Amphictyonic, secured the existence
of the parties concerned, or even softened the severities of
war.* But towards barbarians they acted almost without
rule, and among themselves permitted the most flagrant acts
of inhumanity.
The Eomans had less of international law than the Greeks,
and were less scrupulous, if we except their ob
servance, in their earlier days, of the fecial rules,
which accorded so well with the formality of their religious
character. The reason of this appears to be that, after they
became masters of Italy, many of the nations they encoun
tered were of another type than their own, and for the most
part in decay, or half civilized ; not in any respect their equals.
Towards such enemies they could act as their convenience dic
tated.
It has been said, that the Greeks had no international law
at all : and the same arguments would denv the NO reason for say-
, J in? that they hud
existence of such a law among the Romans, in no intern, law.
their earliest times. f There seems to be no sufficient ground
for this opinion. Neither nation may have reached an accu
rate notion of an international lav/, but they had usages cor
responding to those which nations under such a law now ob-
* Thus the old Amphictyonic league contemplated an armed intervention for the
security of any member threatened with utter ruin by another ; and no state belong
ing to the league was to be deprived in war of the use of its fountain water. JEs-
chines de fals. leg. 115, Bekk.
f A controversy was carried on in regard to the Greeks between Wachsmuth and
Heffter, the former affirming the existence of a law of nations among them, the lat
ter denying it. Comp. Osenbriiggen de jure belli et pacis (Lips. 1836), p. 4, seq.
24: INTRODUCTORY CHAPTER. 8
serve ; and if these usages were placed under the sanction of
religion, to secure for them a more thorough observance, that
religious character no more takes them out of the category of
laws regulating conduct towards other states, than the same
religious sanction given to the duty of hospitality took this
duty out of the list of moral precepts. All morality and jus
are sanctioned by religion, and sometimes the forms of religion
grow on to them so as to give them a religious aspect. The
fecial law in Rome s earlier days must have been the common
property of all the Latin cities, a living law under the protec
tion of the higher powers, introduced to prevent or to initiate
a state of war. (Comp. 115.)
But in mediaeval Europe, also, the law of nations was of
intern, law in the s ^ ow growth, and for a time it scarcely rose above
Middle Ages. t]ie level which it reached in Greece and Rome.
Especially was this the case during the period of dissolution
and reconstruction, and so long afterwards as national exist
ence was kept down by the spirit of feudalism. The princi
pal causes which modified it were, together with this of feu
dalism, the spirit of chivalry, the influence of Christianity, and
the centralized government of the Christian church. Feudal
ism, by breaking up society into portions slightly united to
gether, made the progress of better usages, and the triumph
of right over will an uphill work ; it increased the tendency
to private war, and sanctioned the right of resistance to the
central government ; and it involved the presence on the soil
of a large mass of men who had almost no rights. But the
spirit of chivalry, by encouraging high sentiments of honor
and fidelity, gave a moral sanction to the observance of trea
ties, and rendered fraud and unfair advantages over a rival
unworthy of the true knight ; it threw a lustre over the de
fence of the weak and unprotected ; and it cultivated human
feelings towards each other among the rulers of society. The
spirit of Christianity, also, which, indeed, was at work in the
origination of chivalry itself did much to facilitate intercourse
among men of a common faith ; it stopped, as far as it could,
private wars ; it opposed the barbarity of selling Christians as
8 INTERNATIONAL LAW. 25
slaves, and introduced a sofnewhat milder treatment of cap
tives taken in war ; and it lent its sanction to all moral obliga-
" o
tions. But it was neither pure nor strong enough to introduce
a kind treatment of infidels, nor did it prevent various kinds
of inhumanity, in peace as well as war, between Christians.
The government of the church by a monarch, who gradu
ally gained great political, by means of religious, power, was
the source of the most striking peculiarities of the public law
of the mediaeval period. The presence in Europe of an ulti
mate interpreter in religious and moral questions, doubtless
did great good as well as harm. Every important question of
politics had a bearing on religion, which could bring it up for
examination and settlement before the Pope ; and perhaps the
very vagueness of the theory of papal interference aided its
success on favorable occasions. In a gloss to the canon law (c.
2, Can. xv., qu. 6), it is said of the dispensing power of the
Roman See, that " contra jus naturale Papa potest dispensare,
dum tamen non contra Evangelium ; " and the great Pope In
nocent III., said : " Nos secundum plenitudinem potestatis de
jure possumus supra jus dispensare." (C. 4, x. de concessione
prsebendse.) This dispensing power extended to oaths. The
oath of fealty was the moral cement of society, the last cord
which bound the vassal to the suzerain. But the Popes as
serted the right of releasing vassals from their oaths of alle
giance, on the plea that the suzerain, who was disobedient or
hostile to the church, might be proceeded against even to ex
communication, and an outlaw as to church rights ought not
to rule over Christians. In the disputes of kings, the weaker
party often appealed to the Pope, and thus gave him an op
portunity to arbitrate or command. Treaties confirmed by
w^ord of honor and solemn oath were open to the papal revi
sion. Word might be broken with heretics, as the enemies of
Christ. In the noted case of Huss, who had received a safe
conduct, the Council of Constance resolved that it was lawful
for a competent ecclesiastical judge to proceed against and
punish obstinate heretics, " etiamsi de salvo conductu confisi ad
locum venerint judicii, alias non venturi." ~ x
* Gieseler, Kirchengesch. II., part 4, 418.
26 INTRODUCTORY CHAPTER. 9
The neighborhood of dreaded Enemies of the Christian re
ligion, of encroaching Mohammedan powers, brought up
the question whether, compacts could be made with infidels.
This could not be avoided, if the two religions should have
any intercourse, as in Spain ; but the lawfulness of treaties,
especially of alliances with them was denied. Fulk, Archbish
op of Bheims, told Charles the Simple, that there was no dif
ference between becoming the ally of Pagans and abandoning
God for the worship of idols. (Grotius II. 11, 3.) And this
feeling, that whilst leagues of peaceful intercourse could be
entered into with infidels, alliances with them were forbidden
by Christian law, long remained ; and was strengthened, no
doubt, by the apprehension that thus the scandal would arise
of Christians leagued with unbelievers against fellow Chris
tians.*
Many cruelties handed down from barbarous times held
their ground through the mediaeval period. Thus strangers
were capriciously treated, and had scarcely any rights. (Comp.
63.) After this period was over, Cardinal Kichelieu showed
its influence, by avowing the right of arresting all strangers
who came into the kingdom without safe conducts; and a
number of examples occur in those times of illustrious stran
gers, like Cceur de Lion in 1192, who when thrown by some
accident on Christian shores were kept in captivity until they
were ransomed. Cruelties in war, of which we speak below
in 128, 129, although often prevented by the genius of
Christianity, were still common enough. Captives were held
for a ransom, or even sold. The serf felt the full severity of
war.f
9.
Our science was called first by Zouch, (professor at Oxford,)
Names given to m his j" 118 feciale, 1650, /MS inter gentes. Its com-
tWB science. mon English appellation formerly was, the law of
nations. Since Bentharn led the way, it has been called inter-
* Sir E. Coke condemns alliances with infidels in a passage of his 4th institute
cited by Ward, and his contemporary Grotius (ubi supra) does not like them.
f See Ward s Hist, passim.
10 INTERNATIONAL LAW. 37
national law. A distinction of no great value has been set
up between these two terms, according to which the former
relates to the historical character or origin .of the law, and the
latter to its jurisdiction or application.* They will be used
by us as equivalents.
The law of nations, jus inter g&ntes, is not to be confounded
with the jus gentium of the Romans. This term Not tho eame as
denoted the principles and usages of law common jus s eutium -
to all nations, that is, practically, to all nations known to the
Romans, as contrasted with what was peculiar to the jus civile^
the law of Rome itself. Gaius says, (Inst. i. 1,) " quod natu-
ralis ratio inter omnes homines constituit, id apud omnes popu-
los peraeque custoditur, vocaturque jus gentium, quasi quo om
nes gentes utuntur." Ulpian says, (frag. i. 1, 4) "jus gen
tium est quo gentes humanse utuntur." These common usages
of nations may run through all the fields of law, and so will
include some rules of the international code. But the two
evidently cover different ground, and the civil law never dis
tinctly contemplates a law of nations in the modern sense.
10.
It is important, again, not to confound international law
with natural law. or, as it has been variously Different from jua
/ 7 -i T naturale orlexna-
naturale, lex naturalis, and lex naturae. tur.
Jus naturale is the product of natural reason, and ought, since
men are alike in their sense of justice, to be everywhere sub
stantially the same. According to Gaius and most other Ro
man lawyers, it is not different from jus gentium, as already
defined. But Ulpian and others make a distinction between
the two, which has passed into the institutes of Justinian, with
out, however, influencing Roman law. To them jus naturale is
that in which men and animals agree, the law stamped on
free animate beings. Savigny thus explains their views : f
" there was a time, we may conceive, when men acknowledged
only those relations which are common to man and beast, when
* Reddie, quoted by Hurd, Law of Freedom and Bondage, i. 46.
f System des heut. rom. Rechts, i. 415.
28 INTRODUCTORY CHAPTER. 11
they followed natural affections and impulses, in all freedom.
This was the reign of jus naturale. To this succeeded an age
of founding states, when slavery, private property, and obliga
tions were introduced, and introduced everywhere alike. This
was the jus gentium. At last jus was developed in each state
in its own peculiar way bv modifying old institutions, or set
ting up new ones*."
11.
Modern writers have retained the term in an altered signi
Definition of jus fication. Grotius (1. 1, 10) defines it to be " die
naturale by Gro- , ,. .
tius. tatum rectse ratioms, maicans actui alicui, ex ejus
convenientia aut disconvenientia cum ipsa natura rationali ac
sociali, inesse moralem turpitudinem aut necessitatem mora-
lem,* ac consequenter ab auctore naturae Deo aut vetari aut
prsecipi."
Grotius thus uses the term to include morality and jus, as
the foundation of jus voluntarium, that is, as the standard to
which law civil or international ought to be conformed. But
existing law may differ widely from it.
12.
Puffendorf s work on the law of nature and nations differs,
Puffendorf con- ^ n ^ s disadvantage, from that of Grotius, in mak-
t f u?aie s and s intera: in g ^& Q account of usage and voluntary^. Ac
cording to Grotius, the law of nations is jus illud,
quod inter populos plures aut populorum rectores intercedit,
moribus et pacto tacito introductum. Puffendorf, as Mr. Wild-
man says,t " entirely denies the authority of general usage ; and
* /. e. a morally binding force. ITartenstein, in his valuable essay on the -work
of Grotius, (Abhandl. der Leipz. Geselsch. i. 504, 509) reduces the uses made by
Grotius of the term jus naturale to these three heads : (1.) To the general obligation
to satisfy moral claims, especially the more definite claims of jus and equity. (2.)
To the claims or rights which grow out of the nature of man, and would be acknowl
edged in an incorrupt society, were there no organized state. (3.) To certain effects
and results of acts of human will. Thus, Grotius would say, man s will originated
property, but when once property was introduced, jus naturale indicated that it is
wrong for one to take what is another s without his consent.
f Institutes of International Law, I. 28.
14 INTERNATIONAL LAW. 29
his doctrine, putting aside the mass of words with which he
has encumbered it, amounts to this ; that the rules of abstract
propriety, resting merely on unauthorized speculations, and
applied to international transactions, constitute international
law, and acquire no additional authority, when by the usage
of nations they have been generally received and approved of.
So that the law of nations, according to Puffendorf, ends,
where according to Grotius it begins."
Thus Puffendorf commits the faults of failing to distin
guish sufficiently between natural justice and the law of na
tions ; of spinning the web of a system out of his own brain,
as if he were the legislator for the world ; and of neglecting
to inform us what the world actually holds to be the law by
which nations regulate their intercourse. Probably he was led
into this by not discriminating clearly between the jits gentium
of the Eomans and the jus inter gentes of modern publicists.
13.
An opposite course to this is to exhibit international law
in its positive form, as it lies in the practice and Positive method
L . . _ in intern, law.
understanding of a certain group of nations, either its deficiencies.
without reference to any jural or moral standard, or with re
course to moral considerations only now and then in disputed
cases. This is a safe method, but narrow ; and almost takes
away scientific character from the subject-matter to whicli it is
applied. What would municipal law be worth, if it did not
point back to eternal right, and if by tracing it to its source it
might not be made purer and more righteous ? If international
law were not made up of rules for which reasons could be
given, satisfactory to man s intellectual and moral nature ; if it
were not built on principles of right ; it would be even less of
a science than is the code which governs the actions of polite
society.
14.
A very narrow foundation is laid for this science by those
who would build it on the obligation to keep ex- Intern . law not
press or tacit contracts. In every contract it may Jontreot 1
be asked whether the parties have a right to act at tlon *
30 INTRODUCTORY CHAPTER. 15
all, and if so, whether they can lawfully enter into the specific re
lations which the contract contemplates. Can two nations agree
lawfully to destroy the political life of a peaceful neighbor, and
divide its territories between them ? We look beyond a con
tract for its moral grounds. It is true, indeed, that a law con
trolling independent sovereigns can only become such by their
free consent ; it must, as we have seen, be voluntary. But this
code of voluntary rules cannot for that reason be arbitrary,
irrational, or inconsistent with justice.
15.
There are, then, always two questions to be asked ; the first,
The two aspects an ^ m st important, What is the actual under-
O f intern. law. standing and practice of nations? otherwise we
have a structure that floats in the air, subjective speculation,
without authority ; and the second. On what rational and
moral grounds can this practice be explained and defended ?
otherwise it is divorced from truth and right, mere fact only
being left behind.
But what are the rational and moral grounds of interna-
jurai grounds of tional law ? The same in general with those on
intern, law. w hich the rights and obligations of individuals, in
the state, and of the single state towards the individuals of
which it consists, repose. If we define natural jus to be the
science, which from the nature and destination of man deter
mines his external relations in society, both the question, What
ought to be the rights and obligations of the individual in the
r state ? and the question, What those of a state among states
ought to be ? fall within this branch of science. That there
are such rights and obligations of states will hardly be doubted
by those, who admit that these relations of natural justice
exist in any case. There is the same reason why they should
be applied in regulating the intercourse of states, as in regu
lating that of individuals. There is a natural destination of
states, and a divine purpose in their existence, which make it
necessary that they should have certain functions and powers
of acting within a certain sphere, which external force may
17 INTERNATIONAL LAW. 31
not invade. It would be strange if the state, that power
which defines rights and makes them real, which creates moral
persons or associations with rights and obligations, should have
no such relations of its own, should be a physical and not a
moral entity. In fact, to take the opposite ground would be
to maintain that there is no right and wrong in the intercourse
of states, and to leave their conduct to the sway of mere con
venience. ( 2.)
16.
But there are moral relations, also, which are not relations
of justice, and which give rise to international M 0ra] e roun d 8 O f
morality. It may be, to say the least, that nations mtern law
have duties and moral claims, as well as rights and obligations,
In matter of fact, some of these are generally acknowledged by
nations, and have entered into the law of their intercourse, as,
for example, the duty of comity and that of humanity. These
relations were called by the older writers imperfect rights and
obligations, not because the moral ground for them is incom
plete, but because the right in particular cases cannot be ascer
tained, and therefore ought not to be enforced, nor the violation
of right regarded as an injury. Several recent writers give to
them the name of duties and moral claims, an example which
we shall follow in this work.*
17.
Among ihejural principles or foundations of international
law, we name
1. The obligation Iving; on the state to protect Particular rights
, . & J r and obligations
the individuals who compose it,y not only trom of nations.
domestic, but also from foreign aggression. This obligation
* Mr. Wildman observes, that "the phrase moral claim at once conveys the
idea which Fuffendorf and Vattel have employed countless pages to confuse." (I. 4.)
Dr. Whewell uses this term in his Elements of Morality and Polity. He also uses
the terms jus and jural, which were first employed by Dr. Lieber.
f The English language wants a term besides citizen and subject, more general
than either, and without the idea contained in the latter, of being under the control
of an individual. In this work I use subject, for want of a better word, to denote
32 INTRODUCTORY CHAPTER. 18
emanates immediately from the prime function and end of a
state, and is limited by the rightfulness of the subject s conduct
in his intercourse with the stranger.
2. Those qualities or rights which are involved in the ex
istence of the state. These may be called rights of sovereignty
simply, or may be ramified into rights of sovereignty, inde
pendence, and equality. The exercise of these rights and the
right of self-protection may, together, be embraced under the
head of rights of self-preservation. ( 37.-)
3. Those rights which the state has in common with indi
viduals or with artificial persons, as the right of property, that
of contract, and that of reputation.
4. The right which arises when the free exercise of the
state s powers above mentioned is impeded, that is, the right of
redress, near to which lie the questionable rights of punishment
and of conquest.
Inasmuch as rights and obligations are correlative, there is
obligations and an obligation lying on every state to respect the
lights correlative. ^Is of eyer y ^^ t() abstam f rom a ]J injury and
wrong towards it, as well as well as towards its subjects. These
obligations are expressed in international law.
18.
observations on Most of the above enumerated powers of states
are plain, but one or two need a little explanation.
1. The right of reputation. This right when viewed in re-
i. Right of Ropu- lation to individuals, seems to consist of two parts,
the one objective, the right to a good name, the
other subjective, the right of exemption from insult and
causeless wounding of the feelings. Corresponding to these
rights are the obligations to respect a man s reputation, and to
refrain from wounding his feelings by aspersions on his charac
ter. These rights are generally blended, but may exist apart ;
for instance, a man may insult another, or make false charges
against him, when no one else knows of it. These rights, but
all who are under the law ; and sovereign, that in which the sovereign power resides,
whether an individual or a nation.
19 INTERNATIONAL LAW. 33
principally the objective one, form the ground of the prosecu
tions for slander and libel ; and a large part of private feuds
arise from their violation. The honor or reputation of a state
is equally its right ; and the injury done by violations of this
right will seem very great, when we consider the multitudes
who suffer in their feelings from a national insult, and the
influence of the loss of a good name upon intercourse with
other states, as well as upon that self-respect which is an im
portant element in national character. Regard for national
reputation, too, increases with refinement and with closeness
of communication. The Fejees or the Hottentots care little
how the world regards them, but the opinion of civilized na
tions is highly valued by all those states which are now fore
most in human affairs. Without such a value set on reputa
tion, fear of censure could not exist, which is one of the ultimate
bulwarks of international law.
19.
2. The right of redress exists in the case of individuals,
although it would seem that a person cannot with 2 . Right of re-
justice be his own judge and redress himself. dress>
Hence the need of courts and arbitrations in society, which, by
their impartiality, knowledge of law and evidence, and habits
of judging, approach, as nearly as finite beings can, to the de
cisions of absolute truth. Societies or states must have not
only the right of redress, but of redressing themselves ; the for
mer, as being just and necessary for the protection of all rights ;
the latter, because they havf no natural superior, because in
fact they are vicars of God within a certain sphere. It may be
said that thus they become judges in their own causes. This
is true, although not in the same sense, nor with the same vio
lation of justice, as when private persons redress themselves ;
for the proceedings of states are more deliberate, and for the
most part the same body within the state is not at once the
injured and the redressing party. It may be said also that an
impartial court selected from other nations would be more just,
and ought to decide in international disputes. This might be
3
34 INTRODUCTORY CHAPTER. 20, a
desirable, but it does not appear that nations are for that reason
bound to abstain from redressing wrongs. The private person
has a natural superior in the state to which he is bound to sub
mit ; but God has established no such natural superior over
nations.
Redress consists in compensation for injury inflicted, and
for its consequences. The right therefore ceases
Redress what? . . ^ , , . ,
when the injured party is placed in as good a situ
ation as before. Mingled up in the same concrete with the act
Bon aions? with f redress, there may be an act of self-protection
elf -protection. a g a i ns t future injury. A nation may have shown
such a disposition to do wrong, that another may demand secu
rity as well as indemnity ; and this security may proceed, for
any thing that appears, even to the length of destroying the
wrong-doing state s existence.
20, a.
3. Grotius held that a state has the right to punish injuries,
3. iia* a state the committed not only against itself and its subjects.
rigbtofpunishing . ,
other states? ~ but also against others over whom it has no guar
dianship. " Sciendum quoque est," he says (II. 20, 40) " re-
ges et qui par regibus jus obtinent, jus habere poenas poscendi
non tantum ob injurias in se ant subditos suos commissas, sed
et ob eas quse ipsos peculiariter non tangunt, sed in quibusvis
personis jus naturae aut gentium immaniter violant." This
right he derives from a similar right of individuals in a state of
nature, which they gave up to society. He adds, that it is
more praiseworthy to punish in^iries done to others than to
ourselves, inasmuch as we are then less likely to be partial.
Few, if any, we suppose, would now undertake to defend
the explanation here given by Grotius, of the state s right to
punish ; and the extent which he gives to the right seems
equally objectionable. There must be a certain sphere for each
state, certain bounds within which its functions are intended
to act, for otherwise the territorial divisions of the earth would
have no meaning. In regard to the right of punishing in any
case outside of the bounds of the state there may be rational
20,* INTERNATIONAL LAW. 35
doubts. Admitting, as we are very ready to do, that this is
one of the powers of the state over its subjects, we can by no
means infer that the state may punish those who are not its
subjects, but its equals. And yet, practically, it is impossible
to separate that moral indignation which expresses itself in
punishment from the spirit of self-redress for wrongs. As for
a state s having the vocation, to go forth, beating down wicked
ness, like Hercules, all over the world, it is enough to say, that
such a principle, if carried out, would destroy the independence
of states, justify the nations in taking sides in regard to all na
tional acts, and lead to universal war. And yet extreme cases
of outrage may be conceived of, where a burning desire to help
the weak abroad, or to punish the oppressor, ought hardly to
be disobeyed.
20, 5..
The inquiry whether a state has a right to punish beyond its
own limits, leads us to the more general and practi- Relations of a
cally important inquiry, whether a state is bound Jurttce.
to aidpther states in the maintenance of general justice, that is. of
what it considers to be justice. The prevalent view se ems to be
that, outside of its own territory, including its ships on the high
Beas, and beyond its own relations with other states, a state has
nothing to do with the interests of justice in the world. Thus
laws of extradition and private international law are thought
to originate merely in comity. ( 69, 79.) Thus, too, crimes
committed by its own citizens abroad , it is not bound to notice
after their return home. Thus, again, contraband trade is held
not to begin within the neutral s borders, and outside of them,
as on the high seas, concerns the belligerent alone. ( ITS, note.)
And again, when a nation commits a gross crime against an
other, third parties are not generally held to be bound to inter
fere. This is the most received, and may be called the narrow
and selfish view. On the other hand, the broad view, that a
state must aid in getting justice done everywhere, if its aid be
invoked, and even without that preliminary, would occasion
more violence than could thus be prevented. Such a proceed
ing, too, would be unjust, as overruling the judgments of the
lawful authority.
36 INTRODUCTORY CHAPTER. 20, b
But there is a middle ground on which the theory of inter
national obligation can be rationally placed. (1.) As already
said in 20 #, the interests of justice require that the state, like
every moral person, shall have its special sphere of action, within
which it may not be invaded, except in extreme and outrageous
cases, which cases are contemplated by the actual law of na
tions. ( 42, 50, 112, end.) (2.) Every moral being, much
more the state which is a member of a community of nations,
is interested in the prevalence of justice everywhere, and is the
only asylum of it when attacked, is bound to aid in maintain
ing justice even outside of its own sphere, if this aid can be so
rendered as to violate no higher and more permanent rules of
justice. (3.) In those cases where another state either invokes
or does not object to its aid, a state, if its own judgment is
clear on the right of the case, may lend its assistance. (4.)
When this aid to foreign justice can be rendered within its
own territory the obligation is clear, and thus the extradition
of criminals, contrary to what is usually taught, and to the
opinion expressed in the first edition of this work, cannot,
with propriety, be refused in certain cases. ( 79.) (5.) Private
international law must have its origin in justice and not in
comity, so that nations, if they can only find out what the
principles of justice here are, ought to adopt them. (6.) Some
questions, as whether a state is bound to aid foreign custom
house laws by preventing smuggling, and how far a neutral
ought to prevent contraband trade of its subjects and from its
ports, are beset with special difficulties. Of the latter we shall
speak, ITS, note. Of the former, we may say that a tariff
may be unreasonable and deleterious to the interests of other
states and thus unjust : it cannot be expected that aid can be
given in such a case. But where a tariff is admitted to be rea
sonable, since it is a necessity and is rightfully imposed, to
break such laws by smuggling is immoral, and a nation ought
to restrain its people from so doing. In such cases the neglect
of justice avenges itself by the lawlessness of those who are
trained up in the flagitious trade.*
* Comp. R. v. Mohl in a monograph in his Staatr, Volkerr. u. Politik, vol. 1.
21 INTERNATIONAL LAW. 37
21.
4. Natural justice knows nothing of a right of conquest in
the broad sense of that term, that is, of mere su- 4 Tg there any
perior force, carrying with it the license to appro- rigM of con<iuest
priate territory, or destroy national life. Yet, in fact, nations
accept, if they do not justify, such a right of conquest. The
reasons for this are, in general, derived from the rule, that it
is officious and impossible for nations to sit as judges over each
other s conduct, or, in other words, from the independence of
nations. ( 37, 111.) But more particularly (1.) in the exer
cise of the right of redress it may be necessary to strip a
wrong-doer of a portion of his territory ; or in the exercise of
the right of self-protection, and, possibly, of punishment, it
may be lawful to deprive him of the means of doing evil. (2.)
The spirit of conquest generally urges one of these pleas in its
defence, over the validity of which, as we have said, nations
may not sit in judgment. (3.) Treaties generally perfect the
title which possession or conquest begins. (4.) When a set
tled state of things follows a conquest, it is usually acquiesced
in, because, as has been seen, if nations repaired each other s
wrongs, the way would be open for perpetual war. Thus in
ternational law acknowledges the fact of conquest after it Jias
become a permanent fact in the world s history, and in some
degree, the right also.
Yet the mere fact of having occupied territory or subjuga
ted its inhabitants, can be no sufficient ground in justice, even
in a just war, for the exercise of the right of conquest. Re
dress and punishment ought not to exceed due limits, nor
ought self-protection to demand an exorbitant amount of secu
rity. In accordance with this the spirit of conquest is regard
ed by the nations as the spirit of robbery, and as hostility to
the human race. This is shown by their combinations to resist
it, as in the wars against Louis XIY and Napoleon ; by their
protests against acquisitions regarded as unjust, and against
alliances formed for the injury of weak states ; by the pretexts
with which aggressors seek to shield themselves from the con
demnation of the world ; and by the occasional consent of vie-
38 INTRODUCTORY CHAPTER. 22
torious nations to give a price for territory acquired in war, as
when the United States paid a sum of money to Mexico for
lands ceded at the peace of 1848.*
22.
Moral claims and duties being to a great extent determined
Moral relations of by the special circumstances of the case, cannot
states, or duties *
and moral claims, be so easily defined and enforced as rights and
obligations ; and opinions in regard to them vary with the va
rying moral feelings of individuals, of countries and of ages.
Hence, with the increase of culture, and the greater sway of
pure religion, the influence of moral ideas over nations en
larges. No cause has had greater efficacy in producing
changes in international law than this, of which the improve
ments in the laws of war, and in the treatment of individuals
out of their own country, are good illustrations. The rules
drawn from this source are less capable of being reduced to a
theory than those deducible from jural relations.
23.
One or two recognized branches of duty between nations
Particular duties, deserve a brief notice.
1. The duty of humanity, including hospi
tality. This duty spends itself chiefly in the treatment of
individuals, although suffering nations or parts of nations
may also call for its exercise. The awakened sentiment of
* The Abbe de Mably, on this subject, uses the following language : " A prince
is doubtless in the right in conquering a province which belongs to him, and of which
the restitution is refused. He can, even, to punish his enemy for his injustice and to
recompense himself for the expenses of war which he has been forced to make, ex
tend his conquests beyond the country which he claims as his own. But arms, of
themselves, give no title ; they suppose an anterior one, and it is to try this contest
ed right that the war is waged. Were it otherwise, a prince despoiled by his enemy,
would no longer have any right to the countries which have been taken from him,
and hence it would be ridiculous for the victor to demand a cession from him in
treaties of peace. We may add here a very simple argument ; if conquests by their
nature form a legitimate right of possession to the conqueror, it is indifferent wheth
er the war be undertaken on just or unjust grounds." Droit public, vol. I. part 2,
109, ed. of Amsterdam of 1777.
25 INTERNATIONAL LAW. 39
humanity in modern times is manifested in a variety of ways,
as by efforts to suppress the slave trade, "by greater care for
captives, by protection o the inhabitants of a country from in
vading armies, by .the facility of removing into a new country,
by the greater security of strangers. Formerly, the individual
was treated as a part of the nation on whom its wrongs might
be wreaked. Now this spirit of war against private individu
als is passing away. In general, any decided want of humanity
arouses the indignation even of third parties, excites remon
strances, and may call for interposition. (Comp. 21, 50.)
But cruelty may also reach beyond the sphere of humanity ; it
may violate right, and justify self-protection and resistance.
24.
Comity is another duty of nations. To this source may be
referred in part the privileges conceded to ambas-
2. Comity.
sadors, .and tne preference given in certain cases
to fore%n over domestic law by the courts of Christendom.
Comity, as generally understood, is national politeness and
kindness. But the term seems to embrace not only that kind
ness which emanates from friendly feeling, but also those tokens
of respect which are due between nations on the ground of
right.
A much wider sense is given to the term comity by those
who embrace in it all those praiseworthy acts of one nation to
wards another, which are not stricti juris, that is, all that, the
refusal or withholding of which, although dictated by malevo
lence, is not an injury, and so not a ground for war. But
usages originating in comity may become rights by lapse of
time. (Comp. Phillirnore, I. 161, and 26, 28, infra.)
25.
Some have contended that there is a positive obligation on
nations to enter into relations at least of com
merce, so that the refusal thus to act would be an
injury, and possibly a cause of war. It might be said that dif
ferences of climate, soil, productions, and acquired skill, enable
40 INTRODUCTORY CHAPTER. 26
all parts of the world to aid one another, and that this clearly
points out a divine destination and intention that they shall so
act. But the better opinion is, that,except in extreme cases,
as when one nation cannot do without the productions of
another, or must cross its borders to get at the rest of the world
this is only a duty, an exercise of a spirit of goodwill, to be
judged of by each state according to the light which it pos
sesses. In all intercourse the two parties concerned must settle
the terms ; how then can one force the other into a treaty of
commerce, any more than one man force another into a con
tract.
But although writers are believed to agree substantially in
this, there is a disposition on the part of nations to act as if
they had a right to require others to exchange -products with
them. This has been seen in the dealings of later years with
certain Oriental and other states. But might not one Chris
tian state with greater reason force another to give up its pro
tective tariff?
It thus appears that intercourse, which is a preliminary to all
international law, and the condition, without which rights and
obligations would be mere abstract conceptions, is itself refer
able to the class of duties, and that the refusal to allow it is no
injury. There is nothing more strange in this than in the vol-
untariness of all private contracts, as of the marriage union,
which must be presupposed before any family rights can exist.
All that rights serve for is, when intercourse is given, to make
it jural. Thus we see again the voluntary quality of interna
tional law.
26.
Yattel divides the law of nations into the natural or neces-
vattei a divisions wry, so called because nations are absolutely
of intern, law. obliged to observe it; and the positive, pro
ceeding from the volition of nations. This latter, again, is
subdivided into voluntary, conventional, and customary law,
which are respectively derived from presumed, expressed, and
tacit consent. Of voluntary law Yattel says, that it embraces
the rules drawn from the principle that nations, being equal
27 INTERNATIONAL LAW. 41
and independent, are obliged to suffer each other to do many
blamable things, presuming or acting as if they were right.
Thus capture in war is valid, whether made by the aggressor
or the injured. But there seems to be no reason for setting off
this as a distinct branch, and it is by no means clearly defined.
Such cases as Yattel contemplates are to be referred to the ob
ligation under which nations lie of not interfering with each
other s sovereignty, and thus run back to the necessary law of
nations.
Dr. Wheaton, justly discarding this subordinate division of
voluntary law, makes natural law one s*enus, and
J , . . ., Wheaton s.
voluntary, another, under which latter conven
tional and customary are included. The division of interna
tional law into primitive and secondary law, is altogether simi
lar to this, primitive being the law of nature and secondary
that of treaty and usage. But these divisions, although avoid
ing Yattel s error, are of no great value. For, (1.) A require
ment of natural law may be confirmed by voluntary, as by a
treaty: to which, then, of the two does it belong? (2.) Con
ventional law hitherto includes no treaties between all the
Christian states of the world, and thus is rather to be taken as
evidence of what international law is, than as a part of it. Nay,
treaties are often made to except the parties from the operation
of a real or supposed international rule. (3.) In reality all in
ternational law is voluntary, not in the sense that it derives its
sole obligation from the will of the parties, but in the sense
that all nations in a certain circle agree to abide by it. (4.) And
again, all voluntary law is natural, being built on the founda
tion of the sacredness of agreements.
27.
Perhaps a division like the following may have something
to commend it, which separates the rights and
, ,. , , . Other divisions.
obligations known to this science into, (1.) those
which are deducible from natural jus, which no action of a
sovereignty began or can terminate ; (2.) those deducible from
the idea of a state; (3.) those which are begun and can be
42 INTRODUCTORY CHAPTER. 28
ended by compact, express or tacit. Another division still,
which we have made already ( 2), follows the division of the
three grounds or reasons for international rules, namely, jus,
morality, and convenience. The first class comprehends natu
ral rights and obligations, which can be defined and enforced ;
the second, duties and moral claims which cannot be easily de
fined, and need compact to establish them ; and the third, ar
rangements of a purely voluntary nature. A very considerable
part of international law is included under the second and
third of these heads ; a fact which serves to show the highly
positive or voluntary nature of much of the science. Thus ex
territoriality, private international law, the rules of respect,
some, at least, of the regulations touching ambassadors, the laws
of war to a great extent, and, indeed, much else is of this de
scription. These parts of the science cannot be deduced from
a theory, nor could they have arisen prior to a long experience.
28.
Whether the free assent of nations take the form of express
and free agreement or of usage, it places them alike under
consent alike 7 i v A
sources of law. the obligation oi contract. Customs within each
country existed before statutes, and so observances come in im
perceptibly and control the conduct of a circle of nations. A
nation which grants privileges to another by tacit consent, and
then revokes them without cause, may commit an injury just
as if it had broken a treaty. For example, intercourse may
become a right by becoming a fact, and to end it would be a
proof of a hostile mind.
It is to be remarked, also, that not only obligations of nat
ural justice are recognized in this tacit way, but duties become
obligations, and claims or conveniences, allowed, become
rights, just as by formal contract. A nation may grant the
privilege of transit to the troops of another by treaty ; it has
now become a right. The same thing may come about by
custom or tacit consent. It might seem as if nations could
alter their conduct at pleasure, within the spheres of moral
claims and convenience. But if they have sanctioned a usage
by long permission without protest, they have laid an obliga-
30 INTERNATIONAL LAW. 43
tion on themselves, and cannot alter it. It may, however, be
difficult to say when such obligations begin, when transit, for
instance, silently suffered, becomes a kind of servitude on the
soil. There is a difference, also, in usages. Mere forms of in
tercourse may have little binding force, but principles admitted
in common in a silent way, and giving birth to common habits,
and mutual privileges conceded without treaty, appeal to the
moral sense of nations.
29.
As soon as a nation has assumed the obligations of interna
tional law, they become a portion of the law of Intern law adopt .
the land to govern the decisions of courts, the con- ed by munici P aI -
duct of the rulers and that of the people. A nation is bound
to protect this part of law by statute and penalty as much as
that part which controls the jural relations or in other ways
affects the actions of individuals. Otherwise it is a dead let
ter ; there is a want of faith towards foreign powers, and there
is danger of quarrel ending in war. All Christian states have,
it is believed, in this way sanctioned international law, so far
as it seemed to them necessary. It is, says Blackstone, " ad
opted in its full extent by the laws of England ; and when
ever any question arises which is properly subject to its juris
diction, it is held to be a part of the law of the land." " As
being a part of the common law of England, the law of nations
is adopted by our own law also, for it is well settled, that the
common law of England, so far as it may be consistent with
the Constitution of this country, and remains unaltered by
statute, is an essential part of American jurisprudence." * Parts
of it, moreover, have received an express sanction from the
Constitution and Statutes of the United States.
30.
The helps in ascertaining what international law is, or has
been, may be derived principally from the follow- Aids for knowing
x / vfhat intern, law
ing documents : is.
* 1 Kent, Lect. 1.
4A INTRODUCTORY CHAPTER. 31
1. The sea laws of various ports or districts, winch had a
commercial importance in mediaeval Europe.
2. The treaties in which a large number of important na
tions have had a part, as the treaty of Westphalia, the Con
gress of Yienna, and the recent treaty of Paris, in 1856.
Other political treaties are evidences of an opinion enter
tained by the parties in regard to certain provisions of the law
of nations ; and that, whether they sanction these provisions
or suspend their operation. Much the same thing may be said
of treaties of commerce, which often touch on mooted ques
tions of maritime law. A brief statement of the leading fea
tures of the principal political treaties since the reformation
constitutes the second appendix to this volume.
3. Judicial decisions, which often set forth in the clearest
manner the state of the law as it is understood by the ablest
legal authorities of a particular country, and which, although
not always followed, command respect in other countries. The
decisions of the English courts, especially of the Admiralty
under Sir William Scott (Lord Stowell), although taking a
view of neutral rights on the sea which is now becoming ob
solete, are distinguished for their ability, and have had a great
influence on opinion in this country. Many decisions of the
Supreme Court of the United States involve points of interna
tional law, a court, before which, originally, " all cases touch
ing ambassadors, other public ministers and consuls," and, ul
timately, various questions affecting treaties and relations with
foreign countries may be brought.
4. State papers on controverted points, such as those writ
ten in our own country by Jefferson, Hamilton, Webster, and
Marcy.
5. Treatises on this branch of science, or on some title of
it, some of which with reason, or by accident, have acquired a
standing above others. A list of the most eminent text-wri
ters may be found in the first appendix to this work.
31.
In tracing the progress of international law, that is of views
or theories concerning it, We may notice several stages, more
31 INTERNATIONAL LAW. 45
or less clearly defined, through which it has passed. 1. Among
the ancients we have a recognition of right and wrong in the
intercourse of states together with some rules regulating inter
course and some rules of humanity in war placed chiefly un
der the sanction of religion but no separation of this branch
of law from the rest, as a distinct department. ( 8.) This
period continued until after the revival of learning. In the
middle age the science was still undeveloped, but religious in
stitutions and antipathies modified the practice of Christian
states. ( 8.) During the revival of learning, a spirit arose
in Italy, which made light of all obligations between states,
and almost deified successful wickedness. Soon after this, we
perceive that the forerunners of Grotius, as Suarez, Ayala,
and above all, Albericus Gentilis, are aware that a system of
international law ought to be evolved, and are working out
particular titles of it. (Append. I.)
2. With Grotius a new era begins. ( 11, Append. I.) His
great aim was practical, not scientific, it was to bring the
practice of nations, especially in war, into conformity with
justice. He helcl firmly to a system of natural justice between
states, without, however, very accurately defining it. To posi
tive law, also, originated by states, he conceded an obligatory
force, unless it contravened this justice of nature. In setting
forth his views, he adduces in rich abundance the opinions of
the ancients, and illustrations from Greek and Roman history.
The nobleness of his aim, and his claim to respect as the fa
ther of the science, have given to the treatise de Jure Belli
et Pads an enduring influence.
3. After Grotius there appear two tendencies. One is to
disregard all that is positive and actual in the arrangements
between nations, and to construct a system on the principles
of natural law ; in which way a law for states, differing from
ethics and natural justice, is in fact denied. This tendency is
represented by Puffendorf. ( 12.) The other tendency was
a reaction against this writer, and satisfied itself with repre
senting the actual state of international law, as it exists by
usage and treaty, without setting up or recognizing a standard
46 INTRODUCTORY CHAPTER. 32
of natural justice by its side. Bynkershoek and Moser (see
Append. I), with Martens and others in more recent times,
are examples here. Many writers however, treading in the
steps of Grotius, regard natural justice as a source of right,
with which the practice of states must be compared and brought
into conformity, and which may not be neglected in a scientific
system.
32.
There has been a general progress in the views of text-wri
ters since the age of Grotius, and a substantial agreement be
tween those of all nationalities at the same era. And yet
minor differences are very observable. Some of the most
striking of these are the differences between the English and
the Continental doctrine, arising from the insular position of
Great Britain, from her commercial interests, and her power
on the sea. Thus we find her behind the Continent in respect
ing the sanctity of ambassadors until into the eighteenth cen
tury. ( 92, e.) Thus also while her practice in land wars
has been humane, her sea-rules and the decisions of her courts
have in several ways borne hardly upon neutrals. It is worthy
of notice that our courts have followed English precedents, while
our Government, as that of a nation generally neutral, has for
the most part leaned in its doctrines and treaties towards Con
tinental views.
33.
Hitherto, as may be gathered from what has just been said,
there is something of that same uncertainty and want of author
ity to be discovered in international law, which attends on
other political and jural sciences. This is due to causes al
ready noticed ; (1.) to the changes in the science growing out
of changes in the intellectual and moral culture of successive
generations, and (2.) to the fact that states, according to their
temporary or their permanent interests, have set up or followed
different rules of action.
Whether anything can be done, by means of an interna
tional code, to bring more certainty and precision into the sci
ence will be considered in the sequel. ( 203.)
34 INTERNATIONAL LAW- 4.7
34.
In every branch of knowledge, the history of the brancn
is an important auxiliary to its scientific treat-
, . History of intern.
ment. From the changes and improvements law, it s import-
in the law of nations, it is evident that the
history of this science both the history of opinion and of
practice, is deserving of especial attention. It is a lead
ing chapter in the history of civilization. It furnishes
valuable hints for the future. Notwithstanding its dark pas
sages, it is calculated to animate the friends of justice and hu
manity. It explains the present state of the science and indi
cates the obstacles which have retarded its advance. Hence
the value of such works as Laurent s " Histoire du Droit des
Gens," which in three volumes embraces the East and the clas
sical nations of antiquity ; Ward s " Enquiry," embracing the
period from the time of the Greeks and Romans to the age of
Grotius ; and Wheaton s history, which in a sense continues
Ward s work down to the peace of Washington in 1842, is
surpassed by that of few systematic treatises. Histories of
treaties also are of great importance, as aids in understand
ing the treaties themselves, which are a principal source of
international law.
It will be one of our primary aims in this work, as far as
our narrow limits permit, to append historical illustrations to
the leading titles, in the hope of exhibiting the progressive
character of the science, and of conferring a benefit on the
student of history. It ought however to be remarked that
historical precedents must be used with caution. History
tells of crimes against the law of nations, as well as of its
construction and its observance, of old usages or principles
given up and new ones adopted. There is no value in the
mere historical facts, apart from the reasons or pretexts for
them, and from their bearings on the spread of justice and the
sense of human brotherhood in the world.
48 INTRODUCTORY CHAPTER. 35
35.
A method which aims to be practically useful in inter-
Method pursued national law, must take notice of the great im
portance which questions pertaining to a state of
war have in that science. In both peace and war the essential
qualities of states, their sovereignty and the like must be
exercised ; but war suspends the operations of certain rights,
and calls into activity certain others. Then again, in peace
every state sustains a similar relation towards every other ; but
in war a belligerent state has one relation to its enemy, and
another to all states besides ; or, in other words, the rights and
obligations of non-belligerents or neutrals now begin to exist.
"We have, then, the general faculties or powers of states, their
relations of peace, and their relations in or owing to war. In
the method here pursued, these general faculties or essential
powers of states, instead of forming a distinct division by
themselves, constitute together with the rights and moral
claims, the obligations and duties, which have their opera
tion especially in a state of peace, the first part of the science.
Then follows the second part, having to do with a state of
war. Our first part consists of the following chapters : the
first treating of the rights and obligations of states as inde
pendent sovereignties ; the second, of the right of property, and
rights over territory belonging to states ; the third, of the rights
and duties of intercourse between nations, with the relations
of foreigners within the territory to the state ; the fourth, of the
forms and agents of intercourse between the states themselves ;
the fifth, of the right of contract, or of treaties. The second
part, treating of the relations in a state of war, consists of two
principal chapters, in the first of which the state of war, as
affecting the belligerents themselves is considered ; and in the
second, the state of war as bearing on the rights and obliga
tions of neutrals.
P A K T I.
THE ESSENTIAL POWERS OF STATES, AND THEIR RIGHTS AND
OBLIGATIONS ESPECIALLY IN A STATE OF PEACE.
CHAPTEE I.
BIGHTS OP STATES AS INDEPENDENT SOVEREIGNTIES. CORRESPONDING
OBLIGATION OF NON-INTERFERENCE AND EXCEPTIONS TO IT CLAIMED
OR ADMITTED IN THE PRACTICE OF NATIONS.
36.
A STATE is a community of persons living within certain
limits of territory, under a permanent organiza-
,. i. 1 1 *? * A state what?
tion, wnicn aims to secure the prevalence 01 jus
tice by self-imposed law. The organ of the state by which its
relations with other states are managed is the government.
A body of pirates may be organized under law, but is no
state, being associated for temporary purposes.
T . J r 9 Pirates no -state.
and designing to act unjustly by its very exist
ence. A state might arise out of a nest of pirates, but would
not begin to be a state until it laid aside its piratical character.
Thus it has been doubted whether the Barbary powers were
anything more than associations of pirates. But having grown
in the course of time more just and civilized, they are now
taken into the community of nations.* Those pirates of Cili-
cia and Isauria, on the other hand, whose powerful confederacy
Pompey broke up, clearly formed no state, their settlements
being strongholds contrived to secure their families and their
plunder.
* Comp. Bynkershoek Qusest. juris public!, I. 17.
4
50 RIGHTS OF STATES 37
37.
From the nature and destination of a state, it must in a
Essential attri- sense be as truly separate from the rest of the
butes or rights of ,11 L.
& state. world, as if it were the only state in existence.
It must have an exclusive right to impose laws within its own
territory, the sole regulation in general of its subjects, the sole
determining power in regard to the forms of its organization.
No reason can be assigned why in a group of states one should
have a right to interfere in the legislation or administration of
the rest, which would not give each of them the same right in
turn. JS r or can any reason be found why one state tmght to
have more rights or different rights than any other. We find
it necessary for the conception of states, and for their occupy
ing the sphere which the Author of society has marked out for
them, to predicate of them sovereignty, independence, and the
equality of each with the rest. And these its attributes or
rights each has a right to preserve ; in other words, to main
tain its state existence. These three attributes cannot exist
apart, and perhaps the single conception of sovereignty, or of
self-protection, may include them all. ( 17.)
By sovereignty we intend the uncontrolled exclusive exer
cise of the powers of the state ; that is, both of the power of
entering into relations with other states, and of the power of
governing its own subjects. This poster is supreme within a
certain territory, and supreme over its own subjects wherever
no other sovereignty has jurisdiction.
By independence we intend to set forth the negative side
of sovereignty, that is, to deny that any other state has any
right to interfere with the exercise of a state s rights and sov
ereign powers. Thus a state may make treaties, political or
commercial, or may make war, or change its laws, executive
officers, or form of government, or by a just policy add to its
resources, so as to become richer and stronger than other states,
or plant colonies or acquire territory, or become consolidated
with other states, while no other state shall have any just cause
to impede or interfere with its unfettered action.
By equality is not meant equality of honor or respect, 01
37 AS SOVEREIGNTIES. 51
equality of rank according to the etiquette of courts, or the
right to have the same commercial or political privileges which
have been granted to other stateSj but simply equality of state
rights., that is, an equal degree of sovereignty and the posses
sion of all the same rights which other states exercise. This is,
perhaps, simply the exhibition of the quality of state sover
eignty in a different light. States which are truly sovereign
are necessarily equal in rights, since the quality of full sover
eignty has no degrees, and the state, as such, has certain rights
from its very existence.
