See other formats

Full text of "Introduction of the study of international law designed as an aid in teaching, and in historical studies"

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