It is scarcely necessary to add, that difference of size or of
power neither adds to or subtracts from the sovereignty of a
state, nor affects its rights in any particular.
A state, however, may, by its free act, surrender a part of
these rights, or it may give up its existence and These attributes
become merged in another organization. The iS ay ^h i e aid o? 81 fn
partial surrender occurs sometimes in confedera- p
tions. The states composing such confederation yc<
may come together on a variety of conditions, most of which
imply a surrender of sovereignty and independence in some
degree, and therefore the discontinuance of their existence as
states, in the highest sense of the word. Some leagues take
away from their members the right of separate peace and war,
and perhaps add to this a central board for the adjustment of
disputes. Others aim at a closer bond between their members,
and confer all power, in foreign relations, as well as various
other prerogatives, upon a central legislature and administra
tion created by the league. Others, again, aim to secure a
very loose kind of union, one which allows its members to
make political leagues with foreign states, and to make war
and peace separately, but has a common head and a court for
the settlement of certain disputed claims. On types like these
respectively the Achaean League, our Union, and the German
Confederation in its more modern form, have been constructed.
A state which is under the protection of another may be
sovereign in some respects, but not absolutely sov- or by protected
ereign. Such was the republic of Cracow, while it 81
52 RIGHTS OF STATES
lasted ; such have been the Ionian islands, under English protec
tion ; Moldavia and Wallachia under that of Turkey, with the
guaranty of the great European powers ; Servia and Egypt
under Turkey, with a different dependence; Monaco under
Sardinia.*
For the purposes of international law that state only can
sovereignty in in- ^ e regarded as sovereign, which has retained its
tern, law what? p 0wer to enter into all relations with foreign
states, whatever limitations it may impose on itself in other
respects. Thus the states of this Union in the view of our sci
ence are not sovereign, for they cannot exercise the treaty-
making power, nor that of making war and peace, nor that of
sending ambassadors to foreign courts. They can only exer
cise towards foreign nations those private rights which may
pertain to any individual or association. It is to be observed,
however, that between states of qualified sovereignty the law
of nations has application, so far forth as it is not shut out by
restrictions upon their power.
In a state which is formed by a union of states, there is no
doubt that the central government is responsible for the acts
of bodies which have no existence in the view of international
law. There is a weak point in our Constitution in this respect,
for the responsibility must be borne by the central government,
but the evil cannot always be abated. Comp. Phillimore, 1,
143.
38.
A state is a moral person, capable of obligations as well as
A state s obiiga- rights. These relations continue after it has
IdTy Tc^gelf passed through a change of constitution, for not-
govemment. withstanding the change the state may still pre
serve its attributes and functions. No act of its own can an
nihilate an obligation to another state; and its rights still
continue, unless its former constitution of government was the
condition on which the obligations of other states towards it
were founded. The general rule then, as all admit, is, that
* Comp, Wheaton, El. I. 2, pp. 70, 71.
38 AS SOVEREIGNTIES. 53
rights and obligations survive a change of government or a
revolution. So when a nation separates into parts, or unites
with another state to form a new whole, it cannot even by such
a process, which destroys or modifies its existence, divest itself
of its obligations. Thus debts due to foreigners outlast all such
mutations, and not to provide for their payment would be a
violation of right. When at the formation of the Federal
Constitution the States debts were assumed, and when at the
separation of Norway from Denmark the old debt of the uni
ted countries was equitably divided, these Avere acts of simple
justice and good faith. It may happen, however, that a union
or division of states renders a past obligation of treaty impos
sible, or inconsistent with present relations. Thus suppose
that Scotland before its union with England had engaged to
furnish France with a contingent of troops. This engagement
would hardly be thought binding after the union ; much less
would one be binding, which contemplated an alliance against
the very country with which a union now subsisted. It may
be said, indeed, that the prior engagement forbade the forming
of a new engagement inconsistent with it. This is, indeed, a
rule of right, but not a rule which is valid against important
state necessity. There is another extreme -case, again, where
a change of government may dissolve prior obligations. It is
where a despotical or usurping government has contracted
debts or made treaties against a nation attempting to recover
its liberties. The government is de facto in possession of au
thority, and thus its acts are lawful ; nevertheless obligations
entered into to subjugate the people must be regarded in this
extreme case as pertaining to* the government alone, and not
as resting on the people. (Comp. 145.)*
* There is a distinction between the sovereignty of a state and that of a prince.
The latter is only representative, a mode of exercising the power of the former. If
now the prince is only in form, and not really, the representative of the state, his acts
in extreme cases can be repudiated.
54 RIGHTS OF STATES 39
39. -
A state may sustain relations to other states, and perform
Aiiform 8 ofgov. its offices generally under any form of govern.
SiSei^theiyJof ment. The law of nations preserves an entire
indifference to constitutions, so long as they do
not prevent fulfilment of obligations. Every state is. in its eye
legitimate. And in matter of fact the countries which profess
to be bound by the Christian or European law of nations, dif
fer exceedingly from one another in their constitutions, which
contain specimens of absolute and constitutional hereditary
monarchy, of confederated democracies, and of an elective ec
clesiastical principality.
40.
Hence it follows that if a state has altered its form of gov-
intern. law knows ernment, or by some revolution, peaceable or vio-
only governments , , , ... IT.
de facto. lent, has suffered a disruption, or has become uni
ted with another, all these things are beyond the province of
international law, whose only inquiry is, whether a certain
community or organization is in matter of fact a separate in
dependent existence, discharging the functions of a state, and
able to take upon itself state responsibilities. The question
of a state s right to exist is an internal one, to be decided by
those within its borders who belong to its organization. To
bring the question before external powers, not only destroys
sovereignty, but must either produce perpetual war, or bring
on the despotism of some one strong nation or strong confeder
acy of nations, requiring all others to conform their constitu
tions to the will of these tyrants. Moreover, it is a question
outside of the law of nations, which presupposes the fact that
nations exist and have rights, and therefore cannot first inquire
into their right to exist. On the other hand, the fact of the
existence of a state is in general an open one, easy to be judged
of, one which involves no decision in regard to the advantages
of one form of government over another, and the only fact
which nations need to know, in order that they may enter into
and fulfil reciprocal obligations.
40 AS SOVEREIGNTIES. 55
With these principles the practice of nations on the whole,
and in the long run, agrees. All in the end acknowledge the
government de facto. Of course, nations which dread revolu
tion will be more slow to allow the title of a revolutionary
government, or of one where a family of princes of the same
blood, or wiio have been long allies, are driven from the throne ;
but they must submit at last to the inexorable facts of divine
Providence and history. And if this rule could be overthrown,
if a nation or set of nations should act on the plan of withhold
ing their sanction from new nations with certain constitutions,
such a plan would justify others who thought differently in re
fusing to regard the former any longer as legitimate states.
All history is full of examples of such recognitions. Hol
land and Switzerland, long after their independence was ac
knowledged in the diplomacy of most European states, were
formally admitted into the brotherhood of nations at the era
of the peace of "Westphalia. The United States, the Spanish
states of South America, the two French empires, the kingdom
of Greece, all arose from revolutions, and have been acknowl
edged to possess the full functions of states. Such, too, has
been the case in regard to states which have changed the suc
cession, as England in 1688, Sweden in 1818, and also where a
disruption has taken place, as that between Holland and Bel
gium in 1830 ; nay, such iniquities as the partitions of Poland
have become facts of history, into which the law of nations
claims 110 right to look.
It is almost needless to say that this rule cannot have its
application, as long as there is evident doubt whether a gov
ernment is a fact. If the question is still one of armed strife,
as between a colony and a mother country, or between a state
and a revolted portion of it, to take the part of the colony or
of the revolted territory by recognition is an injury and may
be a ground of war ; but every nation must decide for itself
whether an independent state be really established, and needs
not to wait until the party opposing the revolutionary effort has
accepted the new order of things. It is a safe rule in contests
56 RIGHTS OF STATES. 41
involving the violent separation of a state into parts, that when
the mother country, in the case of a colony, or the leading por
tion of the state, in the case of disruption, gives up active
efforts to restore the old order of things by war, other states
may regard the revolution as perfected, and a new state as
having come into the world.
41.
No state is authorized to render assistance to provinces or
Assistance to pro- colonies which are in revolt against the establish-
vinces, etc. in re- n -j-, . -. . ,
voit. ed government. I or if the existence and sove
reignty of a state is once acknowledged, nothing can be done
to impair them ; and if the right of interference, in favor of
liberty, for instance, be once admitted, the door is open for
taking a part in every quarrel.
On the other hand, there is nothing in the law of nations
which forbids one nation to render assistance to the established
government in such case of revolt, if its assistance is invoked.
This aid is no interference, and is given to keep up the present
order of things, which international law takes under its pro
tection. It may be said that this rule, together with the un
lawfulness of taking the side of a revolutionary party in an
other state, must prevent wholesome reforms, that the parti-
zans of despotism may thus use their power against free insti
tutions, while the partizans of the latter may not oppose des
potism. That this effect may follow is quite possible ; still the
rule is an impartial one, as it applies to any existing state,
whether free or absolute, to attempts against existing liberty as
well as against existing tyranny. The only other conceivable
rules of action for states are, that in internal quarrels every
foreign state may take which side it pleases, or that no state
may assist either party. The former course of action will find
110 advocates ; the other, which the law of nations cannot be
expected, for the present at least, to recognize, must indeed
prevent some revolutions from being undertaken, but cannot
prevent a change of government when demanded by a nation s
united voice.
42 AS SOVEREIGNTIES. 57
42.
The rule of non-interference in the affairs of other states is
then an established principle. But the exceptions Exceptions to rule
, . , i * non-mterfer-
to it which are admitted, or which are claimed to ence.
exist, are of great importance, and there is considerable diffi
culty in determining what is lawful interference and what is
unlawful. For, first, there may be interference without a show
or pretence of justice. In the second place, a nation which
has or pretends to have causes of war with another, aids its
revolted provinces in the exercise of the war-right of crippling
its enemy. In the third place, there are instances of interfer
ence which can be explained neither on the ground of injustice,
nor of a state of war, and which the usage of Christian or of
many Christian states tolerates.
Whatever be the interference, it can be justified only as an
extreme measure, and on one of the two follow- interferencewhen
ing grounds. (1.) That it is demanded by self- justified>
preservation ; (2.) That some extraordinary state of things is
brought about by the crime of a government against its sub
jects. And upon these grounds we must judge, not only of
the lawfulness of interference at any time pro re nata, but also
of the lawfulness of treaties contemplating such interference in
the future.* From the nature of these grounds it appears that
they are more or less vague and under the influence of subject
ive opinion. The danger to a state s existence from the designs
of another, or of others, evidently cannot be measured. While
on the one hand mere suspicion, or calculation of remote prob
abilities, can be no justifying cause of action ; on the other, it
is hard to say, just as in cases of individual morality, how
much evidence is sufficient to sanction that procedure, which
in ordinary times is unlawful. Thus much may be laid down,
that a danger resulting from the healthy and prudent growth of
* If the principles of intervention cannot stand, treaties of guaranty, which con
template such intervention, must be condemned also ; for they have in view a resist
ance, at some future time, to the endeavors of third parties to conquer or in some
way control the guaranteed states in question. An agreement, if it involve an un
lawful act, or the prevention of lawful acts on the part of others, is plainly unlawful.
58 RIGHTS OF STATES 43
another state is no reason for interference whatever, and that
good evidence of unjust designs, drawn from conduct, ought to
be obtained before any measures may be taken to prevent
them.
The extreme case of extraordinary crimes, committed by a
government against its subjects, is still less capable of exact
definition. Here, however, the danger of erring is less than
in the other instance, because interference here is more disin
terested ; and the evil results of a mistake are less, because
such cases are comparatively rare.
43.
Having premised thus much in regard to justifying pretexts
for interference, let us look now at the actual cases in which
international law gives, or is claimed to give to it a sanction
We shall consider first the balance of power.
The meaning of the, balance of power is this: that any
i. interference for European state may be restrained from pursuing
power!^" f plans of acquisition, or making preparations look-
To prevent acqui- ing towards future acquisitions, which are judged
to be hazardous to the independence and national
existence of its neighbors. In further explanation of the sys
tem we may say, (1.) That it matters not whether the actual
ratio of power between states is in danger of being disturbed
by unjust or by just means, provided only the means are poll
tical, not economical and strictly internal. If, for instance, the
sovereign of a powerful state should in a just way seat one of
his family on the throne of a neighboring state, the justice of
the transaction would not be a sufficient protection against the
interference of other powers. (2.) That acquisitions outside of
Europe have not hitherto been drawn into this policy. Eng
land has by degrees become a predominant power in several
quarters of the world without provoking the interference of
the Continent. The reason is, that foreign acquisitions affect
the political balance only in an indirect way. (3.) The system
has been applied to power on the land, and not much to power
on the sea. England has acquired, undisturbed, a great pre-
44 AS SOVEREIGNTIES. 59
dominance on the sea, while the balance of power has been in
full exercise. The reason is obvious. Power on the sea can
not directly control the political relations of Europe, nor de
stroy the independence >f states. (4.) The system has not yet
been carried out beyond the borders of the European states,
Turkey included. The reason is, that the transatlantic states
have not only come at a recent period into the European inter
national system, but can, as yet, have no appreciable influence
in European affairs.
The balance of power is a maxim of self-preservation,
which must naturally arise among states which are so contigu
ous to one another as to be liable to sudden invasions. Sup
pose a confederacy of states, having free power of war and
peace, and that the terms of union guaranteed to each state an
independent existence. In such a league, if one strong mem
ber threatened the existence of weaker ones, it would be the
duty of all to interfere. Europe resembles such a confederacy,
and the balance of power is the guaranty of national existence
against the designs of states of the first rank. Let the mem
bers of such a loose union be removed many thousand miles
from one another by tracts of ocean. The self-preserving prin
ciple now apprehends no danger, and a system of balances is
useless.
44.
The maintenance of a certain balance of power, as a fact,
if not as a right, characterized the politics of Historical mustra-
Greece. The Peloponnesian war was really ow- tlons
ing, says Thucydides (I. 23), to the alarm which the growth of
Athens excited in the confederates, at the head of whom was
Sparta. "When at the end of that war Athens was subdued,
Thebes and Corinth desired its destruction ; but the Spartans
justly regarded its existence as necessary in the politics of
Greece. Subsequently, Athens, when Thebes was beginning
to be too powerful, went over to the side of Sparta, her old
enemy.
In the middle ages a system of equipoise in Italy w T as put
into motion by the Popes, as soon as the German emperors
60 RIGHTS OF STATES 44
became strong in the Peninsula. The Pope s policy was to
have two Italian interests which could be set against one
another, at the pleasure of the Roman See, which thus secured
its own safety and influence. But a nearer approach to the
modern balance of power is seen in the Italian affairs conse
quent upon the claims of the French kings, Charles YIIL and
Louis XII. to Naples and Milan, from 1494 onward. The
dangers from the French invasion under Charles, led Spain,
the Pope and Yenice to combine against him. Then, in 1508,
the league of Cambray united all the powers involved in the
Italian quarrels against Yenice for her destruction. Then, in
1510, the Pope fearing that the ruin of Yenice would leave
Italy exposed to France, formed the Holy League to drive this
latter power out of the Peninsula. It must be confessed, how
ever, that the league of Cambray against Yenice was dictated
by motives much more unworthy than those of self-preserva
tion, and had less to do with maintaining the integrity of Italy
than with rapacity and revenge.
Not long after this the Austrian family, in two lines, held
Spain and the German Empire with other important territorial
possessions, and the great resources of these allied houses
seemed to be dangerous to the European system. France
now was the weight in the opposite scale. The unaccom
plished schemes of king Henry IY. were carried out by Riche
lieu, when he aided the German protestants and Sweden against
Austria ; and the peace of Westphalia in 1648, prevented,
thenceforward, this state, holding as it did the office of Em
peror in its hands, from becoming formidable either to Europe
or to Germany.
It w r as now the turn of France to feel the force of the
balance of power. The ambition of Louis XIY. was thought
to endanger the existence of other European states, and a
universal monarchy seemed to be at hand. The coalitions of
nearly all Europe, which resisted and finally humbled the
Grand Monarch, are among the most righteous examples of
measures for preserving the balance of power which history re
cords. Some of the measures, however, which were adopted
45 AS SOVEREIGNTIES. 61
for the preservation of the balance at this time, were of doubt
ful justice and policy. It was right to set bounds to the am
bition of Louis XIY. ; it was right, when his intrigues pro
cured the nomination of his grandson to a throne which had
been solemnly renounced for his posterity, to endeavor to pre
vent, by force of arms, this accumulation of power in the Bour
bon line ; but what justice was there in the two partition trea
ties of 1698 and 1700, which disposed of territories apper
taining to the Spanish Crown, without asking leave of the
king or nation ; and was not this high-handed measure a fail
ure in policy, as calculated to oifend the pride of Spain ? Since
the time when the balance of power played such a part in the
days of Louis and William of Orange, it has been repeatedly
acted on, and may be said to be an established part of the in
ternational law of Europe. The most memorable instances of
its application in recent times, have been the interposition of
the four powers in 1840, which forced Mehemet Ali to renounce
the provinces of the Turkish empire, of which he held posses
sion, and that of France and England in 1854, to preserve the
integrity of the same empire against the designs of Russia.
45.
We have already seen that where one nation s aid is in
voked by the government of another for the pur- 2. interference to
/ ,,. i -,, T . , . prevent revolu-
pose oi putting down a revolt, such assistance is tions.
not opposed by the law of nations. Should it be given in the
spirit of hostility to free institutions, the motive lies beyond
the ordinary sphere of this science. But a part of the Eu
ropean powers have attempted to establish a right of interfer
ence to put down revolutionary principles in that continent,
whether their aid be called for or not. This principle has been
avowed, if we mistake not, only since the French revolution ;
for only since then has absolutism become conscious of its dan
gers, and of the hatred felt towards it by multitudes of persons
scattered through the nations. The plea is, as in the case of
the balance of power, one of self-preservation. The stability
of all governments, it is alleged, and of all institutions BUS-
62 RIGHTS OF STATES 46
tained by governments, is threatened by the propagandists of
liberty, and even the dread of revolution so greatly paralyzes
the energies of states, that everything must be done to make it
as remote as possible. It is admitted that no interference un
dertaken for the direct purpose of spreading absolute princi
ples, or absolutism itself, or even for that of crushing free prin
ciples, or of overturning settled governments or constitutions
set up in an illegitimate way, is to be justified ; but it is claimed
that revolutions in modern times have been sources of incredi
ble evils, and that the so called right of a people to alter its
government by force, is calculated to bring upon Europe eter
nal commotion and insecurity.
46.
While the French revolution was in progress * some of the
instHBoesofinter. leading powers of Europe had shown a dispo-
aga e inst f ?evoiu- sition to interfere in the affairs of France, partly
on the ground that former treaties had been vio
lated, and partly because the king and royal family of France
were restrained of their liberty and treated with dishonor. A
circular of the emperor of Germany, of July 6, 1791, invited
the principal powers of Europe to declare to the French nation,
among other things, that the sovereigns " would unite to
avenge any further offences against the liberty, the honor and
safety of the king and his family ; that they would consider as
constitutional laws only those to which the king should. have
given his free assent ; and that they would employ every
means of terminating the scandal of a usurpation founded on
rebellion, and of which the example was dangerous to every
government." On the 27th of August, in the same year, the
same sovereign, with the king of Prussia, signed a declaration
to the same effect, in which they invited the monarchs of Eu
rope to unite with them in using " the most efficacious means
to put the king of France in a state to enable him with perfect
freedom to lay the foundation of a monarchical government.
* Coinp. Wheaton s Hist. p. 347, et seq., and his El. II. 1, 102-109, which I have
freely used.
46 AS SOVEREIGNTIES. 3
equally consistent with the rights of sovereigns and the welfare
of the French nation ; in which case they were resolved to act
promptly and with necessary forces to obtain the proposed
common object. In the meantime they would give the neces
sary orders to hold their troops in readiness to take the field." *
Louis having accepted the new constitution on the 13th of
September, 1791, and announced to foreign powers his inten
tion of supporting it, there was no pretext of a restraint upon
the king s liberty for an armed intervention in the affairs of
France. But unsettled questions in dispute continued, and at
length, on the Tth of April, 1792, the Austrian ultimatum de
manded, together with the restoration of the Yenaissin to the
Pope, and of their possessions and privileges in Alsace to the
princes of the Empire, the re-establishment of the French
monarchy on the basis of the French king s declaration of the
23d of June, 1789. This necessarily led to the decree in the
national assembly that France was in a state of war with Aus
tria. The king of Prussia, on the 26th of June of the same
year, 1792, announced to the world the reasons which induced
him, in conjunction with Austria, to take up arms against
France. Among them we mention " the propagation of prin
ciples subversive of social order, w r hich had thrown France into
a state of confusion ; " and " the encouragement and even
official publication of writings the most offensive against the
sacred persons and lawful authority of sovereigns. To sup
press anarchy in France ; to re-establish for this purpose a law
ful power on the essential basis of a monarchical form ; and
by these means to secure other governments against the crimi
nal and incendiary efforts of madmen, such the king declared
to be the great objects of himself and his ally."
The declaration of Austria drew forth at once a counter-
statement from the national assembly drawn up by Condorcet,
which, among other things, claimed for every nation the exclu
sive right of making and changing its laws ; denied that France
had threatened the general tranquillity, seeing she had re-
* Whoaton s Hist. p. 346, seq. The passages in quotations are borrowed from
that work through this paragraph.
64 EIGHTS OF STATES 46
nounced all designs of conquest ; declared that the avowal of
the doctrine of the sovereignty of the people, which the nation
had made, could not be regarded as disturbing the peace of
other states ; and rebutted the charge that Frenchmen had ex
cited other nations to insurrection ; whilst, on the other hand,
emigrants from France had received aid and encouragement
from those who brought these complaints, and attempts had
been made to excite civil war in France. Such complaints
were unreasonable " unless it were lawful to extend servitude
and unlawful to propagate liberty ; unless everything be per
mitted against the people, and kings alone have rights."
England could not, in consistency with the historical devel
opment of its own institutions by means of a revolution, adopt
the principles on which the continental powers declared war
against France. An attitude, however, far from friendly, was
observed towards that country, and, among the causes of com
plaint, one was the encouragement given to revolt in other
countries, not only by emissaries sent to England, but by a de
cree of the convention, which was said to express the design
of extending French principles and of promoting revolutions
in all countries, even those which were neutral. At length, on
the death of Louis, in the beginning of 1793, the French am
bassador was ordered to leave the kingdom. A state of war
ensued, during which Mr. Pitt declared that there had been
no intention, if the country had not been attacked, to interfere
in the internal affairs of France. But, no doubt, the atrocities
in the summer of 1Y93, and the closing tragedy of the king s
execution, were motives, if not pretexts of hostility. ~Nor can
there be much doubt that the interference of the European
powers, above spoken of, produced, or at least intensified, those
atrocities, by arousing the national feeling of the French, by
exciting distrust of the king s good faith, and by making it
apparent that no terms could be kept with the sovereigns.
The revolution had its course. The interference was
Hoiy Alliance avenged, and the parties to it were humbled.
sept. 26, 1815. j> u f. a ^. length France, which destroyed the inde
pendence of half of Europe, lost its own, the empire fell, and
46 AS SOVEREIGNTIES. 65
the old Bourbon dynasty was restored. During the occupation
of Paris, consequent on the battle of "Waterloo, the three rulers
of Eussia, Austria, and Prussia, joined afterwards by the French
king, formed the Holy Alliance, which has been regarded as a
league of absolutism against the rights and the freedom of the
nations. This famous league, however, at its inception, ap
pears to have had no definite object in view. It was a meas
ure into which the other sovereigns entered, in order to gratify
the emperor Alexander, whose romantic mind, then under the
influence of Madame Krudener, contemplated a golden age, in
which the intercourse of nations should be controlled by Chris
tian principles. The parties to the Holy Alliance bound them
selves, appealing to the Holy Trinity, to exercise their power
according to the principles of religion, justice, and humanity ;
to afford one another on all occasions aid and help ; to treat
their subjects and soldiers with paternal feeling, and to regard
their people as members of a great Christian family, whose
guidance was entrusted to them by God.*
The congress of Aix-la-Chapelle, at which the five great
powers were represented, and which removed the congress of Aix-
e Z* J* <n i i la-Chapelle, Sept.
army 01 occupation irom the -b rencn iortresses, el- 29, isis.
fected an alliance almost as vague as the Holy Alliance, which,
according to some of the parties to it, was intended to exercise
a supervisory power over European affairs, interfering to pre
vent all dangerous revolutions, especially when they should:
proceed from popular movements. They declared, however,
their intention to observe scrupulously the law of nations.
"The sovereigns have regarded," say they, "as the funda
mental basis, their invariable resolution never to depart either
among themselves or in their relations with other states, from
the strictest observance of the law of nations, principles,
which, in their application to a state of permanent peace, are
alone able to give an effectual guaranty to the independence
of each government, and to the stability of their general asso
ciation."
* The whole compact is given by Mr. Manning in an English version, pp. 82-84.
5
f56 RIGHTS OF STATES 46
The unmeaning nature of such declarations was shown not
congress of Trop- l n g afterwards by acts of interference, underta-
oct. 78, L i8M* c Si id ken against the consent of one European power,
and certainly not accordant with a rigorous view
of the law of nations. A feeling of discontent with the anti-libe
ral movements of most of the continental powers had been grow
ing in intensity in many parts of Europe, when, in 1820 and 1821,
revolutions broke out in rapid succession in Spain, Naples, and
Sardinia, and the constitution of Cadiz, of the year 1812, was
proclaimed in all the three kingdoms. The alarm excited by
the revolutionary spirit was the occasion of convoking a con
gress at Troppau in Silesia, in October, 1820, which was re
moved near the end of the same year to Laybach in Styria,
and at which not only the five great powers were represented
by their sovereigns or by ambassadors, but the king of Naples
and deputations from small powers appeared. Against the
proposed intervention in the affairs of Italy the British gov
ernment protested in strong terms, although the existing min
istry were not averse to the suppression of revolutionary liber
alism; while, on the other hand, the French government
approved openly of the intervention, in order to gratify the
ultra-royalist party at home, but secretly dreaded the Austrian
influence which such a measure would increase. Austria, thus
supported, sent an army into the Peninsula, overthrew the
revolution almost without a blow in the spring of 1821, and
brought back the old absolutism in all its rigor.
The circular despatch of the sovereigns of Austria, Russia,
and Prussia, justified these measures by alleging " that there
existed a vast conspiracy against all established power, and
against all the rights consecrated by that social order under
which Europe had enjoyed so many centuries of glory and
happiness ; that they regarded as disavowed by the principles
which constitute the public right of Europe all pretended re
form operated by revolt and open hostility ; " that they op
posed a " fanaticism for innovation, which would spread the
horror of universal anarchy over the civilized world ; that they
were far from wishing to prolong this interference beyond the
46 AS SOVEREIGNTIES. 67
limits of strict necessity, and would ever prescribe to them
selves the preservation of the independence and of the rights
of each state." On the other hand, the British government,
while it acknowledged the right to interfere, where the " imme
diate security or essential interests " of one state are seriously
endangered by another, denied that "this right could receive
a general and indiscriminate application to all revolutionary
governments." Such interference was an exception, and
u could not, without the utmost danger, be incorporated into
the ordinary diplomacy of states, or into the institutes of the
law of nations."*
Soon after this, in the middle of 1821, a royalist insurrec
tion occurred in northern Spain, to which France CongreB8 of Ver o-
so far extended aid as to allow the insurgents to Iia> Oct> 1822
gather along the borders, to retreat in case of need across the
line, and to make open preparation of arms and money on
French soil. A congress had been arranged to meet at Yero-
na when that of Laybach broke up. The principal measure
here agitated was armed interference in the affairs of Spain,
which, if undertaken, would naturally be the work of France.
The British envoy, the Duke of Wellington, not only declared
the refusal of his government to participate in any such pro
ceeding, but also that England would not even attempt to per
suade Spain to conform to the views of the congress. The
French envoys, Montmorency and Chateaubriand, against ex
press instruction of their court, urged forward the intervention,
which was supported by the other powers, and energetically by
Russia, which power at Laybach had hung back from decisive
movements by force of arms. The envoys acted herein in the
interest of the ultra-royalist party, which was thus able to car
ry its measures through. For a French army occupied Spain,
penetrated as far as Cadiz, overthrew the constitution of Cadiz
to which the king had given his assent, and left him " free,"
but the country enslaved. No stretch of interference had gone
so far as this, for Spain would have had a settled constitutional
* Circular despatch of the sovereigns, etc., Laybach, May, 1821, and Lord Gas-
tlereagh s circular despatch of January 19th, 1821.
68 RIGHTS OF STATES 47
government, and probably settled peace, unless the agitators
had looked for aid to foreign power.
47.
The proceedings at Yerona indirectly gave rise to what has
3. Monroe doc- been called the Monroe doctrine,* which met the
reigning principle of interference in Europe by a
similar principle in the opposite direction. The history of this
doctrine is, in brief, the following. At Verona the subject was
agitated of attempting, in conformity with the known wishes
of the absolutists in Spain, to bring back the Spanish colonies
into subjection to the mother country. This fact having been
communicated to our government by that of Great Britain in
1823, and the importance of some public protest on our part
being insisted upon, President Monroe, in his annual message,
used the following language : " That we should consider any
attempt on the part (of the allied powers,) to extend their sys
tem to any portion of this hemisphere as dangerous to our
peace and safety," and again, " that we could not view any in
terposition for the purpose of oppressing (governments on this
side of the Atlantic whose independence we had acknowledged,)
or controlling in any manner their destiny by any European
power, in any other light than as a manifestation of an un
friendly disposition towards, the United States." Soon after
wards a resolution was moved in Congress, embodying the
same principle, but was never called up. But the mere dec
laration of the President, meeting with the full sympathy of
England, put an end to the designs to which the message
refers.
In another place of the same message, while alluding to the
question of boundary on the Pacific between the United States
and Russia, the President speaks thus : " The occasion has
been judged proper for asserting as a principle, in which the
rights and interests of the United States are involved, that the
American continents, by the free and independent condition
* Comp. especially the North American Review for April, 1856, and Mr. CaL
houn s speech in the Senate on the proposed occupation of Yucatan, May 15, 1848.
47 AS SOVEREIGNTIES. 69
which they have assumed and maintain, are henceforth not to
be considered as subjects for future colonization by any Euro
pean power." "Was it intended by this to preclude the South
American republics, without their will, from receiving such colo
nies within their borders of surrendering their territory for that
purpose ? Such a thing, probably, was not thought of. Mr.
Adams, when President in 1825, thus refers to Mr. Monroe s
principle, while speaking in a special message of a congress at
Panama. " An agreement between all the parties represented
at the meeting, that each will guard ty its own means against
the establishment of any future European colony within its
borders, may be found desirable. This was more than two
years since announced by my predecessor to the world, as a
principle resulting from the emancipation of both the Ameri
can continents." Mr. Adams, when Secretary of State under
Mr. Monroe, originated the " principle," and must have known
what he meant. But the principle, even in this tame form,
was repudiated by the house of representatives, in a resolution
declaring that the United States " ought not to become parties"
with any of the South American republics "to any joint decla
ration for the purpose of preventing the interference of any of
the European powers with their independence or form of gov
ernment ; or to any compact for the purpose of preventing col
onization upon the continent of America."
On the whole then, (1.) the doctrine is not a national one.
The house of representatives, indeed, had no right to settle
questions of policy or of international law. But the Cabinet
has as little. The opinion of one part of the government neu
tralized that of another. (2.) The principle first mentioned of
resisting attempts to overthrow the liberties of the Spanish
republics, was one of most righteous self-defence, and of vital
importance. And such it will probably always be regarded,
if a similar juncture should arise. But the other principle of
prohibiting European colonization was vague, and if intended
to prevent Russia from stretching her borders on the Pacific
further to the south, went far beyond any limit of interference
that has hitherto been set up. What right had the United
70 RIGHTS OF STATES 47
States to control Russia in gaining territory on the Pacific, or
planting colonies there, when she had neither territory nor col
ony to be endangered, within thousands of miles ?
The Monroe doctrine came up again in another shape in
1848. President Polk having announced that the government
of Yucatan had offered the dominion over that country to
Great Britain, Spain, and the United States, urges on Con
gress such measures as may prevent it from becoming a colony
and a part of the dominions of any European power, which
would be, he says, in contravention of the declaration of Mr.
Monroe, and which must by no means be allowed. Mr. Cal-
houn, in his speech on this subject, shows that the case is very
different from that contemplated by Mr. Monroe, that the dec
larations of the latter could not be regarded as expressing the
settled policy of this country, and that they were mere decla
rations without threat of resistance. The " colonization " con
templated by the Monroe doctrine could not apply to Yucatan,
and the possibility of England (which was especially intended)
acquiring power there was remote. The principle, he adds,
" which lies at the bottom of the (President s) recommendation
is, that when any power on this continent becomes involved in
internal warfare, and the weaker side chooses to make applica
tion to us for support, we are bound to give them support, for
fear the offer of the sovereignty of the country may be made to
some other power and accepted. It goes infinitely and dan
gerously beyond Mr. Monroe s declaration. It puts it in the
power of other countries on this continent to make us a party
to all their wars."
To lay down the principle that the acquisition of territory
on this continent, by any European power, cannot be allowed
by the United States, would go far beyond any measures dic
tated by the system of the balance of power, for the rule of
self-preservation is not applicable in our case : we fear no
neighbors. To lay down the principle that no political systems
unlike our own, no change from republican forms to those of
monarchy, can be endured in the Americas, would be a step in
advance of the congresses at Laybach and Yerona, for they ap-
48 AS SOVEREIGNTIES. 71
prehended destruction to their political fabrics, and we do not.
But to resist attempts of European powers to alter the consti
tutions of states on this side of the water, is a wise and just
opposition to interference. Anything beyond this justifies the
system which absolute governments have initiated for the sup
pression of revolutions by main force.
48.
The attempts to introduce into the European law of nations
a right of interference in the internal affairs of Result* of attempt
other states, have come to the following results:
/- \ -n i i i .1 internal affairs of
(1.) Jingland nas constantly protested against states.
such a principle, and has been scrupulous in placing her inter-
ventions on other grounds. When, in 1826, the government
of that country, in accordance with ancient treaties, and on ap
plication, sent troops to Portugal to sustain the regency there
against the pretensions of Don Miguel, it was declared that
nothing would be done to enforce the establishment of the con-
, stitution, but that others would be resisted in their attempts to
overturn it. At that time it was said by Mr. Canning, in the
house of Commons, that France had given to Great Britain
cause of war by her violation, in 1823, of the independence
of Spain. (2.) The principle has been applied only in the case
of weaker nations ; while the two French revolutions of 1830
and 1848 weie allowed to take their course, and the revolu
tionary governments were soon acknowledged. (3.) France
cannot, without gross inconsistency, accede to this principle.
(4.) The principle, carried out, must bring Christian states into
conflict ; for the right of interfering in favor of liberty can be
urged even on the ground of self-preservation, as well as that
of interfering to put down popular movements ; and all free
and despotical institutions are dangerous to one another s ex
istence. If the powers of Europe had been equally divided
between constitutionalism and despotism, such a principle
would not have been avowed, for it might work both ways.
Its avowal, therefore, can be ascribed only to the consciousness
of superior might. (5.) The interference, as it cannot prevent
72 RIGHTS OF STATES 49
the moral and intellectual causes of revolution, only by delay
embitters and fanaticizes its spirit. It leaves the payment of
a debt at compound interest to posterity.
49.
The interference of the five great powers in the affairs of
4. interference in the Netherlands has some peculiar characteristics
the Belgic revolu- .. ,1 i -i 111 *.
tion of 1830. of its own. First, the kingdom had been consti
tuted at the Congress of Vienna, out of Holland, Belgium, and
certain neighboring duchies, as a kind of barrier between
France and Germany. Fifteen years afterwards, on the out
break of the July revolution in France, Belgium separated vio
lently from the rest of the Netherlands, and it became evident
that two such heterogeneous parts could not be welded to
gether. The king of the Netherlands invoked the mediation
of the five powers, who first procured an armistice between the
parties, then in the character of unauthorized arbitrators laid
down the terms of separation, and finally forced a compliance.
The views that governed in the long negotiations, which finally
lent the sanction of Europe to this divorce, are given at length
by Dr. Wheaton in his History of the Law of Nations, and are
a most instructive chapter. Belgium acquired its independence
with the rights and obligations of perpetual neutrality ; a
French prince was prevented from occupying its throne ; the
Scheldt, with other streams and canals common to Belgium
and Holland, was to remain free ; Antwerp, as by the terms
of the peace of Paris in 1814, was to be a port without fortifi
cations, and the territory of the new kingdom was confined
within narrow bounds, because it was born in a revolution.
Thus there was " a compromise in this case between the two
principles which had so long menaced, by their apprehended
collision, the established order and the general peace of Eu
rope." Doubtless, if France itself had not just before asserted
the right of revolution, the interference here would have been
directed to the point of healing the schism in the Netherlands
by main force.
50 AS SOVEREIGNTIES. 73
50.
Interference on the score of humanity or of religion can be
justified only by the extreme circumstances of the 5 Inter ference on
case. In the age which succeeded the reforma- }J ^t^umit
tion, both self-preservation and religious sympa- lty<
thies induced the Protestant states to aid one another against
the superior might of the Catholic, and to aid the votaries of
their faith within Catholic countries, in order to secure for
them freedom of worship. Elizabeth of England sent aid to
the revolted Hollanders on religious grounds, and Cromwell s
threats slackened the persecution of the Waldenses* by the
Duke of Savoy. In modern times, the interference of Great
Britain, France, and Russia, on behalf of the Greeks, in 1827,
was avowedly dictated by motives of humanity. The Greeks,
after a bloody contest, had so far achieved their independence,
that the Sultan could not reduce them. Accordingly his vas
sal, Mehemed Ali, of Egypt, was allured to send an army of
subjugation into the Morea, and the atrocious scenes of fanati
cal war were renewed. The Greeks applied to France and
England for help or mediation. At length, in consequence of
the battle of Navarino, Oct.* 20th, 1827, and the French occu
pation of the Morea, the Peninsula was evacuated by Moham
medan troops, and finally the independence of Greece was
acknowledged. Dr. "Wheaton says of these events* that the
Christian powers were eminently justified in their interference
" to rescue a whole nation not merely from religious persecu
tion, but from the cruel alternative of being transported from
their native land into Egyptian bondage, or exterminated by
their merciless oppressors. The rights of human nature
wantonly outraged by this cruel warfare were but tardily and
imperfectly vindicated by this measure, but its principle was
fully justified by the great paramount law of self-preservation.
* Whatever a nation may lawfully defend for itself, it may de
fend for another if called on to interpose. The interference
of the Christian powers to put an end to this bloody contest,
* Elements, Part II., Chapter 1, 10.
74 RIGHTS OF STATES 51
might therefore have been safely rested on this ground alone,
without appealing to the interests of commerce and of the re
pose of Europe, which, as well as the interests of humanity, are
alluded to in the treaty, (for the pacification of Greece, July
6th, 1827,) as the determining motives of the high contracting
parties."
EQUALITY OF SOVEREIGN STATES.
51.
We have already explained equality to denote equality of
rights. All sovereign states stand on the same
Equality. ~
level in this respect, the old and the new, large
and small, monarchies and republics, for the conception of a
state to be applied to all is the same, and their sovereignty is
the same. This, however, is not incompatible with special
privileges of a commercial nature granted to one nation before
another, or to superior rank in the ceremonial of courts.
Formerly the most punctilious rules of etiquette were ob
served at most of the* courts of Europe. Gustavus
Rank of nations.
Adolphus, who said that all crowned heads were
equal, was one of the first to despise pretensions of superiority.
Rules are necessary to prevent ambassadors and their wives
from contending for precedence, or feeling that an insult has
been offered to them or their country. But with all the nicety
of court etiquette, such quarrels have frequently taken place.
Among the most noted of these disputes, was one of long con
tinuance between the ambassadors of France and Spain.* The
place of France, until the sixteenth century, according to the
ceremonial of the Eomish See, had been next to that of the
German emperor, but, as Charles Y. was both emperor and
king of Spain, his successor on the Spanish throne claimed
precedence of other kings, and thus brought on a collision.
At the Council of Trent the dispute rose to such a point
* See Ward s Hist., II. 272, seq. (Dublin Ed.)
51 AS SOVEREIGNTIES. 75
that the French declared that they would renounce obedi
ence to the Pope, if deprived of their place, and it was only
settled by allowing the Frenchman to continue in his seat
next to the Legate who presided, and the Spaniard to occupy
a seat of eminence opposite tp him. The most serious out
break, however, of this rivalry occurred at London in 1661,
when, according to the usage of the time, the ambassadors
went in procession to meet a newly arrived ambassador from
Sweden. The ministers of both nations appeared with an
armed retinue. As the Frenchman attempted to put his car
riage next to that of the English king, the Spaniards raised
a shout, scared the horses, and occupied the place. The
French then fired upon them, and received back their fire, so
that eight were killed and forty wounded in the encounter ;
but the Spaniards, having during the melee cut the ham
strings of the French horses, were able to secure the coveted
precedence. Louis XIY. threatened war for this ^outrage, and
thus forced the Spaniards into a declaration that their ambas
sador should never be present at ceremonies where a contest
for rank could arise between them and the French.
According to the old rules of Europe, the Pope (whom
Protestant nations and Russia regard as only an Italian sover
eign) ranked highest in dignity, the German emperor next,
monarchies before republics, sovereigns before half-sovereigns,
and princes of inferior name closed the list. The following
order of rank emanated from the Roman court in 1504 : the
Roman emperor, king of Rome, king of France, of Spain, Arra-
gon, Portugal, England, Sicily, Scotland, Hungary, Navarre,
Cyprus, Bohemia, Poland, Denmark (with which Sweden and
Norway were then united), the Venetian republic, the duke
of Brittany, Burgundy, Electors of Bavaria, Saxony, Branden
burg, archduke of Austria, duke of Savoy, grand duke of
Florence, dukes of Milan, Bavaria, Lorraine, etc.*
The rules now acted upon in regard to the rank of differ
ent states and of their sovereigns are, according Exi8t i ng ru i e3 O f
to Heffter, the following : rank -
* Heffter, 28, p. 49. Comp. Suppl. to Dumont V. 202.
76 RIGHTS OF STATES AS SOVEREIGNTIES. 51
1. States to which, for themselves or for their sovereigns,
royal honors pertain, have an external rank before those tc
which these honors do not belong. Such honors are the right
of sending ambassadors of the first class, the use of the royal
title, crown and corresponding* arms, and certain other cere
monial usages. To this rank belong emperors, kings, grand
dukes, the elector of Hesse, the Swiss republic, the United
States of America, the German confederation.
2. Among states of the same class entire equality of rights
obtains, but the rule of precedence, in regard to rank, is settled
by treaty and usage. Kings and emperors have a general equal
ity, as is indicated by the fact that the former frequently con
nect the latter title w r ith that which they are especially known
by. A precedence is given to kings and emperors before sov
ereigns who have inferior titles, and before republics," whose
special relation of rank to other states with royal honors is not
definitely fixed." * There is a certain order of the German
states in relation to affairs of the confederation, and to this
alone. Half-sovereign and protected states rank after those
on which they depend. Treaties by which one state concedes
the precedence to another over a third, without its consent, are
of no obligation upon the latter, and may contain a violation
of the respect which is its due.
The rank which a state has once obtained is usually not
lost by a change of constitution.
The tendency of things is, as far as possible, towards en-
These distinctions ^ re equality of states. Thus commercial privi-
fading out. leges are fast disappearing, and new treaties to a
great extent concede the advantages given to the most favored
nations. The precedence of ambassadors of the same rank is
determined simply by length of residence at the court. And
special tokens of respect to one nation more than to another,
like those claimed by England in certain narrow seas, have
nearly gone out of use.
* Heffier, 28, p. 60.
CHAPTEK II.
TERRITORIAL RIGHTS OP STATES AND RIGHTS OF PROPERTY. STRICT
RIGHT RENOUNCED, ESPECIALLY AS TO THE USE OF NAVIGABLE
WATERS.
52.
A NATIOIT is an organized community within a certain
territory f or in other words, there must be a place where its
sole sovereignty is exercised. It may, also, and Property of states
11 1~ J. *M VI J J 1 J iQ intern laW
will have property of its own, like individuals and what?
associations: it may even hold such property within the
borders of other states, may be the creditor of foreign states or
individuals, or, unless the law of a state prohibit, may possess
land there on the tenure of private ownership. Upon the
property of its subjects, again, it has a certain lien, as appears
from the power to lay taexs and the power to use private prop
erty for public purposse. But the right of eminent domain
with which such power over private property is connected,
does not imply that such property is absolutely under the con
trol of the state, or that the state was the prior owner, and
conveyed it to the individual under conditions ; but the right
is rather to be considered as one of necessity, without which,
at times, public affairs could not move on, nor the rights of
many individuals be protected. Now, although the relations
of the state to its territory, to its property and to the property
of individuals are different, yet as far as other nations are con
cerned, they may all be included under the term property.
" Such property of states," as Heffter well remarks, "has only
in relation to other states the same character which property
has, namely, the character of exclusiveness and free disposal,"
that is, of pertaining to the state to the exclusion of all other
states, and of being disposed of without restraint on their part
upon its will.
-
78 STATES RIGHT OF PROPERTY 53
A state s territorial right gives no power to the ruler to
alienate a part of the territory in the way of barter or sale,
as was done in feudal times. In other words the right is
a public or political and not a personal one. Nor in justice
can the state itself alienate a portion of its territory, without
the consent of the inhabitants resljpig upon the same, and if,
in treaties of cession, this is done after conquest, it is only the
acknowledgment of an unavoidable fact. (Comp. 153, and
Grotius 11. 6. 4.)
Property of a foreign state or sovereign within the bounds
of a state involves no restriction of territorial sovereignty.
Territorial servitudes, as right of free harbor, of transit, etc.,
may exist, but are stricti juris, the presumption being always
in favor of sovereignty. (Comp. Bluntschli, Staatsr. 1. 189.)
53.
The territory of a nation, or that portion of the earth over
Modes of acquir- which it exercises the rights of sovereignty, may
mg territory. have begun to pertain to it in a variety of ways.
It may have derived its title 1, from immemorial occupation
of land which was before vacant.
2. From occupation by colonies, or other incorporation of
land before occupied.
3. From conquest accepted as a fact and at length ending
in prescriptive right. ^
4. From purchase or from gift.
Other claims more doubtful or less generally acknowledged,
have been, (1.) that of Portugal, derived from a bull of pope
Nicholas Y. giving in 1454 to Alfonso Y. the empire of
Guinea, and the exclusive use of the African seas ; as also the
more noted bulls of Alexander YI. issued in 1493 soon after
the return of Columbus from his first voyage, the first grant
ing to Spain all lands west of a north and south line drawn a
hundred leagues west of the Azores, and the other dividing
the occupation of the seas between Spain and Portugal. Such
a claim of course would be good only against those who admit
ted the Pope s right thus to dispose of the world, which few
54 AND RIGHTS OVER TERRITORY 79
or no Catholic states would now admit. (2.) The claim on the
ground of discovery. This was both exceedingly vague, for
how much extent of coast or breadth of interior went with the
discovery ? and was good only against those who acknowl
edged such right of discovery, but not against the^ natives. Of
the natives, however, very little account was made. Being
heathen, they were not, in the age succeeding the discovery of
America, regarded as having rights, but might be subdued and
stript of sovereignty over their country without compunction.
And yet when the right to territory in the new world was in
dispute, a title derived from them, it might be, to soil far be
yond their haunts, would perhaps be pleaded against prior occu
pation. The English colonies, however, which settled in this
country, took, to a considerable extent, the more just course of
paying for the soil on which they established themselves, and
the United States have acted steadily on the principle of ex
tinguishing the Indian title by treaty and the payment of a
price.
54.
1. The territory of a state includes all that portion of terra
firma which lies within the boundaries of the What is terri .
state, as well as the waters, that is, the interior tory?
seas, lakes and rivers wholly contained within the same lines.
Thus the sea of Azof, the Volga, Lake Michigan, the Ohio,
and the Sea of Marmora are exclusively in the territory re
spectively of Russia, the United States, and Turkey. It may
happen that the boundaries of a state are not continuous, or that
one part of it is separated from another, as the Rhine-provinces
of Prussia are cut off by Hesse, etc., from the rest of the
kingdom. Or it may happen that one sovereignty, or a por
tion of it, is included within the limits of another. This is the
case more or less in Germany, and was formerly true of Avig
non and the Yenaissin, which were Papal territory enclosed
(enclaves hence called) in France.
2. The mouths of rivers, bays, and estuaries, furnishing
access to the land.
80 STATES RIGHT OF PROPERTY 54
3. The sea-coast to the distance of a marine league. This
is a regulation dictated bj the necessities of self-protection, as
is expressed in the maxim of Bynkershoek, " terras potestas
finitur, ubi finitur armorum vis." For the police of commerce
the distance is extended to four leagues, that is, according to
the usage prevailing in Great Britain and the United States,
foreign goods cannot be transshipped within that distance with
out the payment of duties. The extent of sea-coast included
within national territory has been variously defined. Bynker
shoek, and others after him, limit it by the reach of cannon
shot ; " quousque tormenta exploduntur." (De domin. mar.
cap. 2, from which place the maxim above cited is taken.)
Rayneval limits it by the horizon, a very vague and absurd
suggestion ; Yalin, by the depth of the sea : territory should
reach out (he would propose) to where there is no bottom.
Modern writers, whether limiting it by a marine league, or by
cannon shot, agree substantially in making it an incident to
territorial sovereignty on the land. Comp. Ortolan, Diplom.
de la mer. Tol. I, chap. 8. As the range of cannon is increas
ing, and their aim becoming more perfect, it might be thought
that the sea line of territory ought to widen. But the point is
not likely to become one of any great importance.
4. Vessels belonging to the citizens of the nation on the
high seas, and public vessels, wherever found, have some of
the attributes of territory.
In regard, however, to the territorial character of vessels it
is necessary to be more definite, for if they have this property
in some respects but not in all, only false and illogical deduc
tions can be drawn from an unqualified statement. Is it true,
then, that they are identical in their properties with territory ?
If a ship is confiscated on account of piracy or of violation of
custom-house laws in a foreign port, or is there attached by
the owner s creditor and becomes his property, we never think
that territory has been taken away. For a crime committed
in port a vessel may be chased into the high seas and there
arrested, without a suspicion that territorial rights have been
violated, while to chase a criminal across the borders and seize
55 AND RIGHTS OVER TERRITORY. 81
him on foreign soil is a gross offence against sovereignty.
Again, a private vessel when it arrives in a foreign port, ceases
to be regarded as territory, unless treaty provides otherwise,
and then becomes merely the property of aliens. If injury is
done to it, it is an injury which indirectly affects the sovereign
of the alien, whereas injuries to territory, properly so called,
affect the public power in an immediate manner. It is unsafe,
then, to argue on the assumption that ships are altogethei
territory, as will appear, perhaps, when we come to consider
the laws of maritime warfare. On the other hand, private
ships have certain qualities resembling those of territory : (1.)
As against their crews on the high seas ; for the territorial or
municipal law accompanies them as long as they are beyond
the reach of other law, or until they come within the bounds
of some other jurisdiction. (2.) As against foreigners, who are
excluded on the high seas from any act of sovereignty over
them, just as if they were a part of the soil of their country.
Public vessels stand on higher ground: they are not only
public property, built or bought by the government, but they
are, as it were, floating barracks, a part of the public organism,
and represent the national dignity, and on these accounts, even:
in foreign ports, are exempt from the local jurisdiction. In;
both cases, however, it is on account of the crew, rather than
of the ship itself, that they have any territorial quality.. Take
the crew away, let the abandoned hulk be met at sea : it now
becomes property, and nothing more.
55.
The high sea is free and open to all nations. It cannot be
the property or the empire of a particular state.
T L . , Freedom of the
It cannot become vrowertif* ior it cannot be DOS- wgh seas and of
, , t ., fishing there.
sessed, or have any personal action exercised
upon it, which must prevent a similar action of another. It
cannot be mixed up with labor, or enclosed, or, like wild land,
be waiting for any such future action. It can, as little, become
the empire of any particular state. Otherwise one state might
exclude others from it, and from that intercourse for which it
6
82 STATES RIGHT OF PROPERTY 55
is the pathway, which would be inconsistent with the equality
and sovereignty of nations. Such empire could begin only in
the consent of the whole world expressed by treaty, which was
never given, or in prior discovery and use. But this last is
no ground at all, and if it were, would work against the so-
called discoverer in favor of the natives of newly found coasts.
In fine, the destination of the sea is clearly for the common
benefit of mankind ; it is a common pathway, separating and
yet binding, intended alike for all.
The liberty of the sea and of navigation is now admitted
on all hands. But formerly the ocean, or portions of it, were
claimed as a monopoly. Thus the Portuguese prohibited other
nations from sailing in the seas of Guinea and to the East In
dies. No native born Portuguese or alien, says one of the
ancient royal ordinances, shall traverse the lands or seas of
Guinea and the Indies, or any other territory conquered by us,
without license, on pain of death and the loss of all his goods.
The Spanish nation formerly claimed the right of excluding
all others from the Pacific. Against such claims, especially of
the Portuguese, Grotius wrote his Mare Liberum in 1609, in
which he lays down the general principle of the free right of
navigation, and that the sea cannot be made property, and re
futes the claims of the Portuguese to the discovery of countries
which the ancients have left us an account of, as well as their
claims through the donation of Pope Alexander YI. And yet
the countrymen of Grotius, who had been defenders of the lib
erty of the seas, sought to prevent the Spaniards, going to the
Philippines, from taking the route of the Cape of Good Hope.
The English, in the 17th century, claimed property in the seas
surrounding Great Britain, as far as to the coasts of the neigh
boring countries, and in the 18th only softened down the claim
of property into one of sovereignty. Selden, who in 1635 pub
lished his Mare Clausum,v?liilQ he contends against the monop
olizing pretensions of Spain and Portugal, contends zealously
on the ground of certain weak ancient precedents for this claim
of his country. The shores and ports of the neighboring states,
says he, are the limits of the British sea-empire, but in the wide
55 AND RIGHTS OVER TERRITORY. 83
ocean, to the north and west the limits are yet to be consti T
tuted.* Russia, finally, at a more recent date, based an ex
clusive claim to the Pacific, north of the 51st degree, upon
the ground that this part of the ocean was a passage to shores
lying exclusively within her jurisdiction. But this claim was
resisted by our government, and withdrawn in the temporary
convention of 1824. A treaty of the same empire with Great
Britain in 1825 contained similar concessions.
The rights of all nations to the use of the high sea being
the same, their right to fish upon the high seas, or on banks
and shoal places in them are equal. The right to fish in bays
and mouths of rivers depends on the will of the sovereign.
Thus the right to fish on the banks of Newfoundland is
open to all, but there is no right to dry and cure Fisl]ery quegtion
fish, even on the unsettled coasts belonging to stS el and h GreYt
any sovereign, without permission of the same. I
And here a brief sketch of the fishery question between the
United States and Great Britain may not be out of place.
By the treaty of 1Y83, which admitted the independence
of the United States, Great Britain conceded to
them the right of fishing on the Banks of New
foundland along such coasts of the same island as were used
by British seamen, in the Gulf of St. Lawrence, and on the
coasts, bays, and creeks of all other British dominions in
America ; as well as the right of drying and curing fish in any
of the unsettled bays, harbors and creeks of Nova Scotia, the
Magdalen islands and Labrador, so long as they should con
tinue unsettled ; but not the right of drying or curing on the
island of Newfoundland.
At and after the treaty of Ghent, which contained no pro
visions respecting the fisheries, it was contended Treaty of Ghent,
by American negotiators, but without good rea- 1814>
son, that the article of the peace of 1783, relating to the fish
eries, was in its nature perpetual, and thus not annulled by the
war of 1812. By a convention of 1818 the priv- convention of
ilege was again, and in perpetuity, opened to cit- 1818
* Comp. Ortolan, u. s., Chap. 7.
84: STATES RIGHT OF PROPERTY 56
izens of the United States. They might now fish, as well as
cure and dry fish on the greater part of the coast of New
foundland and Labrador, and on the Magdalen islands, so long
as the same should continue unsettled ; while the United States
on their part renounced forever any liberty " to take or cure
fish, on, or within three marine miles of any of the coasts, bays,
creeks, or harbors of his Britannic Majesty s dominions in
America not included within the above-mentioned limits.*
Finally, by the treaty of 1854, commonly called
Treaty of 1854. J9 . J .. / , 1*1.
the reciprocity treaty, leave was given to fisher
men from the United States, to take fish, excepting shell fish,
on the coasts and in the bays, harbors, and creeks of Canada,
New Brunswick, Nova Scotia, Prince Edward s Island and the
islands adjacent, without limit as to distance from the shore,
with permission to land upon the places named and upon the
Magdalen Islands for the purpose of drying their nets and
curing their fish ; provided, that in so doing, they do not in
terfere with the rights of private property, or with British fish
ermen who should have pre-occupied parts of the said coasts
for the same purpose. The same rights, with the same limita
tions, are given to British subjects on the coasts of the United
States from the 36th degree northwards. In both cases the
treaty does not include salmon and shad fisheries, nor the fish
eries in rivers and the mouths of rivers, f
56.
The claims of exclusive control over certain portions of
water are, in a great part, either doubtful or to be
Bive control over rejected. These are broad arms or recesses of the
certain waters. .
sea ; narrow seas not shut up within the territory
of a single state ; narrow passages, especially such as lead to
interior seas ; such interior seas themselves ; and rivers furnish
ing the only or most convenient outlet for an inland state,
which rise in one country and have their mouths in another.
1. Bays of the sea, called in England the king s chambers,
are within the jurisdiction of the states to whose
territory the promontories embracing them be-
* See Wheaton s El. II. 4, 8, and III. 2, 9. f Murhard Nouv. Rec. 16. 1. 498.
AND RIGHTS OVER TERRITORY. 85
long. Thus the Delaware Bay was declared in 1793 to belong
exclusively to the United States. "When, how-
_ and Gulfs.
ever, the headlands are very remote, there is more
doubt in regard to the claim of exclusive control over them ;
and, for the most part, such claim has not been made. Chan
cellor Kent (I. 30) inclines to claim for the United States the
dominion over a very wide extent of the adjacent ocean. " Con
sidering," says he, " the great extent of the line of the Ameri
can coasts, we have a right to claim, for fiscal and defensive
regulations, a liberal extension of maritime jurisdiction ; and
it would not be unreasonable, as I apprehend, to assume for
domestic purposes connected with our safety and welfare the
control of waters on our coasts, though included within lines
stretching from quite distant headlands, as, for instance, from
Cape Ann to Cape Cod, and from Nantucket to Montauk
Point, and from that point to the Capes of the Delaware, and
from the south Cape of Florida to the Mississippi. In 1793
our government thought they were entitled, in reason, to as
broad a margin of protected navigation as any nation what
ever, though at that time they did not positively insist beyond
the distance of a marine league from the sea-shores ; and, in
1806, our government thought it would not be unreasonable,
considering the extent of the United States, the shoalness of
their coast, and the natural indication furnished by the well-
defined path of the Gulf Stream, to expect an immunity from
belligerent warfare for the space between that limit and the
American shore." But such broad claims have not, it is be
lieved, been much urged, and they are out of character for a
nation that has ever asserted the freedom of doubtful waters,
as well as contrary to the spirit of the more recent times.
2. Great Britain has long claimed supremacy in the narrow
seas adjoining that island. But the claim, although cheaply
satisfied by paying certain honors to the British flag, has not
been uniformly acquiesced in, and may be said to be falling
into desuetude.* And if it had been urged and admitted in
* Comp. Vattel, I. 23, 289 ; Wheaton s Hist. Part I. 18 ; Wheaton s Ele
ments, II. 4, 9 ; Heffter, 73. See also 86.
86 STATES RIGHT OF PROPERTY 57
former times, the force of the prescription would be broken by
the plea that the views of the world, in regard to the freedom
of commerce, have become much more enlarged. "What Gro-
tius contended for in his Mare Liberum against the exclusive
claim of Portugal to the possession of oriental commerce, "jure
gentium quibusvis ad quosvis liberam esse navigationem," is
now for the most part admitted, and the pathways of com
merce can no longer be obstructed.
57.
3. The straits which have figured most largely in interna-
straits and inland tional history are those leading into the Baltic
and the Black Seas.
A. The claims of Denmark to exclusive control over El
ite Danish sineur sound and the Belts, are now matters of
history, but a brief sketch of the past usage may
not be without its use. Danish jurists rested these claims ra
ther on immemorial prescription than on the cost of providing
for the security of commerce by lighthouses, or by removing
obstacles to navigation. In 1319 a charter regulated the duties
to be paid by the Dutch. In 1544 the Emperor Charles Y.
stipulated the payment of the Sound dues by the merchants
of the Low Countries. Subsequently, Denmark raised the
tariff, which brought on a war with the Dutch and other na
tions. In 1645 Sweden obtained exemption from tolls, and,
at the same time, by the treaty of Christianople, the amount
of duties to be paid by the Dutch was again adjusted. France
and England, in the seventeenth century, agreed to pay the
same tariff with the Dutch.
Things continued thus for two centuries. In 1840, atten
tion having been drawn in England to the Sound dues by the
delays and vexations of commerce, negotiations were had which
removed part of the complaints.
In 1826 a commercial convention for ten years with Den
mark placed the United States on the footing of the most
favored nations, which caused a reduction of the duties we had
been paying hitherto. In 1843 the justice of the demand
67 AND RIGHTS OVER TERRITORY. 87
began to be more especially drawn into question, and the
Secretary of State expressed himself against it. Amid the
difficulties of Denmark, in 1848, the Charge from the United
States proposed, as a commutation for the claim, the sum of
two hundred and fifty thousand dollars. Five years afterwards
the diplomatic agent of the United States was instructed by
Mr. Marcy to take the ground with Denmark, that his country
could recognize no immemorial usage not coinciding with na
tural justice and international law. In the next year the
President advised that the convention of 1826 should be re
garded as at an end ; and, after a vote of the Senate to this effect,
notice was given to Denmark that it would be broken off in a
year from that time. Denmark now, in October 1855, pro
posed to our government to enter into a plan of capitalizing the
dues according to an equitable adjustment, but the government
declined being a party to such an arrangement. Meanwhile,
as difficulties with the United States seemed to be impending,
and as other nations were interested in putting an end to this
annoyance, a congress met at Copenhagen to consider this
question, and fixed on the sum of thirty-five million rixdollars
(at fifty cents of our money to the dollar) as the sum for which
Denmark ought to give up the Sound dues for ever. This
payment was divided among the nations interested in propor
tion to the value of their commerce passing through the Danish
straits ; and an arrangement for extinguishing the claim has
since been accepted by them all. In March, 1857, our govern
ment agreed to pay, as its portion of the capitalized stock,
three hundred ninety-three thousand and eleven dollars.*
B. The entrance into the Black Sea and that sea itself.
Until Russia acquired territory on the Black Sea, The Black sea
.-! .,1 ., .. and the passage
that sea, with the straits leading to it, and the into it.
sea of Marmora lay entirely within Turkish territory. But
the existence of another power on the Black Sea modified the
rights of Turkey. By the treaty of Adrian ople, in 1829, en
trance through the straits into the Black Sea, and its naviga-
* Comp. especially an article in the North American Review for January, 1867,
vol. 84, from which we have drawn freely.
88 STATES RIGHT OF PROPERTY 58
tion, were admitted to belong to Russia and to powers at amity
with Russia. The ancient practice, however, had been to
prohibit all foreign vessels of war from entering the Bosphoms
and the Dardanelles ; and by the treaty of London, in 1841, be
tween the five powers and Turkey this usage was sanctioned.
Finally, by the treaty of Paris, March 30, 1856, " the Black Sea
is made neutral. Open to the mercantile marine of all nations,
its waters and ports are formally, and in perpetuity, interdicted
to flags of war, whether belonging to the bordering powers, or
to any other power." The treaty, however, proceeds to grant
to Russia and Turkey the liberty of making a convention in
regard to a small force, to be kept up within the sea for coast
service. By this convention the two powers allow one another
to maintain six steam vessels of not over eight hundred tons,
and four light steamers, or sailing vessels, of not over two hun
dred tons burthen each.
58.
4. Where a navigable river forms the boundary between
Rights over river ^ wo states, both are presumed to have free use of
navigation. itj ^^ t k e ^y^ing line will run in the middle
of the channel, unless the contrary is shown by long occupancy
or agreement of the parties. If a river changes its bed, the
line through the old channel continues, but the equitable right
to the free use of the stream seems to belong, as before, to the
state whose territory the river has forsaken.
When a river rises within the bounds of one state and emp
ties into the sea in another, international law allows to the
inhabitants of the upper waters only a moral claim, or imper
fect right to its navigation. We see in this a decision based
on strict views of territorial right, which does not take into
account the necessities of mankind and their destination to
hold intercourse with one another. When a river affords to
an inland state the only, or the only convenient means of access
to the ocean and to the rest of mankind, its right becomes so
strong, that according to natural justice possession of territory
ought to be regarded as a far inferior ground of right. Is such
a nation to be crippled in its resources, and shut out from man-
58 AND RIGHTS OVER TERRITORY. 89
kind, or should it depend on another s caprice for a great part
of what makes nations fulfil their vocation in the world, merely
because it lies remote from the sea which is free to all ? Tran
sit, then, when necessary, may be demanded as a right : an
interior nation has a servitude along nature s pathway, through
the property of its neighbor, to reach the great highway of
nations. It must, indeed, give all due security that trespasses
shall not be committed on the passage, and pay all equitable
charges for improvements of navigation and the like ; but, this
done, its travellers should be free to come and go on that
water-road which is intended for them. An owner of the
lower stories of a house could hardly shut out persons living in
the upper, of which there was another proprietor, from the use
of the stairs. A river is one. As those who live on the upper
waters would have no right to divert the stream, so those on
the lower cannot rightfully exclude them from its use.
The law of nations has not acknowledged such a right, but
has at length come to the same result by opening, in succes
sion, the navigation of nearly all the streams flowing through
the territory of Christian nations to those who dwell upon their
upper waters, or even to mankind. We annex a sketch of the
progress of this freedom of intercourse by means of rivers.
An Act of the Congress of Vienna, in 1815, declared that
the use of streams separating or traversing the Congress of vi-
/ T/V. -, -, T , . -, enna. The Rhine,
territory oi different powers, should be entirely etc.
free, and not be denied for the purposes of commerce to any
one, being subject only to police rules, which should be uniform
for all, and as favorable as might be for the traffic of all nations.
Other articles require uniform tolls for the whole length of a
stream, and nearly uniform, not exceeding the actual rate,
for the various kinds of goods, rights of haulage, etc.* By this
act the Rhine became free ; but a controversy having arisen as
to what was to be understood by the Rhine, near the sea, it
was decided by the* nations having sovereignty over its banks,
that navigation should be open through the mouths called the
Waal and the Leek, and through the artificial canal of Yoorne.
* Articles 108-117 in the Appendix to Wheaton s EL
90 STATES RIGHT OF PROPERTY 58
The same act opened the Scheldt, which had been closed
by the peace of Westphalia to the Spanish Neth
erlands in favor of the Dutch, and opened by the
French on their occupation of Belgium in 1792. On the
divulsion of Belgium from Holland, in 1831, the treaty of sep
aration again provided for the free navigation of this river.*
All the other navigable streams of Europe were open to the
inhabitants on their banks, either before the treaty
The Danube. ._,. . ITT .
oi V ienna, or by its general rule above mention
ed, with the exception of the Danube. By the treaty of Bu
charest, in 1812, and that of Adrianople, in 1829, the commer
cial use of this stream was to pertain in common to the sub
jects of Turkey and of Russia. By the recent treaty of Paris,
in 1856, the Danube also came within the application of the rule
of the treaty of Yienna, to which Turkey was not an original
party. This was the last European stream, the freedom of
which was to be gained for commerce, f
While Spain, after the independence of the United States,
was mistress of the lower waters of the Missis
sippi, she was disposed to claim exclusive control
over the navigation near the gulf. But by the treaty of San
* Comp. Wheaton s Hist. 282-284, 552; Wheaton s El. II. 4, 15.
f Five articles of the treaty are concerned with the navigation of the Danube,
articles 15-19. Art. 15 declares the freedom of the stream, according to the Vienna
act, as a part of the public law of Europe for ever, and prohibits tolls on vessels
and duty on goods, levied on the simple account of the navigation. Art. 16 appoints
a commission of delegates from the five great powers with Sardinia and Turkey, to
clear out the mouths of the Danube ; and, in order to defray the expenses of such
improvements, fixed duties, equal in amount for all nations, may be levied. This
commission, by article 18, is to finish its work in two years, and then shall be pro
nounced to be dissolved. Meanwhile, a permanent commission, by article 17, is to
be appointed, consisting of delegates of Austria, Bavaria, Turkey and Wurtemberg,
to which a commission from the three Danubian principalities is to be joined, who
shall draw up rules of navigation and fluvial police, remove remaining obstacles,
cause works necessary for the navigation to be executed along the whole course of
the river, and when the first mentioned commission shallJoe dissolved, shall see that
the mouths of the river .are kept in good order. Art. 19 allows each of the con
tracting powers at all times to station two light vessels at the mouth of the Danube,
for the purpose of assuring the execution of regulations settled by common con
sent. For the act of navigation of the Danube, growing out of Art. 1*7, above men
tioned, see Murhard Nouv. Rec. xvi. 2, 75.
58 AND RIGHTS OVER TERRITORY. 91
Lorenzo el Real, in 1795, the use of the stream and liberty to
deposit goods at and export them from New Orleans was
granted to citizens of the United States. Before this the ques
tion of the- rights of the parties had been agitated between
them. The United States had contended that there is a
natural right belonging to the inhabitants on the upper waters
of a stream, under whatever political society they might be
found, to descend by it to the ocean. It was acknowledged,
on the part of the United States, that this was, at the most, an
imperfect right, and yet the right was claimed to be as real as
any other, however well-defined, so that its refusal would con
stitute an injury, for which satisfaction might be demanded.
There seems to be a weakness in this argument, for by admit
ting the right to be an imperfect one, the claim of injury for
not complying with it was cut off. In 1803, Louisiana, which
had been ceded by Spain to France in 1800, was purchased of
the latter by the United States, which thus had the territorial
jurisdiction over all the course of the river.*
The St. Lawrence, after separating for a great distance the
British possessions from those of the American
TT T- . i rrn St. Lawrence.
Union, traverses British territory to the sea. The
government of Great Britain, for a long time, steadily refused
to concede the right of using the lower stream for the purposes
of navigation, and the same diplomatic controversy was carried
on , as in the case of the Mississippi, between the right accord
ing to the strict law of nations, and the claim on the principles
of natural justice. Meanwhile, canals and railroads having
bound the western part of the Union to the Atlantic seaboard,
and New York having become a financial centre even for the
Canadas, the importance of the question was greatly lessened.
By the reciprocity treaty of June 5, 1854, the navigation of the
river, as well as of the canals in Canada, was at length thrown
open to the United States, on the same conditions which are
imposed on the subjects of Great Britain. This privilege may
be revoked by the latter party upon due notice. On their part
the United States granted to British subjects the free naviga
tion of Lake Michigan.
* Comp. Wheaton s Hist. p. 506-511.
92 STATES RIGHT OF PROPERTY, ETC. 58
The vast system of streams which find their way to the sea
La Plata eystem ^J m eans of the La Plata is open for navigation,
not only to the inhabitants of the banks, but also
in a degree to strangers. The Argentine confederation and
Buenos Ayres opened their waters in 1853. In the same year
Bolivia, whose territory is on the head waters, made a number
of places on the banks of its rivers free ports. Brazil had done
the same, and several years ago bound Paraguay by a treaty
to the same policy ; but the government of this latter country
closed navigation above the capital, Assuncion, to foreigners,
allowing the use of the waters only to Brazil and the Argen
tine republic, and below, by police regulations, sought to
throw the trade principally into the hands of one nation.
Such have been the advances in the freedom of navigation
during the last forty years. There is now scarcely a river in
the Christian portions of the world, the dwellers on whose
upper waters have not the right of free communication, by
God s channels, with the rest of mankind. Whether the
motive which brought this about has been self-interest or sense
of justice, an end approved alike by justice and benevolence
has been reached, and the world cannot fail to be the gainer.
CHAPTEE III.
EIGHT OB CLAIM OF INTERCOURSE. RELATIONS OF FOREIGNERS WITHIN
A TERRITORY OF A STATE.
89.
WE have already come to the conclusion that sovereignty
in the strictest sense authorizes a nation to decide intercourse of
-, . . ^ states, how far a
upon what terms it will have intercourse with right.
foreigners, and even to, shut out all mankind from its borders.
( 25.) If a protective tariff, or the prohibition of certain
articles is no violation of rights, it is hard to say how far one
state may not go in refusing to have commerce with another.
If foreigners may be placed under surveillance, or may have
various rights of citizens refused to them, why may they not
be excluded from the territory ? If it be said that the destina
tion of separate states, as of separate families, is to be helpful
to one another, that entire isolation is impossible, still the
amount of intercourse must be left to the judgment of the party
interested ; and if a state, judging incorrectly, strives to live
within itself as much as possible, is it to be forced to change its
policy, any more than to modify its protective tariff ?
And yet some kind of intercourse of neighboring states is
so natural, that it must have been coeval with their foundation,
and with the origin of law; it is so necessary, that to decline it,
involves often extreme inhumanity; it is so essential to the
progress of mankind, that unjust wars have been blessings
when they opened nations to one another. There could, of
course, be no international law without it. The following
maxims relating to the so-called right, are, in substance, laid
down by Heffter. ( 33.)
94 RIGHT OF INTERCOURSE. 69
1. Entire non-intercourse shuts a nation out from being a
What a state may partner in international law. [This, however, is
respects "inter- n t true, if international law is taken in its broad
est sense, for to treat a nation, or its subjects,
when these latter are fallen in with, as having no rights, be
cause they have no intercourse with us, is not only inhuman
but unjust.]
2. ISTo nation can, without hostility, cut off another from
the use of necessaries not to be obtained elsewhere. [But
necessaries must not be confounded with articles highly de
sirable.]
3. No state has a right to cut another off from the innocent
use of its usual ways of communication with a third state. " The
older writers called this the jus transitus, or jus passagii in-
nozii, but disputed whether it is a perfect or imperfect right.
Only necessary wants create a definite right. The refusal of
something merely useful to one party, to grant which does the
other no harm, is at most an unfriendly procedure. Many, as
Grotius (II. 2, 13), and Yattel (II. 123, 132-134), decide,
that there is a right in this case, but naturally have to reserve
for the owner, the decision whether he will be harmed or not by
parting with his commodities."
4. No state can, without violation of right, exclude another
from intercourse with a third state against the will of the
latter.
5. In its intercourse with others every state is bound to
truth and honesty, [without which intercourse must be broken
up].
6. No state can exclude the properly documented subjects
of another friendly state, or send them away after they have
been once admitted without definite reasons, which must be
submitted to the foreign government concerned.
To these we may add that
No state can withdraw from intercourse with others with
out a violation of a right gained by usage.
No state can treat with cruelty, or deprive of their property
the subjects of another, whom some calamity, such as the dis-
60 RELATIONS OF FOREIGNERS, ETC. 95
tress or stranding of a vessel, throws within its borders, without
wrong and just claim of redress.
60.
Within these limits, intercourse, whether through travellers
or merchants, is regulated by the free sovereign What a state may
act of each state. Whether it will have a pass- do -
port system, a protective tariff, special supervision of strangers ;
whether it will give superior commercial privileges to one
nation over another; in, short, whether it will be fair and
liberal, or selfish and monopolizing, it must decide, like any
private tradesman or master of a family, for itself. The law
of nations does not interfere at this point with the will of the
individual state.*
It deserves to be remarked, however, that non-intercourse
and restriction are fast disappearing from the commercial ar
rangements of the world, and that jealousy of foreigners is
vanishing from the minds of all the more civilized nations, in
the East as well as in the West. The feeling that there is a
* There is a difficulty in the theory of international law, arising from the weak
ness of the claim which one state has to intercourse with another, compared with
the immense and fundamental importance of intercourse itself. There can be 110
law of nations, no civilization, no world, without it, but only separate atoms ; and
yet we cannot punish, it is held, the refusal of intercourse, as a wrong done to us,
by force of arms, but can only retaliate by similar conduct. I have, in 25, en
deavored to meet this by a parallel case, marriage is all important, yet for com
mencing it entire consent of the parties is necessary. And yet, to put intercourse
on the ground of comity or even of duty, fails to satisfy me. Practically, we may
say that nations will have intercourse by trade and otherwise, whenever they find
it to be for their interest ; but the case of half-civilized or long secluded nations,
like Japan, which satisfy their own wants, and rather avoid than desire foreign arti
cles, shows that long ages may elapse before views suggested by self-interest or sus
picion are abandoned. Shall we then force them into intercourse ? Perhaps we
may, if we get a just occasion of war with them ; but not because they take a po
sition which, though disastrous for the interests of mankind, is yet an exercise of
sovereignty.
But apart from this theoretical view, there are many duties, duties of mutual
help, incumbent on nations who hold intercourse with one another, which serve to
facilitate such intercourse. Such are, aid to travellers, use of courts, and the like,
which ought to be regarded as the necessary means of promoting admitted inter
course, and therefore as obligatory, when intercourse is once allowed.
96 RIGHT OF INTERCOURSE. 61
certain right for lawful commerce to go everywhere is in ad
vance of the doctrine of strict right which the law of nations
lays down. The Christian states, having tolerably free inter
course with one another, and perceiving the vast benefits which
flow from it, as well as being persuaded that in the divine
arrangements of the world, intercourse is the normal condition
of mankind, have of late, sometimes under pretext of wrongs
committed by states less advanced in civilization, forced them
into the adoption of the same rules of intercourse, as though
this were a right which could not be withheld. Recent trea
ties with China and Japan have opened these formerly secluded
countries to commercial enterprise, and even to travel ; and
the novel sight of an ambassadar from Japan visiting our
country will not be so strange as the concessions of trade which
this shy people has already granted.* It is conceded, more
over, that the great roads of transit shall be open to all nations,
not monopolized by one ; and the newer commercial provisions
quite generally place the parties to them on the footing of the
most favored nations. This freedom and spread of intercourse
is, in fact, one of the most hopeful signs in the present history
of the world.
61.
There could be no intercourse between nations if aliens and
individual aliens their property were not safe from violence, and
entitled to protec- "/ i -it
tion. even 11 they could not demand the protection of
the state where they reside. This protection, be it observed, is
territorial in its character, that is, it is due to them only within
the territory of a state, on its vessels and when they are with
its ambassadors, while the protection of citizens or subjects, as
being parts or members of the state, ceases at no time and in
no place. The obligation to treat foreigners with humanity,
and to protect them when once admitted into a country, de
pends not on their belonging to a certain political community
which has a function to defend its members, nor wholly on
treaty, but on the essential rights of human nature. Hence
* Since this was written, in 1859, a Japanese delegation has become a matter of
fact. 2d ed.
61 RELATIONS OF FOREIGNERS, ETC. 97
1. It has been claimed with apparent justice, that aliens
have a right of asylum. To refuse to distressed foreigners, as
shipwrecked crews, a temporary home, or to treat them with
cruelty, is a crime. As for the exile who has no country, in
ternational law cannot ensure his protection, but most nations,
in ancient and modern times, that have passed beyond the in
ferior stages of civilization, have opened the door to such un
fortunate persons, and to shut them out, when national safety
does not require it, has been generally esteemed a flagitious
and even an irreligious act. The case of aliens who have fled
from their native country on account of crime, will be consid
ered in the sequel.
2. The right of innocent passage has already been con
sidered. It may be claimed on stronger grounds than the right
of entering and settling in a country, for the refusal may not
only injure the aliens desirous of transit, but also the country
into which they propose to go. The right of transit of armies,
and of entrance of armed ships into harbors, will be considered
by themselves. As their presence may be dangerous, to refuse
transit or admission in these cases rests on grounds of its own.
3. The right of emigration. Formerly it was doubted whether
an individual had a right to quit his country and settle elser-
where, avithout leave from his government ; and in some coun
tries he who did go had to sacrifice a part of his property.* At
present such a right is very generally conceded, under certain
limitations. " The right of emigration," says HefFter, " is in
alienable : only self-imposed or unfulfilled obligations can re
strict it." The relation of the subject to the sovereign is a
voluntary one, to be terminated by emigration. But a state is
not bound to allow the departure of its subjects, until all pre
existing lawful obligations to the state have been satisfied.
Notice, therefore, may be required of an intent to emigrate,
and security be demanded for the satisfaction of back-standing
* By the jus detradus, droit de detraction, property to which strangers out of the
country succeeded was taxed. By an analogous tax, as the gabelle <P emigration,
those who left a country were amerced in part of their goods, immovable or mova
ble. Such odious rights, says De Martens (I. 90), although existing still, are very
generally abolished.
98 RIGHT OF INTERCOURSE. 62
obligations, befcre the person in question is allowed to leave
the country.* De Martens writes to this effect.f " It belongs
to universal and positive public law to determine how far the
state is authorized to restrict or prevent the emigration of the
natives of a country. Although the bond which attaches a
subject to the state of his birth or his adoption be not indis
soluble, every state has a right to be informed beforehand of
the design of one of its subjects to expatriate himself, and to
examine whether by reason of crime or debt, or engagements
not yet fulfilled towards the state, it is authorized to retain him
longer. These cases excepted, it is no more justified in prohib
iting him from emigrating, than it would be in prohibiting
foreign sojourners from doing the same. These principles have
always been followed in Germany. They have been sanctioned
even by the federal pact of the German confederation, as far
as relates to emigration from the territory of one member of
the confederation to that of another."
62.
Foreigners admitted into a country are subject to its laws,
unless the laws themselves give them, in a greater
Relation of aliens , , A . mi . . * a
to the laws, and or less degree, exemption. This is rarely done,
their condition. _ , r . _. _ . J
and the general practice of all Christian states
treats foreigners except some especial classes of them as tran
sient subjects of the state where they reside, or on whose ships
they sail over the high sea. They are held to obedience to its
laws and punished for disobeying them, nor is it usual to miti
gate their punishment on account of their ignorance of the law
of the land. They are, again, as we have seen, entitled to pro
tection, and failure to secure this, or any act of oppression may
be a- ground of complaint, of retorsion, or even of war, on the
part of their native country. On the other hand, the law of
the land may without injustice place them in an inferior posi
tion to the native-born subject. Thus they may be obliged to
pay a residence tax, may be restricted as to the power of hold
ing land, may have no political rights, may be obliged to give
* Heflfter, 15, 33. f Precis, etc. Paris ed. of 1858, 91.
63 RELATIONS OF FOREIGNERS, ETC. 99
security in suits where the native is not, may be forbidden to
enter into certain callings, may be subjected to special police
regulations, without any ground for complaint that they are
oppressed. But most restrictions upon foreigners have disap
peared with the advance of humane feeling, and the increasing
frequency of intercourse between nations, until they are in al
most all Christian countries, in all rights excepting political,
nearly on a level with native-born persons. In fact, if foreign
ers are admitted to establish themselves in a country, it is but
justice that all private rights should be accorded to them.
Thus the courts of their domicil ought to be as open to them,
as to the native-born citizen, for collecting debts and redress
ing injuries.
63.
The progress of humanity in the treatment of foreigners,
may be shown by the following brief sketch, in- PrORreB3 of hn _
eluding only Greece and Eome, and the Christian ^ a t ow ar d fl f
states. In Greece different policies prevailed. aliene m * strated -
Aristocratic and agricultural states were in general jealous of
strangers, democratic and commercial ones viewed them with
favor. Sparta was called e^fyofei/o?, as excluding them and
watching them while in the territory. At Athens, where the
policy was humane and liberal, domiciled strangers, metoeci,
were subject to a small stranger s tax, had heavier pecuniary
burdens than the native citizen, were required to serve in the
army and navy, and needed a patron for the transaction of
legal business. Their great numbers, equal to one half of the
citizens, show that they prospered under this policy, which was
extended to barbarians as well as to Greeks. Sometimes they
attained, by vote of the community, to full citizenship. A spe
cial but smaller class of foreigners the tVoreXefc, had a status
more nearly like that of the citizen than the ordinary metoeci.
In many states of Greece, individual aliens, or whole commu
nities, received by vote some of the most important civic rights,
as those of intermarriage, of holding real estate within the ter
ritory, and of immunity from taxation. (&r?ya/iu*, ejfcrrja-i^ and
oreXeta.)
100 RIGHT OF INTERCOURSE. 63
In Rome, foreigners enjoyed those rights which belonged to
the jus gentium ; they could acquire and dispose of property,
could sue in the courts, and had an especial magistrate to at
tend to their cases at law, but could make no testament, nor
had they the connubium and commercium of Roman citizens.
In the Germanic states, after the fall of the Roman empire,
foreigners at first were without rights, and a prey to violence,
as having no share in political bodies. Hence they needed
and fell under the protection of the seigneur, or of his bailiff.
In France, especially, the seigneur, as the price of his protec
tion, levied a poll tax on the stranger, and arrogated the right
to inherit his goods, when he had no natural heirs within the
district. Even the capacity of making a testament was taken
away from him, and Sometimes even inland heirs were excluded
from the succession. Some lords forbade strangers to leave the
district after a certain length of residence, and to marry out of
it. And sometimes these rights were exercised over French
men from other juristic territories (chatellenies), under the
same suzerains. The name by which this right or aggregate
of rights went, is jus albinagii, droit cPaubaine, which M.
Dietz, the highest authority in Romanic philology, derives not
from Albanus, a Scotchman, nor from alibi natus, but from
alibi simply, formed from the adverb, after the analogy of pro-
chain, lointain.
At length the droit d aubaine fell to the king alone, and
now consisted first in an extraordinary tax levied upon stran
gers on certain occasions, and secondly in the king s becoming
the heir of strangers who had left no heirs of their body within
the kingdom. Many private persons were exempted from the
operation of this right by special privilege, and whole nations,
as the United States in 1778, by treaty. Abolished by the
constituent assembly in 1790, and re-established by the Code
Napoleon on the principle of reciprocity, it again disappeared
anew from French legislation in 1819, when a law gave to for
eigners the right of succession in France to the same extent
with native born Frenchmen.*
* See especially Warnkonig, Franzos. Rechtsgesch. II. 180-188, 471, and de
Martens, I. 90.
64 RELATIONS OF FOREIGNERS, ETC. 101
64.
Certain classes of aliens are, by the comity of nations, ex
empted in a greater or less degree from the con-
, , , . -I 1 / 1 Exterritoriality.
trol of the laws, in the land of their temporary
sojourn. They are conceived of as bringing their native laws
with them out of their native territory, and the name given to
the fiction of law, for it seems there must be a fiction of law
to explain a very simple fact, is exterritoriality. This priv
ilege is conceded especially (I.)- to sovereigns travelling abroad
with their trains ; (2.) to ambassadors, their suite, family, and
servants ; and (3.) to the officers and crews of public armed
vessels in foreign ports, and to armies in their permitted transit
through foreign territory.
This privilege is not constant, nor unlimited. The right
of entrance into foreign territory, on which the Limits of extern-
privilege is founded, is one dependent on a torialit y-
comity which circumstances may abridge. Thus, for reasons of
state, a sovereign may have the permission refused to him to
set foot on a foreign soil, and much more is the
TT , . T . -vrri AB to sovereigns,
like true of ships and armies. When a sovereign
is abroad, his person is inviolate and exempt from the laws of
the land, but he may not exercise acts of sovereignty, not ac
corded to him by his native laws, as, for instance, that of pun
ishing persons in his suite capitally, as Queen Christina of
Sweden put to death one of her household in France, nor
acts hazardous to the safety or the sovereignty of the state
where he is sojourning, nor, perhaps, acts which the sovereign
of the country himself cannot exercise. Neither then nor at
any time will this right apply, so as to exempt real or other
property, which he may have in the foreign country, from its
local laws, with the exception of such effects as he may have
brought with him. For the same right as conceded to ambas
sadors, we refer to the chapter relating to those functionaries.
Ships of war, and vessels chartered to convey a sovereign or
his representative, are peculiar in this respect.
, . Ships of war,
that the vessel is regarded in a certain sense to
be part of alien territory moved into the harbors of another
102 RIGHT OF INTERCOURSE. 64
state. ( 54.) The crews on board the public vessels are under
their native laws, but on shore, if guilty of acts of aggression or
hostility, can be opposed by force and arrested. So also the
vessel itself must pay respect to the port and health laws.*
Crimes committed on shore expose persons belonging to such
vessels not only to complaint before their own sovereign, but
also to arrest and trial. Of armies in transit, when
Armies in transit, . , .. ., .__ .. /TTT ^ n -< n ^\
such a right is conceded, Vattel says (III. 8, 130)
that " the grant of passage includes that of every particular
thing connected with the passage of troops, and of things with
out which it would not be practicable ; such as the liberty of
carrying whatever may be necessary to an army ; that of exer
cising military discipline on the officers and soldiers ; and that
of buying at a reasonable rate anything an army may want,
unless a fear of scarcity renders an exception necessary, when
the army must carry with them their provisions." If we are
not deceived, crimes committed along the line of march, away
from the body of the army, as pilfering and marauding, au
thorize arrest by the magistrates of the country, and a demand
at least, that the commanding officers shall bring such crimes
to a speedy trial. When the transit of troops is allowed, it is
apt to be specially guarded by treaties.
The crews of commercial vessels in foreign ports have in
general no such exemption from the law of the
Crews of commer- _ 1
ciai vessels in place. By the law of France, however, crimes
committed on board of foreign vessels in French
ports, where none but the crew are concerned, are not con
sidered as pertaining to the jurisdiction of the courts of France,
while offences committed on the shore and against others than
the vessels crews, come before the tribunals of the kingdom.
This is a compromise between territorial sovereignty and the
principle or fiction that the ship is a part of the domain of its
own nation, wherever found,
vessels driven m- Vessels, driven into foreign waters against
to foreign harbors -. .-,-. ,- ,1 T />
out of their course, the will oi the master, are exempted from or-
* Ortolan, I. 218.
65 RELATIONS OF FOREIGNERS, ETC. 103
dinary charges and jurisdiction, and allowed to depart un
hindered."*
65.
Exemption from local jurisdiction has been granted to for
eigners from Christian lands, resident in certain
Exemptions to for-
oriental countries ; the reasons for which lie in ejgners in certain
Eastern countries.
the fact, that the laws and usages there prevail
ing are quite unlike those of Christendom, and in the natural
suspicion of Christian states, that justice will not be adminis
tered by the native courts, which leads them to obtain special
privileges for their subjects. The arrangements for this pur
pose are contained in treaties which have a general resem
blance to one another. In Turkey, and some other Moham
medan countries, foreigners form communities under their
consuls, who exercise over them a jurisdiction, both in civil
and criminal matters, which excludes that of the territorial
courts. In civil cases an appeal lies to the courts at home, and
in criminal, beyond the imposition of fines, the consul has
power only to prepare a case for trial before the same tribu
nals, f But the extent of power given to its functionaries each
nation determines for itself.
The same system in general has been followed in the trea
ties of Christian states with China, of which that made by the
United States in 1844, and spoken of below under the title of
consuls, may serve as an example. Quite recently the same
exterritorial jurisdiction has been granted by the government
of Japan to functionaries of the United States resident in that
country.^:
* Comp. Heffter, 79, and Webster s Letter to Ashburton respecting the Creole,
Works, VI. 303-313.
f Wheaton, El. II. 2, 11.
\ An Act was passed by Congress, in 1850, to carry into effect certain stipula
tions in the treaties between the United States and China, Japan, Siam, Turkey, Per
sia, Tripoli, Tunis, Morocco, and Muscat, and by which our laws in criminal and civil
matters are extended over American citizens in those countries ; also the common
law, including equity and admiralty. Ministers and consuls have full judicial pow
ers, and can punish according to the magnitude of the offence. The President is
authorized to appoint seven Marshals to execute processes, one in Japan, four in
China, one in Siam, and one in Turkey. Murder and insurrection, or rebellion
104 RIGHT OF INTERCOURSE. 66
66.
Foreign residents in most Christian countries can sustain,
AiienB losing in m ^ ie course of time, a closer or more distant
S^eSracterof connection with the body politic within whose
borders they live. They can acquire nationality,
or in other words become naturalized, or they may remain in
the territory as domiciliated strangers.
Naturalization implies the renunciation of a former nation
ality, and the fact of entrance into a similar re-
Naturalization. , . -, . . -r . ., ,
lation towards a new body politic. It is possible
for a person, without renouncing his country, or expatriating
himself, to have the privileges of citizenship in a second coun
try, although he cannot sustain the same obligations to both.
Is it also possible for him to renounce his country, and become
a citizen of another, so far as even to be bound, like his fellow
citizens, to take up arms against the land of his birth ? Most
nations hold that this transfer of allegiance is possible, and
embody the conditions of it in their naturalization laws. Even
England, which retains the doctrine of indelible allegiance,
admits strangers to citizenship by special act or grant. ( 66
infra.) But inasmuch as the conditions of naturalization vary,
there may arise here a conflict of laws, and two nations may
at once claim the same man as sustaining to them the obliga
tions of a citizen. International law has not undertaken to
decide in such conflicts, and the question is scarcely one of
practical importance, except w T hen the naturalized person re
turns to his native country, and when he is caught fighting
against her. There is no doubt that a state, having under
taken to adopt a stranger, is bound to protect him like any
other citizen. Should he return to his native soil, and be ap-
against the government of either of said countries, with intent to subvert the same,
are made capital offences, punishable with death. Our consuls or commercial
agents on islands not inhabited by any civilized people, or whom we have not rec
ognized by treaty, are also empowered to exercise judicial functions over American
citizens. By the treaty with Japan, signed at Yedo, July 29, 1858, offences shall
be tried in the offenders court, when the American is the offending party, and the
courts of each nation, that is, the consular and the Japanese, are open to creditors
belonging to the other nationality.
66 RELATIONS OF FOREIGNERS, ETC. 105
pretended for the Don-fulfilment of civic duties which devolved
on him before his emigration, there would be no ground of
complaint on that score. Should he be required anew to enter
into the status of a citizen, this force must be regarded by his
adopted country, on her theory of civic rights, as a wrong call
ing for redress. Should he be subjected to ill-treatment when
a captive in war, on the ground of fighting against his native
country, here, too, there would be reason for retaliation. In
short, the nation which has naturalized, and thus bound itself
to protect a person, cannot abandon its obligation, on account
of views of civic obligations which another nation may enter
tain.
Whether anything short of completed naturalization can
sunder the tie to the place of origin, may be a question. It is
held that a domiciled stranger may not with impunity be found
in arms against his native country.* For the effects of incipi
ent naturalization, compare the case of Koszta in the appendix
to this chapter. The English practice in the earlier part of
this centiyy, of impressing seamen from neutral vessels, on the
ground that they owed allegiance to their native sovereign, was
objectionable, whether this doctrine of inalienable allegiance
stands or falls ; for to seize sailors on foreign vessels is to act
the sovereign out of one s own territory ; it is to execute one s
own laws where the laws of another sovereign are supreme.
(Comp. 202.)
We add here the regulations of some of the more impor
tant countries in regard to naturalization, f Rules of several
T-nii j. j? i L i 11 nations as to natu-
In England it was formerly granted only by raiization.
act of parliament ; but by a statute of 1844, one of the prin
cipal secretaries of state can, on petition from an alien desirous
of being naturalized, grant him all the capacities and rights
of a natural-born British subject, except the capacity of being
a member of the privy council or a member of either house of
Parliament. The Secretary may except other rights also.
(Phillimore I. 354)
In France a stranger becomes a citizen, when after reach-
* Kent, I. 76, Lect. IV. f Fcelix (droit intern, prive, 3d ed.) I. 81-100.
106 RIGHT OF INTERCOURSE. 66
ing tne age of twenty-one, obtaining liberty of domicil, and
declaring his intention to remain in France, he resides there
for ten consecutive years. His naturalization must also be
pronounced to be in force by the head of the state. In ad
dition to this the child of foreign parents, born on French
soil, may claim the quality of a Frenchman in the year suc
ceeding his majority. Naturalization in a foreign country in
volves the loss of French citizenship.*
In Prussia an appointment to a public function brings the
right of citizenship with it, and the same is the case in Aus
tria, and perhaps elsewhere. In Prussia the higher adminis
trative authorities have the right to naturalize strangers of
good character who possess the means of subsistence, except
ing Jews, subjects of other members of the Germanic confed
eracy, and persons incapable of taking care of themselves.
In Austria leave to exercise a profession, ten years of resi
dence, and the consent of the authorities, are pre-requisites to
naturalization.
In both of the last named states nationality is shaken
off by emigration, for which permission has been obtained
from the government.
In Russia an oath of allegiance to the emperor naturalizes,
but naturalized strangers can at any time renounce their
character, and return to their own country.
In the United States, the person wishing to be naturalized
must make a declaration on oath, before certain judicial per
sons, of an intent to become a citizen and to renounce his
former nationality, two years at least after which, and after
five years of residence, he may become a citizen in full of the
United States, although not necessarily a citizen of any state
in the Union.
In many countries, a woman on her marriage to a native
acquires nationality, and loses it on her marriage to a foreigner.
In the laws of some countries, wives and minor children follow,
* Demangeat on Fcelix, I. 88, gives the latest legislation on this subject. The
term of ten years can be reduced to one in favor of inventors and others who con
fer important services on France.
67 RELATIONS OF FOREIGNERS, ETC. 107
as a thing of course, the status of the head of the family, and
the son of a foreign resident born and brought up on the soil,
has peculiar facilities of naturalization.
67.
Domicil being more a legal than a political term, has had
nearly the same, although a somewhat vague def-
i A j .c *. f Domicil, what?
mition, always and everywhere. A definition ot
Roman law is expressed in these terms : " In eo loco singulos
habere domicilium non ambigitur, ubi quis larem rerumque ac
fortunarum suarum summam constituit, unde rursus non sit
discessurus si nihil avocat, unde quum profectus est peregrinari
videtur, quo si rediit peregrinari jam destitit." * According
to Savigny f " it is the place which a man has freely chosen
for his durable abode, and thereby also as the centre of his
jural relations and of his business." But in the case of a
minor, who can exercise no jural choice in the matter, his
domicil is held to be that of his father. $ The domicil, says
Yattel, " is the habitation fixed in any place, with the inten
tion of always staying there. A man then does not establish
his domicil in any place unless h*e makes sufficiently known his
intention of fixing himself there, either tacitly or by an express
declaration. However, this declaration is no reason why, if he
afterward changes his mind, he may not remove his domicil
elsewhere. In this sense, he who stops, even for a long time,
in a place, for the management of his affairs, has only a simple
habitation there, but no domicil." (I. 218.) With the first
part of this definition Story justly finds fault : few foreigners
have the intention of always staying abroad ; few, therefore,
could have any domicil. " It would be more correct to say
that that place is properly the domicil of a person in which his
habitation is fixed without any present intention of removing
therefrom." "Two things must concur," says the same
eminent jurist, "to constitute domicil, first, residence, and
secondly, intention of making it the home of the party," and
* C. J. C. 10. 39. L. 7, de incolis. f System d. h. rom. Rechts, VIII. 58.
J Foelix I. 54. Conflict of Laws, Chap. Ill, 43.
108 RIGHT OF INTERCOURSE. 67
when once domicil is acquired it is not shaken off by occasion
al absences for the sake of business or of pleasure, or even by
visits to a former domicil or to one s native country.
It is often a matter of difficulty to decide where a person
has his domicil. Story has laid down a number of practical
rules for determining this point, some of the more important
of which are the following: (1.) A person who is under the
power of another is considered to have the domicil of the prin
cipal party, as a child of the father, a wife of the husband.
(2.) There is a presumption in favor of the native country,
when the question lies between that and another domicil, and
in favor of the place where one lives or has his family, rather
than in favor of his place of business. (3.) Free choice is
necessary ; hence constrained residence is no domicil, and in
case of change a new domicil begins, as soon as choice begins
to take effect. (4.) A floating purpose to leave the soil at
some future period does not prevent domicil from being ac
quired, for such a purpose does not amount to a full and fixed
intention.
According to some authorities a man can have more than
one domicil, for example if he have establishments of equal
importance in two places between which he divides his time,
or he may have no domicil at all.* This latter position is
denied by others, f on the ground that a former domicil must
remain until a new one is acquired.
"Whether long residence with a fixed purpose to return at
the end of a certain time is enough for the acquisition of
domicil may be a question. The Roman law denies this
character to students who remain even ten years away from
home for the purpose of study, J on the ground, no doubt, that
they never intended to establish themselves in the place of
their sojourn.
The subject of domicil becomes of great importance when
we ask who is an enemy, and who is a neutral. This bearing
* Savigny, System VIII. 359. f As by Story, 47.
\ C. J. C. 10, 39. L. 2, de incolis. "Nisi decem annis transacts eo loci secies
eibi const! tuerint."
69 RELATIONS OF FOREIGNERS, ETC. 109
will be considered when we reach the subject of the effects of
war upon neutrals. It is of importance also in another depart
ment of international law, to which, in the order of topics, we
are now brought.
68.
A man may change his domicil from one country to an
other, and may hold property in both : he may in conflict of laws a8
,, /, , \ , ,/m -, . to a particular
a third execute a contract to be lumllea in a person.
fourth : he may inherit from relatives in another, and have
heirs in another still : in short, with the increase of commerce
and of emigration, in modern times, private jural relations
stretch far beyond the bounds of any one territory, where an
individual has his domicil. But the laws of these countries
and their judicial procedures may differ widely from one an
other. "What law then shall rule in each special case, where
diverse laws come into conflict ?
A simple rule would be to apply the law of the place of
the court (less locifori, or lexfori alone) to all jural relations
coming before it. A nation insisting rigidly on its own sov
ereignty would follow such a rule. But, as Savigny remarks,
modern legislation and court-practice aim not to keep up local
sovereignty and jurisdiction, but to decide without respect to
territorial limits, according to the inner nature and needs of
each jural relation.
69.
It is the province of private international law to decide
which of two conflicting laws of different tern- p rivate interaa .
tories is to be applied in the decision of cases; tionallaw -
and for this reason this branch is sometimes called the conflict
of laws. It is called private, because it is concerned with the
private rights and relations of individuals. It differs from
territorial or municipal law, in that it may allow the law of
another territory to be the rule of judgment in preference to
the law of that where the case is tried. It is international,
because, with a certain degree of harmony, Christian states
HO EIGHT OF INTERCOURSE. 69
have come to adopt the same principles in judicial decisions,
where different municipal laws clash.
It is called law, just as public international law is so called ;
not as imposed by a superior, but as a rule of action freely
adopted by the sovereign power of a country, either in con
sideration of its being so adopted by other countries, or of its
essential justice. And this adoption may have taken place
through express law giving direction to courts, or through
power lodged in courts themselves.
The foundation of this department, as of all privileges
granted to strangers, is not generally regarded as being justice
in the strict sense, but the humanity and comity of nations, or,
in other words, the recognition of the brotherhood of men, and
the mutual duties thence arising. Justice may close the ave
nues of commerce, and insist that the most rigid notion of
sovereignty be carried out in practice, but goodwill grants
concessions to aliens, and meanwhile enlightened self-interest
discovers that the interests of all are alike promoted. But
comp. 205.
This branch of the law of nations, almost unknown to the
Growth of private Romans and to mediaeval jurisprudence, has been
international law. g] ow i y g row ing, in the hands especially of the
jurists of Holland, France, and Germany, since the middle of
the seventeenth century ; but, although it has made great ad
vances within the last age, it is still incomplete. " In this
doctrine," says Savigny, writing in 1849, " and especially in
the first half of it, [which treats of collisions in place, as the
second part, according to the division of this eminent jurist,
treats of collisions in time], hitherto the opinions of writers
and the decisions of courts run confusedly across one another ;
the Germans, French, English, and Americans often stand on
entirely opposite sides. All, however, unite in a common
lively interest in the questions which here arise, in the en
deavor after approximation, removal of differences, and agree
ment, more than in any other part of the science of law.
One can say that this branch of science has already become a
common property of civilized nations, not through possession
70 RELATIONS OF FOREIGNERS, ETC.
already gained of fixed, universally acknowledged principles,
but through a community in scientific inquiries which reaches
after such possession. A vivid picture of this unripe but hope
ful condition is furnished by the excellent work of Story, which
is also in a high degree useful to every investigator, as a rich
collection of materials." *
The details of private international law belong to the law
yers and the courts. We shall confine ourselves Itg leading rules
to a brief sketch of the leading principles, in re- and P rinci P les -
gard to which the legal authorities of Christian countries are
tolerably harmonious ; and in so doing shall principally follow
the eminent Prussian jurist already named, the eighth volume
of whose " System of Roman Law of the Present Day " is devo
ted to this subject. And we should have left out of our intro
duction to the science of international law all notice of this
branch, as many have done, were it not that it puts in a strik
ing light the tendency towards a common acceptance of the
same principles of justice, towards a brotherhood of nations
under the same rules of right.
70.
A principle of private international law in which there is a
general agreement is, that the iural capacity of a
-i -i / i . T . .1 Personal capacity.
person is determined by the law of his domicil.
Questions such as those of citizenship, minority, legitimacy,
lunacy, the validity of marriage, the legal capacity of a mar
ried woman, belong here. Thus a person having, according to
the laws of his domicil, reached his majority, can make con
tracts which are binding in a foreign country, although persons
of the same age domiciled there would be minors. So also a
woman belonging to a country where a married woman |Ji
perform legal acts of herself, can do this in a country where
such power is denied to married women, and vice versa.
And according to this rule, if a person changes his domicil,
he acquires a new jural capacity, by which, in foreign parts, his
* For a classification of the schools or theories of writers on private interna
tional law, see Von Mohl, Gesch. d. Staatsw. I. 441.
112 RIGHT OF INTERCOURSE. 70
actions are to be measured. This is true universally, but in
many cases the courts of the earlier domicil, especially if it
were the person s native country, have shown a leaning, not to
be justified, towards holding him under their territorial law.
The reasons which justify this principle are, (1.) that other
wise extreme inconvenience would " result to all nations from
a perpetual fluctuation of capacity, state and condition, upon
every accidental change of place of the person or of his mova
ble property." * (2.) That the persdh subjects himself and his
condition, of free choice, to the law of the place where he
resides, by moving there or continuing there.
But there are several very important exceptions to the rule,
Exceptions to the that ^ ne % ex domicUii is to determine in regard
rule above given. ^ persona l status and j^ capac ity. These 6X-
ceptions arise from the natural unwillingness of nations to al
low laws to have force in their courts, which are opposed to
their political systems, or to their principles of morality, or
their doctrine of human rights.
1. One of these is, that if a person suffers in his status at
home by being a heretic, a country, which regards such disa
bilities for such a reason as immoral, and perhaps is of the same
religion with the heretic, cannot permit his lex domicilii in
this point to have any effect in its courts, but applies its own
law.
2. Where the laws forbid or limit the acquisition of prop
erty in mortmain, or by religious houses, ecclesiastical founda
tions in another land are affected by such limitations. On the
contrary, in a state which has no such laws, religious corpora
tions, which at home lie under restrictive legislation, are ex
empt from it.
3. A man passing from a country where polygamy has a
al sanction into a state under Christian law, can obtain no
protection for his plurality of wives : the law not of his domicil
but of the place where the judge lives must govern.
4. " So in a state where negro-slavery is not tolerated, a
negro slave sojourning there cannot be treated as his master s
* Story, Chap. IV. 67.
70 RELATIONS OF FOREIGNERS, ETC. H3
property, as destitute of jural capacity." And this for two
reasons : " Slavery as a legal institution is foreign to our polity,
is not recognized by it ; and at the same time from our point
of view it is something utterly immoral to regard a man as a
thing." So Savigny.* To the same purport Fcelix says : " On
ne reconnait pas aux etrangers le droit d amener des esclaves,
et de les trailer comme tels." And to the same effect Heffter.
" JSTo moral state can endure slavery. In no case is a state
bound to allow the slavery which subsists in other, although
friendly, lands, to have validity within its borders." f
This principle is received into the practice of the leading
nations. The maxim that the " air makes free," has long been
acted upon in France ; it prevails in Great Britain, and with
slight modifications in Prussia. So if a cargo of slaves is
stranded on the soil of a state, which does not recognize the
status of slavery in its institutions and laws, there is no process
under international law, excepting treaty made for that ex
press purpose, by which they can be prevented from availing
themselves of their freedom, or by w^hich the owner can recover
them as his property. There is a close analogy between the
condition of such slaves on a foreign soil and that of prisoners-
of war in a neutral port, escaping on shore from the vessel
where they are confined, who cannot be recaptured, since
they enjoy the benefit of the right of postliminy. ( 134.) So
also when a master freely brings his slaves into a jurisdiction
where slavery is unknown, he can neither legally act the mas
ter there, nor force them away with him to his own domicil.
They may acquire a domicil like any other person in the ter
ritory where they are thus sheltered, and should they revisit
the country of their enthralment, the lex domicilii would now
determine their status to be that of freemen.^
* VIII. 349, 365. Comp. Story, 96.
f Foelix, u. s. I. 30, 15 ; Heffler, 14. Comp. 138 infra.
\ Comp. the Louisiana Reports, vol. 13, p. 441, where it is held, that "where a
slave was taken from Louisiana, with the consent of the owner, to France, although
afterwards sent back here, she was thereby entitled to her freedom, from the fact of
having been taken to a country where slavery is not tolerated, and where the slave
becomes free by landing on the French soil." Priscilla Smith v. Smith. So in the
8
114 RIGHT OF INTERCOURSE. 70
The case of the Creole presents an extreme example of this
Case of the refusal on the part of nations to recognize the law
of the domicil where it sanctions slavery. This
vessel, containing slaves in transportation from one port of the
United States to another, was by their act forced to put into a
port of the Bahama islands in the winter of 1841-2. The
slaves having secured for themselves a refuge on shore, the
colonial authorities, and afterwards the British government,
refused to give them up, as heing free persons. If the slaves
had merely fled to British territory, it was conceded that they
could not be demanded back. But it was contended by Mr.
Webster, that the law of nations exempts from interference
property on vessels driven into foreign ports by disasters of the
sea, or carried there by unlawful force.* This exemption from
territorial law is undoubtedly made by the law of nations.
(Comp. 64.) But the question is, whether such a rule of
comity and humanity should override a greater act of human
ity and compel the territorial authorities to use force in order
to prevent the slaves from .retaining their liberty. By what
process could this be done in a land where slavery is unknown,
and how could a passenger be required to return on board a
certain vessel which he had left ?
It is to be observed, however, in regard to applications of
foreign law, which the moral sense or political principles of a
nation reject, that questions growing out of a status which can
not be recognized by the courts, if they do not affect the per
sonal capacity itself, may be decided according to the foreign
law. Thus a contract relating to the sale and purchase of
slaves might be held legal, if legal in the domicil of the con
tracting parties. And it is probable that the children of a poly-
gamist Turk,f by a second or third wife, would not be treated
as bastards in all respects by Christian courts.
case of Eliz. Thomas v. Generis et al. (vol. 16, p. 483, of the same Reports), it is
held, that a slave taken to the State of Jllinois, with express or implied consent of
her master, became free, and being once free, could not again be made a slave by
removing her to a slave State.
* Webster s Letter to Ashburton. Works, VI. pp. 303-313.
f Comp. Demangeat on Foelix, I. 29.
71 RELATIONS OF FOREIGNERS, ETC.
71.
II. The general leaning has been toward the rule that mov
able property follows the law of the owner s dom- Righta of prop _
icil, while immovable follows the law of the place crty>
where it lies (the lex loci rei sitce, or, briefly, lex rei sitoe). But
Savigny and others, especially German lawyers, contend that
in all cases the lex rei sitce should be followed. A compara
tively modern maxim, that mobilia ossibus inhcerent, or that a
man s movables should be conceived of as passing with him
wherever he dwells, expresses the former view, which is fol
lowed in our country. Against this, however, there are serious
objections.
1. The proper seat of the light to a thing is the place where
it is. " He who wishes to gain, have, or exercise a right to a
thing betakes himself for this end to its place, and subjects
himself voluntarily to the local law which rules where the thing
is situated." * There is the same reason for voluntary submis
sion to law in this case as there is why the lex domicilii should
govern in respect to personal capacity.
2. It is often difficult to say whose domicil is to condition
the law, i. e. what person is meant. If we say the proprie
tor s, it is doubtful in transfers of property whether the old or
the new owner is intended ; and so in suits concerning proper
ty, which of the two litigant claimants ought to have the law
of his domicil followed.
3. There are two extremes of movable property, the one
nearly as fixed in place as real, of which kind are furniture,
libraries, museums, etc., and the other so changeable in place
that no particular lex loci can be applied to them. Such are
travellers luggage, and merchants wares sent abroad. In the
former case, no reason can be given why law should treat the
things in question otherwise than it treats real estate. In the
latter, the lexloci must be determined, by enquiring what is the
spot where the owner wishes that they should rest and change
place no longer. If this is his domicil, the lex domicilii and
* Savigny, u. s., 366, page 169, seq.
116 RIGHT OF INTERCOURSE 71
lex rei sitce coincide. If not, lie shows an intention of submit
ting to a certain other lex rei sitce.
The capacity of a person to acquire or to part with prop
erty is to be decided according to the law of the domicil, since
this is a capacity which follows the rule already laid down
touching personal capacity.
The capacity of a thing to become private property follows
the lex rei sitce. And the same is to be said in regard to the
power of acquiring and the restrictions on acquiring by occu
pation.
As to the forms of free transfer of property, there is great
diversity of practice. Savigny contends that the same prin
ciple of the lex rei slice should be followed, without respect to
the domicil, or the place where Ihe contract was concluded.
As regards prescriptive right to real property, all agree
that to this the lex rei sitce must be applied. Opinions, how
ever, differ as to the law which ought to regulate the title to
movables so acquired, as much as the laws of different nations
vary from one another. " Roman law demands possession for
three years before a title can vest ; Prussian for ten ; French,
in the case of things stolen or lost, for three ; and, in other
cases, shuts off the prior owner s right of suit as proprietor at
the commencement of the possession." * Now, as the title
here depends on possession, which is a mere fact, it is plainly
reasonable that the law where the fact occurs should be applied
in questions of usucapion or prescription, which is right grow-
out of a continued fact.
The prosecution of claims to property is regulated by the
laws of the place where the suit is brought, (the lexfori^) which
may bo, however, either the locus rei sitce, or the defendant s
domicil.
Jura in re, or rights inhering in things without ownership,
as servitudes on land, right of cultivating or building on the
land of others, (emghyteusis and superficies}) etc., follow the
same rule, i. e. are determined by the lex loci.
* Savigny, u. s., p. 186, 367. The French law is (Code civile, art. 2279,) "eu
fait de meubles la possession vaut titre."
72 RELATIONS OF FOREIGNERS, ETC. 117
III. In cases of obligation it is of importance to decide
what is the proper court before which the obliga- ^ ight of obliga _
tion ought to be brought, (the forum contractual) tlon -
and what is the law there to be applied, (a.) To determine
the court it is necessary to ask what is the seat or place of an
obligation, with what spot of earth this incorporeal act is most
closely connected. There are two seats which can be thought
of, that where the obligation is begun, and that where it
receives its fulfilment. The place where an obligation is as
sumed, however, is in itself accidental, unessential, and with
out influence on the subsequent steps in the completion of the
contract. Unless, therefore, some definite expectation of the
parties connects their transaction by an important link with
this place, it must be decided that the place of the fulfilment
of the obligation, which gives the act body and substance,
ought to determine the court where he who complains of the
non-fulfilment of it should bring his suit.
But what is the place of fulfilment ? It is to be known
from the express or tacit will of the parties. (1.) When that
will is made known, or when, though not expressed, it can
refer only to a definite place, as in contracts for the repair of
a house, or the rent of a house or grounds, or in guardianship,
and in general and special agencies, there is no difficulty in
regard to place. (2.) "Where a debtor changes his domicil be
fore paying the debt, the court is that of his former domicil,
because the expectation of the parties had fastened on this, as
the place where the obligation would be discharged. (3.) If a
person away from his domicil assumes an obligation, it may be
that the circumstances create an expectation that the place of
the origin of the obligation will be the place of fulfilment, or
it may not be. Here the general rule holds. Thus a man,
during a sojourn at mineral springs, may incur a debt for his
board and lodging, and may make contracts of business at the
same place. It is clear that this is the place of fulfilment in
the first case, and need not be in the last. (4.) In cases where
no definite place of fulfilment can be derived frcm the terms
118 RIGHT OF INTERCOURSE. 72
of the obligation, the forum contractus must be the domicil of
the debtor.
(#.) The same rules which apply to the court apply to the
law which is to be used in its decisions. Thus, (1.) If the
contract mentions, or necessarily implies a particular place of
fulfilment, the law of that place is to rule. (2.) If the obliga
tion grows out of a continuous course of business of the obli
gated person, the law of the place where the business is carried
on must be applied. (3.) If the obligation has arisen out of a
single act of the obligated person in, his domicil, the law there
must prevail, although he change his domicil afterward. (4.)
If the obligation arise from a single act of a person away from
his domicil, and under circumstances implying the fulfilment
in that place of temporary sojourn, the law of that place must
govern in judicial decisions. (5.) If none of these suppositions
are true, a suit must be regulated by the law of the obligated
person s domicil, since there is a presumption, where no other
place or local law can be assigned to the fulfilment, that it was
expected to come to pass there.
It is to be observed, however, that the complainant may
bring his suit likewise before the court of the domicil of the
defendant, i. e. he may choose between two forums ; but, in
either case, the law must be applied as has been just laid
down, that is, the law of the place of fulfilment of the obliga
tion, or, in default of any fixed place, the place whose
law is naturally to be presumed or the domicil of the
debtor.
If, again, the application of the above-mentioned rules
would subject a contract to laws which would make it invalid,
while, by the law of the domicil, it would be binding, it is
certainly to be presumed that it was not the intention of the
parties to subject themselves to laws which would render their
own purpose nugatory.
Capacity to incur obligations is determined by the law
governing the person concerned, that is, the law of his domicil.
The interpretation of contracts is controlled, according to
the prevailing opinion, by the law and custom of the place of
73 RELATIONS OF FOREIGNERS, ETC. 119
performance.* But Savigny remarks that the problem here is
not to find out a rule of law, but to find out the true intention
of the parties, according to rules of interpretation which are
of a universal nature.
The validity of an obligation depends partly on the form,
partly on the substance. For the former, compare what is said
below in 75. The substantial validity generally depends
on the law of the place which controls the obligation. When
ever a law of a strictly positive nature opposes the matter of
the contract, the lexfori cont/ractus must be applied. Thus if
a suit for interest due on money be brought in a place where
the usury laws would render such a transaction void, the judge
must follow his own law.f
In cases of bankruptcy, where great differences of legisla-
tion exist, a simple rule would be that the courts of the in
solvent s domicil should settle claims and distribute assets,
whether domestic or foreign. But here there is a complication
of difficulties. The creditors are of various kinds, some
privileged, some unprivileged, some having a simple claim of
debt, others with a lien also on the insolvent s property, etc.
And this property may be immovable property in a foreign
land. Moreover, the foreign sovereign and courts often refuse
to act in harmony with the coart of the bankrupt s domicil.
In these circumstances, some authors hold that the bankrupt s
court ought to throw out of view foreign property, and that the
creditors ought to sue in every jurisdiction where the debtor s
property lies. The English courts, in distributing a bankrupt s
assets, include foreign movable property only ; most of those
of the United States, neither movable nor immovable. Sa
vigny contends that it is feasible for the forum, domiciliilo act
alone in cases of bankruptcy, these questions of difficulty as to
foreign property notwithstanding.
T3.
IY. The appropriate seat of the right of succession, inas
much as it adheres to the person deceased, is his R igl)t of , ucce9 .
place of abode ; and therefore the law of the domi- 8ion -
* Comp. Story, u. s., 272, 280.
f Savigny, u. s., 374, page 277. But comp. Story, 303-305.
120 RIGHT OF INTERCOURSE. 73
cil. that is, of the domicil which the testator had at his death,
ought to control in suits growing out of this right. No other
law can claim to compete with, or prevail over it, unless it be
the lex rei sitce, the law of the place where the inheritance lies.
But the estate, as a whole, or the inheritance, is something
ideal, consisting of things in various places and of various
rights in things, claims, etc. ~No place, therefore, can be
found, saving the domicil of the deceased man.
And yet there has been in practice no general observance
of this rule. In former times the practice was to apply the
principle of territoriality to every piece of property, of which
the right of aubaine, as explained above ( 63), was an extreme
instance. In more recent times, English, French, and our own
courts apply the law of the domicil in cases of succession to
all movable property wherever situate, and the law of the
situation (lex loci) to immovable property. In Germany, since
the beginning of the present century, this distinction between
the two kinds of property is less and less observed, and the law
of the domicil is applied to the whole of an estate.
The court to which testaments and intestate estates belong,
is that of the last domicil of the deceased proprietor.
The capacity of a testator to make a will so far as it de
pends on his jural condition or state, may be under the terri
torial law of two places, that of his domicil at the time of
making the will, and that of his domicil at the time of his
decease. If invalid according to either of these laws, the will
is defective. Thus, a will would be invalid, if, by the law of
either of these places, the power of making testaments is not
vested in private persons, and succession is regulated by intes
tate laws alone. The capacity in respect to physical qualities,
as age, etc., depends on the law of the domicil where the will
was made. The same law, for the most part, regulates the
substance of wills and their interpretation.
The personal capacity of persons to whom property is de
vised, heirs or legatees, is judged of by the laws of the domicil
which they had at the time of the testator s death. But when
laws in their domicil, contrary to the moral or political ideas
74 RELATIONS OF FOREIGNERS, ETC. 121
prevailing where the testator lived, would cut them off, the
law of the court which examines the will, i. e. commonly of
the testator s domicil, must have application.
74.
Y. Family rights, (a.) Marriage. There is no doubt that
the proper seat of matrimonial relations is the hab
itation of the husband as the head of the family.
The law of his domicil must be followed, and the law of the
place where the marriage was performed, so far as defining the
relations is concerned, is of no importance. In England and
the United -States the doctrine is held, that the validity of mar
riage contracts must be tried by the law of the country where
the marriage was celebrated.*
The hindrances to marriage depend in part on the personal
quality of each of the parties ; in part, on their relationship to
one another. On general principles we might expect that the
condition of the woman, according to the laws of her country,
ought here to come into view. But as the laws regulating the
possibility of marriage depend on the moral and religious views
of each particular country, it must follow that the legal hin
drances at the domicil of the man alone are to be regarded,
and not those in the home of the bride, or at the place where
the marriage ceremony occurred. In the matter of impedi
ments to marriage the practice of nations differs widely.
As to the formalities necessary for the 1 celebration of a mar
riage, the general doctrine is that the lex loci contractus must
decide. Savigny, however, thinks, that where an inhabitant of
a state which requires religious ceremonies of marriage, forms
a civil marriage in a foreign country according to its laws, this
is not enough ; on the ground that the laws of his domicil have
a moral and religious basis, and hence a coercive character.
The marriage ought to be celebrated anew according to the
religious forms of the man s own domicil.
It is much disputed what law ought to be followed where
* Cornp. Story, 89 ; Fcelix, II. 493.
122 RIGHT OF INTERCOURSE. + 74
the rights of property of the married pair are called in ques
tion. Here, too, the greatest differences exist between the
law of different countries. The points especially in debate
are, (1.) whether foreign property, as well as domestic, should
follow the lex domicilii of the husband. Story contends against
this, and in favor of following here the lex rei sites; Savigny
and Foelix would have the law of the domicil control through
out. (2.) "What is to be done if the domicil is changed during
marriage ? Here some maintain that the law of the prior dom
icil, and others that of the new domicil should be followed.
Others still claim that the law of the new domicil should be
applied to the property acquired since the change of residence,
and the law of the earlier to all held before the change. Sa
vigny holds, that at the time of marriage, there was a tacit
subjection of both parties to the law of their habitation, which
ought, therefore, to be enforced afterwards. A new law might
place the wife in a worse condition than she had expected at
the time of marriage.
Intestate succession between a married pair is controlled by
the law of the last domicil of the deceased party.
Divorce, on account of its relations to morals and religion,
is the subject of strict positive law, which the judge of the place
where that law reigns must follow. This law will be that of
the present domicil of the husband ; for the laws of the earlier
domicil can have given neither of the married parties a right,
or even a well-grounded expectation of being separated here
after by the rules there prevailing, since the above-mentioned
peculiar character of divorce laws leads to an opposite infer
ence. In regard to divorce, the opinions of writers, and the
decrees of courts, vary exceedingly from one another.
(J.) Guardianship. The guardian empowered according to
the law of the ward s domicil, which will usually be that of
the deceased parent, exercises control over the ward s property
wherever situated. But in the case of immovable property,
the lex rei sites may prevent such control of a foreigner,
and it may be necessary to appoint a special guardian resi
ding within the jurisdiction. In the United States, the power
76 RELATIONS OF FOREIGNERS, ETC. 123
of guardians is considered as strictly local ; they can exercise
control neither over the person, personal property, nor real
property of wards, in other states.*
T5.
VI. Acts having a legal validity are everywhere reduced
to certain forms ; a certain number of witnesses Formg of legal
is required to prove them ; a certain magistrate acts<
to authenticate them. Now if the law of every state demand
ed that a document, to be legal, should have the form required
within its jurisdiction, there would be endless embarrassment,
and sometimes legal acts could not be performed at all. Thus,
a Prussian cannot make a will when at home without the in
tervention of a court, while in France the formalities of wills
belong to notaries alone. Hence, if Prussia insisted that her
legal forms should be necessary in all wills wherever made, a
Prussian stranger in France could not make one, to the great
detriment, it might be, of his family. The general rule, there
fore, that has been adopted is that locus regit actum, or that
the law and nsage of the place where a legal act is performed,
determines its validity, that is, that an act which is authentic
in its own place is so everywhere. Any other rnle would call in
each place for the knowledge of the formalities necessary in
every place. It is to be assumed that the laws of all civilized
countries, however they may differ from each other, aim to
give the due solemnity and certainty to legal acts and docu
ments. This rule has little application within the province of
personal status and of rights to things. Its importance con
sists in its application to obligations, testaments, and marriages.
76.
The comity of nations allows to strangers a free use of the
courts of each other s country. In France, how- use of courts ai
j? i -uv i 1 * lowcd to etran
ever, a foreigner bringing a suit is obliged to fur- gers.
nish security that the costs of suit will be satisfied ; while the
native Frenchman is not obliged to do this. The same rule
* Story, 499, 504.
124 RIGHT OP INTERCOURSE. 76
prevails in some other countries on the continent. But to this
rule, there are in France two exceptions apart from exemptions
by treaty ; one in commercial transactions ; the other where
the foreign demandant possesses in the realm immovables of
sufficient value to pay expenses. The same rule holds in Eng
land, where the foreigner himself is not actually in the country.
In most countries, free use of the courts is given to stran
gers not domiciled, if they have occasion to bring suits in per-
sonam* against such other strangers. In France, however,
this humane provision does not exist except in the case of for
eign merchants, and where treaties provide for such protection.
The doctrine is that foreigners in such complaints must invoke
the aid of their own courts or that of the defendant party.
In suits against foreigners the practice of nations differs.
Buits against for- ^ countries under Roman law, the maxim, actor
cigners. sequitur forum rei, generally prevails ; that is, the
plaintiff must sue in the court of the defendant s domicil. In
countries under English law, however, personal actions " may
be brought in the domestic forum, whoever may be the parties
and wherever the cause of action may originate." "All real
and possessory actions must be brought in the place where the
property lies.f " The rule embodied in the maxim above-
mentioned admits of exceptions where it is followed. Thus, in
France, a Frenchman may summon a foreigner, even one not
resident in France, before 1 the French tribunals for the fulfil
ment of obligations by him contracted towards the Frenchman,
whether within or without the realm. J
The maxim locus regit actum will imply that testimony in
writing, and all documents, in the form proper at
Proofs. 7 . n T , . , . ,,
any place, ought to be received as valid in all
other courts. The same law-maxim, perhaps, may be used to
answer the enquiry what weight is to be given to parol evi
dence, in regard to facts occurring abroad, by the courts of
countries where such evidence is not usually admissible. As
testimony by witnesses is a satisfactory form of proof in the
foreign country in regard to a given fact, w r hy should it not be
* Story, 542, 543 \ Wheaton, II. 2, 20. \ Foelix, I. 169-186.
77 RELATIONS OF FOREIGNERS, ETC. 125
received as such in other countries where the same facts come
before the courts? Such, indeed, is the opinion generally
adopted.*
Many countries aid one another s judicial proceedings by
consenting that their judges may acce pt rogatory R 0?atory commig .
commissions, or act as agents of foreign courts for 6ion9 -
the purpose of examining witnesses or otherwise ascertain
ing facts. These are acts of reciprocal comity, which cannot
extend to cases where the interrogation would be prejudicial
to public or private rights. Such commissions are not in vogue
in England and the United States, says Foelix, where, conse
quently, if foreign testimony is to be taken, some agent of the
court, who has no power to compel witnesses to testify, is de
puted to take the evidence in the foreign country, f
77.
The judgment of a court and the execution of it are acts
of sovereignty. Comity alone gives them effect Affect of foreign
out of the country where they originate. Many J ud s raents -
writers on international law maintain that a definitive decision
by a competent court in a foreign country, under due forms of
law, and where opportunity of appeal is allowed, ought to
stand and receive its execution in any other country, as much
as the decisions of its own tribunals, provided, however, that
such judgment contain nothing contrary to the interests or
rights of the foreign country. This principle has passed in a
degree into the laws and practice of the European states.
Some of them have adopted in this respect the rule of recipro
city. France, on the other hand, takes ground which greatly
restricts the effects of foreign judgments within her borders.
An ordinance of 1629, still in force, prescribes, that judgments
rendered in foreign sovereignties, shall have no execution in
France, and that subjects of the French king, against whom
they are rendered, may bring their cases up anew for revision
before the tribunals of their own country. According to M.
Foelix, this law does not prevent judgments rendered against a
* Foelix, I. 233 f Foelix, I. 241.
126 RIGHT OF INTERCOURSE.
stranger from being executed in France, if judged not inconsist
ent with the rights and interests of the nation. England again
takes a third position. He who has obtained a foreign judg
ment in his favor, brings before the court a claim to the thing
adjudged to him. The foreign judgment is regarded as a deci
sive proof of the justice of the claim, unless some irregularity
can be shown by the opposite party.*
78.
Each nation has a right to try and punish according to its
crimes committed own laws crimes committed on its soil, whoever
in a foreign coun- 7
try. may be the perpetrator. But some nations ex
tend the operation of their laws, so as to reach crimes commit
ted by their subjects upon foreign territory. In this procedure
municipal law only is concerned, and not international ; and,
as might be supposed, laws greatly differ in their provisions.
(1.) One group of states, including many of the German states,
some of the Swiss cantons, Naples, Portugal, Russia, and Nor
way, punish all offences of their subjects, committed in foreign
parts, whether against themselves, their subjects, or foreigners,
and this not in accordance with foreign but with domestic
criminal law. (2.) At the opposite extreme stand Great
Britain, the United States and France, which, on the principle
that criminal law is territorial, refrain from visiting with
penalty crimes of their subjects committed abroad. Yet they
do not adhere to this rule with absolute rigor. The two
former try and punish slave-trading carried on by their sub
jects in foreign vessels, and crimes perpetrated in foreign
countries where exterritorial jurisdiction is conceded to them.
Great Britain punishes high treason, murder, homicide, big
amy, illegal acts of British crews, and crimes perpetrated in
certain barbarous countries. France notices no crimes of
Frenchmen against foreigners, nor " delits " of one Frenchman
against another on foreign soil ; nor " crimes " of Frenchman
against Frenchman except on complaint of the injured party ;
but punishes offences against the safety of France, together
* Foelix II. 347-404, esp. 357. But comp. Story, 603-607.
78 RELATIONS OF FOREIGNERS, ETC. 127
with counterfeiting its seal, coins, and paper money. (3.) Cer
tain states, as Belgium, Holland, Sardinia, Darmstadt, punish
foreign crimes of their subjects against the state or their fellow-
subjects, but only certain crimes of such subjects in foreign
parts against foreigners. The two former call to account only
for grave crimes, as murder, arson, rape, forgery ; Belgium
adopting the same standard which she applies to her treaties
relating to the extradition of fugitive foreigners. Sardinia
makes punishable all " crimes " of its subjects abroad, but
" delits " are subject to the rule of reciprocity. The scale of
punishment also is in all cases one degree less than that of the
same offences committed at home. (4.) Wurternberg makes
the fact of punishment, (in a milder former than for similar
crimes at home,) dependent on the questions whether the given
offence has a penalty affixed to it by the laws of the foreign
state where it took place, and whether it would be punishable
there, if committed against Wurtemberg.
The same difference of practice exists in the case of crimes
committed by foreigners in a foreign country against a state
or one of its subjects, who are afterwards found by the injured
state within its borders. England and the United States seem
not to refuse the right of asylum, even in such cases. France
punishes public crimes only, arid such as Frenchmen would be
liable for, if committed abroad. (See this above.) So Bel
gium and Sardinia, but the latter state also, in the case of
wrongs done to the individual Sardinian, first makes an offer of
delivering up the offending foreigner to the forum delicti, and
if this is declined, then gives the case over to its own courts.
Many states, again, act on the principle that it is as right to
punish a foreigner as a subject for foreign crimes against them
selves or their subjects.
Nearly all states consider foreign crimes, against foreign
states or their subjects, as beyond their jurisdiction. A few
refuse sojourn on their soil to such foreign wrong doers. A
few go so far as to punish even here, in case the party most
nearly concerned neglects to take up the matter. Thus Aus-
128 RIGHT OF INTERCOURSE. 79
tria, if an offer of extradition is declined by the offending state,
punishes and relegates the criminal.*
From this exposition it is evident (1.) that states are far from
universally admitting the territorially of crime ; (2.) that those
who go farthest in carrying out this principle depart from it
in some cases, and are inconsistent with themselves. To this
we may add (3.) that the principle is not founded on reason,
and (4.) that, as intercourse grows closer in the world, nations
will the more readily aid general justice. Comp. 20 b.
79.
The considerations which affect the question, What a gov-
eminent ought to do in regard to fugitives from
foreign justice, who have escaped into its terri
tory ? are chiefly these : First, that no nation is
held to be bound to administer the laws of another, or to aid
in administering them ; secondly, that it is for the interest of
general justice that criminals should not avoid punishment by
finding a refuge on another soil, not to say that the country
harboring them may add thereby to the number of its worth
less inhabitants ; and, thirdly, that the definitions of crime vary
so much in different nations, that a consent to deliver up all
accused fugitives to the authorities at-home for trial, would
often violate the feeling of justice or of humanity. Some have
contended for an absolute obligation to deliver up fugitives
from justice ; but (1.) The number of treaties of extradition,
shows that no such obligation is generally recognized. Else
what need of treaties giving consent to such extradition, and
specifying crimes for which the fugitive should be delivered
up ? (2.) It may be said that the analogy of private interna
tional law requires it. If a nation opens its courts for the
claim of one foreigner on another, and in so doing applies
foreign law to the case, why should it not open them for claims
of a foreign government against violators of its laws ? But the
analogy fails. In private claims, the basis of right is admitted
* These facts are drawn from an essay on the doctrine of asylum, by R. Y. Mohl,
in his Staatsr. Volkerr. u. Politik, vol. I. 644-649.
79 RELATIONS OF FOREIGNERS, ETC. 129
with a general agreement by the law of all states. In public
prosecution of criminals, different views of right are taken, as
it respect offences, method of trial, and degree of punishment.
There is a class cf persons, particularly, political offenders,
whom the world often regards as unfortunate rather than
guilty, who may make useful inhabitants of another land, hav
ing sinned not against the morality of the universe, but against
the absurd laws, it may be, of an antiquated political system.
It is chiefly on their account that (3.) nations, the most humane,
or the most jealous of their own sovereignty, have felt it to be
base and wrong to send back voluntary exiles to their native
land.*
We conclude that there is a limited obligation of nations to
assist each other s criminal justice, which only special treaties,
expressing the views of the parties at the time, can define.
Of such treaties there is no lack. The United States and
Great Britain entered into one in 1842, providing for extradi
tion in cases of murder, assault with intent to murder, piracy,
arson, robbery, forgery, and utterance of forged paper. An
other between the United States and France, made in 1843 r
relates to charges for murder, attempts to murder, rape, forgery,,
arson, and such embezzlement *bj public officers, as subjects to
infamous punishment in France, to which subsequently robbery
and burglary were added. Quite recently, in 1859, an addi
tional article includes persons charged as principals, acces
sories, or accomplices, in forging, or knowingly passing or
putting into circulation counterfeit coin or bank notes, or other
paper currency as money, with intent to defraud, and also
embezzlement by any salaried persons, to the detriment of
their employers, which subjects to infamous punishment. In
both treaties it is required that the evidence of criminality
must be such as to justify apprehension and commitment, ac
cording to the law of the place of the accused person s refuge.
The case of political refugees has some points peculiar to
* The feeling at Athens is shown in the very instructive oration of Demosthenes
against Aristocrates y 85, Bekker, Kara rbv Kowbv airavTuv avfrpATruv vop.ov^ 8s
9
130 RIGHT OF INTERCOURSE. 80
itself. A nation, as we have seen, has a right to harbor such
persons, and will do so, unless weakness or political sympathy
lead it to the contrary course. But they may not, consistently
with the obligations of friendship between states, be allowed
to plot against the person of the sovereign, or against the insti
tutions of their native country. Such acts are crimes, for the
trial and punishment of which the laws of the land ought to
provide, but do not require that the accused be remanded for
trial to his native country.
80.
A peculiar question touching international law is presented
by the rights of authors and inventors. Have
eopjHright, and these such an absolute right of property that the
book or machine cannot be reproduced in a foreign
land without their consent, the book not even in a foreign
translation, and if so, ought not the patent to be perpetual
every where ? These are questions which have been consider
ed seriously only in more recent times ; about which, therefore,
there is no agreement of nations. But many treaties in modern
times have provided protection to such persons, and this pro
tection for a limited time is likely to become universal, where-
ever applied for.*
* For the law of copy-right comp. 0. Wachter, das Yerlagsrecht, Stuttgart, 1858,
esp. pp. 741-832 ; P. Burke, the law of international copy-right between England
and France, Lond. 1852. The leading principles of the laws and treaties thus far
made are reciprocity between the states concerned, a limited term of protection,
and that the right of translation belongs to the author or his assigns. In this coun
try, no international law or treaty relating to copy-right as yet exists. The foreigner,
although by the admission of all jurists having a property to his work, is unpro.
tected.
81 RELATIONS OF FOREIGNERS, ETC. 131
81.
APPENDIX
A CASE, remarkable as involving several points of international law, re
lating to the condition of aliens and the protection due to Case of Kogzta
them, is that of Martin Koszta. This man, \vho had been
engaged in the Hungarian rebellion of 1849, fled into Turkish territory with
a number of others, and, at length, after refusal to deliver him up to Aus
tria, was, with the understanding of that government, sent out of Turkey
into foreign parts. " It was alleged that he engaged never to return," says
Mr. Marcy, " but this is regarded as doubtful."* The man chose the United
States as his place of exile, and in 1852 made the usual declaration, prepar
atory to being naturalized, which our laws require. In 1854 he returned
to Turkey, on account, it is said, of private affairs. At Smyrna, being pro
vided with a tezlcereh or passport from the American consul there, and from
the acting charge at Constantinople, he was seized on land, thrown into
the water, taken up by the boat s crew of an Austrian frigate, and put into
irons. This was done at the instigation of the Austrian consul-general at
Smyrna, and after refusal of the Turkish governor to allow his arrest. In
tercessions for his release on the ground of his American nationality, were
ineffectual. Finally, when it was reported that a design had been formed
of removing the man by stealth into the dominions of Austria, the captain
of a public vessel of the United States, then in port, prepared to resort to
force, unless he was released. This led to an arrangement, by which he
was put under the custody of the French consul-general until the govern
ments, which were at issue, should agree what to do with him. He after
wards went back to the United States.
The following are some of the points which arise to view in the discus
sion of this case :
1. Granting that the man was an Austrian subject, could he be legally
seized in Turkey ? His crime had been a political one. The Turks had
refused, with the approbation of ambassadors of the most important Chris
tian powers, to deliver up the Hungarian fugitives, on the ground of the
political nature of their offence.
It was said that the exterritorial consular jurisdiction mentioned below
( 96,) authorized his arrest. The reply of Mr. Marcy to this is, that such
jurisdiction was intended for a different set of cases, and such is probably
the fact. The Austrian officials, then, in seizing him, committed an offence
* Mr. Hulsemann s letter to Mr. Marcy, and his reply in Senate documents, 33d
Congr., 1st Session, vol. I.
132 RIGHT OF INTERCOURSE.
against the sovereignty of Turkey, and so, an offence against the law of
nations.
2. "Was he an Austrian subject ? Austrian nationality ceases according
to what is said in 66, on the authority of M. Foelix, when a subject emi
grates with the consent of the government. He had more than the con
sent of his government to his abandonment of his country ; he was forced
into exile. But to this it might be replied, that he had agreed in writing
never to return to Turkey, and that the Austrian claim upon him would
revive on his failing to fulfil this condition. It is indeed questioned by Mr.
Marcy, whether he engaged never to return ; and it might perhaps be said,
that, if such an engagement existed, it related only to return for political
purposes. But to this Austria might reply, that she could not know what
his purposes were, and that the promise must be absolute, in order to pre
vent his doing political mischief in the neighborhood of Hungary. This,
however, is a point on which our diplomatist preserves silence.
3. What were his relations to the United States ? Not those of a citi
zen, but of a domiciled stranger. His oath, declaring his purpose to become
a citizen, and his long stay here, put this out of the question, and his tem
porary absence could not shake this character off. Moreover, he had a
passport, certifying to his American nationality. He would therefore be
entitled, by the law of nations, to the protection of the Turkish authorities
against his Austrian captors. Had he been even a fugitive prisoner of war,
he could not lawfully have been seized on shore, unless treaty had so pro
vided. He would equally be entitled to all that protection which officials
of the United States were authorized to extend to him within Turkish
territory.
4. "Would it have been in accordance with international law for the
captain of the frigate to use force in protecting him within the port of
Smyrna ? Active and aggressive force certainly not. As things were, the
demonstration of force saved the use of it. But to complain of such force
would have fallen to the duty of Turkey, as it would have taken place
within her waters. As for force, absolutely considered, for instance on
the high seas, Austria could not have complained, if the evils of a sudden
wrong on her part were in that way sought to be prevented.
At the bottom this was a case of collision between original and trans
ferred allegiance, the latter in its incipiency, in which the obligation to
protect the person, within the limits of the law of nations, clearly lay on
the United States. How Austria could have dealt with him within her
own limits is another question.
CHAPTER IV.
THE FORMS AND THE AGENTS OF INTERCOURSE BETWEEN NATIONS.
SECTION I. The Forms of Intercourse, or International
Courtesy.
82.
WE have hitherto considered the duties and usages of na
tions, so far as relates to the treatment of in- General comity
dividual aliens who are within their territory, ^tween nations.
We now pass on to the conduct which is due from one body
politic to another, and to the representatives by whom public
intercourse is managed.
The general duties here required are those which are in
cluded in the word comity : we call them duties at^ their origin,
as being more or less indefinite, and not of strict obligation ;
but they become obligatory, if by compact or compliance w T ith
usage a nation takes them upon itself in a specific shape.
These duties are such as polite treatment of a sovereign or of
his ministers in a foreign country, courtesy in diplomatic inter
course, the observance of court-etiquette, and of respect on the
sea towards a foreign flag. Besides duties such as these, we
place under this head respect for the reputation of a foreign
state, which is, as we have seen ( 18), a thing of strict justice.
The use of formal expressions of courtesy among nations
consists in their preventing jealousies and quarrels. At the
same time they may themselves be the causes of disputes, for,
when once established by usage, to withhold them is a slight ;
and to pay attentions of different kinds, OK in different degrees,
to equal and sovereign states, may be more provoking than if
both states had been treated with equal want of politeness.
134: THE FORMS AJS T D THE 83
But on the whole, as in the society of individuals who are
equals, so among states it is probable that without them there
would be a far greater amount of unfriendliness.
83.
Every nation, as we have seen, has a right of reputation ;
every other, therefore, is bound to abstain from
refutation of lif- deeds and words, which are calculated to wound
other state. . , . . . , -,
its sense of character, or to injure its good name,
or that of its sovereign, before the world. No nation, then,
through its public documents, or by its official persons, can
with right reflect on the institutions or social characteristics of
another, or make invidious comparisons to its disadvantage, or
set forth in any way an opinion of its inferiority. So with
regard to its functionaries, an intended insult to whom is an
insult to the state which they represent. But a state is not
bound to repress the free remarks made by the press and
private persons upon foreign states and sovereigns, although
comity, if not justice, requires that foreign sovereigns should
have the power to prosecute for libel or scandal before its
courts. Nor again ought regard for the feelings of another
government to preclude a state from remonstrating, even in
strong terms, against conduct which it judges to be oppressive
or flagitious, although that conduct may be confined in its
effects to the subjects of the wrong-doing state. (Comp. 111.)
It may be made a question, how far documents, which are
The Huisemann no * strictly public, may be complained of by
foreign states, as embodying insults against them
selves. A noted case of such complaints occurred in 1850,
after our government had sent a secret agent to ascertain
whether Hungary, in its war with Austria, was likely to
achieve its independence. So much the government had a
right to do, as it interfered in no manner in the struggle. But
when the instructions to this agent were published, containing
the expression " iron rule," applied to the sway of Austria over
Hungary, the Austrian government directed its Charge d af
faires at Washington, Mr. Huisemann, to communicate its dis-
84 AGENTS OF INTERCOURSE, ETC. 135
pleasure at this offensive expression, and at the apparent sym
pathy with a part of the empire in revolt. It was replied by
the United States, that there had been no interference in the
quarrel between Austria and Hungary ; that a sympathy with
a people struggling for its independence was, on our part, un
avoidable ; and " that a communication from the President to
either House of Congress, is regarded as a domestic communi
cation, of which ordinarily no foreign state has cognizance."
This is true, because ordinarily the departments of a govern
ment do not discuss the affairs of foreign countries, with which
one or other of them has nothing immediately to do. But it is
evident that communications may be made between the depart
ments of a government, for which a foreign state may demand
redress. The degree of publicity, now given to political docu
ments, is such, that they are brought before the eyes of the
world, and cannot be regarded as private. If a man allows his
private letters, reflecting on individuals, to be published, he
may commit a wrong ; and so may a nation or a government,
if it make or allow to fie made public what may fairly be called
insults to forein states.
It may be inexpedient to admit foreign sovereigns into a
country, but comity requires that this be ordinari- Treatment of for-
ly allowed, and that, besides the exterritoriality etf n
which they enjoy ( 64), such marks of respect should be paid
to them, and to the members of sovereign houses, as may be
required by the usages of Christian states. So also in their
transit through, or passage along the coasts of another country,
they are to be saluted in a manner becoming the dignity of
their stations, as the highest representatives of an independent
state.
A more free and indefinite treatment of sovereign houses
by one another, consists in friendly announcements of interest
ing events, as births, deaths, betrothals, and marriages ; and
in corresponding expressions of congratulation or condolence,
amounting in the latter case even to the putting on of mourn-
136 THE FORMS AND THE 8?
ing. These courtesies of intercourse are called by some text-
writers state-gallantry.
Every court has its own ceremonial and rules of precedence
Ceremonial of at state festivals and the like. While observing
these, which are nearly alike wherever there is a
monarch and a court, a state is bound to make no distinctions
in external politeness between foreign representatives, so far as
such traditional rules do not make it necessary ; and foreign
representatives are bound to conform to the ceremonial lex loci,
if consistent with the honor of their country.
It is evident that correspondence, between the legate of one
Diplomatic cor- state and the minister or sovereign of another, re
states, quires both those forms of address which are usual
among diplomatists, and an abstinence from all expressions of
anger and of contempt. Otherwise, an offence against the
self-respect of the nation, with whose functionaries he holds
intercourse, is committed, and he may need to atone for his
fault by apology or by recall, or else furnish ground of com
plaint against his nation.
85.
In regard to the forms of international politeness on the
ceremonial of the sea > a distinction is to be made between what is
done within the waters of a nation, and what is
done on the high seas, where nations are entirely equal. On
the high seas, and, indeed, in the waters of third powers, ships
of war are under no imperative obligation from usage or law
to salute one another, and yet such marks of respect are not
unusual, and are in some degree expected, so that the absence
of them, although no insult, might be regarded as discourteous.
They ought generally to be returned if offered by one of the
parties.* But within its own sea line a sovereign state may
* Bynkersh. Quaest. J. P., 2, 24. " Quod ad mare exterum, quod in nullius
Principis dominio est, nullius quoque est aliis reverentiam imperare, et salutem na-
vibus suis prgestandam exigere. Sunt quaedam, quag, tametsi honeste prsestentur,
inhoneste tamen petuntur. Inter ea refero, si quis minor dignitate majorem, in pub-
lico sibi obviam factum, salutet vel non salutet, et siquae minorum Principum navis,
in mari extero, navibus majorum Principum, quaqua etiam dignitate sint, salutem
dicat vel neget.
85 AGENTS OF INTERCOURSE, ETC. 137
prescribe the ceremonies with which its forts and ships of war
are to be approached or passed, but it must require nothing
which can be degrading to other states. And in cases, where
the claim of a nation over certain waters is not acknowledged,
to refuse compliance with a prescribed ceremony is a mode of
showing national independence, at which no offence can be
justly taken. ,
Yarious forms of international polAeness on the sea, are,
or have been in vogue, such as furling, inclining Porras of polite .
or lowering the flag, lowering the topsails, firing nees on the Bea -
salutes with cannon, sometimes accompanied with salvos of
musketry, lowering and raising the flag several times in suc
cession, salutations with the voice, and finally, complimentary
visits to each other s vessel. To take down the flag, or to
lower the topsails, is a token of inferiority, which is now nearly
or quite obsolete. " To lower or furl the flag," says Ortolan,*
u is not now practised between vessels of war, as a token of
respect, and is a sign, rather, of mourning or of danger. But
merchant vessels often greet vessels of war by lowering
and raising the flag three several times."
The etiquette of the sea requires that a ship of war enter
ing a harbor, or passing by a fort or castle, should pay the first
salute, except when the sovereign or his ambassador is on
board, in which case the greeting ought to be made first on the
shore. So also the earliest salutation should proceed from a
ship meeting or joining a fleet, and from an auxiliary squadron
on its approach to the main armament. When single vessels
encounter one another, an admiral s ship is to receive the first
compliment, and so downward, according to rank, the inferior
vessel always commencing salutations. Privateers greet ships
of war without having a right to expect the return of the com
pliment. Merchant ships salute foreign ships of war by de
monstrations with sail and flag, or with cannon, if they have
any, but the ship need not slacken its course for such purposes.
A superior vessel, as one commanded by an admiral, may
respond to a compliment with a smaller number of shot, but in
* Diplom. de la mer, Vol. I. Book 2, Chap. 15.
138 THE FORMS AND TEE 86
general the marks of respect between public vessels must be
equal.*
The rules of sea politeness are often embodied in instruc
tions given to commanders of vessels by their respective gov
ernments, which directions, through the Christian states of the
world, have a general uniformity. They are also sometimes a
subject of special treaty. " They are of use," as Ortolan, him
self a naval officer, remarks,f " as honors paid to the independ
ence of nations, as a public authorized recognition that the
sovereignties of the world are entitled to mutual respect. They
help the crews of public vessels, from the commanders down to
thfe marines, to feel that the national honor is in their hands,
and thus raise the sense of character of those who are repre
sentatives of nations upon the seas."
86.
Formerly, above all in century XYIL, the tokens of respect
which certain nations demanded of others, in seas
Disputes in Cent. 1-1,1 , i i
xvii. concerning over which they asserted, dominion, gave rise to
ceremonies at sex
bitter feelings and to hostilities, or rather served
as a pretext for wars which were waged on other grounds. Es
pecially was the English claim to sovereignty in the narrow
seas around Great Britain, a fruitful source of animosities from
the beginning of the reign of James I. onward. The demand
was, that all foreign vessels should first salute English vessels
of war by lowering flags and topsails, without any correspond
ing mark of respect being made obligatory on the other side.J
This France and Spain forbade their vessels to comply with ; and
in 1634, by an arrangement between France and England, the
* Comp. Ileffter, 1 97. f Diplom. de la mer, u. s.
^ In a communication to the court of France in 1667, the Dutch say that they
are willing that France should salute them with two cannon shot less, but cannot
consent to lower their flag, unless France shall do the same in return. They add,
that although the English in an article of the treaty prescribing tokens of respect
are not expressly bound to return the salutation with the flag which the Dutch offer
to them, it is with justice presumed to be incumbent on them, and that if the English
have failed in such reciprocity, they have failed in their duty, for which reason the
Dutch afterwards refused to lower their flag, as by treaty required. See Ortolan, I.
369.
86 AGENTS OF INTERCOURSE, ETC. 139
ships of each state, when nearer to the other s territory, should
give the first salute. But from Holland, England was led, by
commercial jealousy and a feeling of superior strength, to re
quire those humiliating marks of respect with great pertinacity.
The war between the two nations, which broke out in 1652,
was preceded by an engagement between Blake and Yan
Tromp, growing out of the demand that the flag of Holland
should be lowered; and in the treaties of 1654, 1662, and 1667,
the Dutch agreed to pay this compliment within certain seas
in future. In 1671 the captain of a king s yacht sailed out of
the Meuse through a Dutch fleet, having received orders to
test their compliance with this rule : the vice-admiral in com
mand declared his willingness to lower his own flag to the
royal flag of England, but refused to allow the whole fleet to
join in the act. For this the yacht fired upon him, but its
captain was put into the Tower on reaching England, for not
continuing his fire although the Dutch had not retaliated. The
English ambassador at the Hague claimed that reparation w r as
due for this refusal of the vice-admiral, inasmuch as not only
single vessels, but also whole fleets, were obliged to strike the
flag to an English vessel of war. The refusal of the States-
general to redress this grievance was a leading pretext of the
already meditated war of 1672.* At the peace of 1674, it was
stipulated that fleets as well as single vessels, belonging to the
Dutch republic, should furl the flag, and lower the topsail be
fore any English vessel of war, between Cape Staten in Nor
way and Cape Finisterre in Northern Spain. Even in 1784, f
* Bynkershoek s critique on this transaction (u. s) is worthy of notice. While
he inclines to admit that the treaty of 1654, rightly interpreted, sustained the Eng
lish claim that a whole fleet of the Dutch should salute a single English ship in the
English seas, by lowering flag and topsails, he claims, (1.) that the affair occurred
near the shore of Zeeland, and therefore outside of the English dominions ; (2.) that
a yacht, though with guns on board, is a vessel of pleasure, not of war ; and (3.) that
the Dutch vessels constituted a fleet, and that fleets can be compared to forts,
garrisoned places and harbors, which by common usage are to be saluted first.
Moreover a fleet at anchor occupies a part of the sea, which thus passes under the
sway and dominion of the occupant, to whom, therefore, being now in his own
territory, the first tokens of respect are to be rendered. This last plea is evidently
worthless. f Ortolan, I. 372.
140 THE FORMS AND THE 87
these absurd tokens of inferiority were again confirmed in a
treaty.
The French, in the same century, set up similar pretensions
against Holland, although without the pretext of dominion
over the narrow seas. But their claims were not so galling,
or so persevering, as those of England. In an ordonnance of
1689, Louis XI Y. went so far as to require that when French
vessels of war met those of other nations equal in rank, they
should demand the first salute, and use force, if it were with
held. This is mentioned as a grievance by William III. in the
declaration of war, which he made at the beginning of his
reign.
In the 18th century a number of treaties established equality
and reciprocity in the ceremonial of the sea, and the practice
of nations has nearly reached this point in all respects.
SECTION II. The Agents in the Intercourse of Nations, or
Ambassadors and Consuls.
87.
Nations holding intercourse with one another need to have
Persons appointed some understanding as to the conditions of the
tercoure? between * intercourse, and certain functionaries by whom
the intercourse between the sovereignties may be
carried on, and that between the citizens or subjects may be
reduced to rule. Such persons we may call generically ambas
sadors; but they may have various other denominations, as
legates, envoys, charges d affaires, foreign ministers, and nun
cios, which term, together with others, is appropriated to the
Pope s messengers to foreign courts. The word ambassador
may denote also a particular class or rank of agents of national
intercourse. We may divide ambassadors, again, into ordinary
and extraordinary, or resident and temporary, into open and
secret, those with limited powers and plenipotentiaries 3 al
though this title is often used in a vague sense below its proper
88 AGENTS OF INTERCOURSE, ETC.
meaning, those who are sent to do business, and those who rep
resent the state at some ceremony of a foreign court, and the like.
Again the sovereign, or head of a department, or even a
military officer, may discharge the functions of an ambassador,
or be joined with one in negotiations, without holding the office
or having the title. An ambassador differs from a commissary
or commissioner to whom some business not of a diplomatic
nature is entrusted ; from a deputy who is sent by subjects, as
by a province, to a sovereign ; and from a consul who under a
treaty, or by the practice of two nations, protects the private
affairs of individuals of the one within the territory of the
other, and watches over the commercial interests of the nation
which he represents.
The word ambassador comes through the mediaeval Latin
ambactia or arribaxia, meaning service or charge, either
from the Celtic arribactus, client >, or retainer , used once in
Caesar s Gallic war (YI. 15), or from the Gothic andbahts, with
nearly the same sense.* Both words may be, indeed, of the
same origin. The signification will, then, correspond with that
of minister. The Greek equivalent denotes an elder of the
people. The Latins used the words orator, and more common
ly legatus, person . acting by delegated authority, whence this
branch of international law is called jus legatorum, and jus le-
gationum, the rights of legation.
Ambassadors always and everywhere have had special im
munities, and often something of a sacred charac- origin of the priv-
ter. This sacredness, which they have shared Isadora.
with heralds, and bearers of flags of truce, cannot be accounted
for from their being originally ministers of religion, selected
before others for their gravity or dignity ; but the protection
of religion must have been given to them because their func
tions and duties were of pre-eminent importance. They were
the agents in all the intercourse of two tribes or nations, and
above all in making peace and preventing war. If not pro-
* Comp. Dietz, Etymol. voce ambascia, and Grimm, Worterb. voce ami.
14:2 THE FORMS AND THE 89
tected, they would not expose themselves to the danger of go
ing among enemies or strangers. They carried with them the
dignity of representing their nation. Thus the importance of
their work, the necessity that they should be assured of safety,
and the dignity of their office caused those religious sanctions
to J)e thrown around them, by which the more important re
lations and rights were defended in ancient times.
89.
Ambassadors in ancient times were sent on special occasions
Temporary and by one nation to another. Their residence at
resident ambasaa- " . .
dor 8 . foreign courts is a practice of modern growth.
Some have thought that it was suggested by the Pope s legates,
sent to reside, or appointed from among ecclesiastics residing,
in different parts of Christendom. By others, according to
Mr. Ward (II. 290), it has been attributed " to Ferdinand the
Catholic, whose policy led him to entertain [ambassadors] at
various courts, as a kind of honorable spies ; " but Flassan *
makes Louis XI. of France, Ferdinand s earlier contemporary,
the introducer of the new usage. " Before him ambassadors
had only temporary and limited missions, but this prince
judged it best to multiply them, and to prolong their stay
abroad, especially at the courts of Burgundy and England.
As these courts penetrated into his design, they in turn de
spatched to him permanent ambassadors, who converted diplo
macy into intrigues and trickeries. Louis XI. on sending the
Sieurs du Bouchage and de Solliers to the Dukes of Guienne
and of Brittany, gave them for their instructions, If they lie
to you, lie still more to them. " But the residence of ambas
sadors at foreign courts did not become the common practice
until after the reformation. Henry VII. of England " would
not in his time, suffer Lieger ambassadours of any foreign king
or prince within his realm, or he with them, but upon occasion
used ambassadours." * In the middle of century XVII. it was
* Diplom. Fran9aise, I. 247.
f Coke s 4th Inst. 155, cited by Ward, u. s., who says that Linger is derived
from the Dutch. But the true explanation is to be found in the word Legcr of
German origin, used in the trading marts to denote an agent of foreign merchants
90 AGENTS OF INTERCOURSE, ETC. 143
said in Poland of a French envoy, that as he did not return
home according to the custom of ambassadors, he ought to be
considered as a spy. And a century afterwards Bynkershoek
(de for. leg. 1) defines ordinary legates as those who " non
unius sed omnium rerum, atque adeo et explorandi ergo in
amicorum aulis habentur." Grotius affirms (Cent. XVII. in
the middle) that legationes assiduce may, without infringement
of rights, be rejected by nations, being unknown to ancient
practice (II. 18. 3). But the usage is now fixed among all
nations of European origin : and ambassadors by remaining in
foreign countries serve the interests of their own state in various
ways, far more than persons could who should be sent abroad
on special occasions. In fact, to attempt to break away from
the usage might be regarded as indicating a want of comity, if
not of friendship. But although the sending of ambassadors
and even of resident ambassadors seems almost essential to a
participation in the international law of Christendom, there
are some few of this circle of nations who hold no such com
munication with each other. England and some other Protes
tant states entertain no ministers at the Pope s court, nor does
he at theirs. On the other hand, the principal Christian states
keep up diplomatic relations with some states out of their pale
of civilization and religion, as with Turkey, Persia and China,
sending temporary ambassadors to the latter, and ordinary ones
to the two former.
90.
The question whether a nation is bound to receive the
ambassador of another, depends on the question
of the right of intercourse which has been already gltU^to" receive
considered. ]STor is it impossible that intercourse
commercial, if not political, should subsist without such an
agent. But if a nation has already entered into diplomatic
ties with another, to dissolve them is a breach of friendship,
and is often the step immediately preceding war. By treaty
resident in a town where they had a depot of their goods, and transferred to the
agent of a prince. See Hullmann, Stadtewesen des Mittelalt. I. 202.
14A THE FORMS AND THE 91
or usage, a right had sprung up, which, together with the duty
of comity, the dismissal of an ambassador invaded.
But these are exceptions to the rule that nations cannot
suspend their diplomatic intercourse, already established, with
out offence. (1.) A nation may refuse to receive any ambas
sador when the sovereignty of the party sending him is doubt
ful. This may happen when a state is convulsed by civil war,
both factions in which claim to exercise sovereignty, and when
a new government after a revolution is not yet fully establish
ed. (2.) A nation or sovereign may refuse to receive & parti
cular individual as the representative of a foreign power with
out giving cause of offence. Thus, it is held that a sovereign
is not bound to receive his own subject in this capacity, on the
ground that the privileges of his office would place him beyond
the reach of the native jurisdiction. So a person who has
rendered himself obnoxious, or is of a notoriously bad character,
may be rejected. Richelieu told the English ambassador at
Paris, that the Duke of Buckingham would not be accepted as
ambassador extraordinary ; and at an earlier date, Francis I.
of France refused Cardinal Pole as the Pope s legate, on the
ground of his being a personal enemy of the king s ally, Henry
YIII. of England. (3.) A state or sovereign may refuse to
receive a minister sent on an errand inconsistent with its dig
nity or interests. The United Provinces, during their struggle
for independence, declined treating with envoys from friendly
German powers, bearing proposals of peace incompatible with
their honor; and Elizabeth of England rejected the nuncio of
Pius IV., sent to invite her to appoint deputies for the Council
of Trent, because his mission might have the ulterior object of
stirring up disaffection among the English.
91.
The right of sending ambassadors is an attribute of sover-
of sending oignty, but the power of appointing them may be
ambassadors. vested in some representative of the sovereign.
Thus, in this country, it is exercised by the President and
senate, or during the recess of the senate, by the President
91 AGENTS OF INTERCOURSE, ETC. 145
alone, subject to their confirmation or rejection ; and it has
sometimes been intrusted to the commander of an army. Can
a deposed sovereign, a monarch without a kingdom, perform
this function ? In the case mentioned by Mr. Ward (II. 292-
295) of Leslie, Bishop of Ross, calling himself ambassador of
Mary, Queen of Scots, who was then after dethronement a
prisoner in England, the lawyers consulted by the government
decided, that " the solicitor of a prince lawfully deposed, and
another being invested in his place, cannot have the privilege
of an ambassador, for that none but princes and such other as
have sovereignty may have ambassadors." The word lawfully
seems to make the opinion futile, for who is to decide. The
word actually would have better agreed with that safe usage,
which is a part of international law, of acknowledging the
sovereign de facto, and to which the United States have ever
adhered. When James II. lived in exile, his ambassadors were
received as those of the sovereign dejure by a part of the Eu
ropean states. The more common practice we apprehend to
be for sovereigns who sympathize with a deposed prince to hold
communications with him by persons not openly sustaining the
character of envoys. The whole matter may be disposed of in
a word : nations and sovereigns, according to their biases, will
be quick or slow to recognize a revolutionary government ;
some will cling to the old as long as they can, others will fall
into the current of things sooner or later, but fall into it at
length they will. And if an actual sovereign feels himself
injured by the acknowledgment of the claims of a deposed one,
such conduct will be attributed to hostile feeling, and may
provoke war. The acknowledgment of the sovereignty of a
new state is sometimes first made by receiving its ambassadors.
A protected or dependent state may employ political and
other agents, but generally cannot send ambassadors either to
the principal state or to third powers without the consent of
the former.* The peace of Kainardsche, in 1774, allowed the
* Bynkershoek disposes of this subject as follows : Qwest. J. P. II., 3. "I
should not be willing to say, as some do, that no one rightfully sends legates saving
the sovereign, for thus we should have to do away with legates of provinces and
10
M6 THE FORMS AND THE 91
Hospodars of Moldavia and Wallachia to send each a charge
d affaires of the Greek religion, and with the privileges con
ceded by the law of nations, to Constantinople. The members
of a confederation may, or may not, exercise this right, accord
ing to the nature of the compact : no state of our confederation
" shall, without consent of congress, enter into any agreement
or compact with a foreign power," or " enter into any treaty,
alliance, or confederation ; " and the power of appointing am
bassadors being vested elsewhere, they are, perhaps, by that
provision of the constitution also, cut off from the exercise of
a similar function. But the members of the German confed
eration can severally entertain their representatives at foreign
courts.
A messenger sent from a province, or revolted portion of a
country to the sovereign, not being an ambassador, has no
rights of one. Bad, then, as the act was, when Philip II. of
Spain detained two noblemen sent from the Low Countries in
1566, and finally had them put to death, it was no offence
against the rights of legation. (Bynkersh. Qusest. J. P. II. ,
3.)
An ambassador being the representative of a sovereign, it
follows that the power of choice lies with him, and thus, as it
respects the country, religion, rank, etc., of the ambassador, no
complaint can be made by the foreign state, except so far as a
slight or intention to insult may be inferred from the circum
stances of the case.* Formerly it was not anunfrequent thing
towns, of whom there has been, and still is, a great abundance. I should rather
say, that every one can send legates in the discharge of that business which he has
the power of doing, but that according to the dignity of the sender they have differ
ent rights, and are held in different degrees of honor. If a prince in his own right
sends them, they have the full rights of legates ; if another, the whole thing depends
on the will of him to whom they are sent," etc. But thus the question becomes one
of words. Have these legates the privileges of ambassadors, and is a prince or state
in any way bound to receive them ? If not, can they be ranked in the same class ?
* Even women have been acknowledged as representatives at foreign courts, but
more frequently have been secret emissaries. The wife of Marshal Guebriant acted
in this capacity for France, at the court of Ladislas IV., King of Poland, in 1646.
The noted Chevalier d Eon, who, after inferior diplomatic employments, was appoint
ed French ambassador at London, was thought to be a woman, but was not. Comp.
Kliiber, 186, note.
$ 92 a AGENTS OF INTERCOURSE, ETC
for a native of one country to serve as the ambassador from
another in the land where he owed allegiance. But, as we
have already said, some nations, as France, under the old re
gime and the first empire, and the United Provinces from
1727, refused to receive native-born persons in this capacity.
When, however, nationality has been transferred in accordance
with the laws of the states concerned, there can be no objection
against such ministers, unless it be of a personal nature. In
some Catholic countries, again, in Austria, Spain, and France,
the usage has prevailed that the sovereign of the land shall
nominate the nuncio whom he receives from the Pope ; the
reason for which usage lies probably in the fear of papal inter
ference, and of unacceptableness with the native clergy.
Sometimes smaller sovereigns have concurred in appointing
the same person as their ambassador, and sometimes the same
person has held this office for his sovereign at several courts.
"When an ambassador is sent abroad, there must be some
evidence of his official position. For this purpose he is fur
nished with credentials certifying his diplomatic character and
rank ; namely with a letter of credence, (lettre de creance,)
sometimes, also, with one of recommendation, and with a full
power, indicating the subjects on which he is authorized to treat,
and the amount of power with which he is invested. Accord
ing to their rank some agents of foreign governments are
directly accredited to a sovereign, and others to his minister of
foreign affairs. Until such credentials are presented, a foreign
government may reject, or on other evidence receive, the per
son claiming to be an ambassador, according to its pleasure.
92 a.
An ambassador, from the time of his entrance into the for
eign country in that character, until the time Privileseg of am .
when, at the expiration of his office, he leaves the ba8fiadors -
country, has in modern days enjoyed very great privileges or
immunities, which even the breaking out of war before he can
leave the country will not terminate. Even before he has had
opportunity to show his credentials to the proper department
148 THE FORMS AND THE 92 a
of government, he cannot be injured or obstructed without a
violation of international law, if he announces his official char
acter ; and should a government to which he is sent refuse to
receive him, he must be free to withdraw without receiving
marks of disrespect. If he is recalled, free exit and passports,
where they are necessary, must be granted to him ; but if he
remain in the country after that a sufficient time for removal,
denoted in his passports, has elapsed, he takes the jural rela
tion of any traveller from his native land.
The more essential immunities conceded to the ambassador
grow out of the consideration that he cannot do the business
intrusted to him well, unless his person be safe, and he be in
dependent of the control of the foreign government; and
comity adds to these other less important privileges, as marks
of respect to the representative of a foreign sovereignty. These
immunities have been arranged under the heads of inviolability
and exterritoriality. Such for instance, is Kliiber s classifica
tion. But to this it may be objected that exterritoriality may
be taken in a narrower and a more extended sense. The term
stands, as we have already explained it, for that legal fiction
which regards the agents of a government in a foreign land as
being outside of the country where they discharge their func
tions, or as carrying with them into another territory almost as
entire an exemption from its laws as if they were at home.*
But there is no such complete exemption, and hence it will be
best, if we arrange the rights of ambassadors under these heads,
to define what immunities are allowed; otherwise the term,
by its vagueness, will lead us astray. De Martens remarks
( 215), that the " extension of exterritoriality pertains only to
the positive law of nations, to treaties or usage, and is suscep
tible of modifications, which in fact it undergoes ; whence it
is not enough always to appeal to exterritoriality, in order to
enjoy those rights which may be derived from the extended
notion given to the word."
* This fiction was known to Grotius, who says (II. 18, 4, 5) that as legates
" fiction e quadam habentur pro personis mittentium, ita etiam similrfictione constitu-
untur quasi extra territorium."
92 a AGENTS OF INTERCOURSE, ETC. 149
1. When we speak of the inviolability of an ambassador, we
mean that neither public authority nor private ^ Invlo ] abil i ty of
persons can use any force, or do any violence to ambas ^ durs -
him, without offending against the law of nations. It is not,
however, intended that he may not be repelled by force, if he
attempts to injure other individuals or to violate the laws. The
right of self-defence cannot cease on his account, nor can he
enter places closed to the public, nor do a great variety of ille
gal acts without having passive resistance at least used against
him. The state within whose bounds he resides, is bound to
protect him against aggressions from its subjects, by law and
penalty, and by troops or a police force, when necessary. In
one case only, apart from the necessities of self-defence, can
active force be exerted upon his person, and that is when, after
committing some great crime, and being ordered home, he re
fuses to go, when he may be removed without personal injury.
2. Inviolability of person could not stand alone, without
protection to the house, furniture, equipage, and, in fact, the
people of the ambassador. We shall arrange these with other
immunities under the head of exterritoriality, and
-,,,.-, r, 2. Exterritoriality.
shall consider first,
A. his immunity from the jurisdiction of the country of
his sojourn, both criminal and civil.
If the ambassador were subject to the criminal jurisdiction
of the foreign country, his person could not be in- <.> AS immunity
-I , 1-i-iT-ii fr m criminal ju-
violate, as ne would be liable to arrest, imprison-
ment, and punishment ; nor would the nature of the acts in
separable from the processes of criminal laws, be consistent
with his freedom as a negotiator. This immunity is therefore
conceded to ambassadors by all the nations of Christendom,
and, although some of the earlier writers had some scruples in
admitting it, or even contended against it, the modern writers
are believed to be unanimous in regarding it as a part of inter
national law. For the exceptions to this immunity which have
occurred in extreme cases, see 92 e.
In the case of a native of the country still owing allegiance,
but representing a foreign sovereign, it has been questioned
150 THE FORMS AND THE 92 a
whether jurisdiction, civil or criminal, is suspended during the
discharge of his functions. The most noted case in which such
a person felt the severity of the law, was that of Wicquefort, a
native- of Amsterdam, who, while he held an office under the
States-general, became the Duke of Liineburg s resident at the
Hague, and while in the service of this prince, in 1675, was
accused of betraying state secrets to foreigners, was tried, con
victed, and sentenced to imprisonment for life with confiscation
of goods.* In this case it might with justice be maintained
that he held an office of responsibility, and could not be re
leased from penal liabilities as long as it lasted ; if he took on
him duties to a new sovereign, he was still accountable to the
old one. He betrayed secrets to which in his office he had ac
cess, and ought therefore to suffer. But if a private citizen of
a country is acknowledged by its government as an ambassador
from another state, it is fairly to be inferred that all the immu
nities are conceded to him, which are considered to belong to -
that class of persons, and without which he could not freely
discharge its duties. His sovereign had a right ( 90) to refuse
to recognize him in that relation to another sovereign : in so
recognizing him he gives up jurisdiction over him for the time
being.f
Opinions have been divided in regard to an ambassador s
(6.) and from civil exemption from civil jurisdiction. Entire exemp
tion in this respect cannot be argued from the
nature of his functions, and yet every where this exemption is
allowed, so far as it can be derived from the notion of exterri
toriality. At the least, according to Heffter, no step can be
taken towards an ambassador which cannot be taken towards
an absent stranger. No measures involving force can be used
against his person, or the effects which he has with him.
Hence the private person, to whom an ambassador owes
money, has no remedy against him except through his sover-
* Comp. Bynkersh. de for. leg. 11, and 18, and Wheaton s Hist., p. 234.
f So substantially \Vheaton, El. III. 1, 15. Heffter says the right of punish
ing is scarcely taken away from such an ambassador s sovereign. 214. Bynkersh.
u. s., holds the same opinion : " subditos nostros, quamvis alterius Principis legatio-
nem acceperint, subditos nostros esse non desinere." So others.
92 6 AGENTS OF INTERCOURSE, ETC.
eign, or by suit in the ambassador s native courts after his re
turn home. Such, at least, is the understanding and practice
in most countries. Prussia appears to claim somewhat more
of jurisdiction.* In a case, the discussion of which is given at
great length by Dr. Wheaton, the owner of a house at Berlin,
rented to the American ambassador, claimed under the Prus
sian civil code to detain the minister s goods found there at the
expiration of the lease, on the ground that damages were due
for injuries done to the house during his occupation of it. The
government of Prussia sustained the claimant, but the discus
sion shows that while a pledge given by an ambassador for the
security of a debt could have been detained by the lender, the
goods in the house could not be kept from their owner without
a violation of international law. The laws of the United^
States, accordingly, "include distress for rent among other
legal remedies which are denied to the creditors of a foreign
minister."
An ambassador is j^ouncl to observe the police laws in re
gard to public security and order within and without his hotel,
but cannot be called to account for transgression of them, any
more than for his pecuniary obligations.
One or two exceptions to this exemption are laid down by
the writers beside that derived from the ambassador s acting
o
in a capacity other than his official one, which we shall con
sider by itself. ( 92 e.)
They are, (1.) when he is the subject of the state where he
acts ; (2.) when he is in its service ; (3,) when he voluntarily
recognizes the jurisdiction of the courts by appearing before
them as a plaintiff, and thus submitting himself to the defend
ant s court, f
92 I.
B. The immunity from local jurisdiction granted to a
foreign minister extends to his hotel and goods, immunity of m-
TT . , . , bassador s hotel
His house is a sanctuary, except in case of gross and goods.
crime, for himself and his retinue ; and that whether it belongs
* Comp. Wheaton, El. HI. 1, 17, 274-287, and Verge on de Martens, 216.
f Comp. de Martens, 216 ; Wheaton, EL III. 1. 15 ; Bynkersh. de for. leg.
152 THE FORMS AND THE 926
to his own government, or is hired, or is given to him for his
use by the state to which he is sent.* His goods also, or all
that is necessary for the comfort of himself and his family,
together with his equipage, enjoy the same exemption. His
papers relating to the business of his embassy are inviolate.
These exemptions are plainly as essential for the discharge of
his duties in his office, as is his personal exemption from for
eign jurisdiction.
It is to be observed, however, that if he chance to possess
real property in the foreign country, or personal property,
aside from that which pertains to him as an ambassador, ( 92
e) 7 it is subject to the local laws.
His privileges do not include the right of asylum for persons
ma hotel no a= y - outside of his household. If the fiction of exter-
ium for criminals, riforiality explained the privileges of ambassadors,
the right of asylum would be fairly deducible from it, and a
criminal taking refuge in such a sanctuary would be given up,
if at all, by a process of extradition. But it so happens that
the house of an ambassador has ceased {o be an asylum, since
the notion of exterritoriality has been most current. The
right was attached in the middle ages to many religious places,
and was conceded after this analogy, on account of their sacred-
ness, in some countries, to the hotels of ambassadors ; but the
usage, if we are not deceived, was never general throughout
Europe, and even where it obtained, as in Rome and Madrid,
was sometimes opposed and violated by the government.
Similar to this right, if not an extension of it, w r as the freedom
or privilege (jus quarteriorwri) of the quarter of the city
16. It docs not appear that the ambassador has a right to do this without leave of
his own government, for it may prevent the due exercise of his functions.
* Sometimes extraordinary ambassadors have quarters provided for them by the
state to which they are sent, their stay being ordinarily short. In 1814, Austria and
England purchased houses for their foreign ministers in Paris, and in 1817, Prussia,
in Paris and Petersburg. Kluber, 192, note. Houses for the reception of foreign
ambassadors were in use in the empire of Charlemagne. A capitulary of A. D. 850
(Perz, III, 407) speaks of publicae domus, in singulis civitatibus antiquitus con-
structae, nostris usibus et externarum gentium legationibus satis congruas. The
Romans also sometimes entertained foreign legates in public villas outside of the
walls at the public charge.
92c AGENTS OF INTERCOURSE, ETC. 153
where the ambassador resided, and which was indicated by the
arms of his sovereign. This right (or wrong rather) prevailed
in a number of places, as at Venice, Rome, Madrid, and du
ring the meetings for the choice and coronation of an empe
ror, at Frankfort on the Main. At Rome, in the 16th and
17th centuries, the harboring of criminals, under plea of exer
cising this right, gave occasion to more than one dispute be
tween the Papal and the French governments.
It is now admitted that if a transgressor, not of the ambas
sador s train, takes refuge in his premises, he can be demanded
by the local authorities, and, if not delivered up, can be search
ed for and seized within the hotel, for which purpose such
force in breaking doors open and the like, may be used, as is
necessary for his apprehension. For as Bynkershoek (de for.
leg. 21) asks, " legati, ut latrones recipiant, mittuntur ? vel,
sine receptione commode legation! vacare non possunt ? "
It is also a freedom commonly allowed to ambassadors, but
rather by national comity, than as a fair deduc- Freedom from im-
tion from theory, that the personal effects of an posts > etc -
ambassador are exempt from taxation, and that duties are re
mitted on articles from abroad which he needs for himself and
his family. His importations, however, before they reach his
hotel, are liable to the search of custom-house officers, and if
he has sent for contraband goods, they may be confiscated.
As for the rest, he is obliged to pay taxes (even on his hotel,
if it belongs to him or to his government), tolls, and postages,
but is exempt from the quartering of troops.*
92 c.
C. The liberty of worship in a foreign land is now conceded
by the law and usage of Christian nations to am- ,
" Ambassadors lib-
bassadors of every rank, even when their religion erty of worshi P-
or sect is not tolerated by the laws of the land. This liberty
might be deduced from the rule of exterritoriality, as in the
parallel case of a ship of war in a foreign port, or still better,
from the consideration that, religion being a prime necessity
* De Martens, 227-229 ; Wheaton s El. III. 1, 18.
154: THE FORMS AND THE 92 c
of man s nature, an earnest nation could have no diplomatic
intercourse with another nation, within whose territory its
religion was prohibited. But the argument, which would sup
port this liberty of worship by natural justice and the rights
of conscience, has here no application, since a great part of the
nations of Christendom have always assumed the rigjit of al
lowing or prohibiting outward worship at their pleasure.
This freedom of worship extends to the household of the
ambassador, and sometimes by comity or connivance, if not by
treaty, to his countrymen, who may be residing at the same
capital. It is not limited by his presence, but when he is on a
journey, or during the intervals between two legations, it may
still be kept up. But his household, and even his wife, it is
held, .if of another religion than his own, have no separate
right of worship. It is held, also, that if there be religious
rites publicly allowed, of the same sect to which the ambas
sador belongs and where he is residing, he may be forbidden
to have a chapel and services of his own, which now are no
longer necessary. Thus, when the Emperor Joseph II. grant
ed toleration at Yienna to the adherents of the Augsburg Con
fession, it was declared that domestic worship at the hotel of
Lutheran ambassadors would no more be permitted. But in
Constantinople, where the Greek Church is tolerated, the Eus-
sian ambassador has a public place of worship, after the obser
vances of that religion, under his protection.
This worship may be such in the fullest sense, that is, there
may be a chaplain or chaplains and whatever other persons are
necessary for the services of religion, due administration of the
sacraments, and the like. But it must be strictly house-
worship, in a room fit for the purpose, yet without bell, organ,
or other sign, indicating to passengers in the street that a
chapel is near by. And it is held, that natives of the country
cannot, without leave from the government, partake in the
services ; nor has the chaplain a right to appear abroad in his
canonicals. A French ambassador at Stockholm, Chanut,
claimed the right of admitting Swedes to his Catholic chapel,
at services not tolerated in the country, which amounted to a
t
92c? AGENTS OF INTERCOURSE, ETC. 155
claim of power to suspend the laws. When, in 1661, the
Dutch imprisoned the French ambassador s chaplain for per
forming mass, their reason was that the ambassador had left the
country. Most preposterous was the claim of Philip II. of
Spain that the trains of ambassadors at Madrid should go to
mass.
It is held, that the ambassador may not set up worship as
his own affair, but by leave of his government. "Where free
dom of worship, as with us, is unlimited, all these restrictions
are inapplicable, unless imposed by way of reciprocity ; and the
necessity for*eeparate worship in general ceases. Treaty some
times gives greater liberty than is here laid down.*
D. The same exemption from local jurisdiction, which the
ambassador himself enjoys, is granted by the law Privi]ege8 of hia
of nations to his family and train, as to his chap- famil y aiid train -
lain, physician, private secretary, and secretary of legation,
and to his domestic servants. Dr. Wheaton remarks, in regard
to the latter, that the laws and usages of most countries call
upon ambassadors to furnish official lists of their servants, that
they may be entitled to their exemption.! The secretaries are
peculiarly protected, as being necessary to carry on the business
of the embassy ; and above all, the secretary of legation, as a
responsible person intrusted by the ambassador s government
with more or less of his power during his absence or at his
death, and by virtue of his appointment a public officer.
The reasons for this exemption in the case of servants, es
pecially of natives of the country whom the foreign minister
hires, are of little cogency, since others could be speedily found
to take their places ; but the exemption is well established.
Should it, however, appear that a criminal was taken into an
ambassador s service in order to protect him, it is doubtful
* Comp. Kliiber, 215 ; Heffler, 213 ; De Martens, 222-226.
f This had become obsolete for a while before Bynkershoek wrote his work De
foro legatorum. In chap. 16, he says, " optimo exemplo in quibusdam aulis olim
receptum fuit, ut legatus teneretur exhibere nomenclaturam comitum suorum, sed
pessimo exemplo id nunc ubique gentium negligitur."
156 THE FORMS AND THE 92 d
whether this would be endured, at least it would be a ground
of complaint against the employer ; and if any of his servants
while in his employment carries on a traffic in which he incurs
debts, such person loses his privileges ; he is considered to sus
tain two characters, one of which will not shield him from the
consequences of acts clone in the other.* An ambassador may
also give up his control over domestics hired within the foreign
country, but perhaps cannot do this in regard to those whom
he has brought with him.f At several congresses, as at Mini
ster and JSTymwegen, the assembled envoys, in order to check
the riotous conduct of their herd of domestics, gave the police
over them into the hands of the magistrates of the town.
E. From the rule of exterritoriality strictly carried out, and
An ambassador s from the necessity of some government over an
power over his , .. .-IT 11
suite. ambassador s train, it might be argued that juris
diction over them, criminal as well as civil, ought to be lodged
in him. If, however, such power pertained to him, it could
only be by the laws of his own country. But then a foreign
government cannot be expected to permit a stranger to per
form the highest acts of criminal justice within its territory,
unless it be for the purpose of carrying out military law on a
vessel of war, or in an army passing through the land. Hence
the jurisdiction of ambassadors in modern times over their
trains is actually confined to subordinate measures. In criminal
cases a follower of his, committing a crime outside of the hotel,
is delivered up to him, he gathers and prepares the evidence,
and sends the accused home for trial. He exercises volun
tary jurisdiction, as far as his suite, and, if permitted by the
foreign and his own country, as far as his countrymen sojourning
near him are concerned, in receiving and legalizing testaments,
authenticating contracts, affixing his seal, and the Iike4 " But
the right of contentious jurisdiction," says Heifter, " is nowhere,
within my knowledge, conceded to ambassadors at Christian
* Bynkershoek asks whether those who follow in an ambassador s train, " unice
ut lucre suo consulant, institores forte et mercatores," are his companions, and
decides in the negative. De for. leg. 15, ad calc.
f Heffter, 221 ; Yattel, iv. 9, 124.
\ Heffter, 216.
92 e AGENTS OF INTERCOURSE, ETC.
courts, even for the persons of their suite ; but they here simply
execute requisitions directed to them, especially in regard to
the hearing of witnesses, and all this according to the laws of
their own country."
When a crime is committed by a native servant belonging
to the foreign minister s household, or when persons attached
to the trains of two ambassadors break the public peace by
quarrels, the only convenient way of proceeding is to deliver
them over to the courts of the country to be tried.
Formerly ambassadors sometimes exercised tlie power of
blood over their retinue. The most noted case of this kind
occurred at London in 1603, when Sully, then Marquis of
Rosny, was ambassador there. One of his people having killed
an Englishman with whom he had a quarrel at a brothel, Sully
assembled a council or jury of Frenchmen, condemned the man
to death, and delivered him up to the English authorities for
execution. He was pardoned by James I., whereupon the
French claimed that, as he was judged by his own tribunal, the
pardon was unauthorized.*
92*.
An ambassador can claim exemption only for the property
which he holds in the foreign country as an offi- Limits of thepriv-
. i Tr>i i T T lieges of an am-
cial person. It he has another character, as that ba^ador.
of p merchant or a trustee, his property so held is subject to the
laws of the land. Formerly it was not uncommon for mer
chants to represent the minor princes of Europe at the smaller
courts. Bynkershoek says that in his time they made great
gains by importing goods free of duty, on the pretence that these
were necessary for their own use, and then selling them. But
the practice of employing merchants as foreign ministers or
residents is believed to have become almost obsolete, and
this source of gain is cut off by better regulations. ( 92 I.)
There is now a very general uniformity both of opinion
and practice, that ambassadors committing grave Ambassadors .
crimes whether against the state, or against moral crimTs. UlD
* Ward, II. 316.
158 THE FORMS AND THE 92*
order, must be remanded home to their sovereign for judg
ment, and that only self-defence will allow the killing of such
a functionary. But neither opinion nor practice was so uni
form two centuries and more ago, especially in England. The
case of Leslie, bishop of Rosse, to which we have already re
ferred, furnishes us with the opinion of English lawyers on the
question whether an ambassador, cognizant of and privy to a
treason, is punishable by the prince, in whose realm and against
whom the treason is committed. The answer was, " We do
think that ad ambassador, aiding and comforting any traitor in
his treason toward the prince with whom he pretendeth to be
ambassador in his realm, knowing the same treason, is punish
able by the same prince against whom such treason is commit
ted." Leslie stoutly protested against all right of jurisdiction
over him, and was not tried, but was detained for some time
in prison and then banished the kingdom. A few years
afterwards, a contrary opinion was given by men better in
formed in the law of nations, Albericus Gentilis and Francis
Ilotman, in the case of Mendoza, the Spanish minister in
England, who had plotted to bring in foreign soldiers and
dethrone Elizabeth : they decided that an ambassador who had
even been concerned in a conspiracy could not be put to death,
but must be remanded to his prince for punishment. And a
little after in the reign of James I., when the Spanish ambas
sadors charged the Duke of Buckingham with a conspiracy
against the king, which was regarded as false and libellous, Sir
Robert Cotton, being consulted whether any proceedings could
be instituted against them, maintained that an ambassador as
representing the person of a sovereign prince is " exempt from
regal trial : that all actions of one so qualified are made the
act of his master until he disavow them : and that the injuries
of one absolute prince to another are factum Jiostilitatis, not
treason." And he proposed " that a formal complaint against
the ambassador should be sent to the king of Spain requiring
such justice to be done upon him as by leagues of amity and
the law of nations is usual, which if he refused, it would be a
dissolution of amity, and equivalent to a declaration of w r ar."
92e AGENTS OF INTERCOURSE, ETC. 159
And yet, at the same time when such doctrine now universally
regarded as sound was taught, Coke thinks that " if an ambassa
dor commits a crime which is not merely a malum prohibitum
by act of parliament, private law, or custom of the realm, but
contra jus gentium^ as treason, felony, adultery, he loses privi
lege, and may be punished in England like any other alien."
This opinion had weight with succeeding lawyers. Foster pre
sents a view somewhat similar to this, namely, that although
ambassadors owe no allegiance to the sovereign of the country,
they are members of society, and therefore bound by the eter
nal universal law which keeps all civil societies together ; and
hence may be brought to justice like other offenders, if they
commit those enormous offences, which are against the light of
nature and the well-being of all society. And Sir Matthew
Hale expresses the opinion, that if the ambassador or his asso
ciates commit any capital offence, save treason, as rape, mur
der, or theft, they may be proceeded against by indictment in
the ordinary course of justice, like other aliens.
The case which seems to have led him to this opinion was
the noted one of Sa, although it applied only to the companions
of ambassadors. Sa, in 1653, during the commonwealth, being
the brother of the Portuguese ambassador and one of his train,
fell into a quarrel with one Gerrard, and wounded him, but he
was saved from death by the interference of another gentle
man standing by. Thereupon, with other Portuguese, fifty in
number, Sa came on the next night to the same place, and
with his associates killed one person and wounded many. The
ambassador was required to deliver up the delinquents, and
Cromwell resolved that Sa should be tried by the law of the
land. The case was referred to a special court of men learned
in the law who decided that he could be indicted. He was
tried before a jury, found guilty, and suffered death. It seems
from a statement of the case, that if he had been an ambassa
dor, his privilege would have protected him, but a distinction
was made between the principal and the members of his train.
The law of England afforded no sufficient protection to
ambassadors until 1708, when, on the occasion of the arrest for
160 THE FORMS AND THE 93
debt and ill usage of the Russian minister, a very severe law
was enacted, by which it rested with the chancellor and chief
justices, or any two of them, to inflict such punishment as they
should think fit on the person whom they should find guilty of
bringing a suit against a minister or his servants.
A little after this, in 171 7, Gyllenborg, the Swedish am
bassador in England, was engaged in a conspiracy to invade
the country and dethrone the first George. He was arrested,
his dispatches seized, and his cabinet broken open. The case
so far was like many acts of violent infraction of international
law, and deserves to be mentioned, only because the secretaries
of state maintained, by way of apology to the other ministers
resident in London, that the measure was necessary for the
peace of the kingdom.* Extreme necessity would be a good
plea even for killing an ambassador, as Bynkershoek says at
the end of his work de foro legatorum, but the question in such
cases is, could not simple sending home, forcible expulsion, if
necessary, answer every purpose.*)-
93.
Bynkershoek lays it down " non valere jus legationis nisi
Relations of an inter utrumque Principem, qui mittit le^atos, et
ambassador to a * , n i
third power. ad quem missi sunt; csetera [legatos] privates
esse." Grotius had already taught the same thing, and nearly
all modern writers concur in this opinion. Vattel, however,
(TV. 7, 84) maintains that innocent transit through a third
* One of the most atrocious violations of international law on record, was the
murder of two French ministers, Bonnier and Roberjot, on their way home from the
Congress of Rastadt in April, 1797, by Austrian hussars. This seems to have been
a piece of villainy on the part of an Austrian minister of State, carried further by
the soldiers than was intended, for the purpose of getting possession of valuable
papers.
f This subsection is principally drawn from Ward s History, II. 292-330. For
the law of 7 Anne, c. 12, referred to, see Kent, L, 183, Lect.-ix. Coke, 4th Instit.
153, Foster s crown-law, 188, Hale s pleas of the crown, and the passages referred
to in the text are cited by Ward. Comp. also Bynkersh. de for. leg. 18, who, after
citing the few examples to be found of regular legal punishments of foreign ministers,
says, " novi asvi exempla de legatis qui varie deliquerant non punitis tot ubique in
annalibus occurrunt, ut ipsa copia laboremus."
93 AGENTS OF INTERCOURSE, ETC.
country may not "be refused to an ambassador, unless suspected
of sinister designs on his way ; that to insult him is to insult
Ms master and the whole nation to which he belongs ; and that
to injure him is picking a quarrel with all nations " who are
concerned to maintain as sacred the right and means of com
municating together and treating of their affairs." There is
so much truth in this, that an injury done to an ambassador,
on his way through a land where his countrymen enjoy protec
tion, is a far greater crime than one done to a private man, and
that all comity and hospitality ought to be shown to him.
But his status is not the same as in the land to which he is accre
dited. The exterritorial immunities avail only there, and in
violability elsewhere is of a qualified kind. Hence (1.) a state
may refuse transit to a foreign minister ; (2.) he and his goods
may be liable to seizure ; (3.) if he enters a territory where- he
is an enemy, or is bound to one which is hostile to that through
which he is passing, he may be seized and impeded from pursu
ing his journey ; and all this without offence against interna
tional law. And yet it appears to be desirable, both on the
ground of the general good and on the score of justice, that
ambassadors should everywhere be safe at least from violence
and from arrest.
Quite a number of examples might be cited, where the
rights of legation have been treated as of no account by third
powers and by enemies. The noted case mentioned by Thu-
cydides (II. 67), in which the Athenians caught in Thrace and
killed envoys from the Peloponnesians, on their way to Persia,
where they hoped to bring the great king into their alliance
against Athens, might have been an act of cruelty, but was not
against the modern jus inter gentes. Similar to this was the
case of Rin9on and Fregoze, envoys of Francis I. of France,
passing through the duchy of Milan, the one on his way to
Yenice, the other to the Porte. This was then hostile territory,
and they were seized and killed seemingly by the procurement
of the governor of Milan, the emperor Charles Y. showing
indifference to the crime. "Alia qusestio," says Bynkersh,
(u. s.), speaking of this affair, " de jure legationis, alia de jure
11
162 THE FORMS AND THE 94
honestatis." Refusals of passports, detentions and expulsions
from the country have been not uncommon. Thus in 1572,
when all Frenchmen in England found without a passport
were ordered to be arrested, du Croc, the French minister
to Scotland, on his way thither, shared their fate, at which
when the French court complained, Secretary "Walsingham
averred that he was justly detained for want of a passport. In
the same century, a Turkish ambassador was arrested on his
way through Venice to France, and when the French resident
there claimed his liberation, the republic answered that a sov
ereign power is not bound to recognize the function of a public
minister, unless his credentials are addressed to itself. When,
in 1573, the Duke of Anjou, afterwards Henry III. of France,
was elected king of Poland, the ambassadors who were on
their way to announce his election, were refused a passport in
Saxony, and detained by the Elector. In 1744, Marshal
Belleisle, while passing through Hanover in the capacity of an
ambassador, was seized by the English, then at war with
France, and carried as a prisoner to England. And in 1763,
Count Wartensleben, minister of the States-general to a part
of the German powers, was arrested at Cassel as executor of a
will. But there is no right whatever of seizing an enemy s
ambassador on neutral soil or a neutral vessel. (Comp. 163,
The rank of an ambassador has nothing to do with the
transaction of affairs, except so far as the capa- Rank of ambaasa .
city to represent their sovereign may be restrict- dor8 -
ed to those of orie class, but only to the ceremonial of courts.
Formerly, there was but one class of foreign ministers, or at
most two ambassadors and agents known to Europe, but
since the beginning of the eighteenth century there have been
three grades. Moreover, sometimes extraordinary have claimed
precedence over ordinary ministers of the same class. The
quarrels of ambassadors about rank led to a regulation in the
protocol of the plenipotentiaries of the eight principal powers
94 AGENTS OF INTERCOURSE, ETC. 163
concerned in the congress of Vienna, dated March 19, 1815,
which is to the following effect :
" To prevent the embarrassments which have often occurred and which
may yet arise from the claims to precedence between different diplomatic
agents, the plenipotentiaries of the powers signing the treaty of Paris have
agreed to the following articles ; and they feel it their duty to ask those of
other crowned heads to adopt the same regulation :
ART. I. Diplomatic employes are divided into three classes;
that of ambassadors, legates, or nuncios ;
that of envoys, ministers, or others accredited to sovereigns ;
that of charges d affaires accredited to ministers charged with for
eign affairs.
ART. II. Ambassadors, legates, or nuncios alone have the representa
tive character.
ART. III. Diplomatic employes on an extraordinary mission have not
for that reason any superiority of rank.
ART. IV. Diplomatic employes shall take rank among themselves in
each class according to the date of the official notification of their arrival.
The present rule shall bring with it no innovation in regard to the rep
resentatives of the Pope.
ART. V. There shall be in each state a uniform mode determined upon
for the reception of the diplomatic employes of each class.
ART. VI. The ties of relationship or of family alliance between courts
give no rank to their diplomatic employes. The same is true of political ties.
ART. VII. In the acts or treaties between several powers which admit
of the alternat^ the lot shall decide between the ministers, as to the order
to be followed in signatures." *
In the protocol of the congress of Aix-la-Chapelle, dated
November 21, 1818, a new class of ministers was constituted
by the plenipotentiaries of the five great powers. They say
" To avoid the disagreeable discussions which may arise in
the future on a point of diplomatic etiquette, which the rule
annexed to the reces of Yienna, by which questions of rank
were regulated, does not seem to have provided for, it is
decided between the five courts, that resident ministers accre-
* By the alternat is intended the practice, sometimes adopted in signing conven
tions, of alternating in the order of priority of signature, according to some fixed
rule, so as to cut off questions of rank. The lot has also been used. Comp. Kliiber,
104-106.
164: THE FORMS AND THE 94
dited near them shall form, in respect to their rank, an inter
mediate class between ministers of the second order and charges
d affaires"
According to these rules, on which the present practice
everywhere is based, there are four classes of diplomatic agents.
To the first belong ambassadors of temporal powers, together
with legates a or de latere and nuncios of the Pope. * To the
second all diplomatic employes accredited to sovereigns,
whether called envoys, ministers, ministers plenipotentiary, or
intermmcios. To the third resident ministers accredited to
sovereigns. To the fourth charges d affaires accredited to
ministers of foreign affairs, with whom would be reckoned con
suls invested with diplomatic functions.f
In regard to the rank of the minister who shall represent
a state at a particular court, the general rule is that one of
such rank and title is sent, as has been usually received from
the other party ; and that the sovereigns having a royal title
neither send ministers of the first rank, nor receive them from
inferior powers.
In regard to diplomatic etiquette Dr. Wheaton observes,
that while it is in great part a code of manners, and not of
laws, there are certain rules, the breach of which may hinder
the performance of more serious duties. Such is the rule re
quiring a reciprocation of diplomatic visits between ministers
resident at the same court.
As for the ceremonial of courts an ambassador is to regard
himself.the representative of national politeness and goodwill,
but to submit to no ceremony abroad which would be account-
* There is no distinction between legates a and legates de latere. These are
cardinals, nuncios are not. Internuncios form an inferior grade of papal diplomats,
belonging to the second or third class. From early times the bishop of Rome had
vicars, delegates, or legates, in the countries of Europe, who had oversight of reli
gious affairs and some delegated jurisdiction. Legates for some time had a perma
nent office, which might be attached to a particular bishopric. Only in modern days
have these representatives of the Pope become assimilated to the envoys from tem
poral powers. In France by the concordat of 1801, ah 1 intermeddling with the
affairs of the Gallican church was prohibited to them, by whatever name they went.
f Comp. Heffter, 208. \ Heffier, 209.
94 AGENTS OF INTERCOURSE, ETC. 165
ed degrading at home ; for nothing can be demanded of him
inconsistent with the honor of his country. A question some
what agitated among us, who have no distinct costume for the
chief magistrate or for those who wait on him, is, In what
costume should our diplomatic agents appear at foreign courts ?
In none other, it may be answered, than such as is appropriate
when we pay our respects to the President of the United
States, unless another is expressly prescribed. The rule is to
emanate from home, and not from abroad ; and no rule, it is to
be hoped, will ever be given out, inconsistent wdth the severe
simplicity of a nation without a court.
An ambassador may be recalled, or sent home, or for some
urgent reason declare his mission terminated, or it may expire
by its own limitation, or by the completion of a certain official
work, or by the death of the sovereign sending the ambassador,
or of the sovereign to whom he is sent, or yet again by a
change in his diplomatic rank. When, for any cause not im
plying personal or national misunderstanding, his mission is
terminated, a letter of recall is generally necessary, which he
is to deliver up, and ask for an audience to take leave of the
sovereign or chief magistrate of the country where he has been
residing. And again, when his rank has been changed with
out removal from his station, he presents a letter of recall and
one of credence, as at first.*
The % inviolability of foreign ministers belongs also to
heralds, bearers of flags of truce, etc. (Comp. 134.) Couriers
and bearers of despatches are privileged persons, as far as is
necessary for their particular service. But agents attending
to the private affairs of princes, and secret envoys, when not
accredited, are not entitled to the privileges of ambassadors
under the law of nations.
* For all the details of an ambassador s duty the Guide Diplomatique of Ch. de
Martens (4th edition), Paris, 1851, is probably the best book. The second volume
is a kind of complete letter writer, useful, no doubt, to raw hands. But unfortunate
ly the book is in French, and, so far as I know, has not been translated into English.
Would it not be a good wotk to set up a French school at Washington for members
of Congress expecting to go on missions ?
166 THE FORMS AND THE 95
95.
The commercial agents of a government, residing in foreign
parts, and charged with the duty of promoting
the commercial interests of the state, and espe
cially of its individual citizens or subjects, are called consuls.
These, under the regulations of some countries are of different
grades, being either consuls-general, consuls, or vice-consuls,
from whom consular agents differ little. The consular office,
also, may have , a connection with that of diplomatic agents.
(94.)
Nothing exactly like the office of consuls was known to the
Origin of the con- ancients. The nearest resemblance to it was borne
by the proxeni of Greece, who, as their name
implies, stood in the relation of hospitality to a public body or
state, and like other hosts and guests, might hand down the
office in their family. Their chief duties were to entertain and
honor the ambassadors of the, foreign state within the country
where they resided, to help in distress its private citizens doing
business there, and perhaps to represent them in commercial
suits.*
The consuls of the middle ages, so far as they resembled
modern consuls, seem to have been of two kinds ; first, a col
lege of judges or arbitrators, whose functions were exercised
within the city or state which appointed them, and secondly
those who were chosen to settle disputes among the merchants
of their town who resided in a foreign town or district. As
for the first class it was not strange that merchants, who form
ed guilds by themselves, should have magistrates of their own ;
and the name given to them, consuls of the merchants, or of
the sea, was borrowed from one of the prevailing names of the
head officers of many Italian cities, f As for the second, it
can be traced back to century XII. In 1190, a charta of king
Guy, of Jerusalem, grants the privilege to the merchants of
Marseilles of appointing consuls of their own at Acco (St. Jean
d Acre), and in 1263, king Jacob of Arragon (Jayme I. 1213-
* Comp. Schomann, Griech. Alterth. II. 22.
f Comp. Hegel, Gesch. d. Stadtere. fass. von Italien II. 205, et seq.
93 AGENTS OF INTERCOURSE, ETC. 167
1276), gives to merchants of Barcelona the same privilege for
parts beyond the sea under his sway. A charta of 1328, calls
them in the Proven9al dialect " regens dels mercadiers que van
per mar." * Such consuls were either resident, as those of the
large trading cities of the Mediterranean, or temporary during
the stay abroad of merchants setting sail in a vessel together.
From a statute of Marseilles of 1253-55, in Pardessus (Lois
maritimes IY. 256), we learn that the appointment of consuls
for foreign parts was there instrusted to the rector of the town
with the syndics and guardians of the treasury ; that such con
suls, under advice of their council, had the power of imposing
fines and of banishing ; subject however to the review of the
home government on complaint of the aggrieved person, that
if no consuls should have been appointed for any place where
ten or more Marseilles merchants were residing, these of them
selves might make choice of one, until the office could be filled ;
that the consul refusing to serve was finable ; and that no man
enjoying special privileges in the place, and no one but a
wholesale dealer, could hold the office. The consul, if parties
are willing to submit their differences to him, is directed to
call in two assistants. The fines which he may exact from
parties whose differences he has settled are to go, half to him
and half to the treasury of Marseilles. Important information
in regard to this office is also given by the statutes of Ancona
of the year 1397. f
The functions of modern consuls are determined by special
treaties and by the laws of their own land. Functionsanddu
Among their usual duties in Christian lands, be- tied of conauls -
sides those of general watchfulness over the commercial in
terests of their nation, and of. aid to their countrymen in secur
ing their commercial rights, may be enumerated the duties
Of legalizing by their seal, for use within their own country,
acts of judicial or other functionaries, and of authenticating
* Du Cangp voce Consul. Comp. Leonhardi in Ersch u. Gruber s Encyclop.
voce Consulat. f See Pardessus, u. s. V. 108, 116, et seq.
168 THE FORMS AND THE 96
marriages, births, and deaths, among their countrymen, within
their consulates ;
Of receiving the protests of masters of vessels, of granting
passports, and of acting as depositaries of sundry ship s papers ;
Of reclaiming deserters from vessels, providing for destitute
sailors, and discharging such as have been cruelly treated ;
Of acting on behalf of the owners of stranded vessels, and
of administering on the personal property left within their
consulates by deceased persons, where no legal representative
is at hand.
Our laws require masters of vessels, on entering a port for
traffic, to lodge with the consul their registers, sea-letters and
passports ; and make it a consul s duty to send destitute seamen
home at the public expense.
In general, throughout Christian lands, the principle of the
control of the laws and courts over foreigners
Jurisdiction of . , . . ., ,
consuls in and out with the exemption of certain privileged persons.
of Christendom. . .. ^ ,VV j -p, , . A .
is tully established. .But as Christian states were
reluctant to expose their subjects to the operation of outland
ish law and judgments, they have secured extensively by treaty
to their consuls, in Mohammedan and other non-Christian lands,
the function of judging in civil and even in criminal cases,
where their ow T n countrymen are concerned. In such cases,
according to the laws of France,* the consul is assisted by two
French residents. " The Frank quarter of Smyrna is under
the jurisdiction of European consuls, and all matters touching
the rights of foreign residents fall under the exclusive cogni
zance of the respective consuls." By our treaty of 1834 with
the Sultan of Muscat, our consuls there are exclusive judges
of all disputes between American citizens, and by our treaty
with China in 1844, American citizens committing crimes in
China, are subject to be tried and punished only by the consul,
or other public functionary, empowered so to act by our laws.
Disputes, also, between citizens of the United States, or be
tween them and other foreign residents, are not to be tried by
the laws and courts of China, but in the former case come
* Pardessus, Droit commercial, VI. 294, et seq.
6 AGENTS OF INTERCOURSE, ETC. 169
before our authorities, and in the other are to be regulated by
treaties with the respective governments to which the other
parties at law are subject. Similar arrangements have recent
ly been made with Japan.* ( 65.)
Consuls on exhibiting proof of their appointment receive
an exequatur , or permission to discharge their Privileges and sta-
functions within the limits prescribed, which per- tua of consuls -
mission can be withdrawn for any misconduct. They have,
during their term of office, according to the prevailing opinion,
no special privileges beyond other foreigners, and are thus
subject to the laws, both civil and criminal, of the country
where they reside. They enjoy no inviolability of person, nor
any immunity from jurisdiction, unless it be given to them by
special treaty. Heffter, however ( 244), makes the safe state
ment that they possess " that inviolability of person which
renders it possible for them to perform their consular duties .
without personal hindrance." Yattel (II. 2, 34) goes still
farther. A sovereign, says he, by receiving the consul, " tacit
ly engages to allow him all the liberty and safety necessary in
the proper discharge of his functions." His functions require
that he be " independent of the ordinary criminal justice of
the place where he resides," and " if he commit any crime, he
is, from the respect due to his master, to be sent home." But
the best authorities agree that it is at the option of a sovereign,
whether the consul shall have the benefit of such comity or
not,f and it seems inconsistent with modern ideas of the terri
torial jurisdiction of the sovereign, that a man who is very
generally a merchant should be exempt from the law which
applies to people of his class about him. Chancellor Kent
cites Warden, as producing authorities to show that in France
" a consul cannot be prosecuted without the previous consent
of his government ;" but Foelix sets the matter in the follow
ing light : \ that by a convention of France with Spain in 1769,
the consuls of the latter, being Spanish subjects, obtained im-
* Comp. Kent, I. 45, Lect. II. ; Wheaton El. II. 2, 11.
f Comp. among others, Bynkersh. de for. leg. 10, near the end.
\ Foelk, I. 406, 221
170 THE FORMS AND AGENTS OF INTERCOURSE, ETC. 96
munity from arrest, excepting for atrocious crime and for com
mercial obligations. This covered only " debts and other civil
cases not implying crime or almost crime, and not growing
out of their mercantile character." Since that time all other
nations, with whom France has stipulated that their consuls
shall be placed on the footing of the most favored nation, may
claim the same immunity, " but with this exception, consuls,
being foreign subjects, are to be treated in France like all other
members of the same nation."
Although a consul has none of the privileges of an ambas
sador, yet an insult to his person, or an attack on his place of
official business involves more of insult to his country than
similar treatment of an ordinary stranger could do. He has
in fact something of a representative character, and calls for
the protection of his government in the exercise of his functions.
Consuls in the Mohammedan countries, owing, perhaps, to
the fact that formerly diplomatic intercourse passed to some
extent through their hands, and to their official character of
protectors of their countrymen in those lands, have nearly the
same rights as ambassadors, including the right of worship,
and in a degree that of asylum.
By the practice of some nations, only a native can be em-
mo may be con- pljed to attend to the commercial interests of
BUl8 - his country in foreign ports. The United States,
however, have hitherto freely employed foreigners in that ca
pacity, especially in ports where our own commerce is small.
CHAPTER Y.
OF THE EIGHT OP CONTRACT AND ESPECIALLY OF TREATIES.
97.
A CONTEACT is one of the highest acts of human free will :
it is the will binding itself in regard to the future, of contract, e -
. to . - to pecially between
and surrendering its right to change a certain ex- states.
pressed intention, so that it becomes morally and jurally a
wrong to act otherwise ; it is the act of two parties in which
each or one of the two conveys power over himself to the other
in consideration of something done or to be done by the other.
The binding force of contracts is to be deduced from the free
dom and foresight of man, which would have almost no sphere
in society, or power of co-operation, unless trust could be ex
cited. Trust lies at the basis of society ; society is essential for
the development of the individual ; the individual could not
develop his free forethought, unless an acknowledged obliga
tion made him sure in regard to the actions of others. That
nations, as well as individuals, are bound by contract, will not
be doubted when we remember that they have the same prop
erties of free will and forecast ; that they could have no safe
intercourse otherwise, and could scarcely be sure of any settled
relations toward one another except a state of war, and that
thus a state of society, for which the portions of the world are
destined would be impossible. We have already seen, that
without this power a positive law of nations could not exist,
which needs for its establishment the consent of all who are
bound by its provisions. National contracts are even more
solemn and sacred than private ones, on account of the great
interests involved, of the deliberateness with which the obliga-
172 OF THE RIGHT OF CONTRACT 98
tions are assumed, of the permanence and generality of the
obligations, measured by the national life, and including
thousands of particular cases, and of each nation s calling,
under God, to be a teacher of right to all within and without
its borders.
Contracts can be made by states with individuals or bodies
with whom can of individuals, or with other states. Contracts
states mako cou- . , ,, ,
tracts ? between states may be called conventions or trea
ties. Among the species of treaties those which put an end to
a war and introduce a new state of intercourse, or treaties of
peace, will be considered here, only so far as they partake of
the general character of treaties : their relations to war will be
considered in the chapter devoted to that subject.
98.
Treaties, allowed under the law of nations, are uncon-
Lawfui treaties, strained acts of independent powers, placing them
under an obligation to, do something which is not
wrong, or
1. Treaties can be made only by the constituted authorities
of nations, or by persons specially deputed by them for that
purpose. An unauthorized agreement, or a sponsio, like that
of the consul Postumius at the Caudine Forks, does not bind
the sovereign, if is held, for the engager had no power to
convey rights belonging to another.* And yet it may be
morally wrong for the sovereign to violate such an engage
ment of a subordinate ; for it might be an act of extreme ne
cessity, to which the usual forms of governmental proceedings
would not apply. Again, from the nature of the case a fac
tion, a province, or an integral part of a close confederation
has no treaty-making power ; although a loose confederation,
like the Germanic, might exist, while conceding such a pre
rogative to its members. Individuals, or other dependent
bodies, can make commercial arrangements with a foreign
power, unless their laws forbid ; but the arrangements apply to
a particular case, and obligate none else ; they are like any
* Comp. Yattel, Book II. 208-212.
AND ESPECIALLY OF TREATIES. 173
other private contracts ; nor has a government over such a con
tracting party anything to do in the premises, save to protect,
and, if expedient, to procure it redress against injustice. Poll-
tical engagements, or such as affect a body politic, can be made
only by political powers. Only the actual sovereign, or power
possessing the attributes of sovereignty at the time, can bind
a nation by its engagements.
2. If the power of a sovereign or of a government is limited
by a ground-law, written or unwritten, a treaty Treaties made by
. , ,, AM A- TVT a sovereign with
cannot override that constitution. .No one can limited powers.
lawfully exercise power, which does not, of right, belong to
him. Thus under constitutional forms, where the treaty-mak
ing power is placed in particular hands, no others can exercise
it, and where it is limited in extent, it cannot be lawfully ex
ercised beyond that limitation. Where, however, an unlimited
power of making treaties is given to a government, or to some
department of it, the public domain and property may be
alienated, or individual rights may be sacrificed for public pur
poses.* And yet even the most absolute despot may make
treaties, which neither his subjects nor third powers ought to
regard as binding. Could the house of Eomanoff, for instance,
resign the throne of Russia to whom it pleased ? The true
view here is, that the province of absolutism is not to dispose
of the national life, but to maintain it without those checks on
the exercise of power which exist elsewhere. No power, how
ever uncontrolled, was given to destroy a nation, or can law
fully do so.
An interesting inquiry here arises, whether the treaty-mak
ing power in a federative union, like the United States, can
alienate the domain of one of the States without its consent.
Our government, when the northeastern boundary was in dis
pute, declared that it had no power to dispose of territory
claimed by the State of Maine. " The better opinion would
seem to be," says Chancellor Kent, " that such a power of ces-
* Kent, I. 166, 167.
174 OF THE RIGHT OF CONTRACT 100
eion does reside exclusively in the treaty-making power under
the Constitution of the United States, although a sound dis
cretion would forbid the exercise of it without the consent " of
the interested state. But it might be asked, whether the treaty-
making power is not necessarily limited by the existence of
states, parties to the confederation, having control for most
purposes over their own territory. Could the treaty-making
power blot out the existence of a state which helped to create
the union, by ceding away all its domain ? Such fearful power
was never lodged in the general government by the Constitu
tion and could never be lawfully exercised in the ordinary con
tingencies of the confederation. Only in extreme cases, where
the treaty-making power is called upon to accept the fact of
conquest, or to save the whole body from ruin by surrendering
a part, could such an exercise of power be justified. (Comp.
52, 153.)
100.
3. A treaty, in which the treaty-making power flagitiously
Treaties obtained sacrifices the interests of the nation which it re-
bfndSg m on an a 8 "a- presents, has no binding force. In this case the
treacherous act of the government cannot be just
ly regarded as the act of the nation, and the forms ought to
give way to the realities of things. Moreover, the other party
to the treaty ought not to draw advantage from the iniquity
of an agent whom it has itself tempted. What, for example,
was the cession worth, which the king of Spain made of his
rights to the crown to Bonaparte in 1807, and who could think
himself bound by such an act, even if it lay within the compe
tence of the sovereign ?
4. Treaties obtained by false representations, or by/orce,
Nor those obtain- are not binding. The rule for nations here is the
ed by false state- . . . . . .
merits or by force, same which in all law holds good tor individuals.
In the former case, the consideration which led to the making
of the treaty did not exist, but a false statement was purposely
made in order to bring about the contract. In the latter case,
the engagement was not the free act of an independent will.
But this rule will not invalidate a treaty, where one of the
100 AND ESPECIALLY OF TREATIES. 175
parties acts under a wrong judgment, or has a false impression,
for which the other is not responsible. For the consideration
is not real objective good, but the expectation of good, which
may not be realized. Having, under the sway of this expecta
tion, influenced the conduct of the other party, he has brought
himself under obligation. Thus, if a garrison capitulates un
der a mistake as to the force of the besieging army or the pro
bability of relief, and discovers the mistake before the capitu
lation takes effect, this is still binding. Again, when we speak
of force invalidating a treaty, we must intend unjust duress or
violence practised on the sovereign or the treaty-making agent.
A disadvantageous treaty made to prevent further conquest, or
to release the sovereign or others from lawful captivity, is as
binding as any other ; for a fair advantage of war has been
used to obtain terms which otherwise would not have been con
ceded. Thus when Pope Paschal II. was taken prisoner in
1111, by the Emperor Henry V., or John of Prance, in 1356,
by Edward III. of England at Poitiers, or Francis I. in 1525,
at Pavia, by the officers of Charles Y., the treaties made to
procure their liberty were respectively binding, so far as no
thing immoral was involved in their articles, or the persons
making the treaties did not transcend their powers. In the
case of Paschal, the feeling of the age, or at least of the stricter
party in the church, regarded the practice of lay investitures,
to which he gave his consent, as something irreligious ; and it
was claimed that he was under compulsion when he performed
the act. But why, if he renounced his engagement as constrain
ed and unlawful, did he not return to his imprisonment ? John,
with true feudal honor, when a prince of his blood violated his
stipulation, put himself again into the hands of the English
king ; while Francis, unlike his ancestor, and unlike St. Louis,
who kept his faith with the Saracens, given almost in fear of
death, neither stood to his engagements, nor went back into
captivity at Madrid. In the case of Francis, it may be doubt
ed whether the estates of Burgundy could be transferred with
out their consent to another sovereign : feudal law, not then
extinct, would not give such power into the hands of the suze-
176 OF THE RIGHT OF CONTRACT 101
rain without the vassal s concurrence. But why did he make
a treaty if not free, and why, if not able to execute it, did he
not restore all things, as far as in him lay, to their condition
anterior to the treaty ? *
101.
5. A treaty can never obligate to do an unlawful act, for
Treaties to do an neither party can give consent to do evil in ex-
unlawful act not . , , mi
binding. pectation oi a good to be received, inus a treaty
contradicting a prior treaty with another power is void, and if
observed, an act of injustice. Thus, too, a combination to com
mit injustice, for example, to put down liberty or religion, or
to conquer and appropriate an independent country, as Poland,
is a crime which no formalities of treaty can sanction. This
rule, it is true, is not one of much practical application to the
concerns of nations, for ~beforehand, most of the iniquities of
nations are varnished over by some justifying plea, and the
only tribunal in the case is the moral indignation of mankind,
while, after the crime has triumphed, mankind accept the new
order of things, rather than have a state of perpetual war. But
the rule is useful, so far as it sanctions the protests of innocent
states, and their combinations to resist the power and danger
of combined injustice.
102.
Treaties are of various kinds. They may define private
relations, like commercial treaties, or political re-
Kind of treaties. . _ . 1
lations. Iney may be temporary, or oi unlimited
duration, and among the latter, some, or some provisions which
they contain, may be dissolved by war, and others, intended to
regulate intercourse during war, may be perpetual. They may
secure co-operation merely, as treaties of alliance, or a closer
union, as confederations, or the uniting of two or more states
into one. All the intercourse of nations may come under the
operation of treaties ; and they may reach to the explanation
or alteration as far as the parties are concerned of interna-
* Comp. Flassan, Diplom. Franyaise, I. 3-23, seq., and Ward s Hist. II. 361.
103 AND ESPECIALLY OF TREATIES. 177
tional law. Hence the importance of collections of treaties,
and of the history of diplomatic intercourse.
Besides these leading divisions, treaties may differ from
one another in many ways. They may, for instance, be niade
by the treaty-making powers in person or by their agents, may
be open or secret or with articles of both kinds, may be abso
lute or conditioned, may contain promises of performance on
one or on both sides, may be attended or not with a pecuniary
payment, be revocable at the will of either party or irrevo
cable. They may be principal or accessory, preliminary or
definitive. They may be simple, consisting of one engage
ment, or contain many articles, some leading, others subordi
nate. They may contain new provisions, or confirm or explain
old treaties. Thus some of the more important treaties, as
those of "Westphalia and Utrecht, have been confirmed many
times over.*
103.
Treaties of alliance may be defensive or offensive, or both..
Defensive treaties, as generally understood, are Treatie8 a ofal ,.
made to secure the parties to them against aggres- liimce -
sion from other states. They may, also, aim at the mainten
ance of internal quiet, or of neutrality amid: the conflicts of
neighboring powers. To attempt to gain any of these objects
is not necessarily contrary to the law of nations or to natural
justice. Mutual aid, indeed, against the disturbers of internal
quiet, may secure an absolute government against popular
revolutions in favor of liberty ( 41), but if a confederation or
alliance Hiay secure to its members the enjoyment of free insti
tutions, there is no reason, as far as international law is con
cerned, why institutions of an opposite kind may not support
themselves in the same way. The law of nations, we have
seen, shows no preference for any one kind of government, but
acknowledges all established governments as having a right to
exist. Treaties of neutrality are reciprocal engagements to
have no part in the conflicts between other powers, to remain
* Comp. Kliiber, 146, 147.
12
178 OF THE RIGHT OF CONTRACT 103
at peace in an apprehended or an actual war. They are sug
gested by, and prevent the evils of that interference of nations
in each other s affairs, for the preservation of the balance of
power or the safety of the parties interfering, which is so com
mon in modern history. Alliances at once offensive and defen
sive have one of the usual and more important characteristics
of confederations.
Sometimes a treaty-engagement is made to do a certain
specific act of limited extent in contemplation of a possible
future state of war, as to supply a certain amount of money or
number of troops. The party entering into such a stipulation,
if the agreement was general, and had no special reference to
a particular war with a particular nation, is held not to have
taken a belligerent attitude.* Much, however, would depend
upon the amount of assistance promised, and it stands open to
the party injured by such aid afforded to his rival, to regard it
as an act of hostility or not, as he may think best.
A treaty of alliance can bind the parties to no injustice
( 101), nor justify either of them in being accessory to an act of
bad faith on the part of another. Hence a defensive, still more
an offensive alliance, can only contemplate, if lawful, the ward
ing off of intended injustice. Where justice is doubtful, the
benefit of the doubt, it is held, ought to accrue to the ally. It is
held, also, that in cases where compliance is plainly useless, or
would be ruinous, an ally is not obliged to aid his friend.
With regard to defensive alliances, the question may arise,
what constitutes a defensive war, since certain wars have been
defensive in spirit, though offensive in form. The best answer
seems to be, that clearly menaced injustice may be prevented
by an ally ; that he ought not to wait until the formality of
striking the blow arrives, but fulfil his obligation by giving
aid, as soon as it is needed.f Thus a defensive alliance scarcely
differs from a justifiable offensive one.
* Vattel, III. 97 ; Wheaton s El. III. 2. 14.
f Comp. Wheaton, El. u. s. III. 2. 13.
g 105 AND ESPECIALLY OF TREATIES. 179
104.
A confederation is a union, more or less complete, of two
or more states which before w r ere independent. 2 of confedera .
It aims to secure a common good, external, as tion>
mutual protection against powerful neighbors, or internal, as
commerce and community of justice by means of common
institutions. If, by the terms of the league, the parts are so
far united together as to act through one organ in all external
relations, and if this organ has many of the properties of sov
ereignty in internal affairs, the resulting government is not a
league of states (a Staatenbund, as the Germans call it), but a
state formed by a league. (Bundesstaat.) But the two have
no exact limits to separate them.
States have, as far as others are concerned, an entire right
to form such leagues, or even to merge their existence in a new
state, provided, however, that no obligation toward a third
power is thereby evaded, and no blow is aimed at its safety.
When so constituted, a union must be respected by other
powers, who are henceforth to accommodate their diplomatic
and commercial intercourse to the new order of things. If an$
O /
of the members came into the union with debts on their heads,
the obligation to pay them is not cancelled by the transaction ;
or if in any other way owing to the new state of things for
eign states are wronged, compensation is due. In the opposite
case, when a league or union is dissolved, the debts still re
main, justice requiring not only that they be divided between
the members in a certain ratio, but also that each of the mem
bers be in some degree holden to make good the deficiencies
of the others. Comp. 38.
105.
Treaties of guaranty* are to be classed among treaties as it
respects their form, and as it respects their objects
among the means- of securing the observance of anty, *m?gufn
, nm . 11 ties of treaties.
treaties. Iney are especially accessory stipula
tions, sometimes incorporated in the main instrument, and
* Comp. Vattel, II. 16, 235, seq. ; Kliiber, 157-159 ; Heflfter, 9Y ; Whea*
ton s El. III. 2, 12.
180 OF THE RIGHT OF CONTRACT. 105
sometimes appended to it, in which a third power promises to
give aid to one of the treaty-making powers, in case certain
specific rights, all or a part of those conveyed to him in the
instrument, are violated by the other party. We say certain
specific rights, because an engagement to afford assistance
against the violation of all rights, would be, as Kliiber remarks,
a league or treaty of alliance. A guaranty may refer to any
rights whatever, for instance to the payment of a sum of money
stipulated in a treaty, as when Russia, in 1776, guaranteed a
Polish loan of 500,000 ducats ; to the secure possession of ceded
territory ; to the integrity of a state, as the French emperor
guaranteed the integrity of the Austrian states in the peace of
Yienna, of 1809 ; to the right of succession, as the famous
pragmatic sanction of the Emperor Charles YI. (Append. II.
1735) was guaranteed by Spain, France, the empire, etc., and
the succession of the Bourbons in Spain by Austria, in the
treaty of Yienna, 1735, (Append. II.) ; to religious franchises,
as in the guaranties of the treaties of Westphalia ; to the main
tenance of an existing constitution, which might imply help
%ainst revolted subjects ; to national independence, as when
in the Paris peace of 1856, England and France pledged them
selves to sustain the national existence and integrity of Turkey,
to any or to all of these. Guaranties often extend to all the
provisions of a treaty ; and thus approach to the class of defen
sive alliances.
Guaranties may be given to each other by all the parties to
a treaty, where there are more than two, or by certain parties
to certain others, or by a third power to secuss one of the prin
cipals in the transactions. At the peace of Aix-la-Chapelle, in
1748, the eight contracting powers gave mutual guaranties.
At the peace of Westphalia, and that of Paris, in 1763, all the
powers concerned did the same. Sometimes a treaty renews
or confirms previous ones, and the question may arise whether
a general guaranty to such a treaty is also a guaranty to all
past treaties which it includes. Thus, the treaty of Teschen*
(1779, Append^ II.), which was guaranteed by Russia, renewed
* Comp. de Martens, 338.
105 AND ESPECIALLY OF TREATIES. 181
the treaties of "Westphalia. Did then Kussia become a guar
antee to that peace ? Certainly not in the same sense in which
France and Sweden became such, when it was made (Append.
II, 1648), and at most, only so far as the relations between
those powers were concerned who were parties to the principal
treaty.
The political importance of general guaranties is none
other than that of alliances framed in view of existing affairs.
They are a mode of providing beforehand against infractions
of rights by securing the pledge of a third party, and a con
venient way of intervening in the affairs of other states, and
of keeping up the present order of things. Whether they are
justifiable in such cases depends nol; on the form which they
take, but on the propriety of intervention. (Comp. 42, note.)
A guaranty requires the party making it, to give aid when
called upon, and so much aid as he had stipulated, and in a
case to which, in his judgment, the guaranty relates. If the
party, on whose account he became a security, declines his
assistance, he has nothing to do with the case further, unless,
indeed, grounds of public interest, apart from his obligation,
make his intervention of importance. If the parties to a treaty
alter it or add to it, he, of course, is not bound by his guaranty
in regard to these new portions of the treaty : if the alterations
are essential, it may be doubted whether his guaranty, made,
perhaps, in view of another state of things, has not ceased to
be obligatory. If by the assistance promised, he cannot make
good the injury, he is bound to nothing more, much less to
compensation. If he guarantees a debt, and the payment is
refused, he is not bound to make it good ; for in this, according
to Vattel,* lies the difference between a surety and a guar
antee, that the former is obliged to perform what the principal
party has failed to do, while the latter is only bound to do his
best to bring the other to a compliance with his engagement.
Treaties of guaranty, when they pledge a stronger power
to maintain the independence and integrity of a Origin of r uaran
weaker, do not differ greatly from those treaties tieeto treaties -
* Vattel, II. 16, 240. Comp. Wtteaton, u. s.
182 OF* THE RIGHT OF CONTRACT 106*
of protection which were not unknown to the middle ages.
Of such a description was the treaty between John of England
and the king of the Isle of Man in 1205, which Mr. "Ward
notices in his history (II. 159), and which soon afterward (in
1212) was changed into a treaty, whereby the king of England
became the suzerain of the other. Guaranties in their modern
form do not seem to have been in use much before the date of
the treaties of Westphalia. Before this time persons called
conservators were sometimes appointed to watch over the exe
cution of treaties, who might be ministers or governors of pro
vinces with power to adjust difficulties between the parties ;
and even private persons added their seals to that of their
sovereign, and were bound to declare against him, if he broke
his word. At the treaty of Senlis, in 1493, between Charles
VIII. of France and the Emperor Maximilian, not only indivi
dual subjects but a number of towns attached their seals on
behalf of their respective sovereigns. The Sieur de Bevres,
one of the sealers, declares under his name that, if the Emperor
and his son, Archduke Philip the Fair, should not observe
their agreement, he would be bound to abandon them, and give
favor and assistance to the king of France. First in 1505 the
treaty of Blois mentions foreign princes as its conservators.
They add their confirmation also to a peace made at Cambray
seven years later. From this to modern guaranties the step
was an easy one.*
106.
Various other ways of securing the parties to a treaty
against each other s want of good faith have been
Other modes of
confirming the taken, some of which are obsolete while others are
faith of treaties. .,, . ,
still in use. One way was to add to the solemnity
of the oath which confirmed the treaty, by taking it over the
bones of saints, the gospels, the wood of the true cross, the host
and the like. Another kind of religious sanction is found in
* See Mably. I. Part II. 129-131, Amsterdam edit, of 1777, and Flassan, Hist, de
la Diplom. Franyaise, I. 244, in his remarks on a treaty between Louis XI. and the
Emperor in 1482.
106 AND ESPECIALLY OF TREATIES. 183
the treaty of Cambray (the " paix des dames," Append. II) of
Aug. 5, 1529, in which the parties submitted themselves to the
jurisdiction and censures of the church, even .to the point of
suffering the secular arm to be called in to support the ecclesi
astical ; and appointed procurators to appear at Rome on their
behalf and undergo the condemnation and fulmination of such
censures,* etc.
Another mode of securing the faith of treaties, formerly
much in use but now almost obsolete, was that of
giving hostages, one of the last examples of which
occurred after the peace of Aix-la-Chapelle in 1748, when two
British peers (Lords Sussex and Cathcart) remained on parole
at Paris until Cape Breton should be restored to France. The
understanding in giving hostages was that their freedom and
not their lives secured the treaty : hence, when it was viola
ted, they might be detained in captivity, but not put to death.
Escape on their part would be gross treachery. On the fulfil
ment of the obligation they were of course free. The mode of
treating them within the laws of humanity, as whether they
should be confined, according to early practice, or be allowed
to go about on parole, would depend on the pleasure of the
party secured by them. It is asked whether a prince serving
as a hostage could be detained, if he should inherit the crown
during his captivity. Without doubt he might in the times
when hostages were commonly given, because even sovereigns
were then so detained. And if the practice prevailed now, it
might be doubted whether the principle o*f exterritoriality
would not have to be sacrificed in such a ease.f
Treaties are also still confirmed by pledges, which generally
consist in territories or fortresses put into the
hands of the other party, who more rarely con
tents himself with simple hypothecation without transfer. ;[:
* Comp. Mably, u. s. The provision is found in Art. XLYI. of the treaty
(Dumont, IV. 2, 15), and is a striking proof of the small trust which the parties put
in one another. They show in the same place a dread that the Pope might absolve
one or the other (as he had already done in the case of Francis) from his oath and
faith, and endeavor to guard against it.
\ Comp. Vattel, II. Chap. 16, 245-261, and Ward s Hist. I. 172-175.
J Comp. Kluber, 156.
184: OF THE RIGHT OF CONTRACT 1C7
The occupation of the French fortresses by the allies, accord
ing to the terms of the second treaty of Paris, may be regarded
as coming under this head, since it secured the payment of the
indemnities, (Append. II. 1815,) although it was equally
intended to secure the Bourbon dynasty.
107.
Treaties are binding, unless some other time is agreed
upon, at the time when they are signed by an
At what time do r . j- , , . . . _ .
treaties begin to authorized agent, and their ratification by their
be binding?
sovereign is retroactive.
If, then, an ambassador, in conformity with a full power
received from his sovereign, has negotiated and signed a treaty,
is the sovereign justified in withholding his ratification ? This
question has no significance in regard to states, by whose form
of government the engagements made by the executive with
foreign powers need some further sanction. In other cases,
that is wherever the treaty-making power of the sovereign is
final, the older writers held that he was bound by the acts of his
agent, if the latter acted within the full power which he had
received, even though he had gone contrary to secret instruc
tions. But Bynkershoek defended another opinion which is
now the received one among the text-writers, and which
Wheaton has advocated at large with great ability.* If the
minister has conformed at once to his ostensible powers and to
his secret instructions, there is no doubt that in ordinary cases
it would be bad faith in the sovereign not to add his ratifica
tion. But if the minister disobeys or transcends his instruc
tions, the sovereign may refuse his sanction to the treaty with
out bad faith or ground of complaint on the other side. But
even this violation of secret instructions would be no valid
excuse for the sovereign s refusing to accept the treaty, if he
should have given public credentials of a minute and specific
character to his agent ; for the evident intention in so doing
would be to convey an impression to the other party, that he
* Wheaton s EL B. III. 2, 5 ; Bynkershoek, Quaest. J. P. II. 7 ; de Martens,
109 AND ESPECIALLY OF TREATIES. 185
is making a sincere declaration of the terms on which he is
willing to treat.
But even when the negotiator has followed his private
instructions, there are cases, according to Dr. Wheaton, where
the sovereign may refuse his ratification. He may do so when
the motive for making the treaty was an error in regard to a
matter of fact, or when the treaty would involve an injury to
a third party, or when there is a physical impossibility of ful
filling it, or when such a change of circumstances takes place as
would make the treaty void after ratification.
All question would be removed, if in the full power of the
negotiators or in a clause of the treaty itself, it were declared
that the sovereign reserved to himself the power of giving
validity to the treaty by ratification. This, if we are not
deceived, is now very generally the case.
l08.
Treaties, like other contracts, are violated, when one party
neglects or refuses to do that which moved the violation of trea-
other party to engage in the transaction. It is tie8 -
not every petty failure or delay to fulfil a treaty, which can
authorize the other party to regard it as broken, above all, if
the intention to observe it remains. When a treaty is violated
by one party, the other can regard it as broken, and demand
redress, or can still require its observance.
109.
The laws of interpretation in the case of treaties are sub
stantially the same as in the case of other con- Inter p re tation of
tracts. Some writers, as Grotius and Yattel, go treatie8 -
at large into this subject.* The following are among the
most important of those laws :
1. The ordinary usus loquendi obtains, unless it involves an
absurdity. "When words of art are used, the special meaning
which they have in the given art is to determine their sense.
2. If two meanings are admissible, that is to be preferred
which is least for the advantage of the party for whose benefit
a clause is inserted. For in securing a benefit he ought to ex-
* Grotius, II. 16; Vattel, II. Chap. 17. Comp. Wildman, Vol. I. 176-185.
186 OF THE RIGHT OF CONTRACT, ETC. 109
press himself clearly. The sense which the accepter of condi
tions attaches to them ought rather to be followed than that of
the offerer.
3. An interpretation is to be rejected, which involves an
absurdity, or renders the transaction of no effect, or makes its
parts inconsistent.
4. Obscure expressions are explained by others more clear
in the same instrument. To discover the meaning, the con
nection and the reasons for an act must be considered.
5. Odious clauses, such as involve cruelty or hard condi
tions for one party, are to be understood strictly, so that their
operation shall be brought within the narrowest limits ; while
clauses which favor justice, equity, and humanity, are to be
interpreted broadly.
Sometimes clauses in the same treaty, or treaties between
the same parties are repugnant. Some of the rules
Repugnant clnus- , TIT
es and conflicting nere applicable are
treaties
1. That earlier clauses are to be explained by
later ones, which were added, it is reasonable to suppose, for
the sake of explanation, or which at least express the last mind
of the parties. So also later treaties explain or abrogate older
ones.
2. Special clauses have the preference over general, and for
the most part prohibitory over permissive.
In treaties made with different parties the inquiry in cases
of conflict touches the moral obligation as well as the meaning.
Here the earlier treaty must evidently stand against the latter,
and if possible, must determine its import where the two seem
to conflict.
In general, conditional clauses are inoperative, as long as the
condition is unfulfilled ; and are made null when it becomes
impossible. Where things promised in a treaty are incompa
tible, the promisee may choose which he will demand the per
formance of, but here and elsewhere an act of expediency ought
to give way to an act of justice. *
* For some remarks on the language used in making treaties, which logically
belong here, see 150, in the section relating to treaties of peace.
PART II.
INTERNATIONAL LAW AND USAGE IN A STATE OF WAR.
CHAPTEE I.
OP THE RIGHTS OF SELF-DEFENCE AND REDRESS OF INJURIES PERTAIN
ING TO NATIONS, OR OF WAR, CAPTURE, AND TREATIES OF PEACE.
SECTION I. Of War.
110.
PEACE is the normal state of mankind, just as society and
orderly government are natural; and war, like
IT,- j j j Of war in general.
barbarism, must be regarded as a departure from
the natural order of things. But as the present state of nature
in the individual, being abnormal and unnatural in the higher
sense, leads to injuries, trespasses on rights, and attempts at
redress, so is it in the society of nations. International law
assumes that there must be " wars and fightings " among na
tions, and endeavors to lay down rules by which they shall be
brought within the limits of justice and humanity. In fact,
wars and the relations in which nations stand to one another,
as belligerent or neutral, form the principal branch of interna
tional law, so much so that in a state of assured and perma
nent peace there would be little need of this science, whose
tendency, therefore, justly estimated, is to bring about a time
when it shall itself lose the greater part of its importance.
In the sections of this chapter we shall need to consider war
as to its notion and moral ground, the mode of commencing it,
and those states of international intercourse which lie between
war and peace, the relation into which it brings the belliger
ent parties, its usages and laws on land and sea especially
188 RIGHTS OF SELF-DEFENCE 111
those which affect property taken on the latter, and lastly its
suspension and final termination. Then, in another chapter,
the rights and obligations of neutrals will be treated of, as
affected by the relations of the belligerents.
111.
War may be defined to be an interruption of a state of
war and a just peace for the purpose of attempting to procure
war, what? g OQ( j or p reven t evil by force ; and a just war is
an attempt to obtain justice or prevent injustice by force, or,
in other words, to bring back an injuring party to a right state
of mind and conduct by the infliction of deserved evil. A just
war again, is one that is waged in the last resort, when peace
ful means have failed to procure redress, or when self-defence
calls for it. We have no right to redress our wrongs in a way
expensive and violent, when other methods would be successful.
By justice, however, we intend not justice objective, but as
it appears to a party concerned, or, at least, as it
Who is to judge? . Y. r . J .
is claimed to exist. From the independence of
nations it results that each has a right to hold and make good
its own view of right in its own affairs. "When a quarrel arises
between two states, others are not to interfere (Comp. 20) be
cause their views of the right in the case differ from those of a
party concerned ; or at least they are not to do this unless the
injustice of the war is flagrant and its principle dangerous. It
a nation, however, should undertake a* war with no pretext of
right, other states may not only remonstrate, but use force to
put down such wickedness.
It may be said that as individuals ought not to judge in
Are nations their own cause, so nations ought to submit their
S d dflA differences to third parties and abide by the issue.
to arbitrators? It ^^ doubtless be desirable, if resort were
more frequently had to arbitration before the last remedy of
wrongs were used, and probably, as the world grows better, this
practice will more and more prevail. But in the past a multi
tude of aggressions have occurred which could not be so pre
vented, which needed to be repelled by the speediest means ;
112 AND REDRESS OF INJURIES, ETC. 189
nor have the intelligence and probity of men been such that
good arbitrators could always be found. The question, how
ever, relates to duty, and does not affect the justice of a war
which a nation should undertake on grounds which approved
themselves to its own unaided judgment. (Comp. 19.)
A state bound by treaty to assist another in the event of
war, must of course judge whether the casusfce- Ought an a]ly to
deris exists, and is also bound to pass judgment J ud s e?
on the nature of the war, since no treaty can sanction injustice.
The rightfulness of war, that is of some wars, will be clear
when we consider that to states, by the divine Ri^tfuineea of
constitution of society, belong the obligations of war iu generaL
protecting themselves and their people, as well as the right of
redress, and even, perhaps, that of punishment. ( 20.) To
resist injury, to obtain justice, to give wholesome lessons to
wrong-doers for the future, are prerogatives deputed by the
Divine King of the world to organized society, which, when
exercised aright, cultivate the moral faculty, and raise the tone
of judging through mankind. War is a dreadful thing when
evil suffered or inflicted is considered ; and yet war has often
been the restorer of national virtue, which had nearly perished
under the influence of selfish, luxurious peace.
A war may be waged to defend any right which a state is
bound to protect, or to redress wrong, or to pre- For what may
T T -i A i f-t \ war be under-
vent apprehended injury. And (1.) a state may taken?
go to war to defend its sovereignty and independence, that is,
its political life, or its territory. This reason for war is an
alogous to the individual s right of self-preservation, and of de
fending his house when attacked.
(2.) The state being bound to protect the individual inhab
itant in all his rights, is his only defender against foreign vio
lence, and may redress his wrongs even by war. But here it
is reasonable to consider the extent of the injury, and the great-
of the evil which the remedy may involve. A state may
190 RIGHTS OF SELF-DEFENCE 113
forbear to redress its own public wrongs, much more the smaller
ones of individuals.
(3.) A state may engage in war to obtain satisfaction for
violations of its honor, as for insults to its flag or its ambassa
dors, or its good name. We have seen ( 18), that a state has
a right of reputation, that this right is extremely important,
and that infractions of it cannot fail to arouse a deep sense of
wrong in a high-minded people. Kedress, therefore, is here as
just and natural, as suits for libel or slander between individu
als. It is plain, however, that every small want of comity or
petty insult does not warrant hostile measures, though it may
call for remonstrance.
(4.) Violations of those rights which nations concede to one
another by treaty may call for the redress of war. A contract
is broken, and there is no court before which the party doing
the injury can be summoned.
(5.) The prevention of intended injury is a ground of war.
This indeed is a case of self-defence, only the injury must not
be remote or constructive, but fairly inferrible from the prep
arations and intentions of the other party. The injury, again,
which is to be prevented may not be aimed directly against a
particular state, but may affect the equilibrium of a system of
states. Thus the ambition of a leading state, it is now held,
may, by disturbing the balance of power in Europe, provoke
the interference of others upon the same continent. (Comp.
43.)
(6.) In some rare cases a great and flagrant wrong commit
ted by another nation, against religion for instance, or liberty,
may justify hostile interference on the part of those who are
not immediately affected. ( 50.) And this, not only because
the wrong, if allowed, may threaten all states, but also because
the better feelings of nations impel them to help the injured.
113.
"Wars may be waged against foreign states in the same poli-
of war, of- tical system, or nations out of the pale of Christian
feneive and de- . ... . J . . . r ,
civilization, against savages, against pirates, or by
114 AND REDRESS OF INJURIES, ETC. 191
the parts of a state against each other. Of the most of these,
after the first, international law has usually but a word to say.
Wars, again, have been divided into defensive and offensive.
This distinction is of no very great importance, since, as we
have seen, the two may differ less in essence than in form,
and, as it respects form, the one runs into the other. A wronged
nation, or one fearing sudden wrong, may be the first to attack,
and that is perhaps its best defence. Moreover, offensive wars,
however apt to be unjust, have usually some pretext of justice
to urge in their favor, which nations, except in extreme cases,
must respect, unless every nation is to become a judge and a
party.
114.
Nations have sometimes resorted to measures for obtaining
redress, which have a hostile character, and yet Measures for re-
7 i T7 z * j drc83 fulling 8llort
fall short of actual war. Embargo , retorsion, and of war.
reprisal, are of this description.
1. An embargo (from the Spanish and Portuguese, em-
oargar. to hinder or detain, the root of which is
, , * -. -. . 7 N . . . Embargo.
the same as that 01 oar, barricade), is, m its spe
cial sense, a detention of vessels in a port, whether they be na
tional or foreign, whether for the purpose of employing them
and their crews in a naval expedition, as was formerly prac
tised, or for political purposes, or by way of reprisals. A civil
embargo may be laid for the purpose of national welfare or
safety, as for the protection of commercial vessels against the
rules of belligerent powers which would expose them to cap
ture. Such was the measure adopted by the United States in
December, 1807, which detained in port all vessels except those
which had a public commission, and those that were already
laden or should sail in ballast. The right to adopt such a mea
sure of temporary non-intercourse, is undoubted. Great Britain,
although injured by the act, acknowledged that it afforded to
foreign nations no ground of complaint. And yet, in the half
century since that event, uninterrupted intercourse has come
to be regarded almost as an absolute right, and the injuries in-
192 EIGHTS OF SELF-DEFENCE 114
flicted in such a way on friendly states would cause them to
protest with energy or to retaliate.
A hostile embargo is a kind of reprisals by one nation upon
vessels within its ports belonging to another na-
Hostile embargo. r 3 ,
tion with which a difference exists, for the pur
pose of forcing it to do justice. If this measure should be fol
lowed by war, the vessels are regarded as captured, if by peace,
they are* restored. " This species of reprisal," says Kent, (I.
61,) " is laid down in the books as a lawful measure according
to the usage of nations, but it is often reprobated, and cannot
well be distinguished from the practice of seizing property
found in the territory upon the declaration of war." Although
such a measure might bring an adversary to terms, and pre
vent war, yet its resemblance to robbery, occurring, as it does,
in the midst of peace, and its contrariety to the rules according
to which the private property even of enemies is treated, ought
to make it disgraceful, and drive it into disuse.
2. Retorsion (from retorquere, French, retordre, retort), or
retaliation, is to applv the lex talionis to another
Retorsion. . r .-f J . . .
nation, treating it or its subjects in similar cir
cumstances according to the rule which it has set. Thus, if a
nation has failed in comity or politeness, if it has embarrassed
intercourse by new taxes on commerce or the like, the same or
an analogous course may be taken by the aggrieved power to
bring it back to propriety and duty. The sphere of retorsion
ought to be confined within the imperfect rights or moral
claims of an opposite party. Rights ought not to be violated
because another nation has violated them.
3. Reprisals (from reprendere, Latin, repressalice, in medi
aeval Latin, reprisailles. French), consist properly
Reprisals. ? , /
in recovering what is our own by force, then in
seizing an equivalent, or, negatively, in detaining that which
belongs to our adversary. Reprisals, says Yattel, " are used
between nation and nation to do justice to themselves, when
they cannot otherwise obtain it. If a nation has taken posses
sion of what belongs to another ; if it refuses to pay a debt, to
repair an injury, to make a just satisfaction, the other may
114 AND REDRESS OF INJURIES, ETC. . 193
seize what belongs to it, and apply it to its own advantage, till
it has obtained what is due for interest and damage, or keep it
as a pledge until full satisfaction has been made. In the last
case it is rather a stoppage or a seizure than reprisals ; but they
are frequently confounded in common language." (B. II.
34:2.) Reprisals differ from retorsion in this, that the essence
of the former consists in seizing the property of another nation
by way of security, until it shall have listened to the just re
clamations of the oifended party, while retorsion includes all
kinds of measures which do an injury to another, similar and
equivalent to that which we have experienced from him.* Em
bargo, therefore, is a species of repTisals.
Reprisals may be undertaken on account of any injury, but
are chiefly confined to cases of refusal or even obstinate delay
of justice. Grotius adds that they are authorized, " si in re
minime dubia plane contra jus judicatum sit." (III. 2, 5, 1.)
But this is an unsafe opinion, and to be acted upon only in an
extreme case, for the sentence of a regular tribunal will always
be supported by some plausible, if not valid reason: there
should be the fullest proof of an intention to deny or to over
turn justice.
Where the property of a state is seized by way of reprisals,
the proceeding needs no defence ; on the other hand, to take the
goods of private persons as security for the reparation of public
wrongs is indefensible except on the ground that a state and
its subjects are so far one as to give it a claim on their pr^p-
erty for public purposes, and that the injured- state takes the
place of the injurer, and exercises its power by the only means
within its reach. As therefore, when a man s land is taken for
a public road, he has a claim for compensation, so, when a man
loses his property by the violent process of a foreign state
against his own country, not he, but the whole society ought to
make his loss good. Still reprisals are inhumane, and like
seizure of private effects in land war, will, it is to be hoped,
ere long entirely cease.
* Pinheiro-Ferreira in de Martens, Vol. II. 256.
13
194: RIGHTS OF SELF-DEFENCE 114
The Romans knew nothing of reprisals,* but with great
Greek and Roman formality defined and observed the limits between
peace and war. The Greeks, however, had
usages, similar to this, drawn from their simpler semi-barbar
ous times. Thus, before war was declared, and after the denial
of justice, they gave license to their citizens to take plunder
from the offending state on land and sea. There was also a
custom prevailing between border states, when a homicide had
been committed, and the man-slayer was not given up to the
relatives of the deceased, of allowing them to seize and keep in
chains three countrymen of the wrong-doer, until satisfaction
should be rendered.
The Greeks here present to us two forms of reprisals, the
one where the state ffives authority to all, or in a
Mediaeval and ... _ , . / .
public way attempts to obtain justice by iorce,
which is called general, and the other, where power is given to
the injured party to right himself by his own means, or special
reprisals. The latter has now fallen into disuse, and would be
regarded as an act of hostility, but with the other was a
received method of redress in the middle ages ; nor was it
strange that a private person, by the leave of his superior,
should wage a war of his own, when private wars were a part
of the order of things. Mr. Ward (I. 176), and the English
historians, mention an instance of reprisals between the English
and France in the 13th century, which might seem to pertain
to J:he Dyaks or the Ojibways. In 1292, two sailors, a Norman
and an Englishman, having come to blows at Bayonne, the
latter stabbed the former, and was not brought before the
courts of justice. The Normans applied to Philip the Fair
for redress, who answered by bidding them take their own
revenge. They put to sea, seized the first English ship they
met, and hung up several of the crew at the mast head. The
English retaliated without applying to their government, and
things arose to such a pitch, that 200 Norman vessels scoured
* Osenbriiggen, dejure etc., p. 35. Schomann, Antiq. juris publici, p. 366, and
Lia Griech. Alterthiimer, 2, p. 6. Comp. Bynkershoek, Quaest. J. P. I. 24. The
Greeks said, av\a. SiSovoi, pvaia Ka.Tayyt\\fiv Kara TWOS.
115 AND REDRESS OF INJURIES, ETC. 195
the English seas, hanging all the sailors they caught, while the
English, in greater force, destroyed a large part of the Norman
ships, and 15,000 men. It was now that the governments
interposed, and came at length into a war which stripped the
English of nearly all Aquitaine, until it was restored in 1303.
Every authority in those times, which could make war,
could grant letters of reprisals. But when power
. . ... , . modern usage.
began to be more centralized, the sovereign gave
to magistrates, governors of provinces and courts the right of
issuing them, until at length this right was reserved for the
central government alone. In France, Charles VIII. , at the
instance of the states -general held at Tours, in 1484, first con
fined this power to the king, for, said the estates, " reprisals
ought not to be granted without great deliberation and knowl
edge of the case, nor without the formalities of law in such
matters required." The ordinance of Louis XIY., on the
marine, published in 1681, prescribes the method in which
injured persons, after they had shown the extent of their
damages received from a foreigner, and after the king s ambas
sadors had taken the proper steps at the foreign courts, should
receive letters of reprisals permitting them to make prizes at
sea of property belonging to the subjects of the state which
had denied them justice, and having brought their prizes be
fore the court of admiralty, should, in case everything was law
ful, be reimbursed to the extent of their injuries.
Since the end of the 17th century but few examples have
occurred of reprisals made in time of peace, and a number of
treaties restrict the use of them to the denial or delay of jus
tice,*
115.
War between independent sovereignties is, and ought to be,
an avowed open way of obtaining justice. For commencement
i %, 1 . of war. Declara-
every state has a right to know what its relations tion.
are towards those with whom it has been on terms of amity,
whether the amity continues or is at an end. It is necessary,
* Ortolan, I. 391-401.
196 RIGHTS OF SELF-DEFENCE 115
therefore, that some act show in a way not to be mistaken that
a new state of things, a state of war, has begun.
The civilized nations of antiquity generally began war by
Greek and Roman a declaration of their purpose so to do. Among
the Greeks, a herald, whose person was sacred
and inviolate, carried the news of such hostile intent to the
enemy, or accompanied an ambassador to whom this business
was committed. Only in rare cases, when men s passions were
up, was war a/cypv/cTos, i. e., such, that no communications by
heralds passed between the enemies. Among the Romans,
the ceremonies of making known the state of war, were very
punctilious. This province belonged to the Fetiales, a college
of twenty men, originally patricians, whose first duty was to
demand justice, res repetere, literally, to demand back property,
an expression derived from the times when the plunder of cattle
or other property, was the commonest offence committed by a
neighboring state. Three or four of the college, one of their
number being pater patratus for the time, and so the prolo
cutor, passed the bounds of the offending state, and in a
solemn formula, several times repeated, demanded back what
was due to the Roman people. On failure to obtain justice,
there was a delay of three and thirty days, when the pater
patratus again made a solemn protestation that justice was
withheld. Then the king consulted the senate, and if war was
decreed, the pater patratus again visited the hostile border,
with a bloody lance, which he threw into the territory, while
he formally declared the existence of the war. This custom,
which seems to have been an international usage of the states
of middle and southern Italy, continued into the earlier times
of the republic ; but w r hen the theatre of war became more
distant, the fetialis, consul, or prsetor, contented himself with
hurling his lance from a pillar near the temple of Bellona in
the direction of the hostile territory, while the declaration of
war itself was made by the military commander of the province
through an ambassador. It was thus always a principle with
the Romans, as Cicero (de offic. I. 11) has it, " nullum helium
esse justum, nisi quod aut rebus repetitis geratur, aut denuntia-
115 AND REDRESS OF INJURIES, ETC. 197
turn ante sit et indicium." But the form satisfied them, and
they cared little for the spirit.*
So also in the middle ages, war could not be honorably
begun without a declaration ; but the spirit which MedijBval prac .
dictated this, seems to have been, as Mr. "Ward tice *
remarks, rather a knightly abhorrence of every thing underhand
ed and treacherous, than a desire to prevent the effusion of
blood by giving the enemy time to repair his fault. Even in
the private warfare which characterized that age, as much as
in the duel, a challenge or formal notice to the enemy was
necessary. The declaration of war was made by heralds or
other messengers : that of Charles Y. of France against Edward
HI., was carried to that king by a common servant, the letter
containing it bearing the seals of France. Such formal chal
lenges were sanctioned by law. Thus the public peace of the
Emperor Barbarossa, in 1187, contains the clause that an in
jured party might prosecute his own rights by force, provided
he gave to his adversary three days notice that he intended to
make good his claims in open war. And the Golden Bull of
the Emperor Charles IY. in 1356, forbids invasions of the ter
ritory of others on pretext of a challenge unless the same had
been given for three natural days to an adversary in person,
or publicly made known before witnesses at his usual place of
residence ; and this, on pain of infamy, just as if no challenge-
had been offered. f
The modern practice ran for some time in the same direc
tion, but since the middle of the eighteenth
century formal declarations have not been exten
sively made, and are falling into disuse. Instances of the
same may be gathered from still earlier times. Thus no decla
ration preceded the expedition of the grand Armada in 1588,
before which indeed a state of hostilities existed in fact,
and the war between England and Holland, in 1664, began
with an act of the English Council, authorizing general repri-
* For the Greeks, see Schomann, u. s. For the Romans, Osenbruggen, pp. 27-
34, Bekker-Marquardt, Rom. Alterthiim. IV. 380-388.
f Ward, II. 123, seq.
198 RIGHTS OF SELF-DEFENCE 116
sals, which became a full-blown war without any declaration.
Thus also the war of Orleans, so called, was begun by Louis
XIV. in 1688, before he issued his manifests ; in the war of the
succession the battle of Dettingen had been fought before the
French declared war against Great Britain and Austria ; and
in the seven years war hostilities began on this continent be
tween England and France two years before the parties to this
important war made their declarations.*
This disuse of declarations does not grow out of an inten-
Reasons for the ^ OIi *o * a ^ e the enemy at unawares, which would
modem usage. imply a n extreme degradation of moral principle,
but out of the publicity and circulation of intelligence peculiar
to modern times. States have now resident ambassadors
within each other s bounds, who are accurately informed in
regard to the probabilities of war, and can forewarn their
countrymen. "War is for the most part the end of a long
thread of negotiations, and can be generally foreseen. Inten
tions, also, can be judged of from the preparations which are
on foot, and nations have a right to demand of one another
what is the meaning of unusual armaments. It is, also, tolera
bly certain that nations, if they intend to act insidiously, will
not expose their own subjects in every quarter of the globe to
the embarrassments of a sudden and unexpected war. And
yet the modern practice has its evils, so that one cannot help
wishing back the more honorable usage of feudal times.
This rule, be it observed, of declaring war beforehand,
so long as it was thought obligatory, only bound the assailant.
The invaded or defensive state accepted the state of war as a
fact, without the formalities of a declaration.
116.
But if a declaration of war is no longer necessary, a state
which enters into war is still bound (1.) to indi-
What notice of a . .i i . i
state of war ought c&iQ in some way, to the party with whom it has
tobegiven? ^ , ,. J 1 x-
a difficulty, its altered feelings and relations.
This is done by sending away its ambassador, by a state of
* Comp. Bynkersh. Quaest. J. P. I. 2, and among modern systematists Phillimore
III. 75-102.
117 AND REDRESS OF INJURIES, ETC. 199
non-intercourse, and the like. (2.) It is necessary and usual
that its own people should have information of the new state
of things, otherwise their persons and property may be exposed
to peril. (3.) Neutrals have a right to know that a state of
war exists, and that, early enough to adjust their commercial
transactions to the altered state of things, otherwise a great
wrong may be done them. Such notice is given in manifestos.
" These pieces," says Yattel, "never fail to contain the justifi
cative reasons, good or bad, for proceeding to the extremity
of taking up arms. The least scrupulous sovereign would be
thought just, equitable, and a lover of peace ; he is, sensible
that a contrary reputation might be detrimental to him. The
manifesto implying a declaration of war y or the declaration
itself, which is published all over the state, contains also the
general orders to his subjects relative to their conduct in the
war." *
m.
The old strict theory in regard to a state of war was, that
each and every subject of the one belligerent is at Effi>cts of a gtau
war with each and every subject of the other, ofwar -
Now as it was also a received rule that the persons- and goods
of my enemy belong to me if I can seize them T there was no
end to the amount of suffering which might be inflicted on the
innocent inhabitants of a country w T ithin the regular operations
of war. It is needless to say that no Christian state acts on
such a theory, nor did the Greeks and Romans generally carry
it out in practice to its extreme rigor. In particular there is
now a wide line drawn between combatants- and non-combat-
unts, the latter of whom, by modern practice.,, are on land ex
empted from the ; injuries and molestations of war, as far as is
consistent with the use of such a method of obtaining justice.
It follows from the notion of war, as an interruption oi
peaceful intercourse, that all commerce between Non .jnt er couree
the subjects of the belligerents is unlawful, unless vilh the enemy *
expressly licensed, or necessary for the war itself. Hence all
partnerships with an enemy s subjects, and all power of prose-
* Vattel, B. III. 4, 64.
200 RIGHTS OF SELF-DEFENCE 118
cuting claims through the courts of the enemy are suspended
during the war ; and all commercial transactions with the sub
jects or in the territory of the enemy of whatever kind, except
ransom contracts ( 142), whether direct, or indirect, as through
an agent or partner who is a neutral, become illegal and void.
In the case where the business is conducted by a neutral part
ner, his share in the concern alone is protected, while that of
the belligerent s subject is, if seized, liable in his own country
to confiscation. (Comp. 168.)
It is not unusual, however, for a belligerent to grant to its
License to trade own subjects a license to carry* on a certain speci-
with the enemy. fi e d .trade with the enemy, which, if the other
party allows it, becomes a safe and legitimate traffic. It is
common, also, for the subjects of one belligerent to obtain such
a license from the other ; but, of course, this of itself will not
protect them against the laws of their own country. (Comp.
118.
From the strict theory of hostile relations laid down above,
it would follow, (1.) that an enemv s subjects
Enemy s subjects ,.-, *, -,
and enemy s prop- within the country could be treated as prisoners
erly within a bel- <L " < ;
iigerent 8 country, of war. But such rigor is unknown, unless in
measures of retarlation. The most severe treatment of the for
eigner allowed by modern usage is to require him to leave the
country within a certain time.* (2.) That enemies property
within the country at the breaking out of a war was liable to
confiscation. This principle would apply also to debts due to
them at that time. And it would be a further application of
it, if shares in the public stocks, held by a foreign government,
were confiscated. "With regard to the two former cases, the
Supreme Court of the United States has decided, in accordance
with the body of earlier and later text-writers, that by strict
* Bonaparte in 1803, upon the rupture with England after the peace of Amiens,
ordered the arrest of all Englishmen in France between sixteen and sixty years of
age, that they might serve as hostages for such Frenchmen as might be captured on
board of French vessels after the breach of peace and in ignorance of it. The
Batavian republic was bidden to issue the same order. (Garden, VIII. 151).
118 AND REDRESS OF INJURIES, ETC. 201
right such property is confiscable, but they add, that such a
measure requires the sanction of the national legislature, which,
it is to be hoped, will never consent to disgrace the country by
an act of that kind.* For the usage is now general, if not fixed,
with the single exception of measures of retorsion, to allow the
subjects of the enemy to remain within the territory during
good behavior, in the enjoyment of their property, or to give
them, by public proclamation, reasonable time to remove with
their effects from the country. The English and French in the
late Crimean war allowed Russian vessels six weeks time to
leave their ports and reach their destination. In many cases
treaties have given additional security to the goods, claims and
persons of enemies subjects so situated. The treaty of 1795,
between the United States and Great Britain, commonly called
Jay ftroni its negotiator, declared it to be unjust and impolitic
to confiscate debts due to the subjects of a nation that has be
come hostile.f It was also stipulated in this instrument, that
the citizens of either power might remain unmolested during
war, in the dominions of the other, so long as they should be
have peaceably, and commit no offence against the laws ; and
that, if either government desired their removal, twelve
months notice should be given them to this effect. Of treaties
containing similar provisions, " a list lies before me," says Mr
Manning, " too long for insertion, but even the Barbary pow
ers have in a great number of instances concluded such agree
ments." :f
"With regard to the shares held by a government or its sub
jects in the public funds of another, all modern authorities
agree, we believe, that they ought to be safe and inviolate.
* Comp. Kent, I. Lect. 3, p. 59, seq.
f In Article X. it is provided, that " neither debts due from individuals of one
nation to individuals of the other, nor shares nor money which they may have in the
public funds or in the public or private banks, shall ever, in any event of war or
national difference, be sequestered or confiscated ; it being unjust and impolitic that
debts and engagements, contracted and made by individuals, having confidence in
each other and in their respective governments, should ever be destroyed by national
authority on account of national differences and discontents."
t Comment, p. 126.
202 EIGHTS OF SELF-DEFENCE 118
To confiscate either principal or interest would be a breach of
good faith, would injure the credit of a nation and of its public
securities, and would provoke retaliation on the property of its
private citizens. " The Emperor Napoleon I. during his stay
at Posen, imagining that the cabinet of London had the inten
tion of confiscating stock in the public debt belonging to
Frenchmen, ordered his minister of finance to examine whether,
in case they should so act, it would not be necessary to have
recourse to the same rigor. The matter is a very delicate one,
said he ; I am not willing to set the example, but if the English
do so, I ought to make reprisals. M. Mollien replied that
such an act was so contrary to English policy, that he could
not believe it, that he washed the cabinet of London would
commit such a mistake, but that its results would be the more
disastrous for them, if it were not imitated. On this ocfcsion
he sent to the Emperor the memoir of Hamilton,* the friend,
counsellor, and minister of Washington, on the question
whether the political, more even than the moral rule, did not
forbid every government, not only to confiscate capital which
had been lent to it by the subjects of a power with which it
was at war, but even to suspend, as far as they were concerned,
the payment of interest. Napoleon did not insist further on
the matter." f
"We close this subject with referring to some of the opinions
which text writers have expressed on the several points consid
ered. As for immovable property in an enemy s country
Bynkershoek says, that in strict justice it can be sold and con
fiscated, " ut in mobilibus obtinet," but he a dds that it is a
general usage throughout Europe for the rents to go to the
public treasury during war, but for the property itself after the
war to revert " ex pactis " to the former owner. (Qusest. Jur.
Publ. I. 7.) As for other property, except debts, all jurists
hold the same doctrine of its liability to confiscation. (Comp.
* Probably the letters of Camillus. See the note at the end of this section.
f From a biography of Count Mollien, contributed by Michel Chevalier to the
Revue des deux mondes, hi the year 1856, cited by Verge on de Martens, 258, ed.
of 1858.
118 AND REDRESS OF INJURIES, ETC. 203
Manning, p. 127.) As for debts, even Grotius decided that
" hsec non belli jure qusesita sed bello tantum exigi vetita."
But Bynkershoek (u. s.), wliile be mentions tbat tbe rigbt to
confiscate them had been questioned, adds, " sed videtur esse
jus commune ut et actiones publicentur, ex eadem nempe
ratione qua corporalia quselibet. Actiones utique sive credita
non minus, jure gentium, sunt in dominio nostro quam alia
bona ; eccur igitur in his jus belli sequamur, in aliis non sequa-
mur." There must, however, be actual confiscation. " If
the sovereign," Bynkershoek goes on to say, " has exacted
debts due to enemies from his subjects, they are duly paid, but
if not, at peace the creditor s former right revives, because
occupation in war consists rather in fact than in jural power.
Debts, therefore, if not confiscated, in time of war suffer a
temporary suspension, but upon peace return by a sort of post-
liminy to their old owner." Accordingly, he adds, that trea
ties often provide for the non-payment to the creditor of con
fiscated debts. Vattel takes the same ground as to debts, but
adds that all the sovereigns of Europe have departed from this
rigor, and, as the usage has altered, he who should act contrary
to it, would injure the public faith. (B. III. 5, 77.) Mr.
Manning says that " debts due from individuals to the enemy
may be confiscated by the rigorous application of the rights of
war but the exercise of this right has been discontinued in
modern warfare ; and it may be regarded as established, that
though debts cannot be claimed by an enemy during war, yet
that the right to claim payment revives on the "return of
peace." (pp. 129, 130.) Dr. Wheaton says that for nearly a
century and a half previous to the French revolution no in
stance of confiscation of debts had occurred, w r ith the simple
exception of the Silesian loan in 1753. And he sums up his
view of international law on this point in the words, that prop
erty of the enemy found within the territory of the belligerent
state, or debts due to his subjects by the government or indivi
duals, at the commencement of hostilities, are not liable to be
seized and confiscated as a prize of war. This rule, he adds,
is frequently enforced by treaty-stipulations, but unless it be
204: EIGHTS OF SELF-DEFENCE 119
tlms enforced, it cannot be considered as an inflexible, though
an established rule. (El. IY. I. 345-347.)
Finally, as to public debts due to individual subjects of the
enemy, I will cite but the single authority of Mr. Manning :
" One description of property is invariably respected during
war, namely the sums due from the state to the enemy, such
as the property which the latter may possess in the public
funds. This is justly regarded as entrusted to the faith of the
nation ; and during the most bitter animosity of our wars with
France no attempt has been made on either side to confiscate
such property, which cannot be touched without a violation
of public faith."*
119.
If each and all on the one side were enemies to each and
Have aii in each a ^ on ^ ne ther, it would seem that every person
right le to cairy on na( i a r ^g n tj so ^ ar as the municipal code did not
forbid, to fall upon his enemy wherever he could
find him, that, for instance, an invading army had a right to
* In the letters of Camillus, written by Alexander Hamilton just after Jay s
treaty in 1795, this subject is considered at length, particularly in letters 18-20.
(Works, vol. VII.) In letter 19, he examines the right to confiscate or sequestrate
private debts or property on the ground of reason and principle. He admits at the
outset the proposition that every individual of the nation with whom we are at war
is our enemy, and his property liable to capture. To this there is one admitted
exception respecting enemy s property in a neutral state, but this is owing to the
right of the neutral nation alone. Reason, he maintains, " suggests another excep
tion. Whenever a government grants permission to foreigners to acquire property
within its territories, or to bring and deposit it there, it tacitly promises protection
and security." " The property of a foreigner placed in another country, by permis
sion of its laws, may justly be regarded as a deposit of which the society is a trustee.
How can it be reconciled with the idea of a trust, to take the property from its owner
when he has personally given no cause for the deprivation ? " Goods of enemies
found elsewhere differ from those which are in our country, since in the latter case
there is a reliance on our hospitality and justice. And the same argument which
would confiscate the goods would seize the persons of enemies subjects. The case
of property in the public funds is still stron er than that of private debts.
The result which Hamilton reaches is sound, but if we admit the principle that
every individual belonging to the belligerent nation is an enemy, and every enemy s
property liable to capture, we must deny the validity of exceptions, unless treaty or
usage has established them. The foreigner brought his property here, it can at once
be said, knowing the risk he might run hi the event of a war. Why should he not
120 AND REDRESS OF INJURIES, ETC. 205
seize on all the property and persons within reach, and dispose
of them at discretion. But no such unlimited enmity is now
known in the usages of nations. It is to be hoped that the
theory from which such consequences flow will be abandoned
and disappear altogether. The true theory seems to be that
the private persons on each side are not fully in hostile rela
tions but in a state of non-intercourse, in a state wherein the
rights of intercourse, only secured by treaty and not derived
from natural right, are suspended or have ceased ; while the
political bodies to which they belong are at war with one
another, and they only. Of course until these political bodies
allow hostile acts to be performed, such acts, save in self-
defence, may not be performed ; and accordingly the usages
of war visit with severity those who fight without a sanction
from their governments. The plunder which such persons
seize belongs not to themselves but to the public, until public
authority gives them a share in it.
120.
There has long been a difference between the treatment of
enemies property including in this term the
property of individual subjects of the hostile state miea property on
r , J , J ... land and eea.
on land and on the sea, or more generally be
tween such as falls within the power of invading armies, and
such on the sea and along the coast, as falls within the power
of armed vessels. The former, as we shall see when we come
anon to consider the laws and usages of warfare, is to a certain
extent protected. The latter, owing to the jealous feelings of
commercial rivalship, hardened into a system by admiralty
courts, has been extensively regarded as lawful prey. We
must, however, admit that there is some pretence of reason for
this difference of practice upon the two elements.
incur the risk ? He should incur it, say the older practice, and the older authorities.
He should not, says the modern practice, although international law in its rigor in
volves him in it. He should not, according to the true principle of justice, because
Ms relation to the state at war is not the same with the relation of his sovereign or
government : because, in short, he is not in the full sense an enemy.
206 RIGHTS OF SELF-DEFENCE 121
an enemy s intercourse with other states by sea more directly
increases his capacity to sustain and protract the war. And
secondly, there is a difference on the score of humanity between
land and maritime capture. On the land, interference with
private property, by stripping families of their all, is often the
source of the deepest misery. It also embitters feeling, and
drives non-combatants into guerilla warfare or into the regular
service. Invasion always arouses a national spirit ; but inva
sion with plunder rather defeats the end of war than promotes
it, until a nation is bowed down to the dust. And at that
point of time it disables the conquered from giving the com
pensation for which the war was set on foot. But capture on
the sea is effected for the most part without much fighting ; it
rather deprives the foe of his comforts and means of exchang
ing his superfluities than destroys the necessaries of life ; and
it afflicts more directly the classes which have some influence
upon the government, as well as the resources of the govern
ment itself, than the day-laborer and the cultivator of the soil,
who have special claims to be humanely treated.
121.
On the land, in addition to standing armies, a militia and
Forces employed volunteers, often commanded by regular officers,
on Til? 2u !0 pX nave been employed in carrying on war, especial
ly in national defence. As the different military
corps are frequently united in their operations, and no great
harm can be done by the less disciplined, if under proper of
ficers, to employ a militia or volunteers can furnish no just
ground for complaint. On the sea the practice of commercial
states has long been to make use not only of public but also of
private-armed vessels for the purpose of doing injury to the
enemy. This usage in Europe runs back to the time when
permanent public navies scarcely existed ; for during a consid
erable part of the middle ages, the European states having
small fleets or none at all, impressed or hired merchant vessels
for the uses of war. Private persons also engaged in naval
warfare on their own account, employing their own vessels
121 AND REDRESS OF INJURIES, ETC. 207
either at the public expense called I&uyssers, cruizers by the
Dutch ; or at their own expense Kapers, Vrybuyters^ cap
tors, free-plunderers, or hiring a public vessel with a crew
and outfit of their own ; of which last description an expedition
undertaken in the reign of Louis XIY. against the Portuguese
at Rio-Janeiro, to get satisfaction for an insult on a French
ambassador, was an example.*
A private-armed vessel or privateer is a vessel owned and
officered by private persons, but acting under a commission
from the state, usually called letters of marque.f It answers
to a company on land raised and commanded by private
persons, but acting under rules from the supreme authority,
rather than to one raised and acting without license, which
would resemble a privateer without commission. The com
mission, on both elements, alone gives a right to the thing
captured, and insures good treatment from the enemy. A
private vessel levying war without such license, although not
engaged in a piratical act, would fare hardly in the enemy s
hands.
The right to employ this kind of extraordinary naval force
is unquestioned, nor is it at all against the usage of nations in
times past to grant commissions even to grivateers owned by
aliens. The advantages of employing privateers are (1.) that
seamen thrown out of work by war can thus gain a livelihood
and be of use to their country. (2.) A nation which maintains
no great navy is thus enabled to call into activity a temporary
force, on brief notice, and at small cost. Thus an inferior
state, with a large commercial marine, can approach on the
sea nearer to an equality with a larger rival, having a power
ful fleet at its disposal. And as aggressions are likely to come
from large powers, privateering may be a means, and perhaps
the only effectual means, of obtaining justice to which a small
commercial state can resort.
* Bynkersh. Quaest. J. P. I. 18 ; Ortolan, II. 52. Martens : les Arraateurs, Chap. I.
f From the signification, border, the marches, it is said. Letters of license to go
across the boundary and make reprisals.
208 RIGHTS OF SELF-DEFENCE 122
122.
On the other hand, the system of privateering is attended
Evils of privateer- witn V61 7 g 1 * 68 * evils * (!) Tne ^Otive IS plun-
der. It is nearly impossible that the feeling of
honor and regard for professional reputation should act upon
the privateersman s mind. And when his occupation on the
sea is ended, he returns with something of the spirit of a rob
ber to infest society. (2.) The control over such crews is slight,
while they need great control. They are made up of bold,
lawless men, and are where no superior authority can watch
or direct them. The responsibility at the best can only be
remote. The officers will not be apt to be men of the same
training with the commanders of public ships, and cannot
govern their crews as easily as the masters of commercial
vessels can govern theirs. (3.) The evils are heightened when
privateers are employed in the execution of belligerent rights
against neutrals, where a high degree of character and forbear
ance in the commanding officer is of especial importance.
Hence many have felt it to be desirable that privateering
should be placed under the ban of international
Testimony to the r ~ . _
evils of privateer- law, and the leeling is on the increase, in our age
of humanity, that the system ought to come to an
end. "We cite as expressing this feeling only writers belonging
to our own country. Dr. Franklin, in several passages of his
correspondence, makes decided protests against it, as well as
against the spirit of plunder in which it originates. " The
practice of robbing merchants on the high seas, a remnant of
the ancient piracy, though it may be accidentally beneficial to
particular persons, is far from being profitable to all engaged
in it, or to the nation that authorizes it." " There are three
employments which I wish the law of nations would protect,
so that they should never be molested nor interrupted by ene
mies even in times of war ; I mean farmers, fishermen, and
^merchants." In some observations on war, he pursues this
subject of the evils of privateering, at great length, and ends
thus : " There is then the national loss of all the labor of so
many men during the time they have been employed in rob-
122 AND REDRESS OF INJURIES, ETC. 209
bing, who, besides, spend what they get in drunkenness and
debauchery, lose their habits of industry, are rarely fit for any
sober business after a peace, and serve only to increase the,
number of highwaymen and housebreakers." *
Privateering, says Chancellor Kent, " under all the restric
tions which have been adopted, is very liable to abuse. The
object is not fame or chivalric warfare, but plunder and profit.
The discipline of the crews is not apt to be of the highest
order, and privateers are often guilty of enormous excesses,
and become the scourges of neutral commerce. Under the
best regulations the business tends strongly to blunt the sense
of private right, and to nourish a lawless and fierce spirit of
rapacity." f
Dr. Wheaton says, that " this practice has been justly ar
raigned, as liable to gross abuses, as tending to encourage a
spirit of lawless depredation, and as being in glaring contra
diction to the more mitigated modes of warfare practised by
land." $
Dr. Franklin expressed his feelings in regard to privateer
ing, in fhe treaty of 1785, between the United
. n T i i i i T ,1 Endeavors to stop
btates and Jrrussia, wmcn lie drew up. In tins privateering by
treaty it was provided that neither of the contract
ing parties should grant or issue any commission to any private
armed vessels, against the other, empowering them to take or
destroy its trading vessels, or to interrupt commerce. On the
expiration of the treaty in 1799, this article was not renewed.
Another article of the same temporary treaty deserves mention,
which engages that all merchant vessels of either party, em
ployed in regular commerce, shall be unmolested by the other.
But before this treaty with Prussia, an unfulfilled agreement
had been made between Sweden and the United Provinces, as
early as 1675, to terminate this practice. Eussia, in 1767 and
the following years, abstained from giving commissions of this
nature, but made use of them again in 1770. In 1792, the
French legislative assembly agreed to suppress privateering,
* Franklin s Works, edited by Sparks, IX. 41, 467.
f Kent, I. 97, Lect. 5. J El. IV. 2, 10.
14
210 RIGHTS OF SELF-DEFENCE 122
but the revolution soon made this a dead letter.* After the
French revolution, although privateering continued to receive
the sanction of the nations, some few voices were lifted up
against it, and even aga.inst all capture of merchant vessels
pursuing a lawful trade. Thus the reviewer of a pamphlet,
entitled " War in Disguisu " (Edinburgh Eev., No. 15, p. 14),
says : " We cannot help thinking that the practice of maritime
capture is inconsistent with the generous and enlightened
notions of public hostility which were brought to maturity in
the last century, and that it is a stain upon that lenient and
refined system of policy, by which the history of modern Eu
rope is distinguished from that of the rest of the world."
The most important step towards the entire abolition of
Treaty of Paris in privateering has been very recently taken. The
powers which concluded the treaty of 1856, at
Paris, united in a declaration, by the first article of which
"privateering is and remains abolished." (Comp. 175.)
Other states were invited to adopt the principles of this decla
ration, but it was agreed that they must be accepted as a whole
or not at all.
The United States, among other states, were invited to
Attitude of the become a party to this declaration. The secre-
United States. tarv of ^^ Mr ^arcy, J n a l etter o f J^y 2 8,
1856, addressed to M. de Sartiges, minister of France at Wash
ington, declined the proposal, although it secured what this
country had so long been washing for, the greater freedom of
neutral vessels. The reluctance to adopt the principles of the
declaration, was owing to a cause already suggested, that the
relinquishment of privateering would be a gain to nations,
which keep on foot a large naval force, but not to the United
States, where a powerful navy is not maintained, on account
of its great cost, and its danger to civil liberty. On the break
ing out of a war, therefore, with a nation powerful at sea, the
United States must rely, to a considerable extent, on merchant
vessels converted into vessels of war. The secretary, however,
declares that our government will readily agree to an arrange-
* Kent, I. 98 ; Ortolan, II. 54.
123 AND REDRESS OF INJURIES, ETC.
ment, by which the private property of the subjects or citizens
of a belligerent power shall be exempted from seizure by public
armed vessels of the enemy, except it be contraband of war,
and that " with this we will consent to the placing of privateer-
.ing tinder the ban of the law of nations." It will be the policy
of our government, hereafter, it may be presumed, in all
treaties, to couple the abolition of privateering with the entire
immunity of merchant ships engaged in a lawful trade.*
(Comp. 175.)
123.
The restrictions on privateering are of three kinds.
1. The laws of some states narrow the range
,, , , . . . , i j. a/i j.* Restrictions on
of their operations, and regulate the composition privateering to
,, . , . mi .p -i j i prevent its evils.
of their crews. They are forbidden to cruise in
the rivers or within the sea-line of a hostile state, and the ma
jority of a crew is required to consist of natives, f But these
rules have not passed into international law, or general usage.
* The annotator on de Martens, ed. of 1858, M. Verge, in speaking of this prop
osition of our government, expresses himself as follows : " In the usages of war on
laud, the soldiers of belligerent powers have no right, and can, in the way of fact,
exercise no control over the private property of the subjects of the hostile power.
Why should not the same principles be applicable to maritime war ? The additional
proposition of the cabinet of Washington, is evidently logical. Vainly has it <been
contended (in the Journal des Debats of October 22, 1856) that the claim of the
United States, that land and sea warfare should fee put on the same footing, is not
admissible, nor just, nor good even, since the calamities of war afford this advan
tage, that in acting on the population of countries, they render war shorter a/nd
more unfrequent. It seems in all cases difficult to maintain the proposition that the
pillage of private property by privateers is just, rational, and legitimate. One can
not admit that private property, which is free even in the enemy s land itself, on the
soil invaded by an army victorious, and invested with the right of conquest, can be
justly taken and plundered on the sea, on that element free by its nature, which is
neither friendly nor hostile territory. Let us hope that the initiative so gloriously
adopted by the congress of Paris, will be fruitful for the future, and that diplomacy
will one day reach the point of rendering commerce free for belligerents as for neu
trals, that private goods and citizens, who are strangers to the profession of arms,
will be freed from the disasters of war, and that private property will remain out
side of contests exclusively concentrated in armies acting in the name and under
the direction of the public power." II. 289. Comp. the recent resolutions of the
chamber of commerce, of Hamburg and Bremen, under 139.
f Comp. Ortolan, II. 57-59 ; Heffter, 137.
212 RIGHTS OF SELF-DEFENCE 124
2. To give it the character of an honest and lawful pursuit,
commissions, as already said, are granted, and bonds are taken
from those who receive the letters of marque. These regula
tions, which vary with the municipal law of each country,
subject the owners and officers of privateers to heavy penalties
in case of transgression.*
It is only the commission which gives an interest in a prize,
since all captures vest originally in the state. This maxim
draws its truth from the right notion of war, as we have en
deavored to set it forth, that war is undertaken by the state,
for the sake of the state, and against another state.
3. Many treaties provide that the subjects of either of the
treaty-making powers, while in a state of peace, shall not take
out letters of marque from a third power at war with the other
party, and that those who violate this provision may be held
by the other party to have committed the crime of piracy.
Such treaties of longer or shorter duration have been made, for
instance, by the United States, with France, Sweden, Prussia,
Great Britain, Spain, Central America, and Colombia. In the
absence of such treaties, a neutral may with impunity accept a
military commission from a belligerent, for sea or land service.
But municipal law often forbids the citizen or subject to take
this step. (Comp. 162, 165.)
SECTION II. Laws and Usages of War, especially on Land.
124.
The subject of prize, or the rules of captured property, f
The laws and us- especially on the sea, we shall consider by itself
in another section. At present we pass on to the
* For the rules of responsibility of owners, commanders, and sureties, Comp.
Kent, I. 98, 99, Lect. V. A maritime ordinance of Pedro IV., king of Aragon in
1356, speaks of such security. A sum of money was to be deposited in the hands
t)f certain public officers by the owner of a vessel. Pardessus, Collection, V. 471.
And another rule of 1364, passed by the German Hanse towns, to the same effect, is
cited by de Martens, 289, note c.
f Comp. for this section, the instructions for the government of armies of the
124 AND REDRESS OF INJURIES, ETC. 213
important topic of the laws and usages of war. These rules
are necessarily somewhat vague and fluctuating, are eomewliat
partly because they have less to do with justice vague>
than with humanity, where clear lines of definition are want
ing ; partly because much must be left to the discretion of
commanders with varying dispositions and principles ; partly
because nations sometimes enter with excited passions, some
times with cool calculation, into war, and their spirit will
modify all its movements.
Notwithstanding this vagueness, the rules of war have
grown in humanity and mildness in recent times.
mi i f?^ v yet are improving.
ine principal causes 01 tins amelioration are,
1. .The growth of a feeling of the brotherhood of mankind,
fostered by the spirit of Christianity. Thus, for CaUBes of tbeir
instance, slavery having ceased in nearly all amelloratlon -
Christian countries under the benign sway of the Gospel, how
could the old practice of enslaving captives taken in war fail
to go out of use ?
2. The influence of writers such as Grotius, and the ex
ample of great captains, who under the control of humane feel
ings have followed a better practice.
3. The greatly increased intercourse among Christian
countries, the inhabitants of which are no longer strangers to
one another, and beyond each other s view ; but are connected
by various ties, w^hich soften the asperity of a sense of injury.
4. The marked separation of the soldiery as a distinct class
from the citizens, and an improved feeling among soldiers
themselves, which is due to the substitution of regular for
irregular troops, to the spread of professional honor among
officers, and to the cooler and more scientific way in which
wars are carried on.
5. Add to this that an organized commissariat renders it
.unnecessary for the soldier to procure his daily food by plunder,
while modern systems of finance and credit meet the expenses
of armies abroad. "Paid soldiers only," says Col. Napier,
United States in the field, prepared by Dr. Lieber, revised by a board of officers, and
approved by the President in 1863.
214 RIGHTS OF SELF-DEFENCE 125
" can be kept under discipline ; soldiers without money become
robbers." *
6. The different mode of warfare which the use of gun
powder has introduced. " There is as much difference," says
the same authority, "between the modern and the ancient
soldier, as between the sportsman and the butcher. The an
cient warrior, fighting with the sword and reaping his harvest
of death when the enemy was in flight, became habituated to
the act of slaying. The modern soldier seldom uses his bay
onet, sees not his peculiar victim fall, and exults not over
mangled limbs, as proofs of personal prowess."
125.
The rules which lie at the basis of a humane system of
Fundamental
1.. That peace is the normal state of Christian
nations, to which they are bound to seek to return from the
temporary and exceptional interruptions of war.
2. That redress of injuries and not conquest or plunder is
the lawful motive in war ; and that no rule of morality or
justice can be sacrificed in the mode of warfare.
3. That war is waged between governments by persons
whom they authorize, and is not waged against the passive
inhabitants of a country.
4. That the smallest amount of injury, consistent w^ith the
sad necessity of war, is to be inflicted. And, finally,
5. That the duties implied in the improved usages of war,
so far as they are not of positive obligation, are reciprocal, like
very many rules of intercourse between states, so as not to be
binding on one belligerent, as long as they are violated by the
other. This leads u& to retaliation in war.
126.
That retaliation in war is sometimes admissible all agree :
thus if one belligerent treats prisoners of war
Retaliation. , , -, , n ,-, 1,1 /?
harshly, the other may do the same ; or if one
squeezes the expenses of war out of an invaded territory, the
* Penins. War, III. 377 (Amer. ed. of 1842.)
127 AND REDRESS OF INJURIES, ETC.
other may follow in his steps. It thus becomes a measure of
self-protection, and secures the greatest amount of humanity
from unfeeling military officers. But there is a limit to the
rule. If one general kills in cold blood some hundreds of
prisoners who embarrass his motions, his antagonistmay not be
j ustified in staining himself by similar- crime^, nor may he break
his word or oath because the other had done so before. The
limits of such retaliation it may be hard to lay down. Yet
any act of cruelty to the innocent, any act, especially, by which
non-combatants are made to feel the stress of war, is what
brave men shrink from, although they may feel obliged to
threaten it. (Comp. 114. and the instructions, for the gov
ernment of our armies, 27, 28.)
127.
The use of poisoned weapons, the poisoning of springs, the
employment of hired assassins, have long been P ., rtlcuHr ruleg
condemned, as opposed to the idea of war, which jJaJJJy L ^ap
is an open honorable way of seeking redress.* S^gtJ?^
Such practices characterize savage wurfare. Gere- my 8 P crBOC *-
tius (III. 4, 17) is decided in condemning the practice of
poisoning springs, but thinks that it is right to corrupt water
so that it cannot be used, which is no worse than to turn the
channel of a stream in a direction where the enemy cannot get
at it. He says also ( 18), that whilst hired assassins must
never be used, above all when they violate express or implied
confidence, an enemy may undertake to kill another in a
private and concealed way. This he supports as usual by
testimonies from Greek and Roman writers. Modern times
would use another language. Bynkershoek, in> 1737, falls
below the standard of Grotius, and allows f fraud to any
* For the history of the rules of war, comp. Mr. Ward s Hist., Chapters IX.,
XV., and elsewhere ; also an excellent article in the Oxford essays for 1856, by Mon
tague Bernard, Esq., which has been of great use to the present writer, and from
which the passages appearing as quotations in the next pages are taken. See also
Gen. Halleck s Int. Law and Laws of War, Chap. XVI. This work of the learned
military officer would have been of important service to the author of this book, i
he could have seen it sooner.
216 RIGHTS OF SELF-DEFENCE 127
extent in war. " Ego omnem dolum permitto, sola perfidia
excepta, non quod contra hostem non quodlibet liceat, sed quod,
fide data, quatenus data est, hostis esse desinat," (Qusest. J.
P. I. 1,) opinions which it gives us pain to cite from such a
writer. The Greeks, Eomans, and some other states of anti
quity, professed to abhor these methods of fraud in carrying
on war.* The Emperor Tiberius, when an offer was made
him to put Arminius out of the way by poison, rejected it,
although he committed many worse crimes. " Non fraude,"
Tacitus makes him say, (Annal. II. 88,) " neque occultis, sed
pa] am et armatum pbpulum Eomanum hostes suos ulcisci."
The spirit of chivalry was still more opposed to fraud and
secret stratagem. Enemies often gave notice of an intention
to make an attack at a certain time, and the true knight reject
ed every advantage, save that which his skill and prowess in
knightly warfare afforded him.
The laws of war are loose in regard to the instruments of
2. Allowable wea- death used against an enemy. Formerly chain-
war? J1 n shot and red-hot shot were objected to, but they
do not seem to be now. "Now invention racks itself to pro
duce the biggest gun, the deadliest projectile, the most fright
ful engine of wholesale slaughter, and the shallows of Kertch
and Cronstadt are planted thick with infernal machines. It is
possible to go too fast and too far in this direction." f What
is here quoted from an English essay written a few years since
is more true of sea warfare than of land. As Heffter remarks
( 119), war on that element is the more harsh and destructive.
" Its maxims, owing to a want of the proper equipoise between
naval powers, have been far from reaching the same level of
humanity on which land-warfare stands. It is still half a war
of plunder." As for war in general, Kliiber ( 244) lays it
down that the customs of war (" Kriegsmanier ") condemn not
only poisoned weapons, poisoning of wells and of utensils, at
tempts to spread the plague among the enemy, but also the use
* Comp. Dionys. Hal. antiq. III. 8, ot <5 ex rov <j>av(pov firtdft/rA ri/J.u>, o>s 6
oi TOV iroXf/jiov v6/j.os, a\\ v
f Montague Bernard, u. s., p. 127.
127 AND REDRESS OF INJURIES, ETC. 217
of chain -shot and bar-shot (boulets a frras), shooting bits of iron,
brass, nails, etc. (tirer d la mitraille). The loading of muskets
with two balls, with jagged balls, or with balls mixed with
glass or lime, he also holds, somewhat too broadly, to be for
bidden. Special treaties have prohibited as between the par
ties the use of chain, bar, and hot shot, as well as of pitch-
rings (cercles poisses). An infernal machine invented about
the year 1585, which was a kind of fire ship, was disapproved
of by some, but went out of use because it did not do its work
well.
On the whole, it may be said that weapons whose efficiency
consists simply in inflicting , a bad wound, and instruments of
wholesale slaughter which cannot be foreseen or avoided by
flight, are against the customs of most kinds of warfare ; but
that naval warfare too much, and sieges, of necessity, make use
of summary and wholesale means of death. Naval warfare is
the storming of one floating fortress by another, but its laws
need not be altogether assimilated to the storming of fortified
places on the land.
Hitherto the practice of using barbarians in the wars of
Christian nations with one another, has not been K1nd of troops
absolutely condemned by the law of nations. The em P ] y ed -
French used the American Indians against the English in
America, and the Turcos, a force made up of Algerines, Ka-
byles, and Negroes, in Italy ; the English employed savages
against their revolted colonies, in spite of the rebukes of Lord
Chatham ; and the Russians brought Circassians with them
into Hungary in the war following 1848. But nothing is
clearer than that troops who are accustomed to an inhuman
mode of warfare, and belong to a savage race, cannot be
trusted to wage war according to the spirit of humanity, and
ought not to be employed.
Breach of faith between enemies has always been strongly
condemned, and that vindication of it is worth-
. ,.,.., . , 3. Breach of faith :
less wincn maintains that, without an express or solicitations to
crime.
tacit promise to our enemy, we are not bound to
keep faith with him. But no rule of war forbids a commander
218 RIGHTS OF SELF-DEFENCE 128
to circulate false information, and to use means for deceiving
his enemy with regard to his movements. If he abstains from
them, he must do so by the force of his own Christian con
science. To lead the officers, counsellors, or troops of an en
emy to treachery by bribes, or to seduce his subjects to betray
their country, are temptations to commit a plain crime, which
no hostile relation will justify.* Yet to accept of the services
of a traitor is allowable, f
128.
A combatant is any person directly engaged in carrying on
war, or concerned in the belligerent government, or present
with its armies and assisting them ; although those who are
present for purposes of humanity and religion, as surgeons,
nurses, and chaplains are usually classed among non-combat
ants, unless special reasons require an opposite treatment of
them. The ancient rule was, that a combatant taken in battle
became the property of his captor, who could
4. Treatment of n i ~ry 1 J #
captured persons, kill, enslave, or sell him. Kansom was a kind. 01
esp. of soldiers. 1 . .
sale to those who were most interested m paying
a high price. Among the Greeks the general practice was not
to refuse quarter to a Greek who gave himself up on the field
of battle, and to allow his friends to redeem him, if they
would ; the price for which was more or less fixed between
contending parties. This usage prevailed also among the
Eomans, as well as that of exchanging prisoners, but any de
gree of injury to the enemy was allowed in their jus belli.
Neither law, nor the feelings of humanity, nor aught save con
siderations of prudence, restrained them. After the disaster
in the Caudine Forks, when they gained their next victory
over the Samnites, they slew alike the resisting and the
unresisting, armed and unarmed, slaves and free, boys and
adults, men and cattle, nor would any living thing have been left
alive, unless the consul had given the signal for withdrawing.
* A qualification is here necessary, that when a nation has been conquered and is
under a usurper s sway, and in similar cases, it cannot be wrong for those who are
engaged in a war of liberation to lead the people to revolt.
f Vattel, III. 10, 180, 181.
128 AND REDRESS OF INJURIES, ETC. 219
(Livy, IX. 14.) By the rules of both nations leading officers
of the hostile army, after being taken, might be put to the
sword. Such was the case with the Athenian generals taken
at Syracuse, (Thucyd. YII. 86,) against the will, however, it
should be added, of the Spartan general Gylippus, and many
an illustrious warrior, taken captive by the Romans, had his
death delayed, only to endure the humiliation of being led in
triumph. Similar cruelty was universal in ancient times, as
among the Jews, where David s campaigns dealt death in
frightful forms upon surrounding nations ; and yet, a century
and a half after David, a prophet, to the king of Israel s inquiry,
" Shall I smite them ? " could* answer, " Wouldst thou smite
those whom thou hast taken captive with thy sword and thy
bow ? " showing that a more humane mode of warfare was
then in vogue.
War put on all its horrors in the invasions of the empire
by the Germans. Then came the times of feudalism and
knighthood, when many mitigations of the barbarian practice
grew up. Captives, in wars between Christians, were ran
somed and sometimes released on parole to raise the money
necessary for this purpose. But the common soldier did not
receive much benefit from the relaxation of the old severities.
During the wars just before the reformation, especially those
of the French invasions of Italy, the cruelties of war seemed
to revive, and the religious animosities of the century and a
half afterwards did not extinguish them. In the thirty years
war Gustavus Adolphus made a convention with the Imperial
ists to give and receive quarter : only the Croats on one side,
and the Pomeranians on the other, were excepted from this act
of humanity. In the wars of England between the king and
the parliament no quarter was allowed to the Irish, who served
in the royal army, and when Prince Eupert retaliated, he was
told that there was a great difference between an Irishman and
an Englishman. In these wars the exchange of prisoners,
practised just before in the wars of Germany, became systema
tic. Cartels fixing the rate of ransom for prisoners exchanged
are said to have been of somewhat later date. For the two
RIGHTS OF SELF-DEFENCE 129
centuries past, cruelty to prisoners and non-resisting soldiers
has been exceptional. The present practice is to spare the
lives of those who yield themselves up, to exchange them with
captives taken by the other party, or to give them up on pay
ment of a ransom, and meanwhile " to supply them with the
necessary comforts at the expense of the state to which they
belong." It were well if such comforts were to be found in a
state of captivity, but the prison-hulks of some civilized nations,
and the general neglect of the prisoners, seem almost calcu
lated to make them unserviceable when exchanged. Officers
and others, whose word can be relied on, are often set free, on
their parole not to serve during the war or until ransomed.
Persons escaping from captivity, and retaken, or even recap
tured in war, are not held to merit punishment, for they only
obeyed their love of liberty ; but the breach of parole justly
subjects such persons to heavy punishment. (Heffter, 129.)
Deserters, if captured, acquire no rights from joining the
other belligerent, and may be put to death. The property
belonging to combatants, or taken on the field of battle, has
been considered to be lawful plunder, and usually goes to the
victorious officers and troops (such of it as is not stolen), as a
reward of successful bravery.
The treatment which the milder modern usage prescribes
5. Treatment of ^ or regular soldiers is extended also to militia
irregular soldiers. called OTlt by p^lic authority. Guerilla parties,
however, do not enjoy the full benefit of the laws of war.
They are apt to fare worse than either regular troops or an
unarmed peasantry. The reasons for this are, that they are
annoying and insidious, that they put on and off with ease the
character of a soldier, and that they are prone, themselves, to
treat their enemies who fall into their hands with great
severity.
129.
It is in regard to non-combatants and their property that
e. Non-combat- the mildness of modern warfare appears in most
ants and their ... -a. A! - e
property. striking contrast with the severity of ancient.
The old rule was to regard every human being pertaining to
129 AND REDRESS OF INJURIES, ETC. 221
the enemy s country as a foe, to lay waste territory, kill or
take captive those who could serve in the enemy s armies, en
slave women and children, and carry off all the property of
value which could be transported. "Wars to a .considerable
extent were ravaging forays into a hostile country, and the
more harm was done, the sooner, it was thought, redress could
be procured. War thus, especially at Eome, fed ^snges of the an-
the public treasury, supplied the market with cients -
slaves, and laid the foundation of the wealth of noble families.
The mango or slave-dealer accompanied the armies, and for
warded the captives, purchased by him at wholesale, to the
city market. If a territory was conquered, the former inhabi
tants were stripped often of a part of their lands, and we find
one third confiscated by the Romans on a number of occasions ;
or they were removed in mass, as was common in the East,
into another country. When the Germans conquered the em
pire, the horrors of war for the inhabitants were not as great
as those which the Romans in their best days inflicted on the
conquered, for the provinces yielded with slight struggles, and
the possessors of the soil were generally allowed to retain a
part, from one to two thirds, of their lands.
In the middle age the treatment which Christians received
from Christians during invasions was somewhat of thc middle
better, although between them and Mohammedans age-
the law of the sword prevailed. Still, although women, chil
dren, and ecclesiastical persons were mercifully used, every able-
bodied peasant was accounted an enemy ; armies were quartered
on an invaded district ; and pillage, as well as devastation, was
the rule. In 1346, the English, under Edward III., marched
through Normandy, burning and ravaging ; but though they
collected a vast booty, the army at Crecy was very soon after
wards in severe want. Nearly seventy years after this, when
Henry Y. invaded France, a truer policy prevailed, the army
was accompanied by stores, only bread and wine were exacted
from the peasants, even when offering resistance ; and orders
to the troops forbade injuries to property and insults to women.
At the end of this century the invasions of Italy by the French
222 RIGHTS OF SELF-DEFENCE 129
under Charles VIII. and Louis XII. were characterized by a
return to greater barbarity. The invaders lived on the re
sources of the country, and the spirit of plunder was insatiable.
The same spirit was seen in that terrible scourge of Ger-
of the thirty many, the thirty years war. Count Mansfeld s
years war. maxim was that war should support itself, while
Christian of Halberstadt, of the Protestant party, like Mans-
feld, was no better than a robber and incendiary. On the
side of the Imperialists, Wallenstein did not curb the rapacity
of his troops, who plundered on every hand for food, and
Tilly s armies were worse governed. ISTor did the French
under Guebriant behave much better. But how could armies
be kept from plunder and brutality, which, being unpaid,
lived by requisitions, made food and winter-quarters the object
of their campaigns, and were a collumes of all nations, without
good officers or a sense of professional honor. Gustavus
Adolphus paid and disciplined his troops, but the generals of
the Swedes after his death allowed greater license to their
forces : thus Baner, after the victory of Wistock, laid Saxony
and Bohemia waste.
In the earlier wars of Louis XIV. the treatment of non-
of the time of combatants and their property was no better, in
some respects was even worse. Turenne laid
waste large tracts of country to deprive the enemy of the
means of subsistence. The crimes of the armies under Catinat,
Feuquieres and Melas, the terrible ravages of the Palatinate,
were sanctioned by orders from Paris. But in the war of the
succession Marlborough and Villars introduced something like
humanity into the conduct of their armies. By an understand
ing between the commanders, each belligerent levied contribu
tions on the district occupied by his troops, which were not to
exceed a certain amount, determined by commissioners of the
two hostile parties. If the local authorities thought that too
large a sum had been demanded, " they sent in complaints to
the head-quarters of the friendly army, which were attended
to immediately." Villars declares his satisfaction at having
fed an army of two hundred battalions, and of more than three
129 AND REDRESS OF INJURIES, ETC. 223
hundred squadrons of cavalry for three months on a space near
the Rhine of a hundred square leagues without forcing a peas
ant to quit his dwelling.
ic The Prussians and Austrians in the time of Frederick the
Great contented themselves with levying contri- Of Frederick the
butions where they moved, and speaking gener- Great -
ally, the habit of depending for subsistence on magazines, and
on the cumbrous provision-trains which followed armies on
their march, is noted by Jomini as a characteristic of the
eighteenth century." In the war of our revolution the British
government declared it to be right in war (1.) to demand pro
visions, and raise contributions, which may be en-
P T -.1 i /^ \ And f the En
forced, if necessary, by the sword ; (2.) to ravage Hsh in the Amen-
a territory where you have no other way of bring
ing an enemy to an engagement or to terms ; (3.) to treat reb
els as enemies. The right to ravage has not been asserted or
acted upon since, unless in a few cases, which were pretended
to be extreme. In the last war between Great Britain and our
country, nothing was taken from private persons without being
paid for, and the same may be said, we believe, of our war with
Mexico.
The wars of Napoleon were marked by the enormous re
quisitions which were levied upon invaded coun-
. -, . f- , , Of Napoleon.
tries, producing amounts nearly large enough to
save the necessity of increased taxes upon France itself. The
rule with Bonaparte was to make the war pay for the war.
Thus, after the battle of Jena, in 1806, the requisition upon
humbled Prussia was more than a hundred millions of francs :
half that sum was imposed on the province of Yalencia, after
Suchet s conquest of it in 1812, and the conquering army was
to have a donative of two hundred millions besides, to be col
lected chiefly from the same quarter of Spain.
During his Peninsular wars, Wellington was among friends,
where all codes require private property to be respected,
until he entered France in 1813, and there policy, if nothing
else, demanded the observance of the same rule. But he seems
to have regarded requisitions as iniquitous, and when the min-
224 RIGHTS OF SELF-DEFENCE 130
istry at home proposed that he should adopt them, he opposed
the system, as needing terror and the "bayonet to carry it out,
as one for which the British soldier was unfit, and as likely
to injure those who resorted to it.* The right to levy contri
butions was again enforced by the Prussians in the war of 1848
with Denmark, but it slumbered, we believe, in the recent war
of the allies against Russia.
130.
To sum up all that has been said on this topic, we may lay
down the following rules of war :
Summing up. . ...
1. Jrrivate persons, remaining quiet, and tak
ing no part in the conflict, are to be unmolested, but if the
people of an invaded district take an active part in a war, they
forfeit their claim to protection. This marked line of separa
tion between the soldier and the non-soldier, is of extreme im
portance for the interests of humanity.
2. The property, movable as well as immovable, of private
persons in an invaded country, is to remain uninjured. But
if the wants of the hostile army require, it may be taken by
authorized persons at a fair value ; but marauding must be
checked by discipline and penalties.
3. Contributions or requisitions are still permissible, on the
plea, first, that they are a compensation for pillage, or an
equitable repartition of what would accrue from this source,
which, if pillage is wrong, is no plea at all ; and again, that
they are needed for defraying the expenses of governing a con
quered province, which is a valid plea when conquest has been
effected, but not before ; and thirdly, on the plea that in a just
war it is right to make the " enemy s country contribute to the
support of the army, and towards defraying all the charges of
the war." f But if the true principle is that war is a public
contest, waged between the powers or authorities of two coun
tries, the passive individual ought not to suffer more than the
necessities of war require. Yattel adds, " that a general who
would not sully his reputation, is to moderate his contributions.
* Napier, u. s., IV. 21. f Yattel, III. 9, 165.
130 AND REDRESS OF INJURIES, ETC. 225
An excess in this point is not without the reproach of cruelty
and inhumanity." But many generals will go to the extreme
of what they think can be exacted, without regard to their re
putation ; and cruelty and inhumanity are as unavoidable in
such transactions, as they would be if sheriffs and their men
were to levy on goods by force of arms, and pay themselves out
of the things seized. Moreover, requisitions are demoralizing,
and defeat their own ends. They foster the lust of conquest,
they arouse the avarice of officers, they leave a sting in the
memories of oppressed nations ; who, when iniquity is full,
league together to destroy the great plunderers of mankind.
The only true and humane principle is that already laid down,
that war is waged by state against state, by soldier against sol
dier.* The state resists an effort to obtain justice ; the soldier
obstructs the way of the armed officer of justice, and must be
resisted.
* We cannot forbear inserting, as bearing on this point, an opinion of Portalis,
in his speech at the installation of the council of prizes, which we borrow from Heff-
ter, 119. "The right of war is founded on this, that a people, in the interests of
self-conservation, or for the sake of self-defense, will, can, or ought to use force
against another people. It is the relation of things, and not of persons, which con
stitutes war ; it is the relation of state to state, and not of individual to individual.
Between two or more belligerent nations, the private persons of which these nations
consist, are enemies only by accident ; they are not such as men, they are not even
as citizens, they are such solely as soldiers."
To the same effect are Talleyrand s words in a despatch to Napoleon, of Nov. 20,
1806. "Three centuries of civilization have given to Europe a law of nations, for
which, according to the expression of an illustrious writer, human nature cannot be
sufficiently grateful. This law is founded on the principle, that nations ought to do
to one another in peace, the most good, and in war, the least evil possible.
" According to the maxim that war is not a relation between a man and another,
but between state and state, in which private persons are only accidental enemies,
not such as men, nor even as members or subjects of the state, but simply as its
defenders, the law of nations does not allow that the rights of war, and of conquest
thence derived, should be applied to peaceable, unarmed citizens, to private dwellings
and properties, to the merchandize of commerce, to the magazines which contain it,
to the vehicles which transport it, to unarmed ships which convey it on streams and
seas ; in one word, to the person and the goods of private individuals.
" This law of war, born of civilization, has favored its progress. It is to this that
Europe must ascribe the maintenance and increase of her prosperity, even in the
midst of the frequent wars which have divided her."
15
226 RIGHTS OF SELF-DEFENCE 131
4. Extraordinary cases, as retaliation ( 126), and perhaps,
in fighting with barbarians or semi-barbarians, who acknowl
edge no rules of war, the necessity of reading them a severe
lesson (comp. 136), will justify a departure from these prin
ciples. But pillage and devastation are seldom politic, even
when they are supposed to be just.
131.
The older practice made little distinction between public
7 Public prop- an d private property, little between public prop
erty of different kinds. That which had the least
relation to military affairs, as libraries, works of art, public
buildings for peaceful purposes, might be plundered or de
stroyed. For nearly two centuries the Palatine manuscripts,
which were taken from Heidelberg in the thirty years war
remained at Rome, and Napoleon transported pictures to the
Louvre from every quarter where his arms penetrated.
The treasures of the Palatine library, or rather a part of
them, were restored after the peace in 1815. When the allies
entered Paris after the battle of Waterloo, they recovered the
works of art which the French emperor had robbed them of.
At the same time a requisition was made on Paris of a hundred
millions of francs, which was afterwards greatly reduced in
amount. Great complaint has been made against these meas
ures by Frenchmen of all political shades ; against the latter
as extortionate and oppressive, and the other, as a shameful
abuse of victory. But the requisition was not beyond the
means of the capital, nor unauthorized by the practice of the
French themselves, and the recovery of the works of art was
an act of simple justice, not precluded by previous treaty.
The rule is now pretty well established, that while all mili
tary stores and buildings are lawful plunder, and while every
edifice in the way of military movements, whether, indeed,
public or private, may be destroyed, whatever does not con
tribute to the uses of war, ought to remain intact. It was a
blot to the British character, when they burned the capitol at
Washington, and the excuse for it, on the ground of retaliation,
I
g 132 AND REDRESS OF INJURIES, ETC. 227
although insufficient, showed the necessity for an excuse to the
civilized world. Even military hospitals are spared, if not mis
used for a hostile purpose.
132.
Among the ancients, the license of war in successful sieges
and storms was unlimited. The butchery of the
TVI i -ii-i ill / 8. Sieges and
Platseans, the intended but revoked cruelty 01 storms of forts
T %* i i an< * towns.
the Athenian people towards Mitylene, their
treatment of the Melians, the sack of Thebes by Alexander,
and many similar events, show, that on such occasions, rapine,
wholesale slaughter, and enslavement, whether of garrisoning
troops, or of citizens, were dependent on the conqueror s will.
So, too, the sack of Syracuse, although captured without a
storm, that of Carthage, that of Corinth, and of other towns by
the Romans, repeated the same scenes. The sieges of Europe,
down to modern times, were terminated in a manner not less
disgraceful to the general and the soldier. Thus Rome suffer
ed as much when taken by the generals of the Emperor Charles
V., as in any siege it ever sustained. " When Henry II. of
France, entered the Low Countries, every city which did not
surrender before he opened fire, was given up to destruction,
the garrison hung, the inhabitants put to the sword." The
fate of Magdeburg, in the thirty years war (in 1631), is per
haps the most dreadful act in the gloomy drama, and naturally
provoked the retaliation of the Protestants, when Wurtzburg
was captured. If Cromwell put the garrisons of Tredah and
Wexford to the sword, after the storming of those cities, it was
a cruel policy, but was less than the practice of war at that
time permitted.
More modern usage in sieges and storms, though in some
respects very harsh, shows an advance in humanity. There
is a distinction to be made bet ween forts and fortified towns.
Any means of assailing a fort may be used which are likely to
be successful, but many generals abstain from bombarding a
garrisoned town, and resort to storming in order to save the
inhabitants ; or if the nature of the place, or anything else,
228 RIGHTS OF SELF-DEFENCE 132
*
renders bombardment necessary, they give notice to the inhab
itants, that they may retire to a place of safety. It was a pro
ceeding worthy only of barbarians, when Suchet drove the
people of Lerida, in Catalonia, into the citadel, then threw
shells among the unprotected multitude, and compelled the
governor to capitulate by such an appeal to his humanity. For
merly, it was regarded somewhat in the light of a crime, if a
commander of a fortress held out as long as he could, and in
stances may be adduced where such officers were put to death
for their obstinacy. Now, in ordinary cases, surrendering at
discretion only reduces the soldiers to the state of prisoners of
war. A commander who should blow up the works of his for
tress, and break through a blockading army, would, according
to the opinion of some, be doing an act contrary to the laws
of war; but this does not appear to be true, although the
blockader might be justified in refusing quarter to those, or at
least to those officers who should seek thus to deprive them of
the fruit of their toils.*
When a fortified town has been stormed, the prevailing usage
of modern, as of ancient warfare, is, to let the soldiers have full
license. The frightful scenes at the storms of Ciudad Eodrigo,
Badajos, and St. Sebastian, under so humane a general as "Wel
lington, show that it is thought impossible at such times to
curb the ferocity of soldiers. Wellington himself was of this
opinion ; but says Napier,f " let the plunder of a town after
an assault be expressly made criminal by the laws of war, with
a due punishment attached ; let a select, permanent body of
men, receiving higher pay, form a part of the army, and be
charged to follow storming columns, with power to inflict"
even death, if necessary ; let money, in proportion to the im
portance and delay of the services, be paid to the successful
troops, and, "with such regulations, the storming of towns
would not produce more military disorders than the gaining of
battles in the field."
* Comp. Napier, u. s., IV. 252. f Id. IV. 216.
134 AND REDRESS OF INJURIES, ETC. 229
133.
The liability of private property to capture on the sea, we
have already considered, and the regulations of Laws of war on
capture we shall reserve for a separate section. It the sea-
has, moreover, already appeared, that the usages of naval war
fare are more like those relating to attacks on forts, than like
those which control ordinary land operations ; and that even
submarine instruments of death, exceptionable as they are, are
not yet discarded. A word remains to be said in regard to the
treatment of sea ports and coasts by vessels of the enemy. For
a long time it was lawful to descend upon coasts, bombard
towns, levy contributions, and burn places which refused to
pay them.* Even in 1813, the British -admiral, Cochrane, had
orders to destroy property on the American coast, but the in
jury done to Newark, in Canada, by our forces, was given as
the reason. More recent operations have shown a milder spirit.
Odessa was not attacked in the late war with Russia, as being
merely a commercial port. On the whole, there are signs that
ravages by forces on both elements and requisitions on the
ground of exemptions from them are growing obsolete.
134. . K
Communications between enemies in war have long been
carried on by heralds, persons bearing flap s of
, J . & Commercia belli.
truce, cartels for the exchange of prisoners and
other purposes, etc. A belligerent may decline to receive a
flag of truce, or to hold any intercourse with the enemy, or
may even fire upon those who persist in attempting to open
such intercourse after being warned off, but the bitterness of
war rarely reaches this point.
Contracts lawful during war, as safeguards and passports,
licenses to trade, armistices, ransom contracts, contracts to pay
* The German word brandschatz, literally denoting an estimate of the burning,
or an equivalent to the burning of a dwelling or town, and applicable to the opera
tions of both military and naval war, contains in itself the history of whole ages of
barbarity.
230 RIGHTS OF SELF-DEFENCE 135
requisitions and the like, will be considered elsewhere, as far
as may be necessary. (Comp. 146, 147, 142.)
135.
A general rule of war allows the punishment of death to be
inflicted upon spies who are found in disguise
within the lines of an army. The case of Major
Andre, painful as it was, was strictly within military usage.
But military spies in their regimentals, when taken, are treated
as ordinary prisoners of war.
SECTION III. Of Civil Wars, Wars with Savages, Piracy and
the Slave-trade.
136.
We have thus far contemplated wars between sovereign
states ; but there may also be intestine or internal wars ; wars
with hordes of savages, or with nations not governed by our
international code ; and wars with pirates.
By internal war we intend movements more serious and
lasting than sedition, waged by portions of the
Internal wars. & . J J .
people oi a country against one another, includ
ing in the term country the complex body of a nation and its col
onies or other dependencies. In some cases the connexion wih
dependencies may be so remote that the war may almost be
called a foreign one. A civil war is one in which the opposing
parties are distributed over the territory ; while a war in which
they are localized may be called a rebellion, insurrection or re
volt. A civil war again does not aim at the destruction of
unity, but rather at some change of government, constitution or
laws, while the other may aim at sundering parts before united.
With internal wars international law comes into contact so
far as the laws of war, that is, of humanity and natural justice,
are concerned, and also in the bearings of the war upon the in
terests and rights of foreign states a point to be considered in
136 AND REDRESS OF INJURIES, ETC. 231
the sequel. (166 .) In every state there are laws against
resistance to the authority of the government, defining sedition,
treason, and the like, and punishing in person or property or
both. When an internal war breaks out, the government must
determine whether the municipal or the international code, in
whole or in part, shall be adopted. In general the relation of
the parties ought to be nearly those of ordinary war,, which hu
manity demands, and will le, because otherwise the law of re
taliation will be applied. Municipal law may be enforced with
less evil in the way of pecuniary than of personal penalties ;
fines or confiscations may be efficacious in strengthening the
government and deterring from rebellion. If slaves, as among
us, form a part of the property of the rebels, since slavery is lo
cal and the law of nations knows of no such thing ( TO, 138),
the advancing military power of the government may set them
free and use or protect them ; and indeed, if force overthrows
the local laws on which slavery rests, they become free of course.
The same rules of war are required in sueh a war as in any
other the same ways of fighting, the same treatment of pris
oners, of combatants, of non-combatants, and of private prop
erty by the army where it passes : so also natural justice de
mands the same veracity and faithfulness which are binding
in the intercourse of all moral beings.
Nations thus treating rebels by no means concede thereby
that they form a state, or that they are de facto such. There
is a difference between belligerents aad belligerent states,
which has been too much overlooked.
"When a war ends to the disadvantage of the insurgents,
municipal law may clench the nail which war has driven, may
hang, after legal process, instead of shooting, and confiscate the
whole instead of plundering a part. But a wise and civilized
nation will exercise only so much of this legal vengeance,, as
the interests of lasting order imperiously demand.
Again, as savage tribes are not governed by the justice
which is acknowledged in Christian lands, inter- Wars witk 6aT .
national law is here likewise inapplicable. But ages<
here one of the parties being a subjec^ of a code which he
232 RIGHTS OF SELF-DEFENCE 137
believes to be founded in justice, it would be flagitious for him
to depart from the essential principles which he observes to
wards other Christian states. Thus w T hile summary punish
ment for robbery and treachery may be expedient, the Chris- v
tian state is bound by its own character and practice, in war
ring with savages, to exercise good faith and humanity, to treat
prisoners well, to respect treaties and truces, and to regard the
civil rights of the savage communities. For though too de
graded to understand what their obligations are, they can be
raised far above their present level by humane examples ; while
civilized men, falling down in their dealings with savages to
their level, only increase their spirit of suspicion and revenge,
and sink them to lower depths of ferocity.
Here let it be added, that the civilized and half-civilized
Dealings with civ- nations of the world, which have not owned our
do ze no n t a own^? la ^ of nations, deserve a peculiar consideration.
The object in their case ought to be not only to
act justly and kindly towards them, but also to lead them to
adopt our international law. Why should they not, if it is
based on the true principles of human nature, presupposes a
universal morality, and is thus fitted to be the law of mankind ?
In all probability a short time will be needed to bring Persia,
Siam, China, or Japan, under this law, compared with that dur
ing which. Christian states have been making and breaking it.
137.
"With piracy, however, the law of nations has to do, as it
pirates and tueir * s a cr i me n <>t against any particular state, but
treatment. against all states and the established order of the
world. Piracy is robbery on the sea, or by descent from the
sea upon the coast, committed by persons not holding a com
mission from, or at the time pertaining to, any established
state. It is the act (1.) of persons who form an organization
for the purposes of plunder, but who, inasmuch as such a body
is not constituted for political purposes, cannot be said to be a
body politic ; (2.) of persons who, having in defiance of law
seized possession of a, chartered vessel, use it for the purpose
137 AND REDRESS OF INJURIES, ETC. 233
of robbery ; (3.) of persons taking a commission from two bel
ligerent adversaries. The reason for ranking these latter
among pirates is, that the animus furandi is shown by acting
under two repugnant authorities. It has been held by some
that a vessel which takes commissions even from two allies, is
guilty of piracy,* but others, as "Wheaton (El. II. 2, 15), and
Phillimore (I. -394), regard such an act only as illegal and
irregular.
On the other hand it is not held to be piracy, if a privateer
or other armed vessel, exceeding its commission, prey on com
merce admitted by its sovereign to be friendly. Offences of
this kind entitle the injured party to compensation, but the
jurisdiction belongs to the vessel s sovereign, who is responsi
ble for the conduct of his officer.
Piracy being a crime against nations, may be brought be
fore any court, no matter what the nationality of the plaintiff
or the origin of the pirate may be. It is a natural although
not a necessary consequence of this principle, that an acquittal
by any court in Christendom is an effectual bar against another
trial for the same offence.
As pirates acquire no title to what they take, on recapture
it reverts to the proprietor without application of the rule of
postliminy. (Comp. 143.)
The punishment of piracy depends on the muncipal law of
the state where the offence is tried : the established penalty is
death.
The law of each state may enlarge the definition of the
crime of piracy, but must confine the operation of the new de
finition to its own citizens and to foreigners on its own vessels.
So by treaty two states may agree to regard as piracy a parti
cular crime which is not classed under international piracy.
The effect of such a treaty is to give to both states jurisdiction
for this crime over the citizens or subjects of both, but its
operation has no bearing on other nations.
In the time of Bynkershoek it was made a question whether
\
* This is taught by Hautefeuille (I. 190 ed. 2) after Masse, de Martens (sur lea
armateurs, Chap. 2. 14) and Valin.
234: RIGHTS OF SELF-DEFENCE 188
the Barbary powers were pirates, as earlier writers on the law
of nations had pronounced them to be. He decides that they
form states, and may be "justi hostes" in war; and that in
fact Europe had acknowledged this by making treaties with
them. No one now will question this, especially as in the
course of time these states, those of them which still exist,
have in a measure laid aside their piratical habits.*
138.
In the progress of humane and Christian principles, and
is the slave-trade ^ correct views of human rights, slavery has
come to be regarded as an unjust and cruel degra
dation of man made in the image of God. It is, accordingly, a
status unprotected by the law of nations, and supported where
it exists, only by local law. ( 70.) Hence persons seized to be
sold as slaves in a territory where the importation of slaves is
forbidden, commit no crime when they get possession of the
vessel, and either slay the crew, or compel them to sail for
another country. They are only defending their lawful rights.
Thus, when certain blacks who had lately been imported into
Cuba from Africa, and were therefore illegally held in bond
age, and were by right free according to Spanish law, rose on
the crew between Havana and Puerto Principe, killed the
captain, and finally came into the waters of the United States,
it was held by the Supreme Court that if they had been slaves,
our treaties with Spain would have required their restoration,
but that they were not slaves, and if not slaves, not pirates, f
With new views of men s rights, and with fuller knowledge
of the woes inflicted on Africa by the slave-trade, this traffic,
which misguided benevolence at first suggested, became abhor-
* For piracy in general, comp. especially Bynkersh. Quaest. J. P. I. 17, entitled
de Piratica, et an Barbari in Africa sint piratae. Comp. also Kent, Lect. IX., and
Wildman, II. 150. The principal passages of the Roman lawyers respecting restora
tion of things taken by pirates without postliminy, are one from Ulpian (Dig. 49,
Tit. 15, 24), u qui a latronibus captus est, servus latronum non est ; nee postliminium
illi necessarium est," and one from Paulus (u. s. 19, 2), "a piratis aut latronibus
capti liberi permanent."
f United States v. The Amistad, 15 Peters, 518-598.
138 AND REDRESS OF INJURIES, ETC. 235
rent to the feelings of Christendom, and has everywhere
become unlawful. Denmark, we believe, led the way, in 1792,
by prohibiting the slave-trade, and importation into her
colonies of slaves from abroad after the year 1802. Under the
constitution of the United States, the importation of slaves
could not become illegal before 1808, but acts passed in 1794
and 1800, forbade all citizens and residents to carry slaves
from this country to a foreign one, or from one foreign country
to another. In 1807 the importation of slaves was made to
cease after January 1, 1808, and in 1818 a law was passed in
creasing the penalties of the trade, and applying to all participa
tion of citizens of the United States in it. In 1819 the vessels
and effects of citizens found to have been engaged in the trade
were made liable to seizure and confiscation. And by the act
of March 3, 1820, all persons over whom our jurisdiction ex
tends, that is, all persons in vessels owned within the United
States, and all citizens on foreign vessels, concerned in the
slave-trade, or in kidnapping negroes or mulattoes, were to be
deemed pirates and to suffer death.
In Great Britain, the first act declaring the slave-trade un
lawful was passed in 1807, but not until 1824 was it pronoun
ced to be piracy. Nearly all the nations of Europe have sub
sequently passed laws more or less stringent against the traffic.
Its abolition was conceded by Spain in her treaty with Great
Britain, in September, 1817. Portugal agreed to prohibit it
north of the equator, l)y treaty with England, of January 22,
1815, and it ought by the same treaty to have come altogether
to an end when the independence of Brazil was acknowledged
in 1825. It ceased to be legal in Brazil by 1830, and in 1831,
a law of that country not only freed all slaves who should be
imported afterwards, but also provided for their reconveyance
to Africa.
In 1824, the House of Representatives in our Congress, by
a very large majority, requested the President to make arrange
ments, by. which the slave-trade should become piracy undei
international law ; but nothing was hereby effected. ( 198.)
Great Britain, both before and after this, in a number of
236 RIGHTS OF SELF-DEFENCE 139
treaties, secured the suppression of the trade, with the mutual
right of search, of which we shall speak hereafter. ( 197.)
In her treaty with Brazil, of March 13, 1827, it was stipulated
that, after three years, -a subject of the Emperor of Brazil,
carrying on the trade, should be deemed and treated as a
pirate. This must mean that whatever may be done under
the laws of nations, for the detection and seizure of pirates,
might be done under the treaty towards Brazilian slave-traders,
as search, capture, and trial before the captor s courts ; but
England forbore to take the steps to which the treaty gave her
a right.*
However much the slave-trade may deserve to be ranked
with piracy, or ranked as a worse crime still, it is not yet such
by the law of nations, and would not be, if all the nations in
Christendom constituted it piracy by their municipal codes.
For the agreement of different states in the definitions and
penalties of crimes, by no means gives to any one of them the
right to execute the laws of another. That power must be
acquired by treaty between separate states, or by consent of
all states, in which latter case it would belong to international
law. 9 Mean while, the fact that the slave-trade has not been
placed in this category, adds greatiy to the difficulty of sup
pressing it, as will appear in the sequel. ( 199.)
SECTION IV. Capture and Recapture, Occupation and
Recovery of Territory.
139.
Capture of private property has nearly disappeared from
land warfare, but is allowed by international war,
Capture in gene- .
rai, especially as well in the case of neutrals as of enemies, at
from enemies. .11
sea. Ihe same humane principles, however,
which have put a stop to it on the one element, are at work to
abridge its sphere on the other. The rule already adopted by
the principal European powers, that free ships engaged in law-
* Wildman, II. 150, seq. For the section in general, Comp. Kent, Lect. IX.
AND REDRESS OF INJURIES, ETC. 237
/
ful trade make free goods, is sure to become universal ; and if
so, the hostile property exposed to the cruisers of the other
belligerent may become so inconsiderable, that the trade of
plundering on the sea will be hardly worth carrying on.
Meanwhile, the only specious pretexts for marine capture are
these two, that the enemy s commerce furnishes him with the
means of war, so that it may justly be obstructed, and that the
captured vessels are pledges for the reparation of injuries.
The former pretext will amount to nothing, if hostile trade can
be conducted in such a way as to exempt it from capture.
The other pretext will require that ships and goods captured
be regarded, until peace settles all questions between nations,
as simply detained to be restored, or have an equivalent paid
for them if necessary. "We must profess, however, that we
indulge that " pious chimsera," as it has been called, that all
private property on the sea, engaged in a lawful trade to per
mitted ports, ought to cross the seas in safety ; we have the
sanction of the authority of Franklin, and of sober propositions
made by -our own government, for regarding such a rule as
both desirable and practicable ; we must esteem it nearer to
justice, and certainly to humanity, than the present inequality
of risk on the two elements ; and it will probably be found,
owing to the new rule in favor of neutrals, that marine capture
will not be worth retaining.*
The fact, meanwhile, is, that on land the property of com
batants, when taken in battle, goes to the victors, and that
soldiers have generally free license of plunder at the storming
of towns. On the sea all private property of the enemy s sub
jects is lawful plunder, unless secured by a special permit.
And on both elements most kinds of public property of the
enemy are exposed to hostile depredations. The right is ex
ercised even .against such vessels as have had no notice of the
commencement of hostilities, and everywhere except in neutral
waters.
* In a meeting of the chambers of commerce of Hamburg and Bremen, resolu
tions have been recently passed to memorialize the congress expected to meet at
Paris, in favor of the exemption of private property on the sea from capture. The
resolution passed at Bremen, Dec. 2, 1859, is as follows: "That the inviolability
238 RIGHTS OF SELF-DEFENCE HO
140.
From the principle that states are the belligerent parties,
it flows, as we have seen, that an authority de-
Property in prizes, .,/.,-, , <?
how and when he- rived from the state is necessary, before a prize
can be taken. It flows, also, from the same prin
ciple, that all private title to prize must be derived from the
laws of the state. When does such a title commence ? Some
have said, at the moment of capture, or of taking possession,
as though the vessel taken were a res nullius ; others, after
twenty-four hours possession ; others, when the prize is carried
infra prcesidia, and is thus secure against recapture ; * and
others, finally, when a court has adjudged it to the captor.
" The question," says Kent, " never arises but between the
original owner and a neutral purchasing from the captor ; and
between the original owner and the recaptor. If a captured
ship escape from the captor, or is retaken, or the owner ran
soms her, his property is thereby revested. But if neither of
these events happens, the question as to change of title is open
to dispute, and many arbitrary lines have been drawn, partly
from policy, to prevent too easy disposition of the property of
neutrals, and partly from equity, to extend \he jus postliminii
in favor of the owner." f Thus there is no settled view or
principle as to the time when a title from capture begins.
Perhaps no definite rule can be laid down any more than in
answering the question when occupation ends in ownership,
which the laws of different states will determine differently.
The state s title begins in the fact of seizure according to the
of person and property in time of war, on the high seas, extended also to the subjects
and citizens of belligerent states, except so far as the operations of war necessarily
restrict the same, is imperatively demanded by the sentiments of justice universally
entertained at the present day." They then request the senate of Bremen to sup
port this principle, and to lay the subject before the German confederation or the
proposed congress.
* Comp. Bynkersh. Quaest. J. P. I. 4. The twenty-four hours rule grew up hi
modern Europe, and is purely arbitrary. The rule that the prize must be carried
infra praesidia was a Roman one; "cujus juris non alia ratio est quam quod tune
omnis rei persequendae et recuperandae spcs decollaverit." Bynkersh. u. s.
f Kent, I. 101, Lect. V.
141 AND REDRESS OF INJURIES, ETC. 239
rights of war that is, " when the battle is over, and the spes
recuperandi is gone." (Phillimore 3, 460.) But the title can be
contested in certain circumstances by neutral governments, as
on the ground that capture was made in their waters; or by
private subjects of neutral governments, as in the various cases
of seizure of neutral goods and ships; or by subjects of the en
emy, as where licenses to trade were not respected by the cap
tor. If, now, a neutral buys the prize immediately after
capture, he buys it subject to the claims of injured parties, and
has his remedy in the captor s courts, provided the latter
conveys that for which he had no good title. If the owner
ransoms her, he extinguishes the captor s title, of whatever
kind it be, good or bad. The laws of the state determine the
steps which the captor, as the state s agent, must ta